Chapter 5.44


5.44.010    Definitions.

5.44.020    Grant of nonexclusive authority.

5.44.030    Compliance.

5.44.040    Governmental service and public access.

5.44.050    Liability and indemnification.

5.44.060    Fair business practices.

5.44.070    System signal standards.

5.44.080    Service quality requirements.

5.44.090    Operation and maintenance.

5.44.100    Use of channels.

5.44.110    Conditions of street occupancy.

5.44.120    Removal of facilities upon request.

5.44.130    Theft of services and tampering—Violation—Penalty.

5.44.140    Preferential or discriminatory practices prohibited.

5.44.150    Transfer of franchise.

5.44.160    Additional city rights.

5.44.170    Maps and reports.

5.44.180    Payment to city.

5.44.190    Rates.

5.44.200    Forfeiture of franchise.

5.44.210    Duration and acceptance of franchise.

5.44.010 Definitions.

For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the meaning given in this section. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word “shall” is always mandatory and not merely directory.

A.    “Basic cable programming” is any service tier which includes the retransmission of local television broadcast signals.

B.    “Cable communications system,” hereinafter also referred to as “CATV system” or “system,” means a facility, within the territorial limits, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable services, including but not limited to video programming and other programming services.

C.    “City” is the city of Shelton, state of Washington, in its present incorporated form.

D.    “Council” is the city governing body.

E.    “Grantee” is McCaw Cablevision of Southwest Washington, Inc., and its lawful successors and assigns in accordance with the provisions of this franchise.

F.    “Gross revenue of the grantee” shall mean all revenue received by the grantee from subscribers from charges to subscribers for the provision to subscribers of cable system service within the city limits for basic service, tiered service, pay service, leased channel fees, production equipment and associated personnel fees, studio rental and advertising revenue. Gross revenue shall not mean or include any taxes on services furnished by the grantee that the grantee is required to collect and remit to taxing authorities or revenues received for the sale of converter tuners, t-shirts or other nonservice promotional aids or items for sale or distribution for promotional purposes or installation and reconnection fees of the grantee.

G.    “Gross subscriber receipts” means any and all gross revenue of the grantee, in whatever form, received by the grantee in connection with the operation of the system within the territorial limits of the city.

H.    “Person” is any individual, partnership, association, corporation, joint stock company, trust, governmental entity or organization of any kind.

I.    “Programming” is any and all information transmitted to subscribers on a cable communications system.

J.    “State” is the state of Washington.

K.    “Subscriber” is any person receiving programming service via cable communications system.

L.    “Territorial limits” are those streets and byways within the city of Shelton on the effective date of the ordinance codified in this chapter or as hereinafter annexed. (Ord. 1921-0518 (part), 2018; Ord. 1208 § 1, 1987)

5.44.020 Grant of nonexclusive authority.

A.    There is granted by the city to the grantee the right and privilege to conduct a cable communications business in the city and to construct and reconstruct and to erect, operate and maintain, in, upon, along, across, above, over and under the streets, alleys and public rights-of-way which have been dedicated for compatible uses within the territorial limits of this franchise, poles, wires, cables, underground conduits, manholes and other cable conductors and fixtures necessary for the maintenance and operation within the territorial limits of this franchise of grantee’s cable communications system for the sale and distribution of programming.

B.    The right to use and occupy such streets, alleys, public ways for the purposes herein set forth shall not be exclusive, and the city reserves the right to grant a similar use of such streets, alleys and public rights-of-way to any person at any time during the period of the franchise codified in this chapter. (Ord. 1208 § 2, 1987)

5.44.030 Compliance.

The grantee shall, except as provided in this chapter, at all times during the life of this franchise, be subject to and comply with all lawful ordinances and other lawful exercise of the police power by the city. Grantee shall also comply with all applicable laws, rules, codes and regulations of the state, the Federal Communications Commission, and of any body which may have jurisdiction over grantee’s activities under this chapter, specifically including but not limited to those regarding the protection of subscriber privacy. All charges or expenses attributable to inspections or investigations made pursuant to or required by any such law, rule, code or regulation are included within the fee imposed upon the grantee by Section 5.44.190. (Ord. 1208 § 3, 1987)

5.44.040 Governmental service and public access.

The grantee shall install without charge one outlet of basic cable programming to each city, state or federal governmental office building, fire station, police station and public school building that is located within one hundred fifty feet of its system. The distribution of the cable facility inside such buildings and extent of services delivered thereto shall be the option, duty and expense of the building owner. The grantee shall also formulate and implement a reasonable public access policy for the cable communications system. City shall have the right, upon giving grantee advance written notice, to require the grantee to appear before the city and review the policy in light of changed circumstances. (Ord. 1208 § 4, 1987)

5.44.050 Liability and indemnification.

A.    The grantee shall pay all damages and penalties which the city may legally be required to pay as a result of granting this franchise and shall defend the city against all claims resulting from the granting of this franchise. These damages or penalties shall include, but shall not be limited to, damages arising out of copyright infringements and all other damages arising out of the installation, operation or maintenance of the cable communications system authorized in this chapter, whether or not any act or omission complained of is authorized, allowed or prohibited by this chapter.

B.    The grantee shall pay and by its acceptance of the franchise codified in this chapter specifically agrees that it will pay all necessary and reasonable expenses incurred by the city in defending itself against all damages and penalties mentioned in subsection A of this section, including but not limited to reasonable attorney’s fees.

C.    The grantee shall maintain liability insurance throughout the term of the franchise codified in this chapter, or any extension thereof, insuring the city and the grantee against all damages mentioned in subsection A of this section in the minimum amounts of:

1.    Five hundred thousand dollars property damage in any one accident;

2.    Five hundred thousand dollars for bodily injury or death to any one person;

3.    One million five hundred thousand dollars for bodily injury or death resulting from any one accident.

D.    Grantee shall furnish proof to the city of the acquisition of insurance as required herein by filing with the city clerk a copy of the insurance policy, which shall be subject to reasonable approval as to form by the city attorney.

E.    The city shall be named as additional payee and shall be entitled to receive a notice of cancellation thirty days prior to any cancellation of the policy of insurance required hereunder. (Ord. 1208 § 5, 1987)

5.44.060 Fair business practices.

The grantee shall establish internal procedures for receiving, acting upon and resolving subscriber complaints. The grantee shall also have a local telephone number or a toll-free number so that the subscribers may contact the grantee. Complaint procedures and the telephone number shall be explained to each subscriber in writing at the time of subscription. If a subscriber’s complaint is not handled as specified in the procedures and if the subscriber suffers serious deterioration in system signal quality at his terminal and grantee fails to correct the deficiency in a timely manner, the grantee shall, unless such failure to correct is caused by events beyond the control of grantee, be liable to the subscriber for all charges paid by the subscriber to the grantee after the initial complaint. (Ord. 1208 § 6, 1987)

5.44.070 System signal standards.

A.    The grantee shall comply fully with the rules and standards for cable communications system operations as adopted by the Federal Communications Commission.

B.    Upon advance notice, the city shall have the right and authority to compel the grantee to test, analyze and report on the performance of the system at any reasonable time. (Ord. 1208 § 7, 1987)

5.44.080 Service quality requirements.

The grantee shall:

A.    Put, keep and maintain all parts of the system in good condition throughout the term of the franchise.

B.    Transmit signals to all outlets without interfering with other electrical or electronic systems.

C.    Limit failures to a minimum by locating and correcting malfunctions promptly.

D.    Comply with all standards, specifications and requirements of the FCC concerning signal quality and equipment or facilities affecting signal quality as those standards, specifications and requirements now exist or as they may be amended during the term of the franchise codified in this chapter. Grantee shall provide the highest quality and most current cable services economically and technically available. In addition, the grantee agrees that any technical improvements introduced in its similar systems located in Western Washington shall be made available to the city of Shelton within twelve months, if economically and technically feasible.

E.    The grantee shall serve all areas within the territorial limits of the city which satisfy the grantee’s line extension policies, including the density requirements of forty subscribers per one thousand three hundred twenty feet of aerial cable lines.

F.    The grantee shall provide a current list of available channels and shall maintain a thirty-five channel capacity in its system. (Ord. 1208 § 8, 1987)

5.44.090 Operation and maintenance.

A.    The grantee shall render efficient service, 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 to subscribers affected and occur during periods of minimum use.

B.    The grantee shall maintain an office or payment agent in the city, which shall be open during all usual business hours, and have a listed toll-free telephone, to provide usual and ordinary business-office services to subscribers, and be so operated that complaints and requests for repairs may be made at any time. (Ord. 1208 § 9, 1987)

5.44.100 Use of channels.

In the case of any emergency or disaster, the grantee shall, upon the request of the mayor, make available its facilities to the city for emergency use during the emergency or disaster period. (Ord. 1208 § 10, 1987)

5.44.110 Conditions of street occupancy.

A.    Before beginning any excavation or other similar work on any street, avenue, alley or other public rights-of-way, the grantee shall first secure from the city a permit to do such work.

B.    Grantee shall use its existing poles or existing poles erected and maintained by power and telephone companies whenever practicable (including the right to refuse to agree with such companies if such attachment rates are not reasonable) and whenever agreements with the companies so permit. All transmission and distribution structures, lines and equipment erected by the grantee within the city shall be so located as to cause no interference with the proper use of streets, alleys and public rights-of-way, and to cause minimum interference with the rights and reasonable convenience of the public or private property owners.

C.    In case of disturbance of any street, sidewalk, alley, public way or paved area, the grantee shall, at its own cost and expense and in a manner approved by the city, replace and restore such street, sidewalk, alley, public way or paved area to the condition that would have existed except for grantee’s disturbance. Such work shall be completed within fourteen days of disturbance unless grantee is granted additional time by the city. Any temporary restoration within the fourteen days time period shall be properly maintained by the grantee. However, if conditions necessitate immediate action to be taken by the city, grantee shall be responsible for all city costs.

D.    If at any time during the period of the franchise codified in this chapter the city shall lawfully elect to alter or change the grade of any street, sidewalk, alley or other public way, the grantee, upon reasonable notice by the city, shall remove, or relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.

E.    The grantee shall, on the request of any person holding a building permit issued by the city and upon five days’ written notice, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the grantee shall have the authority to require such payment in advance.

F.    The grantee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public ways of the city so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee, except that at the option of the city, such trimming may be done by it or under its supervision and direction at the expense of the grantee. The grantee shall notify the city five days prior to commencing work.

G.    In all sections of the city where the cables, wires or other like facilities of public utilities are placed underground, the grantee shall place its cables, wires or other like facilities underground, except when determined by the city that such placement underground is not feasible.

H.    Where telephone, power and/or light utility companies are compensated by property owners for part or all of the cost of relocating facilities underground by the local improvement district method or otherwise, grantee shall be entitled to receive from such utility or the property owners as the case may be a comparable portion of its undergrounding costs, as a condition to relocating its facilities underground.

I.    Copies of all agreements for joint use of poles and facilities with other utilities shall upon request of the council be filed with the city. (Ord. 1921-0518 (part), 2018; Ord. 1208 § 11, 1987)

5.44.120 Removal of facilities upon request.

Upon termination of service to any subscriber, the grantee shall promptly disconnect his service and terminate the incurring of additional service charges to the subscriber. (Ord. 1208 § 12, 1987)

5.44.130 Theft of services and tampering—Violation—Penalty.

A.    No person, whether or not a subscriber, shall tamper with, alter, damage or attempt to tamper with, alter or damage, or assist in tampering with, altering or damaging any wire, cable, conduit, apparatus or equipment of the grantee within the city without written authorization from the grantee.

B.    No person or entity shall intercept or receive; or use any device, plan or part to intercept or receive; attempt to intercept, receive or use any device, plan or part to intercept or receive; or assist in intercepting, receiving or using any device, plan or part to intercept or receive broadband telecommunication signals, including all cable services, without the written authorization of the grantee unless authorized by applicable federal and state laws. The acts prohibited hereunder include the manufacture, distribution, sale, lease, purchase or offer to sell, lease or purchase, or the advertising of devices, plans or parts used or intended to be used to obtain signals or services in violation of this chapter.

C.    A violation of subsection (A) or (B) of this section shall be a misdemeanor punishable by a one thousand dollar fine, three months’ imprisonment, or both. A violation of subsection (A) or (B) of this section shall also create a civil cause of action entitling grantee to damages in the amount of:

1.    Any lost profits it thereby suffers;

2.    The actual damages to its properties and equipment;

3.    The gross revenues of the violator (less any expenses proved by the violator to have been paid); and

4.    Attorney’s fees and costs of action, all of which in any event shall be no less than two hundred fifty dollars per occurrence.

Each violator is guilty of a separate offense for each and every day during any portion of which any violation of any provision of this chapter is committed, continued or permitted by the violator.

D.    Prima facie evidence of a violation hereof shall be the possession of tampered with, altered or damaged wire, cable, conduit, apparatus or equipment of grantee, or of devices, plans or parts prohibited in this chapter.

E.    The remedies provided hereunder are cumulative and are in addition to all remedies provided by federal or state statutes or common laws. (Ord. 1208 § 13, 1987)

5.44.140 Preferential or discriminatory practices prohibited.

A.    The grantee shall not in its business practices make or grant illegal preference or advantage to any person, nor subject any person to illegal prejudice.

B.    The grantee shall not discriminate against any person in any condition of, or opportunity for employment because of age, sex, race, religion, color or national origin. (Ord. 1208 § 14, 1987)

5.44.150 Transfer of franchise.

Except for assignments to affiliated entities, including parent or subsidiary corporations or partnerships or joint ventures in which such an entity has a controlling interest, the grantee may not lease, assign or otherwise alienate this franchise without the prior consent of the city council of the city of Shelton, which consent shall not be unreasonably withheld. Grantee may, upon notice to the city, assign, mortgage or grant a security interest in its rights under this franchise if necessary to obtain funds for the purchase, improvement or operation of the system. Any assignee or secured party shall be subject to all rights of city hereunder. (Ord. 1921-0518 (part), 2018; Ord. 1208 § 15, 1987)

5.44.160 Additional city rights.

A.    The right is reserved to the city council to adopt, in addition to the provisions contained in this chapter and in existing applicable ordinances, such additional regulations as it shall find necessary in the lawful exercise of the police power; provided, that such regulations, by ordinance or otherwise, shall be reasonable and not in conflict with the rights herein granted.

B.    The city shall have the right to make reasonable inspections of books, records, maps, plans and other like materials of the grantee relating to the system at any time during normal business hours for the purpose of verifying compliance with the provisions of this chapter.

C.    The city shall have the right, during the life of the ordinance codified in this chapter, to install and maintain free of charge upon the poles owned by the grantee any wire and pole fixtures necessary for a police or fire alarm system, on the condition that such wire and pole fixtures shall not interfere with the system operations of the grantee.

D.    The city shall have the right to make inspections as it shall reasonably find necessary to insure compliance with the terms of this chapter and other pertinent provisions of law.

E.    At the expiration of the term for which the franchise codified in this chapter is granted, or upon its termination and cancellation, as provided for in this chapter, the city shall have the right to require the grantee to remove at its own expense all portions of the system from all public ways within the city. (Ord. 1921-0518 (part), 2018; Ord. 1208 § 16, 1987)

5.44.170 Maps and reports.

The grantee shall file with the city clerk upon request true and accurate maps generally locating all existing and ongoing construction of system cable lines. (Ord. 1208 § 17, 1987)

5.44.180 Payment to city.

A.    The grantee shall quarterly pay the city an amount equal to five percent of the gross subscriber receipts of grantee. Grantee shall be entitled to state this amount separately on its bills to subscribers. Such payments shall be made quarterly. In the event that grantee is required to pay or collect any fees in excess of the amount set forth in the first sentence of this section, including copyright fees or fees from its subscribers on behalf of and payable to city, grantee shall be paid a reasonable amount to reimburse it for its administrative costs of such collection, and shall be entitled to state each such charge separately on its bills to subscribers.

B.    With each payment the grantee shall furnish the city clerk with a written statement under oath executed by an officer of the grantee, verifying the amount of gross receipts of grantee within the city for the period covered by payment computed on the basis set out in subsection A of this section. (Ord. 1208 § 18, 1987)

5.44.190 Rates.

The grantee shall have the right to charge and collect compensation from all persons, firms and corporations to whom it may furnish cable television services. The subscriber rates shall at all times be fair, just and equitable and in compliance with all applicable laws. Grantee shall give notice to the city of any changes in the rates. (Ord. 1208 § 19, 1987)

5.44.200 Forfeiture of franchise.

A.    In addition to all other rights and powers pertaining to the city by virtue of this franchise or otherwise, the city reserves the right to terminate and cancel by ordinance the franchise codified in this chapter and all rights and privileges of the grantee hereunder, in the event that the grantee:

1.    Fails, after reasonable notice in writing and public hearing given to it by the city, to commence within a reasonable time a remedy of any substantive violation of any material provision of this franchise or any rule, order or determination of the city council made pursuant to this franchise;

2.    Becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt;

3.    Attempts to transfer or assign any right or obligation under this chapter in violation of the provisions of Section 5.44.150;

4.    Willfully fails to disclose or misrepresents a material fact under the terms of this chapter; or

5.    Willfully fails to provide the services required by this chapter.

B.    Such termination and cancellation shall be by ordinance which may be adopted by the city thirty days following a public hearing regarding the city’s decision to terminate grantee’s franchise. (Ord. 1926-0818 § 1 (part), 2018: Ord. 1208 § 20, 1987)

5.44.210 Duration and acceptance of franchise.

A.    Term—Renewal.

1.    The franchise codified in this chapter and the rights, privileges and authority hereby granted, shall take effect as provided in the ordinance codified in this chapter and shall continue in force and effect for a term of fifteen years from the date of passage of the franchise codified in this chapter. Grantee shall file with the city clerk its conditional acceptance of this chapter and shall promise to comply with and abide by all its provisions, terms and conditions. Execution of this chapter by the grantee where indicated shall be deemed such acceptance of this chapter as of the date of passage of the ordinance codified in this chapter.

2.    The grantee shall have the right to renew the franchise codified in this chapter upon giving ninety days’ notice to the city, provided the grantee is then in substantial compliance hereunder. In the event the grantee is not then in substantial compliance hereunder, the city shall have the right to reasonably condition renewal on the providing necessary assurances of future compliance by the grantee.

B.    Should the grantee fail to comply with subsection A of this section, it shall acquire no rights, privileges or authority whatever under this chapter.

C.    The acceptance of a franchise granted under this chapter shall be deemed to constitute surrender of any right to operate a cable communications system in the city under or by virtue of any cable franchise granted by the city to Harbor Video Cable by Ordinance No. 803. (Ord. 1208 § 21, 1987)