Chapter 5.14


5.14.010    Purpose.

5.14.020    Definitions.

5.14.030    Authority – Grant of nonexclusive franchise.

5.14.040    Franchise issuance.

5.14.050    Transfer of ownership.

5.14.060    Franchise fee.

5.14.070    Indemnity.

5.14.080    Bonds.

5.14.090    Insurance.

5.14.100    Franchisee’s obligations to the public.

5.14.110    Improvement requirements.

5.14.120    Permits required – Terms of use and occupancy of streets.

5.14.130    Compliance.

5.14.140    Rates.

5.14.150    Nondiscrimination.

5.14.160    Equalization of civic contributions.

5.14.170    Subordinate to city and prior lawful occupancy.

5.14.180    No recourse against the city for loss or expense.

5.14.190    Subsequent action by state or federal agencies.

5.14.200    Cable system evaluation.

5.14.210    Record inspection.

5.14.220    Reports.

5.14.230    Termination and revocation.

5.14.240    Remedies to enforce compliance.

5.14.250    Interpretation.

5.14.260    Effect of prior franchises.

5.14.270    Compliance with applicable laws/necessity to obtain permits.

5.14.280    Incorporation by reference into each franchise.

5.14.290    Inconsistency.

5.14.010 Purpose.

It is the purpose of this chapter to regulate, in the public interest, the operation of cable telecommunication systems and their use of city public rights-of-way, streets or facilities by establishing procedures for the granting and termination of franchises, by prescribing rights and duties of cable operators and users of cable systems, and by providing generally for cable service to the citizens of Port Townsend. (Ord. 2537 § 1, 1996).

5.14.020 Definitions.

1. “Access channels” means: (1) channel capacity designated for public, educational, and governmental (PEG) use; and (2) facilities and equipment for the use of such channel capacity.

2. “Access facilities” means materials and equipment for the use of such channel capacity.

3. “The Act” collectively means the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992 (codified at 47 USC § 521 et seq.), and the Telecommunications Act of 1996, as now or later amended.

4. “Addressability” means the ability of a system allowing a franchisee to authorize by remote control customer terminals to receive, change or to cancel any or all specified programming.

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

6. “Basic cable service” means all signals of domestic television broadcast stations provided to any customer (except a signal secondarily transmitted by satellite carrier beyond the local service area of such station, regardless of how such signal is ultimately received by the cable system) any public, educational, and governmental programming required by the franchise to be carried on the basic tier, and any other programming placed on the basic service tier by the cable operator.

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

8. “Channel” means a single path or section of the spectrum which carries a television signal.

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

10. “City” means the city of Port Townsend, a municipal corporation of the state of Washington.

11. “Cable operator” means any person or group of persons (1) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (2) who otherwise controls or is responsible for, through any arrangement, the management and operation of such cable system.

12. “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 and other service to customers.

13. “Customer” means a person or entity or user of the cable system who lawfully receives cable services or other service therefrom with franchisee’s express permission.

14. “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.

15. “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 dwelling units within multiple-family residential units.

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

17. “Fiber optics” means the technology of guiding and projecting light for use as a communications medium.

18. “Franchise” means the initial authorization or renewal 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 system for the purpose of offering cable service or other service to customers.

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

20. “Gross revenues” means any and all receipts and revenues received directly or indirectly from provision of cable service over the cable system including, but not limited to, other sources of revenues such as local and national advertising and Home Shopping Channel revenues and installation fees, except transactions related to real property receipts by a franchisee, any taxes on services furnished by a franchisee imposed on any customer or used by any governmental unit, agency or instrumentality and collected by a franchisee for such entity, and net uncollectible debts are not considered as revenue in this definition.

21. “Headend” means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.

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

23. “Institutional Networks (I-Nets)” means a cable communications system designated principally for the provision of nonentertainment services to schools, public agencies or other nonprofit agencies, separate and distinct from the customer network, or on secured channels of the customer network.

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

25. “Office” means the person or entity designated by the city as being responsible for the administration of a franchise for the city.

26. “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 master cable television ordinance (“master ordinance”).

27. “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.

28. “Public right-of-way” or “street” means the surface, the air space above the surface and the area below the surface of any public street, including, but not limited to, any public alley, boulevard, drive, easement, right-of-way or sidewalk under the jurisdiction of the city.

29. “Public works director” means the director of the public works department for the city of Port Townsend or his or her designee. (Ord. 2537 § 1, 1996).

5.14.030 Authority – Grant of nonexclusive franchise.

A. Authority to Grant Franchise. The city council may grant a nonexclusive franchise for all or any defined portion of the city. The service area shall be the entire area defined in a franchise agreement between the city and a franchisee.

B. Grant of Franchise. In the event that the city council shall grant to a franchisee a nonexclusive, revocable franchise to construct, operate, maintain and reconstruct a cable communications system within the franchise area, or renewal of an existing franchise, the franchise shall constitute both a right and an obligation to provide the services of a cable communications system as required by the provisions of this master ordinance and the franchise agreement. The franchise agreement shall include those provisions of a franchisee’s application for franchise that are finally negotiated and accepted by the city council and a franchisee.

1. Any franchise granted under the terms and conditions of this master ordinance shall be consistent with federal, state and local laws and regulations. In the event of conflict between the terms and conditions of the franchise and law or statutory requirements, the law or statutory requirements shall control.

2. Any franchise granted is subject to the general ordinance provisions now in effect or hereafter made effective. Nothing in the franchise shall be deemed to waive the requirements of other codes and ordinances of the city with regard to permits, fees to be paid or manner of construction.

a. Franchise Required. No cable communications system shall be allowed to occupy or use the streets in the franchise area or be allowed to operate unless the city has granted a franchise for such system in accordance with the provisions of this master ordinance.

b. Establishment of Franchise Requirements. The city may establish requirements reflecting changing technology, economic or legal issues as appropriate that may affect a new or renewal franchise at such time that these applications are received.

c. Duration. The term of any new franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be as established in the franchise agreement, unless terminated sooner as provided in this master ordinance.

d. Franchise Nonexclusive. Any franchise granted shall be nonexclusive. The city specifically reserves the right to grant, at any time, such additional franchises for a cable television system as it deems appropriate. (Ord. 2537 § 1, 1996).

5.14.040 Franchise issuance.

Prior to the consideration of a request for a franchise, the city council shall conduct a public hearing to consider public testimony and comment as well as the following:

A. Initial Franchise.

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

2. That the applicant has the 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 master ordinance;

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; and

8. The potential disruption to 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;

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

B. Renewal Franchise.

1. Whether the applicant has substantially complied with the material terms of the existing franchise and with applicable law;

2. Whether the quality of the applicant’s service, including but not limited to signal quality and response to consumer complaints and billing practices, but without regard to the mix, quality, or level of cable services or other services provided over the system, has been reasonable in light of community needs;

3. Whether the applicant has the financial, legal and technical ability to provide the services, facilities and equipment as set forth in the operator’s proposal or application; and

4. Whether the applicant’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;

5. In any hearing for a franchise renewal, the applicant shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, and to question witnesses;

6. At the completion of a proceeding under this section, the city council shall issue a written decision stating the reasons for such decision granting or denying the application for renewal based upon the record of such proceeding, and shall transmit a copy of such decision to the applicant. (Ord. 2537 § 1, 1996).

5.14.050 Transfer of ownership.

A. Consent to Sale, Transfer, Assignment or Encumbrance – Requirements. A franchisee’s right, title, or interest in the franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an affiliate, without the prior consent of the city authority, which shall not be unreasonably withheld and shall be granted unless the proposed assignee does not meet acceptable standards of character, financial capacity and operating capability. No such consent shall be required, however, for a transfer in trust, by other hypothecation, or by assignment of any rights, title, or interest of the franchisee in the franchise or cable system in order to secure indebtedness. Approval shall not be required for mortgaging purposes; provided, that the collateral does not specifically affect the assets of this franchise, or if the said transfer is from a franchisee to another person or entity controlling, controlled by, or under common control with a franchisee.

In any transfer of a franchise requiring city approval, the applicant must show technical ability, financial capability, legal and general qualifications as determined by the city. Applicant must agree to comply with all provisions of the franchise. Costs associated with the transfer process shall be reimbursed to the city. The city shall render a final decision on any request for approval within 120 days, unless the city and the franchisee agree to an extension of time.

B. Assignment Deemed to Occur. An assignment of a franchise shall be deemed to occur if there is an actual change in control or where ownership of 50 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.

C. Notification. Regardless of the circumstances, a franchisee shall promptly notify the city prior to any proposed change, transfer, assignment or acquisition by any other party of a franchisee’s company. In the event that the city adopts a resolution denying its consent and such change, transfer, assignment or acquisition of control has been effected, the city may cancel the franchise.

D. Compliance with Terms of Franchise Agreement. Whether or not the city’s consent is required, the franchisee shall ensure that upon any sale, transfer, assignment or encumbrance of the franchisee’s right, title or interest in the franchise, the new franchisee shall comply with all terms of any franchise agreement between the city and the franchisee, including but not limited to any requirements related to PEG channels and access equipment and facilities. (Ord. 2537 § 1, 1996).

5.14.060 Franchise fee.

A. Payment. A franchisee shall make payment to the city on a quarterly basis on or before the thirtieth day of each January, April, July and October, in a sum equal to five percent of the franchisee’s gross revenues as defined herein from the operation of the cable system.

B. In Addition to Other Fees and Taxes. The franchise fee required in this section is in addition to taxes and fees generally applied to other utilities or businesses, and/or the cost of bonds, security funds, letters of credit or any other costs incidental to the award or enforcement of the franchise. (Ord. 2537 § 1, 1996).

5.14.070 Indemnity.

By acceptance of a franchise granted pursuant to this master ordinance and the rights and privileges thereby granted, a franchisee shall covenant and agree with the city for itself, its successors and assigns to at all times defend, indemnify and hold harmless the city, its officers, officials, employees and agents from any and all claims, actions, suits, liability, loss, cost, expenses or damages of every kind or description which may accrue to or be suffered by any person or persons or property, and to appear and defend at its own cost and expense any action instituted or begun against the city for damages by reason of a franchisee’s construction, reconstruction, readjustment, repair, maintenance, operation or use of the streets of the city, or any act(s) or omission(s) of a franchisee, its successors or assigns, exercising any privilege conferred by this master ordinance or by such franchise; provided, however, that in the event any such claim, action, suit or demand be presented to or filed with the city or any court having jurisdiction, the city shall notify a franchisee, and the franchisee shall have the right, at its election and at its sole cost and expense, to settle and compromise such claim or demand, or to defend the same at its sole cost and expense, by its own attorneys.

In case judgment shall be rendered against the city in any such suit or action, each party shall fully satisfy such judgment to the extent of its comparative fault within 90 days after such action or suit shall have been finally determined, if determined adversely to either party. (Ord. 2537 § 1, 1996).

5.14.080 Bonds.

A franchisee shall promptly repair or cause to be repaired any damage to city property caused by a franchisee or any agent of a franchisee. A franchisee shall comply with all present and future ordinances and regulations regarding excavation or construction and, if deemed necessary by the city, shall be required to post a performance bond or other surety acceptable to the city in an amount specified by the city warranting that all restoration work will be done promptly and in a workmanlike manner and that penalties, if any, after final adjudication are paid to the city within 90 days of such finding. (Ord. 2537 § 1, 1996).

5.14.090 Insurance.

A franchisee shall furnish the city with a certificate of comprehensive liability insurance naming the city as an additional insured. The amount of such policy shall be as deemed appropriate by the city. Such insurance must be in place no later than the date of acceptance of a franchise by a franchisee. This insurance shall be maintained in full force at the franchisee’s expense throughout the period of the franchise. The city may delineate more specific details concerning such insurance prior to the award of a given franchise. (Ord. 2537 § 1, 1996).

5.14.100 Franchisee’s obligations to the public.

A. A franchisee, in the use of the public streets and rights-of-way, shall ensure that:

1. The safety, functioning and appearance of the facilities installed in public streets and rights-of-way comply with all applicable regulations governing the installation of such utilities;

2. The cost of the installation, construction, operation or renewal of such facilities be borne by a franchisee or customer, or a combination of both; and

3. The owner of property will be justly compensated by a franchisee in accordance with law for any damages caused by the installation, construction, operation or removal of such facilities by the cable operator; and

4. When cable passes over or under private or publicly owned property, the franchisee shall obtain the property owner’s permission whenever it is required by law. (Ord. 2537 § 1, 1996).

5.14.110 Improvement requirements.

A. City’s Rights to Make Improvements. Nothing in this master ordinance shall be construed to prevent the city or any local improvement district from sewering, paving, grading, altering or otherwise improving or re-improving any of the streets of the city, including the installation of city-owned utilities, and the city shall not be liable to a franchisee for any damages resulting from such work or the exercise of the city’s rights. In addition, this master ordinance shall not be construed so as to deprive the city of its existing or future right to regulate and control the use of city streets.

B. Duty to Protect, Support, Temporarily Disconnect, Relocate or Remove – Notification. A franchisee shall, upon 48 hours’ notice, at its sole cost and expense protect, support, temporarily disconnect, make minor relocations or remove from any street, right-of-way or any other public place any of its installations when so required by the city for reasons of traffic conditions or public safety, street vacations, dedications of new rights-of-way and the establishment and improvement thereof, street construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity.

C. Major Relocation of Installation, Facilities – Notice. Unless an emergency exists under PTMC 5.14.120J, whenever the city in its sole judgement determines that any of the circumstances listed in subsection B above necessitates a major relocation of a franchisee’s then existing facilities, the city shall provide a franchisee with at least 60 days written notice requiring such relocation. The relocation shall be completed by a franchisee at no cost to the city and within the time frame set by the city. Upon the franchisee’s failure to complete relocation to its installations and facilities as directed, the city may remove them at a franchisee’s expense. (Ord. 2537 § 1, 1996).

5.14.120 Permits required – Terms of use and occupancy of streets.

A. Safety Requirements. The terms and conditions of a franchisee’s use and occupancy of public streets and public rights-of-way in the city shall be as follows:

1. 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.

2. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways 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.

3. 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, the city will, 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 from a franchisee.

B. Notification/Construction Projects. Upon application for each construction, digging, or other city permit a franchisee will submit to the public works department its plan for advance notification for the proposed project. A franchisee will follow all city standards, regulations and requirements with regard to each project, including flagging and traffic controls. The city shall have the right to determine where lines, facilities, utility tunnels, poles, wires, maintenance holes or any other appurtenances shall be located, consistent with city ordinances, regulations or policies. 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.

C. Undergrounding. In any area of the city in which telephone, electric power wires and cables have been placed underground, or in any area where the city requires above ground telephone, electric power and cables to be placed underground, a franchisee may not erect poles or run or suspend wires, cables or other conductors thereon, but must lay or move such wires, cables or conductors underground in the manner required by the city at a franchisee’s sole cost. If an ordinance is passed creating a local improvement district which involves placing underground certain utilities including that of a franchisee which are then located overhead on poles and suspended wires, a franchisee shall remove poles, cables and wires from the surface of the streets within such district and shall place the same underground in conformity with the requirements of the public works director. When property owners pay the costs of placing facilities underground by the local improvement district method or otherwise, franchisee shall share pro rata in such funding.

D. Pole Installation and Attachment – Joint Use. All poles, cables, wires, antennae, conduits or appurtenances shall be constructed and erected in a neat, workmanlike manner and shall be at a height and position as approved by the public works director. A franchisee erecting or maintaining poles shall allow anyone constructing under the authority of this master ordinance and the city, joint use of its poles upon payment of a reasonable proportion of the cost of such poles installed and shall obey any order issued by the public works director relative to the joint use of poles.

E. Building Moving. Whenever a person obtains city permission to use any street for the purpose of moving any building, a franchisee, upon 14 days’ written notice from the city, shall raise or remove, at the expense of the person moving the building, any of a franchisee’s cable which may obstruct the removal of such building in accordance with regulations and general city ordinances. Where more than one street is available for the moving of such building, the building shall be moved on the street that causes the least interference, as determined by the public works director.

F. Location of Facilities. A franchisee shall provide the city with maps which show the horizontal location of its facilities within the city limits. When so directed by the city, a franchisee shall submit plans on a digital geographical information system (GIS) and on a computer based format compatible with AutoCAD. In addition, a franchisee shall consult with the public works department to specify the vertical location of its facilities within city limits, in a manner and format agreed to by the city and the franchisee. Future projects shall be coordinated with the city’s capital facilities plan (CFP).

G. Relocation of Facilities. A franchisee shall, unless an emergency arises, upon 60 days’ notice, at its own cost and expense, move any underground, surface or overhead construction which interferes with any local improvement district work or with any construction for public purposes authorized or ordered by the city. When the cost of such relocation is paid by property owners through a local improvement district or otherwise, franchisee shall share in this compensation on a pro rata basis.

H. Abandonment of Facilities. A franchisee accepting a franchise under the terms of this master ordinance for the installation of ducts, utility tunnels, vaults, maintenance holes, poles, wires or any other appurtenances shall remove such installation when it is no longer required or used as ordered by the public works director. A franchisee agrees to notify the public works director immediately upon any abandonment of facilities.

I. Tree Trimming. Upon approval of the public works director, a franchisee shall have the authority to trim trees upon and overhanging streets, public ways and public places in the franchise area so as to prevent the branches of such trees from coming into contact with a franchisee’s wires and cables. A franchisee shall be responsible for debris removal from such activities, and transport, where possible, to the city compost facility. It is understood that, for the most part, a cable franchisee uses existing poles and does not engage in extensive tree trimming. However, to the extent that it does engage in tree trimming, a franchisee shall:

1. Provide the public works director with a plan of actual work areas including a map and scheduled dates before any work is done;

2. Refrain from applying herbicides or pesticides to trees or shrubs unless the application is first approved by the public works director and is consistent with city policy;

3. Designate a contact person to be available for citizen inquiry and information and to follow-up to review problems or concerns with the public works department;

4. Maintain a file for all customer contacts regarding tree trimming; and

5. Continue an outgoing cooperative effort with the city with regards to present and future maintenance work, including a cooperative replanting plan as necessary; provided, however, that nothing in this section prevents a franchisee from taking immediate action when an emergency exists and the vegetation poses a threat to the public health and safety or its facilities.

J. Dangerous Conditions – Authority of City to Abate. Whenever a franchisee’s construction, installation or excavation of facilities authorized by this master ordinance has caused or contributed to a condition that appears to substantially impair the lateral support of the adjoining street or public places, streets, utilities or city property, or endangers the public, the public works director in his/her sole judgement may direct a franchisee, at its own expense, to take actions to protect the public, adjacent public places, city property or street utilities, and such action may include compliance within a prescribed time.

In the event that a franchisee fails or refuses to promptly take the actions directed by the city, or fails to fully comply with such directions, or if emergency conditions exist which require immediate action, the city may enter upon the property and take such actions as are necessary to protect the public, the adjacent streets, or street utilities, or to maintain the lateral support thereof, or actions regarded as necessary safety precautions, and a franchisee shall be liable to the city for the costs thereof.

K. Restoration of Streets. After construction, installation, maintenance or repair of the facilities authorized by this master ordinance or any permit obtained by virtue of a franchise granted under this master ordinance, a franchisee shall leave all streets, avenues, highways or public places in as good and safe condition in all respects as they were before the commencement of such work by a franchisee and in accordance with all city ordinances, regulations and street standards. The public works director shall have final approval of the condition of such streets and public places after completion of construction. A franchisee’s responsibility under this section shall extend for 12 months after completion of construction, installation, maintenance or repair of such facilities for inadequate restoration of streets that was not apparent at the time of any such final approval.

L. Reimbursement. Franchisee shall reimburse the city for all actual administrative expenses incurred by the city that are directly related to receiving and approving a permit or license and to inspect plans and construction. Where the city incurs actual administrative expenses for review or inspection of activities undertaken through the authority granted in this master ordinance, franchisee shall pay such expenses directly to the city.

M. Underground Utilities Council. A franchisee shall be a member of and operate within the policies established by both the Jefferson County underground utility coordinating council and the statewide One Call Underground Utility Locate Center. (Ord. 2811 § 3, 2002; Ord. 2537 § 1, 1996).

5.14.130 Compliance.

Construction, maintenance and operation of a franchisee’s system, including house connections, shall be in accordance with the provisions of this master ordinance and in accordance with the provisions of all other applicable codes and ordinances, including the National Electrical Code, and a franchisee shall comply with all applicable state and federal laws and the rules and regulations of the FCC relating to cable television systems. (Ord. 2537 § 1, 1996).

5.14.140 Rates.

A. City Regulation of Rates. In accordance with the provisions of the Act and with Part 76 of Title 47 of the Code of Federal Regulations as now or later amended, the city reserves the right to regulate the appropriate rates and/or charges for providing cable services and to establish and monitor such rates.

B. Schedule of Rates – Notice of Any Change. Within 30 days after the grant of any franchise hereunder a franchisee shall file with the city a complete schedule of all rates to be charged to customers. Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee, a franchisee shall provide to the city and all customers a minimum of 30 days’ written notice of the new schedule of rates to be charged. (Ord. 2537 § 1, 1996).

5.14.150 Nondiscrimination.

A franchisee 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 master ordinance shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules including discounts to senior citizens and disabled persons of low income 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 will not deny access to cable communications service to any group of potential residential customers because of the income of the residents of the local area in which the group resides. (Ord. 2537 § 1, 1996).

5.14.160 Equalization of civic contributions.

A. Payment of Propositional Franchising Costs. In the event of one or more franchises being granted the city may require that such subsequential franchisees pay to the city an amount proportionally equal to franchising costs contributed by the initial franchisee. These costs may include but are not limited to such features as PEG access equipment and facilities, contributions to any PEG access fund, institutional network costs, and bi-directional or equivalent cable installed to municipal buildings or institutions and similar expenses. On the anniversary of the grant of each later awarded franchise, such franchisees shall pay to the city an amount proportional to the amount contributed by the original franchisee, based upon the amount of customers held by such franchisees.

B. Provision of PEG Access Channels and Emergency Override System. Additional franchisees shall provide all PEG access channel(s) and the emergency override system currently available to the customers of existing franchisees. In order to provide these access channels, additional franchisees may be required to interconnect, at their cost, with existing franchisees cable systems, subject to any reasonable terms and conditions that the existing franchisee providing the interconnection may require. These interconnection agreements shall be made directly between the franchisees. The city council, in such cases of dispute regarding costs, may be called upon to arbitrate regarding these arrangements. (Ord. 2537 § 1, 1996).

5.14.170 Subordinate to city and prior lawful occupancy.

Any privilege claimed under any such franchise by a franchisee in a street or other public property shall be subordinate to the city’s police powers and to any prior occupancy of the streets or other public property. In addition to the inherent powers of the city to regulate and control any franchise the city 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 to the city to promulgate such additional regulations of general applicability as it may find necessary in the exercise of its powers. (Ord. 2537 § 1, 1996).

5.14.180 No recourse against the city for loss or expense.

A franchisee shall have no recourse whatsoever against the city for any loss, cost, expense or damages arising out of the issuance of a franchise under this master ordinance or because of the city’s related enforcement actions. (Ord. 2537 § 1, 1996).

5.14.190 Subsequent action by state or federal agencies.

If any subsequent federal, state or local law, ordinance or regulation shall require or permit a franchisee to perform any act which may be in conflict with the terms of this master ordinance, or shall prohibit a franchisee from performing any act in conformance with the terms of this master ordinance, then as soon as possible following knowledge thereof, a franchisee shall so notify the city. If the city council determines that a material provision of this master ordinance is affected by such changed or new law, ordinance or regulation, the city and a franchisee shall enter into good faith negotiations to modify this master ordinance to conform with such changed requirements. Failure to complete these negotiations to the satisfaction of both parties within a reasonable time shall constitute a material breach of the franchise, but in no event shall a period of less than 180 days be deemed unreasonable pursuant to this section. (Ord. 2537 § 1, 1996).

5.14.200 Cable system evaluation.

In addition to periodic meetings, the city may require reasonable evaluation sessions at any time during the term of a franchise. 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 and compliance with the terms of a franchise. (Ord. 2537 § 1, 1996).

5.14.210 Record inspection.

Subject to statutory and constitutional limits and two working days’ advance notice, the city reserves the right to inspect the records of a franchisee necessary for the enforcement of a franchise and verification of the accuracy of franchise fee payments at any time during normal business hours; provided, that the city shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of a franchisee. Such documents shall include such information as financial records, customer records within the context of Section 631 of the Act, and plans pertaining to a franchisee’s operation in the city. (Ord. 2537 § 1, 1996).

5.14.220 Reports.

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

1. Most recent annual report.

2. A copy of the 10-K report, if required by the Securities and Exchange Commission.

3. The number of homes passed.

4. The number of customers with basic services.

5. The number of customers with enhanced basic services.

6. The number of customers with premium services.

7. The number of customers with ala carte services.

8. The number of customers with pay-per-view services.

9. The number of hook-ups in period.

10. The number of disconnects in period.

11. Total number of miles of cable in city.

12. A summary of complaints received by category, length of time taken to resolve and action taken to provide resolution.

13. Copies of all FCC complaint logs.

14. A statement of its current billing practices, and a sample copy of the bill format.

15. A current copy of its customer service contract.

16. Report on operations. Such other reports with respect to its local operation, affairs, transactions or property that may be appropriate. (Ord. 2537 § 1, 1996).

5.14.230 Termination and revocation.

A. Notice on Noncompliance. If a franchisee willfully violates or fails to comply with any of the material provisions of this franchise, the city shall give written notice to a franchisee of the alleged noncompliance of its franchise. A franchisee shall have 45 days from the date of notice of noncompliance to cure such alleged default or, if such default cannot be cured within 45 days, to present to the city a plan of action whereby such default can be promptly cured.

B. Revocation or Termination of Franchise. If such default continues beyond the applicable dates agreed to for such sure, the city shall give a franchisee written notice that all rights conferred under this master ordinance and its franchise may be revoked or terminated by the city council after a public hearing. A franchisee shall be entitled to not less than 30 days’ prior notice of the date, time and place of the public hearing. The city may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling a franchisee to comply with the provisions of the franchise and recover damages and costs incurred by the city by reason of a franchisee’s failure to comply. (Ord. 2537 § 1, 1996).

5.14.240 Remedies to enforce compliance.

In addition to any other remedy provided herein, the city reserves the right to pursue any lawful remedy to compel or force a franchisee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the city shall not prevent the city from thereafter initiating the termination or revocation procedures established in this master ordinance. (Ord. 2537 § 1, 1996).

5.14.250 Interpretation.

A franchisee shall comply with all pertinent rules, regulations and requirements of the FCC, or any other federal or state body or agency having jurisdiction in regard to cable television systems. (Ord. 2537 § 1, 1996).

5.14.260 Effect of prior franchises.

Nothing contained in this master ordinance shall abridge, impair, alter, modify or in any way affect any right, privilege or immunity of either a franchisee or the city conferred by or arising under any cable franchise granted prior to and remaining in effect on the effective date of the ordinance; provided, that the acceptance of a franchise granted under this master ordinance for any cable service area shall be deemed to constitute the surrender by a franchisee of the right to operate a cable television system in that cable service area under any prior franchise. (Ord. 2537 § 1, 1996).

5.14.270 Compliance with applicable laws/necessity to obtain permits.

A franchisee shall comply with all applicable federal, state, and local laws governing cable television operation and the grant of a franchise by a second class city in the state of Washington. The franchisee shall obtain all licenses and/or permits, including but not limited to land use or building permits, as required by federal, state and local laws. (Ord. 2537 § 1, 1996).

5.14.280 Incorporation by reference into each franchise.

This master ordinance shall be incorporated in its entirety by reference into and become a part of each and every cable television franchise granted by the city. (Ord. 2537 § 1, 1996).

5.14.290 Inconsistency.

If any portion of this master ordinance should be inconsistent or conflict with any rule or regulation now or later adopted by the FCC or other federal law, then, to the extent of the inconsistency or conflict, the rule or regulation of the FCC or other federal law shall control for so long as such rule, regulation, or law remains in effect; provided the remaining provisions of this master ordinance shall not be affected. (Ord. 2537 § 1, 1996).