Chapter 5.08 CABLE COMMUNICATIONS SYSTEM

“Access channels” means any channel set aside for public use, educational use, or governmental use without a channel usage charge (commonly referred to as “PEG” channels).

“The Act” means the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992 and any subsequent amendments.

“Addressability” means the ability of a franchisee to electronically authorize customer terminals to receive, to change or to cancel any or all specified programming.

“Applicant” means any person or entity that applies for a franchise.

“Basic cable” is the lowest level of service regularly provided to all subscribers that includes the retransmission of local broadcast television signals.

“Cable communications 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 the cable service and other communications services to subscribers.

“Cable services” means (1) the one-way transmission to subscriber of video programming or other programming service, and (2) subscriber integration, if any, which is required for the selection by the subscriber of such video programming or other programming service.

“Channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of carrying any type of transmission that a franchisee is authorized to provide to its subscribers.

“Character generator” means a device used to generate alpha numerical programming to be cablecast on a cable channel.

“City” means the city of Brier, a municipal corporation of the state of Washington.

“Council” means the present governing body of the city or any future board constituting the legislative body of the city.

“Data transmission” means (1) the movement of encoded information by means of electrical or electronic transmission systems; (2) the transmission of data from one point to another over communications channels.

“Dwelling units” means residential living facilities as distinguished from temporary lodging facilities such as hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes within mobile home parks and other multiple-family residential units.

“FCC” means the Federal Communications Commission, a regulatory agency of the United States government.

“Franchise” means the initial authorization, or renewal thereof, issued by the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable communications system for the purpose of offering cable service or other service to subscribers. The franchise provided for in this chapter is separate from and in addition to the business license issued under Chapter 5.04 BMC, which may also be required when applicable.

“Franchise area” means any, every and all of the roads, streets, avenues, alleys, highways and unrestricted utility easements of the city as now laid out, platted, dedicated or improved; and any, every and all roads, streets, avenues, alleys and highways that may hereafter be laid out, platted, dedicated or improved within the present limits of the city and as such limits may be hereafter extended.

“Franchisee” means the person, firm or corporation to whom or to which a franchise, as herein above defined, is granted by the council under this chapter and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in city ordinance.

“Gross revenues” means any and all receipts and revenues received directly or indirectly from all sources related to the operation of the cable communications system in the franchise area other than transactions related to real property receipts by franchisee not including any taxes on services furnished by a franchisee, imposed on any subscriber or used by any governmental unit, agency or instrumentality and collected by a franchisee for such entity provided also that net uncollectible debts are not considered as revenue in this definition. The franchise fee payable by the franchisee to the city on gross annual receipts derived from any new, non-cable television related programming product or other communications services such as interactive, data, telephone transmission or other communication products or services, shall be at the same rate (but no greater than the franchise fee authorized by BMC 5.08.040, Franchise fee, as the fee, tax, assessment or other revenue payable to the city by other providers of the same product or service within the franchisee’s franchise service area. As used in the section, a non-programming product or service shall be considered new if franchisee was not already providing it as of the enactment of its franchise.

“High definition television (HDTV)” means a television system that will provide sharper picture definition than the current U.S. standards, five hundred twenty-five lines per frame.

“Insertion point(s)” means location(s) where institutional programming can be initiated for distribution throughout the secured portion of the subscriber network.

“Installation” means the connection of the system from feeder cable to subscribers’ terminals.

“Institutional networks (I-Nets)” means a cable communications system designated principally for the provision of non-entertainment services to schools and public agencies separate and distinct from the subscriber network, or on secured channels of the subscriber network.

“Interactive services” means services provided to subscribers where the subscriber either (1) both receives information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or (2) transmits signals to any other location for any purpose.

“NCTA” means the National Cable Television Association.

“Operator” means the person, firm or corporation to whom a franchise is granted pursuant to the provisions of this chapter.

“Property of franchisee” means all property owned, installed or used by a franchisee in the conduct of its business in the city under the authority of a franchise granted pursuant to this chapter.

“Proposal” means the response, by an individual or organization, to a request by the city regarding the provision of cable services; or an unsolicited plan submitted by an individual or organization seeking to provide cable services in the city.

“Subscriber” means a person or entity or user of the cable communications system who lawfully receives cable services or other service therefrom with franchisees’s express permission. (Ord. 468 § 2 (Exh. A), 2020; Ord. 78.A § 1, 1995)

5.08.020 Terms of franchise.

A. Authority to Grant Franchise or Licenses for Cable Television. It is unlawful to engage in or commence construction, operation, or maintenance of a cable communications system without a franchise issued under this chapter. The council may, by ordinance, award a non-exclusive franchise to construct, operate and maintain a cable communications system which complies with the terms and conditions of this chapter.

Any franchise granted pursuant to this chapter shall be nonexclusive and shall not preclude the city from granting other or further franchises or permits or preclude the city from using any roads, rights-of-way, streets, or other public properties or affect its jurisdiction over them or any part of them, or limit the full power of the city to make such changes, as the City shall deem necessary, including the dedication, establishment, maintenance, and improvement of all new rights-of-way and thoroughfares and other public properties. However, any such changes shall not materially or substantially impair the rights granted a franchisee pursuant to this chapter. All franchises granted subsequent to the effective date of the Master Cable Ordinance codified in this chapter shall be granted consistent with the terms and conditions of this chapter.

B. Incorporation By Reference. The provisions of this chapter shall be incorporated by reference in any franchise ordinances or licenses approved hereunder. The provisions of any proposal submitted and accepted by the city may be incorporated by reference in the applicable franchise. However, in the event of any conflict between the proposal, this chapter and the franchise, the franchise shall be the prevailing document.

C. Nature and Extent of the Franchise. Any franchise granted hereunder by the city shall authorize a franchisee, subject to the provisions herein contained:

1. To engage in the business of operating and providing cable service and other services and the distribution and sale of such service to subscribers within the city;

2. To erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such amplifiers and appliances, lines, cables, fiber, conductors, vaults, manholes, pedestals, attachments, supporting structures, and other property as may be necessary and appurtenant to the cable communications system; and, in addition, so to use, operate and provide similar facilities, or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other franchisee franchised or permitted to do business in the city. No privilege or exemption shall be granted or conferred upon a franchisee by any franchise except those specifically prescribed therein, and any use of any street shall be consistent with any prior lawful occupancy of the street or any subsequent improvement or installation therein.

D. Term of the Franchise. The city may grant a franchise for a period of time appropriate to the circumstances of the particular grant. (Ord. 78.A § 2, 1995)

5.08.030 Application.

An applicant for a franchise to construct, operate, and maintain a cable communications system within the city shall file an application in a form prescribed by the city. (Ord. 78.A § 3, 1995)

5.08.040 Franchise fee.

A franchisee shall pay to the city quarterly, a sum equal to five percent of gross revenues, as defined in this chapter for the preceding three calendar months. Revenues that are derived as a portion of a national or regional service shall be computed on a per-subscriber basis if such determination cannot be achieved by other means. (Ord. 78.A § 4, 1995)

5.08.050 Franchise issuance.

Prior to the granting of a franchise, the city council shall conduct a public hearing to determine the following:

A. Initial Franchise.

1. That the public will be benefitted by the granting of a franchise to the applicant;

2. That the applicant has requisite financial and technical resources and capabilities to build, operate and maintain a cable television system in the area;

3. That the applicant has no conflicting interests, either financial or commercial, which will be contrary to the interests of the city;

4. That the applicant will comply with all terms and conditions placed upon a franchisee by this chapter;

5. That the applicant is capable of complying with all relevant federal, state, and local regulations pertaining to the construction, operation and maintenance of the facilities and systems incorporated in its application for a franchise;

6. The capacity of public rights-of-way to accommodate the cable system;

7. The present and future use of the public rights-of-way to be used by the cable system;

8. The potential disruption of existing users of the public rights-of-way to be used by the cable system and the resultant inconvenience which may occur to the public; and

9. Any other condition that the city may deem appropriate.

B. Renewal Franchise.

1. Federal Requirements.

a. A franchisee has substantially complied with the material terms of the existing franchise and with applicable law;

b. The quality of a franchisee’s service has been reasonable in light of community needs;

c. A franchisee has the financial, legal, and technical ability to provide the services, facilities and equipment as set forth in a franchisee’s proposal;

d. A franchisee’s proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests. (Ord. 78.A § 5, 1995)

5.08.060 Police power.

In accepting any franchise, a franchisee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the city to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the city pursuant to such power. (Ord. 78.A § 6, 1995)

5.08.070 Rules and regulations by the city.

A. In addition to the inherent powers of the city to regulate and control any franchise it issues, the authority granted to it by the Act, and those powers expressly reserved by the city, or agreed to and provided for in a franchise, the right and power is reserved by the city to promulgate such additional regulations as it may find necessary in the exercise of its lawful police powers.

B. The city council reserves the right to delegate its authority for franchise administration to a designated agent. (Ord. 78.A § 7, 1995)

5.08.080 Technical standards.

A. Subject to federal, state and local law, a franchisee shall comply with FCC rules, Part 76, Subpart K, Sections 76.601 through 76.610 as amended, hereafter, and, at the minimum, the following:

1. Applicable city, county, state and national/federal codes and ordinances;

2. Applicable utility joint attachment practices;

3. The National Electric Safety Code, ANSI C2;

4. City public works policies and standards;

5. Local rights-of-way procedures;

6. Bell System Code of Pole Line Construction.

B. Preventative Maintenance. A comprehensive routine preventive maintenance program shall be developed, effective, and sustained to ensure continued top quality cable communications operating standards in conformance with FCC Regulations, Part 76 or as may be amended. (Ord. 78.A § 8, 1995)

5.08.090 Parental control devices.

In accordance with the Act, a franchisee will make available at the cost specified by the FCC a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by that subscriber. (Ord. 78.A § 9, 1995)

5.08.100 Construction standards.

All facilities constructed under this chapter shall be placed and maintained at such places and positions in or upon such streets, avenues, alleys and public places as shall not interfere with the passage of traffic or pedestrians and the use of adjoining property, and shall conform to the applicable section of the National Electrical Code, codes of the state of Washington, city regulations, and the city public works policies and standards. (Ord. 78.A § 10, 1995)

5.08.110 Construction notification.

Upon application for a construction permit, if determined necessary by the public works director, a franchisee will submit to the city its plan for advance notification for the proposed construction project. In the event that an emergency situation arises which precludes such advance notification, a franchisee shall subsequently inform the city of the nature of the extraordinary event and the action taken. (Ord. 78.A § 11, 1995)

5.08.120 Undergrounding.

In those areas and portions of the city where the transmission or distribution facilities of the public utility providing telephone service and those of the facility providing electric service are underground or hereafter may be placed underground, then a franchisee shall likewise construct, operate and maintain all of its transmission and distribution facilities in the same area underground upon city approval. Such activities shall be made in concurrence and cooperation with the other affected utilities. Amplifiers and associated equipment in a franchisee’s transmission and distribution lines may be in appropriate housing upon the surface of the ground. (Ord. 78.A § 12, 1995)

5.08.130 Relocation.

Whenever, any of a franchisee’s facilities or equipment need to be relocated or altered due to a construction or repair project by the city in a public right-of- way, a franchisee shall move or relocate such facilities or equipment within thirty days from receiving written notice from the city. However, in the event such relocation is required due to emergency repairs deemed necessary by the city, such relocation or moving shall be accomplished within twenty-four hours. Any relocation or alteration of a franchisee’s facilities or equipment required under this section shall be at the sole expense of a franchisee.

If a franchisee fails to do so within the thirty days’ written notice, the city may have the facility moved and charge the costs and expenses of such to the franchisee. Such thirty-day notice shall be waived if any emergency shall arise. For purposes of this section, an emergency is defined as sudden unforeseen event potentially causing significant damage, destruction, or loss of life. (Ord. 78.A § 13, 1995)

5.08.140 Safety requirements.

A. A franchisee, in accordance with applicable national, state and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public.

B. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public rights-of-way or places of a franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair.

C. The city reserves the general right to see that the system of a franchisee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the city, the city will notify the franchisee in writing, and after discussions with a franchisee, establish a reasonable time for a franchisee to make necessary repairs. If the repairs are not made within the established time frame, the city may make the repairs itself or have them made and collect all reasonable costs thereof from a franchisee. (Ord. 78.A § 14, 1995)

5.08.150 Building moving.

Whenever any person shall have obtained permission from the city to use any street for the purpose of moving any building, a franchisee, upon fourteen days’ written notice from the city, shall raise or remove, at the expense of the permittee desiring to move the building, any of a franchisee’s wires which may obstruct the removal of such building; provided, that the moving of such building shall be done in accordance with regulations and general ordinances of the city. Where more than one street is available for the moving of such building, the building shall be moved on such street as shall cause the least interference with overall transportation and utility needs as determined by the city. It is further provided that the person or persons moving such building shall indemnify and save harmless said franchisee of and from any and all damages or claims of whatsoever kind or nature caused directly or indirectly for such temporary arrangement of the lines and poles of a franchisee. (Ord. 78.A § 15, 1995)

5.08.160 Tree trimming.

A franchisee has the authority for maintenance and trimming of all trees and vegetation within the franchise area to prevent such trees and vegetation from becoming a hindrance or coming into contact with a franchisee’s lines or other facilities. A franchisee is responsible for removing debris and for any damage caused. (Ord. 78.A § 16, 1995)

5.08.170 Rates.

Within thirty days after the grant of any franchise hereunder, a franchisee shall file with the city a complete schedule of all present rates charged to all subscribers.

Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee, a franchisee shall provide the city a minimum of thirty days’ and all subscribers a minimum of thirty days’ prior written notice of such change.

Subject to the Act and resultant FCC regulations, the city may regulate the rates or charges for providing cable service and other equipment and will establish rate regulation review procedures as delegated by federal law. The city will monitor those other rates within the benchmarks provided by the FCC. (Ord. 78.A § 17, 1995)

5.08.180 Cable availability.

Subject to BMC 5.08.280, cable service shall not be denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides. (Ord. 78.A § 18, 1995)

5.08.190 Customer service.

A franchisee shall render repair service to restore the quality of the signal at approximately the same standards existing prior to the failure or damage of the component causing the failure and make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system.

Upon notification by the subscriber, no charge for the period of an outage shall be made to the subscriber if the subscriber was without service for a period exceeding twenty-four hours.

A log of all service interruptions shall be maintained and kept on file by a franchisee. The city, during normal business hours and after forty-eight hours’ notice, may inspect such logs. The foregoing will comply with Section 631 of the Act.

A franchisee shall at all times be in compliance with FCC customer service obligations Section 76.309, Subpart II, or as may be amended. The city, however, reserves the right to impose more stringent requirements if it so deems necessary. (Ord. 78.A § 19, 1995)

5.08.200 Telephone response.

A franchisee shall maintain an adequate force of customer service representatives, as well as incoming trunk lines so that telephone inquiries are met promptly and responsively. A franchisee shall have in place procedures for utilization of other manpower and/or recording devices for handling the flow of telephone calls at peak periods of large outages or other major causes of subscriber concern. A copy of such procedures and/or policies shall be made available to the city.

In order that the city may be informed of a franchisee’s success in achieving satisfactory customer relations in its telephone answering functions, a franchisee shall, upon request by the city, provide the city with a summary for the previous quarter that will provide, at a minimum, the following:

A. Number of calls received per day;

B. Time taken to answer;

C. Average talk time;

D. Number of calls abandoned by the caller;

E. Average hold time;

F. Percentage of time all lines busy;

G. An explanation of any abnormalities.

This data will be compared to minimum standards of the NCTA being incorporated herein by reference or any amendment thereto increasing such standards, and shall be monitored by the city.

Calls for service generated during the period of system outages due to emergency or exceptional circumstances surrounding the operation of the system may be excluded from the service response calculations. The city shall have the final determination as to what constitutes a system failure due to emergency and which calls shall be excluded from the service level calculations. (Ord. 78.A § 20, 1995)

5.08.210 Failure to improve customer service.

The city or its designee shall review telephone response and customer service information with a franchisee. In cases where applicable standards have not been met it will be the franchisee’s responsibility to pursue favorable improvements in a reasonable manner in the appropriate categories from the last reporting period. Failure to do so may result in the calling of a public hearing by the city council for the purpose of examining the reasons, if any, why such improvements were not achieved by a franchisee. (Ord. 78.A § 21, 1995)

5.08.220 Emergency power.

A franchisee shall provide a standby power system to automatically activate equipment at the head end and hubs, if applicable, in event of a primary electrical failure. (Ord. 78.A § 22, 1995)

5.08.230 Cable communications system evaluation.

In addition to periodic meetings, the city may require reason-able routine evaluation sessions at any time during the term of a franchise, but not to exceed one evaluation per year. The city shall maintain the confidentiality of any trade secrets or other proprietary or confidential information in the possession of a franchisee. However in the case of reoccurring problems, the city may conduct as many evaluations as are necessary.

To assist in the preliminary evaluation, the city may enlist an independent consultant to conduct an analysis of the cable communications system and its performance and to submit a report to such analysis to the city. It is intended that such evaluations cover areas such as customer service, response to the community’s cable-related needs, and a franchisee’s performance under the compliance with the terms of a franchise.

During an evaluation session, a franchisee shall fully cooperate with the city and shall provide within a reasonable time, without cost, such reasonable information and documents as the city may request to perform evaluations.

If, as a result of the evaluation session, or at any other time, the city determines that reasonable evidence exists of inadequate cable communications system performance, it may require a more detailed technical evaluation and analyses directed toward such suspected inadequacies. The report prepared by the consultant shall include at least:

A. A description of the technical problem in cable communications system performance which precipitated the special tests;

B. What cable communications system components were tested;

C. The equipment used and procedures employed in testing;

D. The method, if any, by which such cable communications system performance problem was resolved;

E. Any other information pertinent to said tests and analyses which may be required by the city, or determined when the test is performed.

If the tests indicate that the system is not in substantial compliance with FCC standards or the requirements of the franchise, a franchisee shall reimburse the city for any costs involved in conducting such tests, such as consultant fees or other expenses. Such fees or expenses shall not exceed two thousand five hundred dollars for each evaluation. A franchisee will have an opportunity to refute findings and if franchisee is found to be in compliance, the city pays for the evaluation. (Ord. 78.A § 23, 1995)

5.08.240 Periodic meetings.

Upon request, a franchisee shall meet with designated city officials and/or designated representative(s) to review the performance of a franchisee for the preceding period. The subject may include, but is not limited to, those items covered in the periodic reports and performance tests. (Ord. 78.A § 24, 1995)

5.08.250 Record inspection.

Subject to statutory and constitutional limits and forty-eight hours’ advance notice, the city may inspect the records of a franchisee relating to the operation of the cable communications system in the franchise area during normal business hours. The city shall maintain the confidentiality of any trade secrets or other proprietary or confidential information in the possession of a franchisee. Such documents shall include such information as financial records, subscriber records, appropriate information and plans pertaining to a franchisee’s operation in the city subject to Section 631 of the Act. (Ord. 78.A § 25, 1995)

5.08.260 Reports.

A franchisee shall furnish, upon request, a report of its activities as appropriate. Such report shall include:

A. Most recent annual report;

B. A copy of the 10-K Report, if required by the Securities and Exchange Commission;

C. The number of homes passed;

D. The number of subscribers with basic services;

E. The number of subscribers with premium services;

F. Total number of miles of cable in city;

G. Summary of complaints received by category, length of time taken to resolve and action taken to provide resolution;

H. A current copy of its subscriber service contract;

I. Report on Operations. Such other reports with respect to its local operation, affairs, transactions or property that may be appropriate. (Ord. 78.A § 26, 1995)

5.08.270 Programming.

A franchisee shall file with the city a listing of its programming and the tiers in which they are placed. (Ord. 78.A § 27, 1995)

5.08.280 Nondiscrimination.

A franchise shall not, as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any preferences or advantage to any person nor subject any person to any prejudice or disadvantage; provided, that nothing in this chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled, and provided further that connection and/or service charges may be waived or modified during promotional campaigns of a franchisee.

A franchisee may from time to time, for research purposes, provide unique experimental program packaging or interactive services to customers served by specific system nodes. The nodes will be selected on a non-discriminatory basis representing broad community demographics. (Ord. 78.A § 28, 1995)

5.08.290 Continuity of service.

A franchisee shall continue to provide service to all subscribers so long as their financial and other obligations to a franchisee are fulfilled.

A. In this regard a franchisee shall act so far as it is within its control to ensure that all subscribers receive continuous uninterrupted service during the term of the franchise.

B. In the event a franchisee fails to operate a system for seventy-two continuous and consecutive hours without prior notification to and approval of the city council or without just cause such as an impossibility to operate the system because of the occurrence of an act of God or other circumstances reasonably beyond a franchisee’s control, the city may, after notice and an opportunity for a franchisee to commence operations at its option, operate the system or designate someone to operate the system until such time as a franchisee restores service to conditions acceptable to the city council or replacement franchisee is selected. If the city is required to fulfill this obligation for a franchisee, a franchisee shall reimburse the city for all reasonable costs or damages in excess of revenues from the system received by the city that are the result of a franchisee’s failure to perform. (Ord. 78.A § 29, 1995)

5.08.300 Transfer of ownership.

Any franchise awarded by the city shall be based upon an evaluation by the city of each application, the qualifications, and other criteria as such pertain to each particular applicant. A franchise shall not be sold, transferred, leased, assigned, or disposed of in whole or in part either by sale, voluntary or involuntary merger, consolidation or otherwise, unless approval is granted by the city council to ensure a review of unforeseen circumstances not present at the time of the original franchise. The city may not unreasonably withhold its approval.

A transfer shall be deemed to occur if there is an actual change in control or where ownership of fifty percent or more of the beneficial interests, singly or collectively, are obtained by other parties. The word “control” as used herein is not limited to majority stock ownership only, but includes actual working control in whatever manner exercised.

A franchisee shall promptly notify the city prior to any proposed change in, or transfer of, or acquisition by any other party of control of a franchisee’s company. Every change, transfer, or acquisition of control of a franchisee’s company shall cause a review of the proposed transfer. In the event that the city adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the city may cancel the franchise. Approval shall not be required for mortgaging purposes or if said transfer is from a franchisee to another person or entity controlling, controlled by, or under common control with a franchisee. Further the city will monitor the limitations or ownership, control utilization and restrictions on sale of systems in accordance with the Act.

Except as specifically addressed in a franchise agreement, unless the city reasonably determines the proposed transfer increases the risk of non-performance or partial performance of any franchise obligation, the city agrees that it will not seek modifications to the terms of the franchise agreement as a condition of approval of a transfer which occurs within two years of the effective date of this chapter. (Ord. 78.A § 30, 1995)

5.08.310 Removal and abandonment of property of franchisee.

The city may direct a franchisee to temporarily disconnect or bypass any equipment of a franchisee in order to complete street construction or modification, install and remove underground utilities, or for other reasons of public safety and efficient operation of the city. Such removal, relocation or other requirement shall be at the sole expense of a franchisee.

In the event that the use of any part of the cable communications system is discontinued for any reason for a continuous period of twelve months, or in the event such system or property has been installed in any street or public place without complying with the requirements of the franchise or other city ordinances or the franchise has been terminated, canceled or has expired, a franchisee shall promptly, upon being given ten days’ notice remove within one hundred eighty days from the streets or public places all such property and poles of such system other than any which the city may permit to be abandoned in place. In the event of such removal, a franchisee shall promptly restore the street or other areas from which such property has been removed to a reasonable condition. Any property of a franchisee remaining in place one hundred eighty days after the termination or expiration of the franchise shall be considered permanently abandoned. The city may extend such time not to exceed an additional one hundred eighty days.

Any property of a franchisee to be abandoned in place shall be abandoned in such a manner as the city shall prescribe. Upon permanent abandonment of the property of a franchisee in place, the property shall become that of the city, and a franchisee shall submit to the city clerk an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property. None of the foregoing affects or limits franchisee’s rights to compensation for an involuntary abandonment of its property under state, or federal law. In the event the city and a franchisee are unable to agree as to whether an abandonment is voluntary for the purposes of this section either party may invoke arbitration to resolve such question. (Ord. 78.A § 31, 1995)

5.08.320 Revocation.

Any franchise granted by the city may be terminated during the period of such franchise for failure by a franchisee to comply with the material provisions of this chapter and/or the franchise.

The procedure to be followed resulting in termination unless by franchisee’s request, shall be:

A. The city shall provide franchisee with a detailed written notice of such violation. Within thirty days thereafter, franchisee shall respond demonstrating that no violation occurred, that any problem has been corrected, or with a proposal to correct the problem within a specified period of time.

B. If said response is not satisfactory to city, city may declare a franchisee in default, with written notice to franchisee. Within ten business days after notice to franchisee, franchisee may deliver to city a request for a hearing before the city council. If no such request is received, city may declare the franchise terminated for cause.

C. If franchisee timely requests a hearing, such hearing shall be held within thirty days after city’s receipt of the request therefor. Such hearing shall be open to the public, and franchisee and other interested parties may offer written and/or oral evidence explaining or mitigating such alleged non-compliance. Within ten days after the hearing, the city council, on the basis of the entire record, will make the determination as to whether there is cause for termination and whether the franchise will be terminated. The city council may in its sole discretion fix an additional time period to cure violations. If the deficiency has not been cured at the expiration of any additional time period or if the council does not grant any additional period, the city council may by ordinance declare the franchise to be terminated and forfeited.

D. If a franchisee appeals revocation and termination, such revocation may be held in abeyance pending judicial review by a court of competent jurisdiction, provided a franchisee is otherwise in compliance with the franchise.

E. Nothing contained in the above subsections of this section shall prevent the issuance of a new franchise containing terms substantially the same or identical to a franchise which previously was revoked, upon satisfactory assurances made to the city council that the terms and conditions of this chapter can be met by the new franchisee. (Ord. 78.A § 32, 1995)

5.08.330 Effect of termination for non-compliance.

Subject to state and federal law, if any franchise is terminated by the city by reason of a franchisee’s non-compliance, that part of the system under such franchise located in the streets and public property, shall, at the election of the city, become the property of the city at a cost consistent with the provisions of the Act. If the city, or a third party, does not purchase the system within twelve months a franchisee shall, upon order of the city council, remove the system as required under BMC 5.08.310, Removal and abandonment of property of franchisee. The city may at its discretion extend the period of time for the system to be purchased beyond the initial twelve-month period. (Ord. 78.A § 33, 1995)

5.08.340 Insurance.

A franchisee shall, concurrently with the filing of an acceptance of award of any franchise granted hereunder, furnish to the city and file with the city clerk and at all times during the existence of any franchise granted hereunder, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, for the purpose of protecting the city and all persons against liability for loss or damage, for personal injury, death and property damage, and errors or omissions, occasioned by the operations of a franchisee under such franchise, such policy to provide minimum limits of one million dollars for both personal injury and/or property damage.

The policies mentioned in the foregoing paragraph shall name the city as additional insured and shall contain a provision that a written notice of cancellation or reduction in coverage of such policy shall be delivered to the city thirty days in advance of the effective date thereof. If such insurance is provided by a policy which also covers a franchisee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. (Ord. 78.A § 34, 1995)

5.08.350 Inconsistency.

If any portion of this chapter should be inconsistent or conflict with any rule or regulation now or hereafter adopted by federal or state laws, then to the extent of the inconsistency or conflict, the rule or regulation of the federal or state law shall control for so long, but only for so long, as such rule, regulation, or law shall remain in effect. The remaining provisions of this chapter shall not be affected thereby. (Ord. 78.A § 35, 1995)

5.08.360 Severability.

Each section, subsection or other portion of this chapter shall be severable and the invalidity of any section, subsection, or other portion shall not invalidate the remainder. (Ord. 78.A § 36, 1995)