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HomeMy WebLinkAbout2006-10-7183ORDINANCE NO. 2006-10-7183 CHAPTER 22 CABLE COMMUNICATIONS CITY OF PADUCAH, KENTUCKY October 4, 2006 :_ FIN TABLE OF CONTENTS ARTICLEI. IN GENERAL..........................................................................................................1 Sec. 22-1. Title of Chapter..........................................................................................................1 Sec. 22-2. Definitions.................................................................................................................1 Sec. 22-3. Franchisee May be Required to Pay Associated Costs..............................................4 Sec. 22-4. Fair Employment and Contracting.............................................................................4 Sec. 22-5. Construction of Chapter.............................................................................................5 Sec. 22-6. Compliance with Federal, State and Local Laws.5 ..................................................... �. Sec. 22-7. Effect on New and Existing Franchisees...................................................................5 Sec. 22-8. Delegation of Power..................................................................................................6 Sec. 22-9. City Ownership of Cable System..............................................................................6 Secs. 22-10--22-30. Reserved.....................................................................................................6 ARTICLE II. FRANCHISE PROVISIONS................................................................................6 Sec. 22-31. Franchise Required..................................................................................................6 Sec. 22-32. Term; Termination. and Cancellation.......................................................................7 Sec. 22-33. Selection of New Franchisee...................................................................................8 Sec. 22-34. Renewal of Franchise..............................................................................................9 Sec. 22-35. Franchise Conditions...............................................................................................9 Sec. 22-36. Franchise Agreement.............................................................................................10 Sec. 22-37. Operational Standards............................................................................................11 Sec. 22-38. Number of Channels..............................................................................................13 Sec. 22-39. Sec. 22-40. Use of Channels.....................................................................................................13 Public Service Installations ....................................................................................14 Sec. 22-41. Right of City to Purchase System..........................................................................15 Sec. 22-42. Transactions Affecting Ownership or Control of Franchise Facilities..................15 Sec. 22-43. Receivership; Foreclosure.....................................................................................16 Sec. 22-44. City's Right of Intervention; Resolution of Disputes............................................17 Sec. 22-45. Submission of Reports and Data............................................................................17 Sec. 22-46. Insurance; Bonds; Indemnification........................................................................18 Secs. 22-47--22-70. Reserved...................................................................................................19 ARTICLE III. RATES AND CHARGES..................................................................................19 Sec. 22-71. Rates, Charges and Refunds..................................................................................19 Sec. 22-72. Franchise Fees.......................................................................................................20 Secs. 22-73--22-90. Reserved...................................................................................................20 ARTICLE IV. CUSTOMER PROTECTION AND SERVICE STANDARDS .....................20 Sec. 22-91. Notice of Rights and Responsibilities................................................................ 20 Sec. 22-92. Sec. 22-93. Customer Service Office and Telephones............................................................. 21 Special Requirements ` for the Disabled..................................................................23 Sec. 22-94. Reserved................................................................................................................23 Sec. 22-95. Restoration of Subscribers' Property.....................................................................23 Sec. 22-96. Emergency Alert and Availability of Parts and Personnel....................................24 Sec. 22-97. Billing Practices; Billing Credit; Disconnection for Nonpayment of Charges...... 25 Sec. 22-98. Voluntary Disconnection.......................................................................................25 745572vdoc i Sec. 22-99. Protection of Subscriber Privacy...........................................................................26 Sec. 22-100. Substandard Picture Quality................................................................................26 Sec. 22-101. Use and Return of Equipment; Security Deposits...............................................26 Sec. 22-102. Continuity of Service...........................................................................................27 Sec. 22-103. Resolution of Complaints....................................................................................28 Sec. 22-104. Date of Compliance.............................................................................................28 Sec. 22-105-22-130. Reserved................................................................................................28 ARTICLE V. ADMINISTRATION AND ENFORCEMENT.................................................28 Sec. 22-131. Compliance Required..........................................................................................28 Sec. 22-132. Paducah Cable Communications Authority.........................................................28 745572vdoc ll ORDINANCE NO. 2006-10-7183 AN ORDINANCE ABOLISHING AND RE-CREATING CHAPTER 22, CABLE COMMUNICATIONS OF THE CODE OF ORDINANCES OF THE CITY OF PADUCAH,KENTUCKY J BE IT ORDAINED BY THE CITY OF PADUCAH, KENTUCKY: SECTION 1. That Chapter 22, Cable Communications, of the Code of Ordinances of the City of Paducah, Kentucky, is hereby abolished. SECTION 2. That a new Chapter 22, Cable Communications, of the Code of Ordinances of the City of Paducah, Kentucky, is hereby enacted and shall read as follows: ARTICLE I. IN GENERAL SECTION 22-1— TITLE OF CHAPTER This Chapter shall be known as "Chapter 22 Cable Communications of the City's Code of Ordinances." SECTION 22-2 - DEFINITIONS For the purpose of this Chapter, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words in the singular number include the plural number, and words in the plural number include the singular number. The word "shall" is always mandatory and not merely directory. The word "may" is directory and discretionary and not mandatory. Words not defined shall be given their common and ordinary meaning. (a) Access Channel. A Public, Educational or Governmental Access Channel which is carried on a Cable System, but which is not part of any institutional network. (b) Alternative User Charge. To the extent not inconsistent with applicable law, a charge used in place of a Franchise Fee that the City requires as payment for the privilege of using the Street, Easements, Public Ways or rights-of-way of the City in order to construct, maintain and operate a Cable System. (c) Annual Gross Revenues or Gross Revenues. Annual Gross Revenues shall mean any and all compensation in whatever form (except as exempted by this definition, or specifically exempted in a Franchise by the Board of Commissioners) from all Cable Services and Cable Service operations within the City. Also, unless prohibited or preempted by either federal or state law, Annual Gross Revenues shall mean any, and all, compensation from rental or sale of Converters, rental or sale of remote -control devices (including those with volume control), and rental or sale of A/B or input switches. However, Annual Gross Revenues shall not mean the value of Cable Services provided on a complimentary basis as required or allowed by the City, including, without limitation, the provision of Cable Service to public facilities as required herein or any taxes imposed and/or assessed by law on Subscribers (including state sales taxes) which, subject to applicable law, a Franchisee is obligated to collect and pay in full to the applicable taxing authorities. The City acknowledges and agrees that Franchisee will maintain its books and records in accordance with GAAP. (d) Authority. The Paducah Cable Communications Authority provided for in this Chapter. (e) Basic Cable Service. Any Service tier which includes the lawful retransmission of local television broadcast signals and any public, educational, and governmental access programming required by the Franchise to be carried on the basic tier. Basic Cable Service as defined herein shall not be inconsistent with 47 U.S.C. § 543(b)(7). 745572vdoc M, IP (f) Board. The Board of Commissioners for the City of Paducah, Kentucky. (g) Cable Operator. Any Person or group of Persons who: (1) provides Cable Service over a Cable System and directly or through one (1) or more affiliates owns a significant interest in such Cable System; or (2) otherwise controls or is responsible for, through any arrangement, the management and operation of such a Cable System. (h) Cable Service or Service. (A) the one-way transmission to Subscribers of (i) Video Programming or (ii) Other Programming Service, and (B) Subscriber interaction, if any, which is required for the selection or use of such Video Programming or Other Programming Service. Cable Service as defined herein shall not be inconsistent with the definition set forth in 47 U.S.C. § 522(6). (i) Cable System or System. A facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes Video Programming and which is provided to multiple Subscribers within a community, but such term does not include: (1) a facility that serves only to retransmit the television signals of one (1) or more television broadcast stations; (2) a facility that serves Subscribers without using any Street or Public Way; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of 47 U.S.C. § 201 et seq., except that such facility shall be considered a Cable System (other than for purposes of 47 U.S.C. § 541(c)) to the extent such facility is used in the transmission of Video Programming directly to Subscribers, unless the extent of such use is solely to provide interactive on -demand services; (4) an open video system that complies with 47 U.S.C. § 573; or (5) any facilities of any electric utility used solely for operating its electric utility systems. (j) Cable Television Channel or Channel. A portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a television Channel (as "television Channel" is defined by FCC regulation). (k) City. The City of Paducah, Kentucky, and all the territory within its presently existing or future territorial corporate limits. Where appropriate, the term "City" shall refer to it as a corporate entity and also include its officers, employees and duly authorized representatives. (1) City Manager. The designated or acting City Manager of the City of Paducah, Kentucky. (m) Commonwealth. The Commonwealth of Kentucky. (n) Converter. Any electric or other device separate and apart from the Subscriber's receiver that is capable of converting or changing signals to a frequency not intended to be susceptible to interference within the television or video receiver of a Subscriber, and by an appropriate Channel or other type of selector may also permit a Subscriber to view or otherwise use signals delivered j at designated dial locations, or such other reception and use allocations as may be �-- applicable and required for the practical use of the signal. (o) Drop. The cable that connects the ground block on the Subscriber's residence or institution to the nearest feeder cable of the System. (p) Easement. Any public Easement or other compatible use created by dedication or by other means on behalf of the City for public utility purposes or any other purpose whatsoever, including cable television. "Easement" shall include a private Easement used for the provision of Cable Service. 745572vdoc I L- .. ,=, ...L�__f�mcu�u�mslm.ue.s:nlm-L.�+++w,.u.� n_.�ie uYu:s— L__... InLAliul•: 4 ` '• , 'J, -J— i • 745572vdoc (q) FCC or Federal Communications Commission. The federal administrative agency, or lawful successor, authorized to oversee cable television regulation on a national level. (r) Franchisee. All Persons, natural or corporate, or any other entity having any rights, powers, privileges, duties, liabilities or obligations under this Chapter and the Franchise Agreement, and also all Persons having or claiming any power or interest in or to the System, whether by reason of the Franchise itself or any subcontract, transfer assignment, mortgage, pledge, hypothecation, security agreement, management agreement or operating agreement, or otherwise arising _ or created. (s) Franchise or Franchise Agreement. That separate agreement by which a Franchise is granted to the Franchisee as required by this Chapter. Franchise as defined herein shall not be inconsistent with 47 U.S.C. § 522(9). (t) Franchise Area or Service Area. The entire geographic area within the City as it is now constituted or may in the future be constituted. (u) Franchise Fee. Any tax, fee, or assessment of any kind imposed by the City or other governmental entity on Franchisee or Subscriber, or both, solely because of their status as such. It does not include any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and Cable Operators or their services but not including a tax, fee, or assessment which is unduly discriminatory against Cable Operators or cable Subscribers); capital costs which are required by the Franchise to be incurred by Franchisee for Public, Educational, or Governmental Access Facilities; requirements or charges incidental to the awarding or enforcing of the Franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or any fee imposed under Title 17 of the United States Code. (v) Normal Business Hours. The term "Normal Business Hours" means those hours during which most similar businesses in the community are open to serve customers. In all cases, "Normal Business Hours" must include some evening hours, at least one (1) night per week and/or weekend hours. (w) Normal Operating Conditions. Those Service conditions which are within the control of Franchisee. Those conditions which are not within the control of Franchisee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of Franchisee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the Cable System. (x) Ordinance or Chapter. Chapter 22 Cable Communications of the City's Code of Ordinances. (y) Other Programming Service. Information that a Franchisee makes available to all Subscribers generally. (z) Pay Television. The delivery over the System of pay -per -channel or pay - per -program audio-visual signals to Subscribers for a fee or charge, in addition to the charge for Basic Cable Service or Other Programming Services. (aa) Person. Any individual, corporation, business trust, estate trust, partnership, association of two (2) or more Persons having a joint common interest, governmental agency or other legal entity, including the City. (bb) EG. Public, Educational or Governmental. (cc) Service Day. Any day or other twenty-four (24) hour period, other than a Sunday or a City -recognized holiday, in which employees of the Franchisee regularly respond to service requests and calls. (dd) Service Interruption. The loss of picture or sound on one (1) or more Channels. (ee) Standard Installation. Any residential or commercial installation which can be completed using a Drop of one hundred fifty (150) feet or less. (ff) Streets and/or Public Ways. The surface of and the space above and below any public Streets, sidewalk, alley or other Public Way of any type whatsoever now or hereafter existing as such within the City. (gg) Subscriber. A Person lawfully receiving Service delivered over a Cable System by either a Cable Operator or Franchisee. (hh) U.S.C. United States Code. (ii) Video Programming. Programming provided by, or generally considered comparable to programming provided by, a television broadcast station. SECTION 22-3 - FRANCHISEE MAY BE REQUIRED TO PAY ASSOCIATED COSTS In addition to any other rights the City may have under this Chapter, the City specifically reserves the right to charge the Franchisee for any and all costs incidental to the awarding or enforcing of the Franchise as provided for in a Franchise Agreement. SECTION 22-4 — FAIR EMPLOYMENT AND CONTRACTING 6j) Equal opportunity in employment shall be afforded by each cable entity to all qualified Persons, and no Person shall be discriminated against in employment by such entity because of race, color, religion, national origin, age or sex. (kk) A Franchisee shall exercise its best effort to use minority organizations, organizations for women, media, educational institutions, and other potential sources of minority and female applicants, to supply referrals whenever jobs are available in its operation and to encourage minority and female entrepreneurs to conduct business with all parts of its operation. (11) In addition to the provisions noted above, a Franchisee shall comply with all Commonwealth laws, FCC regulations, and 47 U.S.C. § 554 as they relate to equal employment and contracting opportunity within the cable industry. SECTION 22-5 — CONSTRUCTION OF CHAPTER (mm) This Chapter shall be construed in light of applicable Commonwealth and federal laws and regulations governing cable practices in general and cable consumer practices in particular. (nn) Wherever possible, this Chapter shall be construed with as much flexibility as possible so that the City might be able to accomplish its goals of protecting the health, safety, and welfare of the citizenry. SECTION 22-6 — COMPLIANCE WITH FEDERAL, STATE, AND LOCAL LAWS If any federal or state law or regulation shall require or permit City or Franchisee to perform any service or act or shall prohibit City or Franchisee from performing any service or act which may be in conflict with the terms of this Ordinance, then as soon as possible following knowledge thereof, either party shall notify the other of the point in conflict believed to exist between such law or regulation. Franchisee and City shall conform to state and federal laws and regulations and rules regarding cable communications as they become effective. SECTION 22-7 — EFFECT ON NEW AND EXISTING FRANCHISEES (oo) For Persons awarded a cable Franchise after the effective date, this Chapter shall have full effect and be enforceable in its entirety and for a Franchise existing on the date that this Chapter becomes effective, this Chapter shall have no effect during its present Franchise term. (pp) Notwithstanding the above provisions, a Franchisee may file a written petition, at any time, seeking relief from one (1) or more provisions of this Chapter. The relief requested may specifically include the delay in implementation (as to the petitioning Franchisee only) of one (1) or more provisions of this Chapter. 745572vdoc 4 (qq) In order to receive relief from one (1) or more provisions of this Chapter, a Franchisee must satisfactorily demonstrate to the City that one (1) of the following facts exist: (1) The provision and/or requirement is expressly prohibited by applicable law; or (2) The provision materially affects and is in conflict with an expressed right that is specifically noted in an existing Franchise Agreement; or (3) That the imposition of such provisions and/or requirements is commercially impracticable or will create such an undue economic hardship on the Franchisee so as to imperil or eliminate the economic benefits of providing Cable Service to a majority of current Subscribers; or (4) That the Franchisee has its own construction, maintenance, operation, customer service or equal employment opportunity (EEO) policy, practice or standard which is deemed comparable to or exceeding any provision and/or requirement from which the Franchisee seeks relief. (rr) The City shall have the responsibility of determining whether a Franchisee's construction, maintenance, operation, customer service or EEO policy, practice or standard is comparable to or exceeds a similar provision in this Chapter. (ss) In accordance with this Chapter, the City may charge the petitioning Franchisee with the incidental costs of processing an initial Franchise. SECTION 22-8 – DELEGATION OF POWER Unless prohibited by the Commonwealth, the City and/or Board of Commissioners may delegate its powers and authorities (except its ultimate franchising authority) with respect to cable to the Authority, or a duly authorized representative of the City, including the Mayor and City Manager, provided, however, the City and/or Board of Commissioners shall not delegate its powers and authority with respect to matters concerning, Franchise renewal, non-compliance or revocation of the Franchise unless otherwise agreed to by City and Franchisee. SECTION 22-9 – CITY OWNERSHIP OF CABLE SYSTEM In the event the City directly or indirectly through any legal means constructs, acquires, purchases, leases or otherwise owns or controls a Cable System, it shall, with the exception of those requirements pertaining to application for and obtaining a Franchise, be considered a Franchisee for purposes of this Chapter and shall be bound by and comply with all the requirements of this Chapter as if it were a Franchisee. SECTION 22-10-22-30 RESERVED ARTICLE II. FRANCHISE PROVISIONS SECTION 22-31– FRANCHISE REQUIRED (a) Necessity of Franchise. Except as provided in subsections (b) and (c) of this section, to the maximum extent permitted under applicable law, no Person shall provide Cable Services nor operate or maintain a Cable System without having first obtained a Franchise, and then entering into a Franchise Agreement with the City. (b) Exception for City -owned or City -controlled Cable System. Under judicial interpretations of the Kentucky Commonwealth Constitution, a municipality may own and operate a Cable System. Consequently, should the City, directly or indirectly, through any legal means available to the City, decide to purchase, acquire, construct, lease, control or otherwise own a Cable System within the territorial limits of the City, then the City shall not be required to submit a proposal for or receive a Franchise in order to construct, operate and maintain a Cable System within the territorial limits of the City. (c) Contravention of Franchise; costs of litigation. The cost of any litigation incurred by the City to enforce this Chapter or the Franchise granted pursuant 745572vdoc W hereto, or any Franchise Agreement, or in relation thereto, or in relation to the cancellation or termination of a Franchise, shall be reimbursed to the City by the affected Franchisee if the City prevails in the litigation. In the event the Franchisee prevails, the cost of litigation incurred by the Franchisee shall be reimbursed to the Franchisee by the City. Such costs shall include, but not be limited to, filing fees, costs of depositions, discovery, and expert witnesses, all other expenses of suit, and a reasonable attorney's fee. SECTION 22-32 — TERM; TERMINATION AND CANCELLATION (d) Maximum term. No Franchise granted hereunder, or any renewal thereof, shall be for a term of more than fifteen (15) years. (e) Term six years or less. If an initial Franchise or renewal Franchise is for a period of six (6) years or less, then the Franchise Agreement shall explain the reasons for granting the shorter Franchise term. (f) Reasons for term six years or less. The reasons for a shorter Franchise term may include, but are not limited to, the following: (1) Multiple or repeated documented material violations of the prior Franchise Agreement. (2) Multiple or repeated documented material violations of this Chapter. (3) Documented reckless disregard for the safety and welfare of the citizens of the City. (4) Failure to furnish any required annual reports. (5) Failure to comply with a specific, previously agreed upon construction schedule. (6) Failure to timely pay in their entirety any Franchise Fees or taxes or other charges due to the City. (g) Termination and cancellation of Franchise. In addition to all other rights r and powers of the City by virtue of the Franchise or this Chapter, the City may, subject to and in accordance with appropriate terms of this Chapter and a Franchise Agreement, federal, and state law, terminate and cancel the Franchise and all rights and privileges of the Franchisee thereunder in the event that the Franchisee either: (1) Substantially violates any material provisions of the Franchise or this Chapter, or any legal rule, order or determination of the Board of Commissioners made pursuant thereto, where such violation shall remain uncured for a period of thirty (30) days subsequent to receipt by Franchisee of written notice of said violation, except where such violation is not the fault of the Franchisee or is due to excusable neglect; (2) Intentionally evades any of the provisions of this Chapter or the Franchise Agreement or practices any intentional fraud or deceit upon the City; or (3) Becomes insolvent, files bankruptcy or abandons the Franchise or, subject to Section 22-72, fails to pay any applicable Franchise Fee when due. Such determination and cancellation shall be made by ordinance of the Board of Commissioners duly adopted after twenty (20) days' notice to the Franchisee and shall in no way affect any of the City's rights under the Franchise or any provisions of law; provided, however, that, before the Franchise may be terminated and canceled under this section, the Franchisee shall be provided with an opportunity to be heard at a public hearing before the Board of Commissioners, upon thirty (30) days' prior written notice to the Franchisee of the time and place of the public hearing; provided further that the notice shall affirmatively and with specificity cite the reasons alleged to constitute a cause for revocation; and, provided further, that notice of the public hearing shall be published in a local newspaper of general circulation at least five (5) days before the hearing. 745572vdoc 6 IMA (h) Performance evaluation provisions. (1) The City and Franchisee shall hold scheduled performance evaluation sessions within thirty (30) days prior to the fifth (5th) and tenth (10th) anniversary dates of granting a Franchise or renewal of a Franchise. All performance evaluation sessions shall be open to the public and will be announced by the City in a newspaper of general circulation at least five (5) days before each session. (2) Special performance evaluation sessions may be held at any time during the term of the Franchise; provided that both the City and the Franchisee shall mutually agree on the time, the place and the topics to be negotiated. SECTION 22-33 — SELECTION OF NEW FRANCHISEE (i) Request for proposal. In selecting a new Franchisee (not applicable to a proposed transferee) pursuant to this Chapter, the City shall prepare a request for proposal to seek bids for a Cable System to be established under a Franchise by the City. This request for proposal shall contain, among other things, detailed information and instructions relating to the preparation and filing of proposals; technical standards regarding the installation, operation and maintenance of a Cable System; financial ability and stability to construct, operate, and maintain a Cable System; history of legal compliance with other types of Franchise Agreements and commitment to comply with the legal requirements of the City; and the criteria to be used in evaluation of applicant proposals. However, as noted in Section 22-31(b), should the City directly or indirectly, through any legal means available to the City, decide to purchase, acquire, construct, lease, control or otherwise own a Cable System, then the City shall not be required to submit a proposal. 0) Criteria for selection of Franchisee. Applicants for a new Franchise shall be evaluated according to the following criteria: (1) Nonprofit ownership. A preference shall be given to applicants for a Franchise representing nonprofit organizations. (2) Service priorities. A preference shall be given to System capability in terms of no costs telecasting production facilities and Service available to municipal and educational institutions and community groups and individuals. Preference shall be given to System provisions for two- way nonvoice communications. Preference shall be given to the maximum total Channels provided by the System. (3) Installation plan. A preference may be given to an installation plan that would provide flexibility needed to adjust to new developments, maintenance practices, and services that would be available to the Subscriber and the community immediately and in the future. (4) Financial soundness and capability. The evidence of financial ability required in the applicant's proposal shall be such as to assure ability to complete the entire System within a minimum of two (2) years from the date the Franchisee receives an FCC certificate of compliance and to operate a fiscally sound System throughout the term of the Franchise. (5) Demonstrated experience in operating a Cable System under City Franchise. Preference shall be given upon satisfactory evidence of the applicant's experience in operating a Cable System under a City Franchise, where such evidence would show or tend to show or confirm the ability of the applicant to furnish sufficient and dependable Service to the potential public and users. (6) Educational program. A preference shall be given to a System which presents a program whereby the City's public schools may benefit, utilize and develop education programs for students and Subscribers. 745572vdoc 7 (7) Award of New Franchise; Hearing; Publication of Ordinances. The Board of Commissioners may award a new Franchise to an applicant only after a public hearing on the application and proposal, notice of which hearing shall be published in a local newspaper of general circulation at least twenty (20) days before the date of the hearing. Any Franchise that is granted shall be authorized by an ordinance of the Board of Commissioners, which ordinance shall be thereafter published in the manner prescribed by law in a local newspaper of general circulation. SECTION 22-34 — RENEWAL OF FRANCHISE Any renewal of a Franchise shall be governed by and comply with the provisions of 47 U.S.C. § 546 of the Cable Act, as amended. SECTION 22-35 — FRANCHISE CONDITIONS (k) All Franchises granted pursuant to this Chapter shall be subject to, and shall expressly indicate that they are subject to, the following provisions: (1) Any Franchise granted hereunder shall be subject to the right of the City, by appropriate action of its Board of Commissioners, to revoke the Franchise for cause shown pursuant to the provisions of this Chapter or the applicable law of the Commonwealth of Kentucky or the United States of America. (2) Any Franchise granted hereunder shall be subject to all generally applicable provisions of City ordinances and any amendments thereto. (3) Any Franchise granted hereunder shall be subject to the right of the City: a. To repeal the same for failure to comply with the provisions of this Chapter, or any other local, state or federal laws, or Federal Communication Commission rules or regulations. b. To require proper and adequate extensions of the plant and service and maintenance thereof at the highest practicable standard of efficiency as provided for in a Franchise Agreement. C. To establish reasonable standards of service and quality of products, and to prevent unjust discrimination in service or rates. d. To require continuous and uninterrupted Service to the public in accordance with the terms of the Franchise throughout the entire period thereof. e. To control and regulate the use of its Street, alleys, bridges and public places and the space above and beneath them. The Franchisee may be required by the City to permit joint use of its property and appurtenances located in the Streets, alleys, and public places of the City by the City insofar as such joint use may be reasonably practicable and upon payment of reasonable rent therefore; provided that, in the absence of agreement, upon application by any Franchisee, or the City, the dispute may be submitted and resolved as provided in Section 22-44(b). f. Through its appropriately designated representatives, to inspect all construction work performed subject to the provisions of the Franchise and this Chapter, and make such other inspections as it shall find necessary to ensure compliance with the terms of the Franchise, this Chapter and other pertinent provisions of law. g. At the expiration of the term for which the Franchise is granted, or upon the termination and cancellation as provided herein, to require the Franchisee to remove, within eighteen (18) months, at its own expense, the Cable System from the Public Ways within the City. h. To require a Franchisee to pay the cost of newspaper publication of a summary of this Chapter and any amendments thereto in accordance with generally applicable codes. 745572vdoc 91 92 745572vdoc SECTION 22-36 — FRANCHISE AGREEMENT (1) Every Franchisee shall enter into a Franchise Agreement with the City which details the rights, duties, responsibilities and liabilities of both parties, and which contains an acceptance on the part of the applicant or Franchisee to the terms of this Chapter and the Franchise Agreement. Moreover, a new Franchisee may not lay any cable until the Franchise Agreement is executed by both the new Franchisee and the City. (m) In addition to those matters required elsewhere in this Chapter to be included in the Franchise Agreement, it must contain the following express representations of the Franchisee that: (1) It accepts and agrees to all the provisions of this Chapter as to construction, technical standards, operation, and maintenance and rate structures, if permitted by law, which the City may include in the Franchise Agreement. In the case of a Franchise renewal, the Franchise Agreement may include exceptions to this Chapter. (2) It has examined all the provisions of this Chapter. (3) It recognizes the right of the City to make reasonable amendments to this Chapter, consistent with the City's police powers, during the term of the Franchise upon thirty (30) days' notice to the Franchisee. (4) It recognizes and agrees that it may be considered as a Franchisee for the purposes of this Chapter. (5) It expressly recognizes and agrees that it has considered all the provisions of this Chapter in regard to resolution of disputes, and agrees to be bound by same throughout the term of the Franchise. (n) No Franchise shall be exclusive and no Franchisee shall, through the grant of a Franchise, be given an unfair competitive advantage over other franchised Cable Operators providing Cable Service in the City. (o) Every Franchise Agreement shall specifically set forth the specific j standards which the Franchisee must maintain in respect to signal quality requirements and technical standards of construction, operation, and maintenance of the System. (p) The Franchise Agreement shall contain such further conditions or provisions as may be included in the request for proposal and/or negotiated between the City and the Franchisee. In the case of a conflict between any terms or provisions of the Franchise Agreement and this Chapter, the words of the Franchise shall be deemed to control. (q) Any application filed for an initial Franchise shall become a part of the Franchise Agreement and any representations, promises, commitments or volunteered parameters and/or standards shall become binding upon the Franchisee and its heirs and assigns. SECTION 22-37 — OPERATIONAL STANDARDS (r) State of the art; maintaining system to level of current technology. The City may require a Franchisee, during the term of its Franchise, to construct, maintain and operate a Cable System that is at a level that reflects the current technology utilized within the industry. Consequently, the City may (upon the recommendation of the Authority) request that a Franchisee's Franchise provide for measures that require a Franchisee to construct, maintain and operate a Cable System that conforms to the current technological standards of the industry. (s) Construction standards and technical requirements. (1) Methods of construction, installation, maintenance and repair of any Cable System shall comply with the National Electrical Safety Code. (2) It shall be the duty of a Franchisee to undertake a preventative maintenance of the Cable System in order to ensure that there is no material degradation of the Cable System that would affect the citizens' 93 health, safety or welfare, or negatively affect the quality of the Cable Services being provided. (3) All wires, conduits, cable, and other property and facilities of a Franchisee shall be so located, constructed, installed and maintained so as to not endanger or unnecessarily interfere with usual and customary use, traffic, and travel upon the Streets, rights-of-way, Easements, and Public Ways of the community. (4) In the event a Franchisee's System creates a hazardous or unsafe condition, or an unreasonable interference with public property, then, at its own expense, the Franchisee shall, with a reasonable time, voluntarily, or upon the written request of the City, correct or remove that part of the System that creates the hazardous condition from the subject property. (5) A Franchisee shall not place equipment where it will interfere with the rights of private property owners or with gas, electric or telephone fixtures, or with water hydrants or mains, or with wastewater lift stations, or any other service or facility in the Public Ways that benefits the City's or its residents' health, safety or welfare. (6) Subject to reasonable prior written notice, it shall be the responsibility of a Franchisee (acting alone or in conjunction with another Person) to locate and mark or otherwise visibly indicate and alert others to the location of underground cable (or its equivalent) and other utility lines before employees, agents or independent contractors of a Franchisee install cable in a marked -off area. (7) A Franchisee shall, on the request of any Person holding a building moving permit, temporarily remove, raise or lower the cable to allow the moving of the building. The expense of temporary removal shall be borne by the Person requesting it, and the Franchisee may require advance payment. The Franchisee shall be given not less than ten (10) days' advance written notice in order to facilitate the temporary cable changes. (8) A Franchisee, at either its own expense, or that of a private contractor, shall protect rights-of-way and Easements, and support or temporarily disconnect, remove or relocate in the same Street or other Public Way any property of the Franchisee when necessitated by reason of. traffic conditions; public safety; a Street closing; Street construction or resurfacing; change or establishment of Street grade; installation of sewers, drains, water pipes, storm sewers, storm drains, lift stations, force mains, power or traffic signal lines; or any improvement, construction or repair related to the City's or its residents' health, safety, or welfare. If the City requests the relocation, removal or reinstallation of Franchisee's property in any of the Public Ways in the Franchise Area for the sole purpose of installing or providing Cable Services in competition with Franchisee, the cost of such relocation, removal or reinstallation shall not be borne by Franchisee but by the City. (9) Prior to a Franchisee's commencing to attach wire, cable (coaxial, fiber or its functional equivalent) or other fixtures and appurtenances to poles or towers located within the City, it shall execute license agreements for pole attachments with the appropriate utility. (10) The Franchisee shall not discriminate nor permit discrimination m._ between or among any Persons in the availability of Cable Services provided in connection with the Cable System in the Service Area. It shall - ' be the right of all Persons to continuously receive all available Service provided on the Cable System so long as such Person's financial or other obligations to the Franchisee are satisfied. Moreover, the City states that density, proximity and geography, and not economic status, should be the primary factors used to determine whether a Franchisee should provide Service to one (1) or more Persons within a part of a Franchisee's Franchise Area. 745572vdoc 10 ..�._ma 1::.—.. .w,ri ... .« , �-.Wm «iY.rcv-.mxoi�Ye�u_,w�w:vn.•�. L �_ _ .y ei��i�d:_�:,, ...I,,.x .......,—;.,..��...:.:.:.�l..�.i,,,d��.�rJ:�,u:ud.xiu��.e. _. �..,-..m,w�.,.,..�,�a'sirmu�.guvu�d..,..........,....._ ,.�,. ....� ���._m�.uon�_�.��._ss,�,r. all (11) A Franchisee shall create, maintain and provide to the City on an annual basis, Cable System route maps. Complete and accurate System maps, which shall include, but not be limited to, detail of trunks, distribution lines, and nodes shall be available at Franchisee's office for the City's review. (12) A Franchisee shall construct, operate, maintain, repair, remove, replace or restore the Cable System in strict compliance with all current generally applicable codes adopted by the City. The codes referred to specifically include, but are not limited to, construction, fire and safety codes. (13) A Franchisee shall obtain, at its expense, all permits and licenses (including pole attachment agreements) required by law, rule, regulation or local law, and maintain the same in full force and effect for as long as required. SECTION 22-38 — NUMBER OF CHANNELS The precise Channel capacity that a Franchisee must maintain during the term of the Franchise shall be detailed in the Franchise Agreement. SECTION 22-39 — USE OF CHANNELS (t) The City recognizes that pursuant to 47 U.S.C. § 531, the City has certain authority with respect to certain aspects for Public, Educational or Governmental Access Channel use. (u) To the extent permitted by law, and in order to fulfill the City's desired goal of achieving a EG Access Channel policy that will facilitate the long-range needs of the City, the Board of Commissioners adopts the following: (1) At the time of an initial application or proposal, and unless otherwise provided in a Franchise Agreement or subsequent renewal Franchise Agreement, a Franchisee shall pledge to include the following: a. A Franchisee shall provide, at its own expense, one (1) educational Access Channel that is available for providing non- commercial, educational programming. b. A Franchisee shall provide, at its own expense, one (1) public Access Channel that is available for providing non- commercial public access, senior citizen, and library programming. C. A Franchisee shall provide, at its own expense, one (1) governmental Access Channel that is available for providing noncommercial governmental programming. (2) If at any time eighty percent (80%) of the total time allocated for a required EG Access Channel is consistently used eight (8) hours per day, five (5) days a week for a period of three (3) consecutive months with non -character generated, non -repetitive programming, then, upon one hundred twenty (120) days written request, the Franchisee shall provide one (1) additional EG Access Channel. (3) All programming transmitted over EG Access Channels shall be non-commercial in nature. Program material to be distributed on EG Access Channels shall contain no advertising or commercial content for which consideration is received by City. Franchisee and City agree that City or the producer or distributor of such programming may include acknowledgments for Persons which sponsor or underwrite access programming in a manner substantially similar to the sponsorship information provided on the Public Broadcasting System (PBS). (v) Unless otherwise provided in a Franchise, a Franchisee shall provide: (1) Both mobile, portable and stationary equipment to be used for Access Channel programming, together with the aid of technical and production assistance provided by the Franchisee; (2) Equipment that can store programs for delayed cablecasting; and 745572vdoc 11 �D 95 (3) Technical production assistance required for EG access use .that may extend to, but not exceed, fifty (50) actual production man-hours per year. (w) Unless otherwise specified in a Franchise, the City shall develop a plan for handling requests for use of EG Access Channels, facilities or programming. Such a plan shall be nondiscriminatory in nature and should encourage joint or cooperative efforts on the part of potential users. However, the City recognizes that, while citizens enjoy considerable first amendment freedoms, these freedoms, nonetheless, must be weighed against the legitimate health, safety and welfare interests of all citizens in the Service Area. Consequently, when a request for access time is made by a culturally unpopular, politically controversial, or racially/ethnically/religiously intolerant organization, the City may require safeguards which minimize or lessen the possibility and probability that such espoused viewpoints will damage the community fabric. The City may declare the speech is culturally obscene in that it was or would be so morally devoid or culturally offensive that it either dramatically reduced the overall value of other services provided on the Cable System or posed a discernible risk of disrupting the spiritual, political or racial fabric of the community. However, the safeguards imposed may only be as much as is necessary to accomplish the City's objectives. The safeguards include restricting such programming to non -prime -time hours (before 7:00 p.m. and after midnight) and allowing the audio, but not video, of such programming to be provided over the EG Access Channel. For purposes of this Chapter, a culturally unpopular, politically controversial, or racially/ethnically/religiously intolerant organization is one whose viewpoints or displays have no redeeming social, historical or artistic value, and undermine the community fabric. SECTION 22-40 — PUBLIC SERVICE INSTALLATIONS The Franchisee shall, without charge for installation, maintenance or Service, make Standard Installations consisting of one (1) Drop and one (1) outlet at City Hall, the Paducah Public Library, each fire and police station, and each public and private accredited K-12 school within the City located within two hundred fifty (250) feet of Franchisee's existing distribution cable. Such installations shall be made at such reasonable locations as shall be requested by the respective units of government or educational institutions and shall include one Converter, without charge, per installation, if necessary. Any charge for relocation of such installation shall, however, be charged at Franchisee's current rate for such work. Additional installations at the same location shall be made by Franchisee at Franchisee's current rate for such work. No monthly service charges shall be imposed for Basic Cable Service and expanded Basic Cable Service (or the future equivalent) signals within such publicly owned buildings. SECTION 22-42 — RIGHT OF CITY TO PURCHASE SYSTEM (x) Purchase upon expiration of term. Subject to Section 626 of the CCPA (47 U.S.C. § 546), other applicable law, and with the consent of Franchisee, upon expiration of the term of the Franchise, the City, at its selection, and upon payment to the Franchisee of a price equal to the fair market value of the System as a going concern, including physical assets and intangibles, including good will, in accordance with the accepted and usual industry practices (except the valuation of the Franchise privilege itself), shall be given the opportunity to purchase the System. (y) Purchase upon default. Upon lawful termination of the Franchise rights as provided for by this section or by law occasioned by the substantial breach of provisions of the Franchise Agreement or this Chapter and with the consent of Franchisee, the City, at its selection and upon payment to the Franchisee of a price equal to the fair market value of the System as a going concern, including physical assets and intangibles, including good will, in accordance with accepted and usual industry practices (except that the valuation shall not include any valuation of the Franchise privilege itself), shall be given the opportunity to purchase the System. In the case of the City's purchase of the System and the circumstances, the Franchise shall transfer to the City possession and title to all facilities and property, real and personal, of the Cable System business, free from any and all liens and encumbrances. This provision, however, may be waived by the City at its option, in whole or in part. 745572vdoc 12 ,........._�.._._L.,..��i_e:u•'=-��.wi.�,un.e.Wuse�y ,.�a.�:.«,�..,,,�m uuud�eau_l�m: 4_��_:.riwvL<x�i�:mv.�n�L� ._.:._... I.r.. _.,,w .I 91�i. �. inn � � e� .....�.._ u�n.wny�e,,...—� ,zw,. M SECTION 22-42 — TRANSACTIONS AFFECTING OWNERSHIP OR CONTROL OF FRANCHISE FACILITIES (z) To protect the interest of the City under any Franchise granted pursuant to this Chapter, the Franchisee shall not transfer, transfer control, or otherwise assign the Cable System or Franchise to a third party without adherence to the provisions of subsections (1) and (2) below: (1) Without the express approval of the Board of Commissioners, which shall not be unreasonably withheld; and (2) Without a written assent filed with the Board of Commissioners binding upon the Person in whom any right, power, privilege, duty, title, interest, claim or demand in or to the Franchise or the System is created or vested, to the effect that such right, power, privilege, duty, title, interest, claim or demand is and shall be held and exercised subject to all the terms and provisions of the Franchise, including this Chapter. The Board of Commissioners may require such written assent to be contained in any instrument or document creating or vesting such right, power, privilege, duty, title, interest, claim or demand. Provided, however, that this subsection (a)(2) shall not apply to the disposition of worn-out or obsolete facilities or personal property in the normal course of carrying out the Cable System business. (aa) Prior approval of the Board of Commissioners shall be required for any sale, transfer, exchange or assignment of stock in Franchisee, or Franchisee's parent corporation or any other entity having a controlling interest in Franchisee, so as to create a new controlling interest therein, shall be subject to the requirements of this Section 22-42. The term "controlling interest" as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised. (bb) No Franchise may be transferred unless such transfer is approved by the Board of Commissioners, by ordinance, after public hearing, such approval not to be unreasonably withheld. No such approval shall be required, however, for (i) a transfer in trust, by mortgage, hypothecation, or by assignment of any rights, title, or interest of the Franchisee in a Franchise or the Cable System in order to secure indebtedness, or (ii) an internal transfer to an entity directly or indirectly owned or controlled by the parent corporation of Franchisee. The City shall process all requests in accordance with applicable FCC regulations and other applicable laws. (cc) By its acceptance of a Franchise, the Franchisee specifically concedes and agrees that any acquisitions or transfers set forth in subsections (b) and (c) above, without prior approval of the Board as may be required, shall constitute a violation of the Franchise and this Chapter by the Franchisee. SECTION 22-43 — RECEIVERSHIP; FORECLOSURE (dd) Any Franchise shall, at the option of the Board of Commissioners, cease and terminate one hundred twenty (120) days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the Franchisee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trustee shall have been vacated prior to the expiration of the one hundred twenty (120) days or unless: (1) The receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this Chapter and the Franchise, and the receivers or trustees within the one hundred twenty (120) days shall have remedied all defaults, if any, under the Franchise; and (2) The receivers or trustees shall, within the one hundred twenty (120) days, execute an agreement duly approved by the court having jurisdiction in the premises whereby the receivers or trustees assume and agree to be bound by each and every term, provision and limitation of a Franchise. 745572vdoc 13 ffl (ee) In the case of a foreclosure or other judicial sale of the plant, property, and equipment of the Franchise, or any part thereof, including or excluding the Franchise, the Board of Commissioners or its designee may serve notice of termination upon the Franchisee and the successful bidder at such sale, in which event the Franchise and all rights and privileges of Franchisee hereunder shall cease and terminate thirty (30) days after service of such notice, unless: (1) The Board of Commissioners shall have approved the transfer of the Franchise as and in the manner in this Chapter provided; and (2) Unless the successful bidder shall have covenanted and agreed with the City to assume and be bound by all the terms and conditions of the Franchise. SECTION 22-44 — CITY'S RIGHT OF INTERVENTION; RESOLUTION OF DISPUTES (ff) City's right of intervention. The Franchisee shall not oppose intervention by the City, at the City's expense, in any suit or proceeding to which the Franchisee is a party. (gg) Resolution of disputes. (1) Intent. It is the intent of the City to provide for the orderly resolution of any controversy or dispute between the Franchisee and the City arising out of the enforcement or interpretation of any provision of this Chapter, the Franchise Agreement, or any rule, regulation or procedure relating to cable communication matters. Unless otherwise provided for in a Franchise Agreement, negotiation between the parties and fact finding shall be the means of resolving the great majority of such controversies or disputes. Neither fact finding nor mediation, however, shall be the first resort of the parties, but shall be undertaken only after a reasonable time has been taken to reach agreement by negotiation between the parties. (2) Fact finding. Any material controversy or dispute, upon the election of both the City and the Franchisee, may be submitted to an expert individual acceptable to both parties for an investigation of the facts and a report thereof. Such fact finding shall be for the purpose of developing better information for the use of both parties and shall not be binding on either party. All reasonable fees and other expenses resulting from such fact finding shall be equally borne by both the City and the Franchisee. (3) Mediation. Any material controversy or dispute, upon the election of either the City or the Franchisee, may be submitted to an expert individual acceptable to both the Franchisee and the City for the purpose of facilitating discussion and receiving new perspectives on the issues and new proposals for compromise. Such mediation shall not be binding on either party. All reasonable fees or expenses resulting from such mediation shall be equally borne by both the City and the Franchisee. (4) Fees and expenses. The reasonable fees of single experts as provided for above shall be jointly borne by the Franchisee and the City. In no event shall the City be obligated for more than one-half of the expenses. .� SECTION 22-45 — SUBMISSION OF REPORTS AND DATA (hh) Filings and communications with regulatory agencies. At any time the FCC or another federal or state agency requires or requests the submission of reports, data or other information by a Franchisee, then such Franchisee shall, upon reasonable written request, submit those reports, data or other information to the City. However, unless specifically authorized by state or federal statute, a Franchisee shall not be required to submit state or federal tax returns. (ii) Reports. Each Franchisee shall, subject to applicable law, make available customer and service records relating to its System and all other records required to be kept hereunder, and shall, at all times, maintain complete and accurate books 745572vdoc 14 0 of account, records of its business and operation, and all other records required by this Chapter or the Franchise for a period of time no longer than required by applicable state and federal law. Unless otherwise provided for in a Franchise Agreement, each Franchisee shall file annually with the Authority an ownership record indicating all Persons who in the preceding year did control or benefit from an interest in the Franchisee of five percent (5%) or more. Each Franchisee shall also file annually with the Authority copies of all rules, regulations, terms and conditions which it has adopted for the conduct of its business. SECTION 22-46 — INSURANCE: BONDS; INDEMNIFICATION 6j) Liability and indemnification of City. The Franchisee shall indemnify and s hold harmless the City at all times during the term of the Franchise and specifically agree that it will pay all damages and penalties which the City may be legally required to pay as a result of the Franchisee's actions or omissions. Such damages and penalty shall include, but not be limited to, damages arising out of copyright infringements, and other damages arising out of the installation, operation or maintenance or the Cable System authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by the Franchise. In the case suit shall be filed against the City, either independently or jointly with the Franchisee, to recover for any claim or damages, the Franchisee, upon notice to it by the City, shall defend the City against the action and, in the event of a final judgment being obtained against the City, either independently or jointly with the Franchisee, solely by reason of the acts of the Franchisee, the Franchisee will pay the judgment and all costs and hold the City harmless therefrom. (kk) Performance bond. Upon the effective date of the Franchise Agreement requiring System construction, the Franchisee shall furnish proof of the posting of a faithful performance bond running to the City, with good and sufficient surety approved by the City, in the initial sum of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00). Upon completion of any System construction/upgrade the bond shall be reduced to Twenty-five Thousand and No/100 Dollars ($25,000.00). The bond shall be conditioned that the Franchisee shall well and truly observe, fulfill and perform each and every term and condition of this Chapter and the Franchise Agreement, and that, in the case of any breach of condition of the bond, the amount thereof shall be recoverable from the principal and the surety, jointly and severally, thereof by the City for all damages resulting from the failure of the Franchisee to well and truly observe and perform any provisions of this Chapter or the Franchise Agreement. The aforesaid bond shall be maintained by the Franchisee throughout the term of the Franchise and written evidence of the payment of the required payments shall be filed and maintained both with the office of the City Manager and the Authority. (11) Insurance. (1) The Franchisee shall be required to maintain insurance in such forms and in such companies as shall be approved by the City, such approval not to be unreasonably withheld, to protect the City and the Franchisee from and against any and all claims, injury or damage to persons or property, both real and personal, caused by the construction, erection, operation or maintenance of any aspect of the system. The amount of such insurance shall not be less than the following: a. General liability insurance: 1. Bodily injury per Person: $3,000,000.00. 2. Bodily injury per occurrence: $5,000,000.00. 3. Property damage per occurrence: $1,000,000.00. 4. Property damage aggregate: $1,000,000.00. b. Automobile insurance: 1. Bodily injury per Person: $1,000,000.00. 2. Bodily injury per occurrence: $3,000,000.00. 745572vdoc 15 3. Property damage per occurrence: $1,000,000.00. (2) Workmen's compensation insurance shall also be provided as required by the laws of the Commonwealth of Kentucky. All said insurance shall name the City as an additional insured and shall provide a ten (10) day notice to the City Clerk in the event of material alteration or cancellation of any coverage afforded in the policies prior to the date the material alteration or cancellation shall become effective. Copies of all policies required hereunder shall be furnished to and filed with the City Clerk and the Authority prior to the commencement of operations or the expiration of prior policies, as the case may be. (mm) Nonwaiver. Neither the provisions of this section nor any bonds accepted by the City pursuant hereto, nor any damage recovered by the City hereunder, shall be construed to excuse unfaithful performance by the Franchisee or limit the liability of the Franchisee under this Chapter or the Franchise for damages either to the full amount of the bond or otherwise. SECTION 22-47-22-70 RESERVED ARTICLE III. RATES AND CHARGES SECTION 22-71– RATES, CHARGES AND REFUNDS A. Rates subject to local regulation. City may regulate rates for the provision of Cable Service, equipment, or any other communications service provided over the System in accordance with applicable federal law, in particular 47 C.F.R. Part 76 subpart N. In the event the City chooses to regulate rates it shall, in accordance with 47 C.F.R. § 76.910, obtain certification from the FCC, if applicable. The City shall follow all applicable FCC rate regulations and shall ensure that appropriate personnel are in place to administer such regulations. City reserves the right to regulate rates for any future Services to the extent permitted by law. B. Rate changes; discrimination. In accordance with applicable law: (1) Access to Cable Service shall not be denied to any group of potential residential Subscribers because of the income of the residents of the local area in which such group resides. However, nothing herein shall prohibit a Franchisee from denying Service based on location of a residence if that residence is outside either the defined Service Area or line extension criteria specified in a Franchise. (2) Equal opportunity in employment shall be afforded by a Franchisee to all qualified Persons and no Person shall be discriminated against in employment by a Franchisee because of race, color, religion, national origin, age or sex. (3) A Franchisee shall not, as to rates and charges or use of a Franchisee's facilities or equipment, allow or grant any undue preference or advantage on the basis of race, color, religion, national origin, age, sex or location of residence. Nothing herein shall prohibit a Franchisee from offering a promotional or incentive discount rate or charge or from offering customized bulk billing arrangements. SECTION 22-72 – FRANCHISE FEES (a) The City hereby reserves any and all rights it may have to impose a Franchise Fee to the maximum extent permitted under applicable law. (b) A Franchisee shall at all times comply with applicable state law regarding the payment of fees, costs and other consideration by virtue of Franchisee's provision of Cable Service in the City. Nothing herein shall in any way diminish a Franchisee's right to pass-through such Franchise Fee to its Subscribers to the extent permissible under applicable law. (c) If the FCC, Congress or .other governmental entity with authority over cable ever allows the City to assess a Franchise Fee, then the City shall have the right to assess a Franchise Fee upon one hundred twenty (120) days advance notice to Franchisee to the maximum rate allowable. 745572vdoc 16 100 745572vdoc (d) If at any time the highest court of the nation, or the highest court of the state, or any court with jurisdiction over Franchise Fees, invalidates, voids or rules as unconstitutional the concept of Franchise Fees, then the City reserves all rights it may have to impose an Alternative User Charge on the Franchisee to the maximum extent permitted by law. SECTION 22-73-22-90 RESERVED ARTICLE IV. CUSTOMER PROTECTION AND SERVICE STANDARDS SECTION 22-91– NOTICE OF RIGHTS AND RESPONSIBILITIES (a) General policy. (1) The City recognizes that it is critical that a customer fully understands and realizes the rights and responsibilities of both the customer and Franchisee with respect to the provisions, maintenance and repair of Cable Service. (2) Further, the City believes that, if sufficient information is provided to a customer on certain customer service practices, such as rates, billing periods, and number and types of service provided, then that customer will have the information necessary to make an informed decision on what, if any, Cable Services to subscribe to and receive. (3) In order to provide customers with the variety of information needed to make an informed decision, and to ensure that customers are notified of their and the Franchisee's rights and responsibilities with respect to the Cable System, a Franchisee must provide a customer with a written notice of a customer's and Franchisee's rights and responsibilities with respect to the provision of Cable Service. (b) Notifications to Subscribers. Franchisee shall provide written information on each of the following areas at the time of installation of Cable Service, at least annually to all Subscribers, and at any time upon request: (1) Products and Services offered; (2) Prices and options for programming Services and conditions of subscription to programming and other Services; (3) Installation and Service maintenance policies; (4) Instructions on how to use the Cable Service; (5) Channel positions of the programming carried on the System; and (6) Billing and complaint procedures, including the address and telephone number of the City. (c) Subscribers will be notified of any changes in rates, programming services or Channel positions as soon as possible in writing. Notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if the changes are within the control of the Franchisee. In addition, the Franchisee shall notify Subscribers thirty (30) days in advance of any significant changes in the other information required by this Section 22-91. Franchisee shall not be required to provide prior notice of any rate changes as a result of a regulatory fee, Franchise Fee, or other fees, tax, assessment or charge of any kind imposed by any federal agency, state or City on the transaction between the operator and the Subscriber. (d) All programming decisions remain the discretion of Franchisee in accordance with the Franchise, provided that Franchisee notifies City and Subscribers in writing thirty (30) days prior to any Channel additions, deletions, or realignments directed to each Subscriber individually by any reasonable means available to and at the discretion of the Franchisee consistent with applicable law, and further subject to Franchisee's signal carriage obligations hereunder and pursuant to 47 U.S.C. § 531-536, and further subject to City's rights pursuant to 47 U.S.C. § 545. SECTION 22-92 – CUSTOMER SERVICE OFFICE AND TELEPHONES 17 ID 101 (e) Unless otherwise provided for in a Franchise Agreement, Franchisee shall maintain a convenient local customer service and bill payment location in the City for receiving Subscriber payments, handling billing questions, equipment replacement and customer service information. The Franchisee shall comply with the standards and requirements for customer service set forth below and shall comply with all applicable regulations relating to customer service obligations, including any amendments to 47 C.F.R. § 76.309 during the term of the Franchise, that impose higher or additional customer service standards on a Cable Operator. (f) Cable System office hours and telephone availability: (1) Franchisee will maintain a local, toll-free or collect call telephone access line which will be available to its Subscribers twenty-four (24) hours a day, seven (7) days a week. a. Trained Franchisee representatives will be available to respond to customer telephone inquiries during Normal Business Hours. b. After Normal Business Hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after Normal Business Hours must be responded to by a trained Franchisee representative on the next business day. (2) Under Normal Operating Conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less then ninety percent (90%) of the time under Normal Operating Conditions, measured on a quarterly basis. (3) Franchisee shall not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. (4) Under Normal Operating Conditions, the customer will receive a busy signal less than three percent (3%) of the time. (5) Customer service center and bill payment locations will be open at least during Normal Business Hours. (g) Installations, Outages and Service Calls. Under Normal Operating Conditions, each of the following standards will be met no less than ninety-five percent (95%) of the time measured on a quarterly basis: (1) Standard Installations will be performed within seven (7) business days after an order has been placed. "Standard" Installations are those that are located up to one hundred twenty-five (125) feet from the existing distribution cable. (2) Excluding conditions beyond the control of Franchisee, Franchisee will begin working on "Service Interruptions" promptly and in no event later than twenty-four (24) hours after the interruption becomes known. Franchisee must begin actions to correct other Service problems the next business day after notification of the Service problem. Franchisee shall resolve all Service Interruptions within forty-eight (48) hours under Normal Operating Conditions. (3) The "appointment window" alternatives for Standard Installations, Service calls, and other installation activities will be either a specific time or, at maximum, a four (4) hour time block during Normal Business Hours. (Franchisee may schedule Service calls and other installation activities outside of Normal Business Hours for the express convenience of the customer.) 745572vdoc 18 102 ulN­uLcamn­.1L -:ui.:�t:len:rmolrnm�un.u....w.»M:...,..-...,y,.�j.�:...�Jh.snil,.�4x „..,.. nw�n.utitl:�b�lu� ..,I...- e.l�w�lud�, Ne.K�u.m..eaWnu _ (4) Franchisee may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. (5) If Franchisee's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted prior to the time of the scheduled appointment. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer. (6) Under Normal Operating Conditions, if Franchisee cannot perform installations within the times specified in applicable customer standards, the Subscriber shall, upon request, receive a credit equal to the charge for a Standard Installation. For any installation that is not a free installation or a Standard Installation, Franchisee shall provide the Subscriber with a written estimate of all charges within seven (7) days of a request by the Subscriber. Failure to comply will subject Franchisee to appropriate enforcement actions. This section does not apply to the introduction of new products and services when Franchisee is utilizing a phased introduction. SECTION 22-93 — SPECIAL REQUIREMENTS FOR THE DISABLED (h) In addition to any other requirements mandated by this Chapter, or by federal or Commonwealth law, a Franchisee shall comply with the following special service requirements for blind, hearing-impaired or wheelchair customers: (1) Provide wheelchair accessibility to a Franchisee's customer service office. (2) For any customer declared legally blind by the Commonwealth, a Franchisee must provide at a non-discriminatory cost, if requested by the customer, large -type, Braille, voice -synthesized or functionally equivalent notices, bills and other pertinent information. (3) Provide, upon request, either: 1) assistance with identifying a consumer electronics source; or 2) at a reasonable, non-discriminatory cost, a device sufficient to enable closed -captioning services for a hearing- impaired Subscriber. (4) Provide, at a nondiscriminatory cost, a remote -control device and/or Converter for wheelchair Subscribers or Subscribers with a permanent medical or physical ambulatory impairment. (5) Where applicable, provide modified or special instructions for use of equipment by Subscribers who have physical impairments. SECTION 22-94 - RESERVED SECTION 22-95 — RESTORATION OF SUBSCRIBERS' PROPERTY (i) At any time a Franchisee disturbs the yard, residence, or other real or personal property of a Subscriber, the Franchisee shall ensure that the Subscriber's yard, residence, or other real or personal property is returned, replaced and/or restored to a condition that is comparable to its condition immediately before the disturbance to the extent such corrective action cannot be accomplished. The Franchisee shall reimburse a Subscriber, or private property owner, for any damage caused by the Franchisee, subcontractor or independent contractor in connection with the disturbance of a Subscriber's or private property owner's property. 0) The types of acts specifically included in this section are the following: (1) Removal of a Subscriber's sod, lawn, plants, shrubbery, flowers, trees, driveway or fence to install a trench or repair, replace, remove or locate cable or other equipment of the Franchisee. (2) Installation or removal of a cable or other equipment of the operator within a Subscriber's residence, or around a Subscriber's swimming pool or tennis court, or which requires drilling, excavating, plastering or the like on the part of the Franchisee. 745572vdoc 19 103 (3) Temporarily relocating or moving a piece of personal property of a Subscriber (such as a motor vehicle, fence, garden hose or the like) in order to perform some sort of construction or maintenance on the Cable System. (4) Permanently removing a Franchisee's cable or equipment due to either the revocation, termination or nonrenewal of a Franchise or the abandonment, withdrawal or cessation of Cable Service to any portion of the City. (k) The requirements for the Franchisee extend to any contractor that the i' Franchisee might employ to perform the tasks outlined. (1) In light of the foregoing, a Franchisee has the authority to trim trees of a private property owner (including a Subscriber) only to the extent necessary to prevent the branches of the tree from coming in contact with the Franchisee's wires and cables. SECTION 22-96 — EMERGENCY ALERT AND AVAILABILITY OF PARTS AND PERSONNEL (m) Emergency alert; standby power. (1) In order that Subscribers may be alerted in the event of an impending, imminent or actual natural, manmade or disaster emergency, the Franchisee shall ensure that the Cable System providing Cable Service to all or part of the City is designed so as to permit an authorized official to override the audio portion of all Channels and simultaneously and without a separate or additional effort activate a Channel -blanking function on all Channels by touch-tone phone (or functional equivalent). (2) In addition to any other requirements listed in this Chapter, a Franchisee shall cooperate with the City on the use and operation of the emergency alert override system. (3) As one method of providing continuity of services in the event of a ,. natural, manmade or disaster emergency, a Franchisee shall, unless exempted by the City, maintain equipment capable of providing automatic standby power for a minimum of two (2) hours, strategically placed in locations along the Cable System trunkline in order to minimize the number of Subscribers affected by interruption of Service. (n) Availability of parts and personnel. (1) Except in times of natural, manmade or disaster emergency, a Franchisee shall make a reasonable effort at all times to keep and maintain a sufficient and adequate inventory of maintenance and repair parts and equipment for the Cable System, so that the Franchisee can respond to, and correct, all Subscriber interruptions within the specified time periods. (2) Except in times of natural, manmade, or disaster emergency or strike (whose duration has been more than seventy-two (72) hours), a Franchisee shall make a reasonable effort to have sufficient maintenance and repair personnel so that the Franchisee can respond to, and correct, all Subscriber Service Interruptions within the specified time periods. SECTION 22-97 — BILLING CREDIT: DISCONNECTION FOR NONPAYMENT OF CHARGES (o) Billing practices. (1) Bills must be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. (2) In case of a billing dispute, the Franchisee must respond to a written complaint from a Subscriber within thirty (30) days. 745572vdoc 20 104 (3) At all times Franchisee's billing practices shall comply with 47 C.F.R § 76.1619. (p) Billing credit. A Franchisee shall provide a Subscriber, upon request, with credit for a Service outage exceeding twenty-four (24) hours and for substandard signal, picture or sound quality exceeding twenty-four (24) hours. (q) Disconnection for nonpayment. A Subscriber shall not be considered disconnect for non-payment until at least forty-five (45) days after the posting of the bill to the Subscriber and payment has not been received by the Franchisee. SECTION 22-98 — VOLUNTARY DISCONNECTION (r) At any time, a Subscriber may request that a particular service tier, service it cluster, Pay Television, premium Channel, informational service or the entire Cable Service be discontinued. (s) From the date that such a Subscriber makes such a request, the Franchisee shall have up to five (5) business days to disconnect the service tier, service cluster, Pay Television, premium Channel, informational service or entire Cable Service. In the event that a Franchisee does not disconnect Service within five (5) business days, a Subscriber's obligation to pay for such Service shall cease. (t) For a service tier, service cluster, premium Channel or informational service which is voluntarily disconnected, a Subscriber shall pay a pro rata share of the monthly rate for such Service or Channel. (u) Notwithstanding the above provisions, and in order to reduce Subscriber abuse of this voluntary disconnection policy, a Subscriber shall be charged a minimum of one (1) month's full rate for any one (1) service (basic, premium, informational, cluster or tier) which is disconnected at least three (3) times in a span of one hundred eighty (180) days. (v) Unless damage has occurred or Franchisee's equipment has not been returned, no excessive, unreasonable or punitive fee may be passed on to a Subscriber for the actual disconnection of a Channel or Service if the disconnection involves a single residence with fewer than five (5) outlets. (w) Any refund due a Subscriber after disconnection (both for nonpayment and voluntary) shall be made within sixty (60) days after such disconnection. SECTION 22-99 — PROTECTION OF SUBSCRIBER PRIVACY (x) Written permission from the Subscriber shall not be required for the conducting of system wide or individually addressed electronic sweeps for the purpose of verifying System integrity or monitoring for the purpose of billing. Confidentiality of such information shall be subject to the provision set forth above. (y) The Franchisee shall, at all times, comply with all applicable federal and state privacy law including Section 631 of the Cable Act and any regulations adopted pursuant thereto. The City shall have the right to enforce Franchisee's compliance with said privacy law to the maximum extent permitted under applicable laws. SECTION 22-100 — SUBSTANDARD PICTURE QUALITY (z) The City recognizes that a cable Subscriber is a consumer. As such, there is no more important factor for the cable Subscriber in terms of enjoying the provision of video or Other Programming Services offered by a Franchisee than the provision of good and acceptable picture and sound quality. (aa) The City declares as one of its primary objectives to preserve, protect, and promote that all cable Subscribers within the City receive good and acceptable picture and sound quality. (bb) At a minimum, the Franchisee must meet all FCC standards that relate to the reception of broadcast signals. Moreover, the Franchisee must provide sound and picture quality that does not suffer from constant and/or recurring degradation or requires frequent (more than ten (10) times in one (1) year) adjusting or 745572vdoc 21 10M servicing by a Franchisee customer service technician or a Franchisee field service technician. (cc) To prevent possible abuse, a Subscriber shall pay for all administrative and Franchisee costs associated with examining substandard picture and sound quality if it is administratively determined that the Subscriber's claim is unwarranted and without foundation. (dd) The City reserves the right to develop and adopt comprehensive regulations on the technical aspects of signal quality should the FCC permit such. h SECTION 22-101 —USE AND RETURN OF EQUIPMENT, SECURITY DEPOSITS (ee) If needed for proper operation or requested by a customer, a Franchisee shall provide to a customer handwritten or typed instructions on the proper use of the rented, loaned, leased or purchased equipment. A Franchisee may comply with this section (except in the case of sight- or hearing-impaired customers) by delivering the manufacturer's instructions to a customer. (ff) A Franchisee is not required to seek a security deposit from a customer for the use or rental of a Franchisee's equipment. (gg) When a security deposit is required from a customer by a Franchisee, the customer shall first receive a written statement from the Franchisee acknowledging that the equipment is in working order. SECTION 22-102 CONTINUITY OF SERVICE (hh) The City declares that, as part of its right to establish cable customer service guidelines, it has the duty to ensure continuity of Cable Service for all Subscribers. In that light, the City also determines that it may take appropriate measures in order to ensure that no portion of the City is threatened or faced with a disruption, interruption or discontinuance of Cable Service due to the actions of any Franchisee. (ii) In addition to the above principles and ideals, the City also expresses that its policy covers the following: (1) Providing for continuity of Cable Service in the event of acquisition by the City; (2) Providing for continuity of Cable Service in the event of a proposed abandonment, withdrawal or cessation of Cable Service by a Franchisee; (3) Providing for continuity of Cable Service in the event of the lawful revocation, termination or nonrenewal of a cable Franchise; (4) Providing for continuity of Cable Service in the event of a transaction that affects the ownership of control of the Cable Operator or Franchisee; (5) Providing for continuity of Cable Service in the event of an expiration of a Franchise; and (6) Preventing disruption of Cable Service which would provide a hardship on those Subscribers who rely on Cable Service as their primary or secondary source for information. 0j) Whenever any situation occurs (including those mentioned above) which threatens the City and Subscribers with loss or interruption in the continuity of Cable Service, then the City may direct the Franchisee and/or Cable Operator to do everything in its power to ensure that all Subscribers receive continuous, uninterrupted Cable Service. (kk) During any interim period, the City shall work with the Franchisee in order to secure a new Cable System owner or rectify the problem, so that threat of loss of continuity is removed at the earliest possible time. (11) During any interim period in which the Franchisee continues to provide Cable Service to Subscribers, the Franchisee is entitled to all revenues collected, 745572vdoc 22 _. „1 J._siva=vux ­�,•,.. n�e.,.w.wudYuu��uunrcm -... L phi:ui�uLLx.mi:ma..,.w�..,;.... 106 except for any sums owed (including Franchise Fees, Alternative User Charges and taxes) to the City or other Persons. SECTION 22-103 - RESOLUTION OF COMPLAINTS (mm) A Franchisee is required to develop a comprehensive complaint/inquiry resolution policy that is consistent with the policies outlined in these customer service practices. (nn) A Franchisee's resolution policy shall be reduced to writing and such policy shall be available upon request to any Subscriber. SECTION 22-104 – DATE OF COMPLIANCE i (oo) Unless relief is granted by the City, or unless otherwise provided for in a Franchise Agreement, the Franchisee operating under a renewed Franchise shall have either one (1) year from the date that this Chapter becomes effective or nine (9) months from the date that a Franchise Agreement (initial or renewal) becomes effective. (pp) All new Franchisees shall be required to comply from the date of execution of the Franchise Agreement. SECTION 22-105-22-130 - RESERVED ARTICLE V. ADMINISTRATION AND ENFORCEMENT SECTION 22-131 – COMPLIANCE REQUIRED The Franchisee shall not be relieved of its obligation to comply promptly with any of the provisions of the Franchise by any failure of the City to enforce prompt compliance. SECTION 22-132 – PADUCAH CABLE COMMUNICATIONS AUTHORITY (a) Before any Franchise is granted there shall be adopted an authority to be known as the "Paducah Cable Communications Authority." (b) The Authority shall consist of five (5) members, of which not less than three (3) shall be residents of the City, and all members shall be appointed by the Mayor and approved by the Board of Commissioners. Each member shall serve a term of four (4) years; provided, however, that appointments to the first Authority shall be for one (1), two (2), three (3), four (4) and five (5) year terms respectively. Any vacancy in the office shall be filled by appointment of the Mayor and approval of the Board for the remainder of the term. No employee or Person with any ownership interest in any cable television Franchise granted pursuant to this Chapter shall be eligible for membership on the Authority. The City Manager, or his authorized representatives, may serve as an ex officio, nonvoting member of the Authority. The Authority shall annually select from among its number a chairperson who shall preside over the meetings. (c) The Authority, in addition to functions provided elsewhere in this Chapter, shall have the following functions and powers, the expenses of which are to be paid for as far as possible from the revenue obtained under Section 22-72: (1) Advise the Board on applications for Franchises. (2) Advise the Board on matters which might constitute grounds for revocation of the Franchise in accordance with this Chapter or the Franchise Agreement. (3) Resolve disagreements among Franchisee(s) and public and private users of the Cable System to the extent possible. (4) Facilitate government, education, community groups and individual use of the Access Channels. (5) Determine general policies relating to the services provided Subscribers in the operation and use of the Access Channels, with the view of maximizing the diversity of programs and services to the Subscribers. The use of Access Channels shall be allocated on a first- come, first -serve basis subject to limitations on monopolization of Cable System time, or prime times. 745572vdoc 23 107 (6) Encourage use of Access Channels along the widest range of institutions, groups or individuals within the City. (7) Submit an annual report to the Board, including, but not limited to, the total number of hours of utilization of Access Channels. The annual report shall also include relevant information concerning education uses, public access for local programming under public control, and local government access. (8) Maintain a knowledge of current developments in cable communications by subscribing to trade publications and attending cable communication seminars and meetings. (9) Submit a budget request to the City Manager to cover expenses incurred in the performance of functions provided by this Chapter over and above moneys received by it from Section 22-72. This request may include funds to be used for the development of the use of Access Channels, including production grants to users and the purchase and maintenance of equipment not required to be provided by the Franchisee, and funds to be used as per -diem expenses and such salaries for the members as may be permitted and prescribed from time to time by separate ordinance. (10) Audit all Franchise records required by this Chapter. (11) Conduct a detailed evaluation of the Cable System at least every three (3) years and make recommendations to the Board for amendments to this Chapter. (12) Employ, as necessary, services of a technical, accounting, legal and administrative nature. (13) Act on behalf or as the designee of the Board for purposes of proposing regulations and arbitration procedures as deemed necessary by the Board and/or to provide any other service to the Board that may be reasonably required by the Board under the authority of this Chapter. (14) In conjunction with the Franchisee the Authority shall develop and publish, within six (6) months of the date of award of the initial Franchise hereunder, and amend as necessary from time to time, a cable communications system rules and procedures manual to define the Authority's functions and responsibilities, and to adopt rules and procedures in relation thereto. Prior to the publication of the manual, and upon any significant amendments thereto, the Authority shall submit the same to the Board for final approval. (15) In conjunction with the renewal of Franchises, as provided for under state or federal law, the Authority shall develop procedures for the implementation of a renewal procedure of the cable Franchise. The Authority shall, without being limited to, perform the following: a. Begin a public proceeding to review the Franchisee's current and past performances and to identify future cable -related community needs and interests. b. Give public notice and recommend to the Board the renewal of the Franchise or recommend to the Board a preliminary denial of the Franchise renewal. C. If the Authority wishes, or at the request of the Franchisee, the Authority shall give public notice and begin administrative proceedings which give all parties an opportunity to introduce evidence, produce witnesses and otherwise participate in a public hearing. The Authority shall have a transcript made of the hearing. d. If a public hearing is held as set forth above, make a recommendation to the Board on whether: 1. The Franchisee has substantially complied with the material terms of the Franchise under applicable law. 745572vdoe 24 2. Whether the Cable Service has been reasonable in light of community needs. 3. Whether the Franchisee has the financial, legal and technical ability to provide services, facilities and equipment in its proposal. 4. Whether the proposal is reasonable to meet the future cable -related needs and interests. SECTION 3. If any section, paragraph or provision of this ordinance shall be found to be in operative, ineffective or invalid for any cause, the deficiency or invalidity of such section, paragraph or provision shall not affect any other section, paragraph or provision hereof, it being the purpose and intent of this ordinance to make each and every section, paragraph and provision hereof separable from all other sections, paragraphs and provisions. SECTION 4. This ordinance shall be read on two separate days and will become effective upon summary publication pursuant to KRS Chapter 424. ATTEST: Tammara S. Brock, City Clerk Introduced by the Board of Commissioners, September 26, 2006 Adopted with Amendments by the Board of Commissioners, October 10, 2006 Recorded by Tammara S. Brock, City Clerk, October 10, 2006 Published by The Paducah Sun, October 17, 2006 Ord\22-Cable J 745572vdoc 25