Chapter 5.05
CABLE FRANCHISES
Sections:
5.05.050 Grant of franchise, renewal.
5.05.060 Administration of cable communications ordinance and franchise.
5.05.070 Intergovernmental agreements.
5.05.080 Violation, penalties and remedies.
5.05.010 Title.
This chapter shall be known as the Josephine County Cable Franchise Ordinance. [Ord. 98-1 § 1.]
5.05.020 Purpose and intent.
The Josephine County Board of Commissioners has determined that it is in the public interest and necessary for the promotion of the safety, convenience and general welfare of the citizens of the County to have an ordinance which authorizes the County to grant nonexclusive franchises and regulate the use of rights-of-way, and identifies the conditions upon which the County will grant a franchise or franchises allowing the construction, maintenance and operation of a cable communications system within public rights-of-way located outside of incorporated cities within the County. [Ord. 98-1 § 2.]
5.05.030 Definitions.
The following are definitions for the purposes of this chapter and for the purpose of any agreement entered into pursuant hereto and for any actions taken as authorized pursuant to this chapter and otherwise:
“Access” means the availability for use by various agencies, institutions, organizations, groups and individuals in the community, including the County and its designees, of the cable communications system to acquire, create, and distribute programming not under the franchisee’s editorial control, including, but not limited to, public, educational and government programming.
“Activated Channels” means those channels engineered at the head end of a cable system for the provision of services generally available to residential subscribers of the cable system, regardless of whether such services actually are provided, including any channel designated for public, educational, or governmental use.
“Cable Channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the Commission by regulation).
“Cable Service” means (1) the one-way transmission to subscribers of (a) video programming, or (b) other programming service, and (2) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service, and (3) information that a cable operator makes available to all subscribers generally.
“Cable System” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves subscribers without using any public right-of-way; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of subchapter II of Title 47 USC, except that such facility shall be considered a cable system (other than for purposes of Section 541(c) Title 47, USC) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (4) an open video system that complies with Section 573 of Title 47 USC; or (5) any facilities of any electric utility used solely for operating its electric utility system.
“Franchise” means an initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to Section 546 of Title 47 USC), issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system.
“Franchisee” means the person, firm or organization to which a franchise is granted to operate a cable communications system pursuant to the authority of this chapter.
“Programming” means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
“Public Rights-of-Way” means the surface of, and the space above and below, any public street, road, alley, highway, dedicated way, local access road or road easement used or intended to be used by the general public for motor vehicles, and any utility easement within the County, to the extent the County has the right to allow the franchisee to use them. [Ord. 98-1 § 3.]
5.05.040 Authority.
The Board of County Commissioners of Josephine County recognizes, declares and establishes the authority to regulate the construction, operation and maintenance of cable communications systems (hereinafter “systems”) for the unincorporated area of the County and to exercise all powers necessary for that purpose, including all of the powers allowed by federal and state law, but not limited to the following:
A. To grant by order nonexclusive franchises for the construction and operation of a system or systems;
B. To impose different franchise requirements based on reasonable classifications;
C. To contract, jointly agree or otherwise provide with other local or regional governments, counties or special districts for the development, operation, and/or regulation of systems, or franchises therefor, notwithstanding the fact that the systems extend beyond the jurisdiction of the County;
D. To purchase, hire, construct, own, maintain, operate or lease a system and to acquire property necessary for any such purpose;
E. To regulate and supervise all facets of a system, including, but not limited to:
1. Consumer service, consumer protection and privacy standards;
2. Disputes among the County, franchisees, and subscribers;
3. The development, management and control of cable channels;
4. Programming, channel capacity and system interconnections, for broad categories of video programming or other services;
5. Rates and review of finances for rate adjustments;
6. Construction timetables, standards, and service extension policies;
7. Modernization and upgrade of technical aspects;
8. Activated and cable channels;
9. Ensuring adherence to federal, state and local regulations;
10. Franchise transfer and transfer of control of ownership;
11. Franchise renewal;
12. Franchise revocation;
13. Enforcement of buy-back, lease-back or option-to-purchase provisions;
14. Receivership and foreclosure procedures;
15. Compliance with County standards for public rights-of-way;
16. Telecommunications utilities which operate a cable communications system; and
17. Public, educational, or governmental access facilities as defined by federal law;
F. To reserve the power to exercise this grant of authority to the fullest extent allowed by law, and in a manner that is consistent with state and federal law; and
G. To the extent the County has authority to regulate direct broadcast satellite systems, it elects to do so and will require the granting of a franchise prior to a person providing such service. [Ord. 98-1 § 4.]
5.05.050 Grant of franchise, renewal.
In the event that the Board finds it in the best interests of the County to consider granting a franchise for a system, the procedures set forth in this chapter shall be followed.
A. By order, the Board shall designate an individual to prepare a request for proposal (hereafter referred to as an “RFP”) containing at least the following:
1. Information and instructions relating to the preparation and filing of bid proposals;
2. Requirements regarding the development, operation and regulation of a system, including, but not limited to, the following:
a. The length, renewal and transfer or assignment of the franchise, including foreclosure and receivership provisions;
b. A description of the franchise territory and the extension of service;
c. Access requirements;
d. The system design;
e. Technical performance standards;
f. Fees, records and reporting;
g. Indemnification, insurance, and liability for damages; and
h. Provision of an option for the County to acquire the system upon revocation or expiration of the franchise.
3. Criteria to be used in evaluating applicant proposals.
B. When a person is operating an existing system without a franchise, the Board, by order, shall designate an individual to be directed to prepare a proposed franchise, containing at least the requirements listed in subsection (A)(2) of this section, for presentation to the operator.
C. The Board, by order, may:
1. Approve the RFP, or proposed franchise, as proposed, or modify or otherwise make amendments thereto as it deems necessary; and
2. Authorize the individual designated in subsection (B) of this section to seek bids for a system pursuant to the RFP, or enter discussions with a current operator on the award of a franchise.
D. The Board may award a franchise only after a public hearing on the proposed franchise, notice of which shall be published in a local newspaper of general circulation in the County at least 10 days prior to the date of the hearing. The potential franchisee shall be notified by mail of the public hearing; provided, however, that no defect in the notice or failure to notify shall invalidate the franchise awarded. The Board may award the franchise, modify the proposed franchise and award, or take no action.
E. No franchise or award thereof shall be deemed final until adoption of an order containing the terms and conditions thereof. The franchisee shall bear the costs of all publications and notices given in connection with the award of the franchise.
F. A request for renewal of a franchise will be considered and processed in conformance with federal law. [Ord. 98-1 § 5.]
5.05.060 Administration of cable communications ordinance and franchise.
The Board shall have the power to carry out any or all of the following functions:
A. Employ the service of a technical consultant, to assist in the analysis of any matter related to any franchise, RFP or proposed franchise under this chapter;
B. Act on applications for franchises;
C. Act on matters which might constitute grounds for revocation or termination of a franchise pursuant to its terms;
D. Resolve disagreements among franchisees and public and private users of the system;
E. Consider requests for rate settings or adjustments;
F. Coordinate and facilitate the use of access channels;
G. Act in intergovernmental matters relating to systems, cooperate with regulators and operators of other systems, and supervise interconnection of systems;
H. Review all franchisee records required by the franchise and, in the Board’s discretion, require the preparation and filing of information additional to that required by the franchise;
I. Conduct evaluations of the system and the franchisee’s compliance with franchise requirements at least every three years;
J. Adopt and amend regulations and procedures necessary to enforce franchises and to clarify terms thereof; and
K. Any other actions the Board deems necessary to carry out the purpose of this chapter. [Ord. 98-1 § 6.]
5.05.070 Intergovernmental agreements.
The Board may enter into intergovernmental agreements as authorized by Oregon law, with any other jurisdiction to provide for the cooperative regulation and control of any aspect of a cable communications system. Such agreements may provide for the delegation of any and all powers of the Board to an entity provided for in intergovernmental agreement, except for the powers to enter into or revoke a franchise agreement. [Ord. 98-1 § 7.]
5.05.080 Violation, penalties and remedies.
A. Violation and Penalties.
1. Any person, firm or corporation, other than the County, whether as principal, agent, employee or otherwise, violating or causing the violation of any provision of this chapter or performing any of the acts or functions itemized under JCC 5.05.030, which defines a cable communications system, without having been awarded a franchise to perform said acts or functions pursuant to the terms of this chapter, shall be deemed to have committed an infraction.
2. Violation by a franchisee of any provision of a franchise granted pursuant to this chapter is an infraction.
3. Each violation occurring on a separate day is considered a separate violation of this chapter.
B. Remedies for Franchise Violations. For violations (infractions) of this franchise agreement, the franchisor has the right to impose certain penalties. Violations will be determined and penalties will be assessed according to the following terms, conditions, and procedures.
1. Penalties. Upon determining that the franchisee (cable company) has violated any provision of this chapter, and following the conditions and procedures outlined in subsections (B)(2) and (B)(3) of this section, the franchisor may assess single or combined penalties from among the following two options:
a. Impose a financial penalty, not to exceed $1,000 per day per violation; and/or
b. Require the cable company to make rebates or payments to customers or classes of customers in amounts and on such basis as the franchisor deems reasonable. In the event a violation continues to occur, the franchisor, pursuant to this section, may revoke the franchise agreement.
2. Rules for Application of Penalties.
a. Monetary fines of $1,000 per violation per day may be levied for violations (infractions), as such violations are defined herein.
b. Service rebates or payments to customers or classes of customers may be made only for violations related to subscriber service. Rebate or payment penalties of $10.00 or less per subscriber will be made to such customers in the form of a credit against their cable service bill.
3. Further Basis for Assessing Penalties. Beyond the rules described in subsection (B)(2) of this section, the following may also be taken into consideration as a basis for assessing penalties:
a. The nature and extent of the violation;
b. Whether the cable company, its parent corporation or any parent corporation subsidiary has a history of similar violations;
c. The remedy deemed appropriate to prevent such violations in the future; and
d. The damages suffered by the public and the costs of remedying the violation.
4. Procedure for Determining and Assessing Penalties. The franchisor will first discuss with cable company representatives any violation which appears to be taking place. If these discussions do not lead to any resolution of the problem, the franchisor will advise the cable company that a violation may have occurred. Such notice will specify the nature of the possible violation and the way in which it transgresses this chapter. The cable company will have 21 days to respond in writing or to correct the potential violation or make a good faith effort to correct it. The burden will be on the cable company to demonstrate to the franchisor:
a. That it is making the effort; and
b. How it is making that effort. If the franchisor determines that the cable company is not making sufficient effort, that those efforts are not correcting the problem, or that an earlier problem of the same nature has recurred, the franchisor may propose the imposition of a penalty.
If the cable company objects to the proposed penalty, it will have 21 days in which to request a hearing before the Hearings Officer appointed by the franchisor to hear contested cases. At any such hearing or appeal, the franchisor shall be represented by Josephine County Legal Counsel, or such other person as the franchisor may appoint. At the hearing, the cable company will be afforded due process rights as if the hearing were a contested case hearing subject to ORS 183.450(1) through (5), including the right to cross-examine witnesses and to require that the proceedings be on the record. In that hearing, the cable company will be allowed to set forth in detail the basis for its objection. The Hearings Officer will consider the matter and decide what penalty, if any, to impose. If the Hearings Officer should decide to impose a penalty, its decision will be accompanied by a written explanation as to why the penalty was imposed. If the cable company does not object to the imposition of a proposed penalty, then the Hearings Officer may impose that penalty as provided in this section. If the cable company does object to an order of the Hearings Officer, the cable company shall state its specific objections in writing, and deposit in the mail those objections to the franchisor, within 14 days of the date the order was mailed. Upon receipt of any such objections, the franchisor shall set the matter to be heard within 60 days of the receipt of objections. Any continuance of that hearing shall be at the sole discretion of the franchisor. The hearing shall be de novo on the record.
Any order or decision of the franchisor which imposes a penalty, approves or disapproves changes in equipment, system design, capital commitments and local origination, operating and staff commitments or rules on a proposed rate increase will be considered a final order for purposes of judicial review or enforcement.
5. Exclusion of Penalties from Rate of Return. Penalties assessed under the provisions of this section will be excluded from any calculation on rate of return.
C. Cumulative Remedies. The rights, remedies and penalties provided in this section are cumulative and not mutually exclusive and are in addition to any other rights, remedies and penalties available to the County under any other ordinance or law.
D. Injunctive Relief. Upon authorization by the Josephine County Board of Commissioners, the County Counsel may commence an action in the Circuit Court or other appropriate court to enjoin the continued violation of any provision of this chapter. [Ord. 98-1 § 8.]
5.05.090 Notice.
Any notice required herein shall be sent by certified mail. Any notice sent to the franchisor shall be addressed to the Josephine County Board of County Commissioners, 500 NW 6th Street, Courthouse Rm 154, Grants Pass, OR 97526. Any notice sent to the franchisee shall be addressed as designated in the franchise agreement, or, if none, to the address given to the Oregon Secretary of State’s Office for purposes of service of process in this state. [Ord. 98-1 § 9.]