HomeMy WebLinkAbout2020-01-8611ORDINANCE NO. 2020-01-8611
AN ORDINANCE REPEALING CHAPTER 22 OF THE CODE OF
ORDINANCES OF THE CITY OF PADUCAH, KENTUCKY WHICH GOVERNS CABLE
COMMUNICATIONS AND REPLACING IT IN ITS ENTIRETY
WHEREAS, this Ordinance will repeal and supersede Chapter 22 of the Code of
Ordinances of the City of Paducah, Kentucky, which governs Cable Communications; and
WHEREAS, this Ordinance will replace this chapter with a new Chapter 22,
which will read as described below;
NOW THEREFORE BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF PADUCAH AS FOLLOWS:
SECTION 1. Chapter 22 of the Code of Ordinances shall read as follows:
ARTICLE I. IN GENERAL
Title of Chapter.
This Chapter shall be known as "Chapter 22 Cable Communications of the City's Code of
Ordinances."
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.
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.
Affiliate shall mean any Person controlling, controlled by or under common control of a
Franchisee.
Annual Gross Revenues or Gross Revenues means any and all revenue derived by the
Franchisee from the operation of the Cable System in the Franchise Area to provide Cable
Service. Cable Service revenue shall include, but is not limited to, revenues from Basic Cable
Service, premium, pay-per-view, pay television, Franchise Fees, late fees, guides, home
shopping revenue, Installation and reconnection fees, upgrade and downgrade fees, advertising
revenue (excluding advertising sales commissions paid to unaffiliated third parties), and
converter rental fees. Gross Revenue shall not include refundable deposits, actual bad debt
write-offs, investment income nor any taxes, fees or assessments of general applicability
imposed or assessed by any governmental authority (a Franchise Fee is not such a tax, fee or
assessment). The City acknowledges and agrees that Franchisee will maintain its books and
records in accordance with GAAP.
Applicable Law means any and all local law, state or federal law, statute, charter,
ordinance, regulation, code, franchise, permit, judgment or decree in accordance with state and
federal law.
Authority. The City of Paducah Board of Commissioners.
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).
Board. The Board of Commissioners for the City of Paducah, Kentucky.
Cable Operator. Any Person or group of Persons, including a Franchisee, who:
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
otherwise controls or is responsible for, through any arrangement, the
management and operation of such a Cable System.
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) and § 522(14).
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:
a facility that serves only to retransmit the television signals of one (1) or more
television broadcast stations;
a facility that serves Subscribers without using any Street or Public Way;
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;
an open video system that complies with 47 U.S.C. § 573; or
any facilities of any electric utility used solely for operating its electric utility
systems.
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).
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.
City Manager. The designated or acting City Manager of the City of Paducah, Kentucky.
Commonwealth. The Commonwealth of Kentucky.
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 at designated dial locations, or such other reception and use allocations as may be
applicable and required for the practical use of the signal.
Drop. The cable that connects the ground block on the Subscriber's residence or
institution to the nearest feeder cable of the System.
FCC or Federal Communications Commission. The federal administrative agency, or
lawful successor, authorized to oversee cable television regulation on a national level.
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.
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).
Franchise Area or Service Area. The entire geographic area within the City as it is now
constituted or may in the future be constituted.
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.
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.
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.
Ordinance or Chapter. Chapter 22 Cable Communications of the City's Code of
Ordinances.
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.
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.
PEG. Public, Educational or Governmental.
Public Way. All public Streets and utility easements, as those terms are defined in the
City Code, now or hereafter owned by the City, but only to the extent of the City's right, title,
interest or authority to grant a license or franchise to occupy and use such Streets and easements
for telecommunications facilities or Cable System.
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.
Service Interruption. The loss of picture or sound on one (1) or more Channels.
Standard Installation. Any residential or commercial installation which can be
completed using a Drop of one hundred fifty (150) feet or less.
Street. The surface of and the space above and below any public Street, road, highway,
freeway, lane, path, Public Way or place, sidewalk, alley, boulevard, parkway, drive, or other
easement now or hereafter held by the City, and includes other easements or rights-of-way as
may be now or hereafter held by the City for the purposes of installing poles, wires, cables,
conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other
devices or property as may be necessary for the construction, operation, and maintenance of a
wire telecommunications system or Cable System.
Subscriber. A Person lawfully receiving Service delivered over a Cable System by either
a Cable Operator or Franchisee.
Utility easement. Any easement owned by the City and acquired, established, dedicated
or devoted for public utility purposes not inconsistent with telecommunications facilities or
Cable System.
U.S.C. United States Code.
Video Programming. Programming provided by, or generally considered comparable to
programming provided by, a television broadcast station.
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 in accordance with
Applicable Law. Under no circumstances shall the costs exceed two thousand five hundred
dollars ($2,500).
Fair Employment and Contracting.
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.
A Franchisee shall exercise its reasonable 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.
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.
Construction of Chapter.
This Chapter shall be construed in light of Applicable Laws and regulations governing
cable practices in general and cable consumer practices in particular in accordance with
Applicable Law.
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.
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.
Effect on New and Existing Franchisees.
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.
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.
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:
The provision and/or requirement is expressly prohibited by Applicable Law; or
The provision materially affects and is in conflict with an expressed right that is
specifically noted in an existing Franchise Agreement; or
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
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.
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.
In accordance with this Chapter, the City may charge the petitioning Franchisee with the
incidental costs of processing an initial Franchise consistent with 47 U.S.C. § 542(2)(D).
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.
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.
Secs. 22-10--22-30. Reserved.
ARTICLE II. FRANCHISE PROVISIONS
Sec. 22-31. Franchise Required.
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.
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 comply with all Applicable
Laws in order to construct, operate and maintain a Cable System within the territorial limits of
the City.
Contravention of Franchise, costs of litigation. The cost of any litigation incurred by the
City to enforce this Chapter or the Franchise granted pursuant 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.
Term; Termination and Cancellation.
Maximum term. No Franchise granted hereunder, or any renewal thereof, shall be for a
term of more than fifteen (15) years.
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.
Reasons for term six years or less. The reasons for a shorter Franchise term may include,
but are not limited to, the following:
Multiple or repeated documented material violations of the prior Franchise
Agreement.
Multiple or repeated documented material violations of this Chapter.
Documented reckless disregard for the safety and welfare of the citizens of the
City.
Failure to furnish any required annual reports.
Failure to comply with a specific, previously agreed upon construction schedule.
Failure to timely pay in their entirety any Franchise Fees or taxes or other charges
due to the City.
Termination and cancellation of Franchise. In addition to all other rights 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:
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 due to excusable neglect or outside the control of the Franchisee;
Intentionally evades any of the provisions of this Chapter or the Franchise
Agreement or practices any intentional fraud or deceit upon the City; or
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 (3 0) 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.
Performance evaluation provisions.
The City and Franchisee may hold scheduled performance evaluation sessions
concerning the provision of Cable Services on the Cable System within thirty (30) days
prior to the fifth (5a') and tenth (10`h) anniversary dates of granting a Franchise or renewal
of a Franchise. Franchisee shall fully cooperate with the City and shall provide, without
cost and in a timely manner, such information and documents related to the operation of
the Cable System as the City may reasonably request to perform the evaluation. 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.
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.
Selection of New Franchisee.
Request for proposal. hi 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.
Criteria for selection of Franchisee. Applicants for a new Franchise shall be evaluated
according to the following criteria:
Nonprofit ownership. A preference shall be given to applicants for a Franchise
representing nonprofit organizations.
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.
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.
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.
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.
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.
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. -
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.
Franchise Conditions.
All Franchises granted pursuant to this Chapter shall be subject to, and shall expressly
indicate that they are subject to, the following provisions:
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, after notice
and opportunity to cure 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.
Any Franchise granted hereunder shall be subject to all generally applicable
provisions of City ordinances and any amendments thereto.
Any Franchise granted hereunder shall be subject to the right of the City:
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.
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.
To establish reasonable standards of service and quality of products, and
to prevent unjust discrimination in service or rates.
To require continuous and uninterrupted Service to the public in
accordance with the terms of the Franchise throughout the entire period thereof.
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).
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.
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 in accordance with Applicable Law.
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.
Franchise Agreement.
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.
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:
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.
It has examined all the provisions of this Chapter.
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' written notice to the Franchisee.
It recognizes and agrees that it may be considered as a Franchisee for the purposes
of this Chapter.
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.
No Franchise shall be exclusive and no Franchisee shall, through the grant of a Franchise,
either written or verbal, be given an unfair competitive advantage over other franchised Cable
Operators (including the City, to the extent required by Applicable Law) providing Cable Service
in the City.
Every Franchise Agreement shall specifically set forth the specific standards which the
Franchisee must maintain in respect to signal quality requirements and technical standards of
construction, operation, and maintenance of the System.
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.
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.
Operational Standards
State of the art; maintaining system to level of current technology. If a Franchise
authorizes, 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.
Construction standards and technical requirements.
Methods of construction, installation, maintenance and repair of any Cable
System shall comply with the National Electrical Safety Code.
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' health, safety or welfare, or negatively affect the quality of
the Cable Services being provided.
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.
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.
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.
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.
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.
A Franchisee, at either its own expense, or that of a private contractor, shall
protect the Streets, 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.
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.
The Franchisee shall not discriminate nor permit discrimination 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.
A Franchisee shall create, maintain and provide to the City upon written request,
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.
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.
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. Franchisee shall at all times comply
with the City Code, as may be amended from time to time.
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.
Use of Channels.
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.
To the extent permitted by law, and in order to fulfill the City's desired goal of achieving
a PEG Access Channel policy that will facilitate the long-range needs of the City, the Board of
Commissioners adopts the following:
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 Franchisee shall provide, one (1) educational Access Channel that is
available for providing non-commercial, educational programming.
A Franchisee shall provide, one (1) public Access Channel that is
available for providing non-commercial public access, senior citizen, and library
programming.
A Franchisee shall provide, one (1) governmental Access Channel that is
available for providing noncommercial governmental programming.
If at any time eighty percent (80%) of the total time allocated for a required PEG
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 PEG Access Channel.
All programming transmitted over PEG Access Channels shall be non-
commercial in nature. Program material to be distributed on PEG 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).
Unless otherwise provided in a Franchise, a Franchisee shall provide:
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;
Equipment that can store programs for delayed cablecasting; and
Technical production assistance required for PEG access use that may extend to,
but not exceed, fifty (50) actual production man-hours per year.
Unless otherwise specified in a Franchise, the City shall develop a plan for handling
requests for use of PEG 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 PEG 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.
Public Service Installations.
Each Franchise granted by the City shall specify the Franchisee's commitment to public service
installations and complimentary services.
Right of City to Purchase System
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 and on the same terms and conditions as
offered by other parties, 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.
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.
Transactions Affecting Ownership or Control of Franchise Facilities
In accordance with Applicable Law, 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:
Without the express approval of the Board of Commissioners, which shall not be
unreasonably withheld; and
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.
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 an acquisition of 51% or greater ownership interest in the Franchisee,
but includes actual working control in whatever manner exercised.
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.
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.
Receivership; Foreclosure.
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:
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
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.
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 written 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:
The Board of Commissioners shall have approved the transfer of the Franchise as
and in the manner in this Chapter provided; and
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.
City's Right of Intervention; Resolution of Disputes.
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.
Resolution of disputes.
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.
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.
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.
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.
Submission of Reports and Data.
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.
Reports. City shall have access to, and the right to inspect, during normal business hours,
books and records of Franchisee related to the operation of the Cable System, necessary to
ensure compliance with the terms of this Ordinance and a Franchise held by a Franchisee. If the
requested books and records are too voluminous, or for security reasons cannot be copied or
removed, then Franchisee may request, in writing within ten (10) business days, that City inspect
them at Franchisee's local area office. If any books or records of Franchisee are not kept in a
local office or if unavailable electronically, Franchisee will provide or otherwise make such
documents available for inspection and review at the local office within ten (10) business days.
Upon request, Franchisee shall provide City with a sample Cable Services bill, on
a monthly basis. Cable Services bills associated with complimentary services accounts
may satisfy this requirement.
Franchisee shall at all times maintain and allow City, with reasonable notice
(minimum two (2) working days and maximum five (5) working days), access and the
right to review a full and complete set of digital plans, records and maps compatible with
ESRI Shape Files showing the approximate location of all Cable System equipment
installed or in use in the City, exclusive of electronics, Subscriber drops and equipment
provided in Subscribers' homes. These maps shall be maintained in the format described
herein and provided to the City upon request as set forth above, but not more frequently
than twice annually, for the City's use only.
The ability for City to obtain records and information from Franchisee is critical
to the administration of this Ordinance and the Franchise. Therefore, Franchisee's failure
to comply with the requirements of this Section may result in enforcement by City as
permitted herein and under Applicable Laws.
Insurance; Bonds; Indemnification.
Liability and indemnification of City. The Franchisee shall indemnify and 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 as it relates to the construction, operation and maintenance of
the Cable System. 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 written 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. This
provision is intended to address lawsuits brought by third parties related to the actions of the
Franchisee and the City and not lawsuits independently brought by the City against Franchisee or
independently brought by the Franchisee against the City.
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.
Insurance.
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:
General liability insurance:
Bodily injury per Person: $3,000,000.00.
Bodily injury per occurrence: $5,000,000.00.
Property damage per occurrence: $1,000,000.00.
Property damage aggregate: $1,000,000.00.
Automobile insurance:
Bodily injury per Person: $1,000,000.00.
Bodily injury per occurrence: $3,000,000.00.
Property damage per occurrence: $1,000,000.00.
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.
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.
Secs. 22-47--22-70. Reserved.
ARTICLE III. RATES AND CHARGES
Sec. 22-71. Rates, Charges and Refunds.
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 Applicable Law.
Rate changes; discrimination. In accordance with applicable law
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.
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.
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.
Franchise Fees.
The Franchisee shall pay to the City a Franchise Fee equal to five percent (5%) of annual
Gross Revenues received from the operation of the Cable System to provide Cable Service in the
Franchise Area; provided, however, that Franchisee shall not be compelled to pay any higher
percentage of Franchise Fee than any other video service provider providing Service in the
Franchise Area. The payment of Franchise Fees shall be made on a quarterly basis and shall be
due forty-five (45) days after the close of each calendar quarter. Each Franchise Fee payment
shall be accompanied by a report prepared by a representative of the Franchisee showing the
basis for computation of the Franchise Fees paid during that period.
Upon reasonable notice, the City shall have the right during Normal Business Hours to
inspect the Franchisee's records relevant to the payment of Franchise Fees and the right to audit
and to re -compute any amounts determined to be payable under a Franchise Agreement, this
Ordinance and Applicable Laws. The audit period may not extend back beyond the maximum
time period permitted under the applicable state statute of limitation for contracts (KRS 413.120)
under the laws of the State of Kentucky. If, as a result of such audit, the City determines that the
Franchisee has underpaid its fees to the City six percent (6%) or more, then: 1) the undisputed
amount will be due to the City within thirty (30) days following written notice to Franchisee by
the City, which notice shall include a copy of the audit report; and 2) in addition to making full
payment of the relevant obligation, the Franchisee shall reimburse the City for all of the
reasonable costs associated with the audit or review, including costs for attorneys, accountants
and other consultants. Any additional undisputed amount due to the City as a result of an audit
shall be paid within thirty (30) days following written notice to Franchisee by the City.
Resolution of any disputes over the classification of revenue should first be attempted by
agreement of the Parties, but should no resolution be reached, the Parties agree that reference
shall be made to generally accepted accounting principles ("GAAP") as promulgated and defined
by the Financial Accounting Standards Board ("FASB"), Emerging Issues Task Force ("EITF")
and/or the U.S. Securities and Exchange Commission ("SEC"). Notwithstanding the forgoing,
the City reserves its right to challenge Franchisee's calculation of Gross Revenues, including the
interpretation of GAAP as promulgated and defined by the FASB, EITF and/or the SEC.
Nothing in this Ordinance shall in any way be construed to prohibit the City from
collecting any fees, taxes or assessments as may be permitted by Applicable Laws, including
Kentucky Revised Statutes and City hereby reserves any and all rights in accordance with
Applicable Laws.
Secs. 22-73--22-90. Reserved.
ARTICLE IV. CUSTOMER PROTECTION AND SERVICE STANDARDS
Sec. 22-91. Notice of Rights and Responsibilities.
General policy.
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.
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.
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.
Notifications to Subscribers. Franchisee shall provide printed or electronically available
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:
Products and Services offered;
Prices and options for programming Services and conditions of subscription to
programming and other Services;
Installation and Service maintenance policies;
Instructions on how to use the Cable Service;
Channel positions of the programming carried on the System; and
Billing and complaint procedures, including the address and telephone number of
the City.
Subscribers will be notified of any changes in rates, programming services or Channel
positions as soon as possible in writing or electronically. 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. New Channels
and services may be offered with less than the required notice so long as there is no additional
charge or the Channel or service is sold on a subscription basis.
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 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.
Customer Service Office and Telephones.
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.
Cable System office hours and telephone availability:
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.
Trained Franchisee representatives will be available to respond to
customer telephone inquiries during Normal Business Hours.
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.
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.
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.
Under Normal Operating Conditions, the customer will receive a busy signal less
than three percent (3%) of the time.
Customer service center and bill payment locations will be open at least during
Normal Business Hours.
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:
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 fifty (150) feet from the existing distribution cable.
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.
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.)
Franchisee may not cancel an appointment with a customer after the close of
business on the business day prior to the scheduled appointment.
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.
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.
Special Requirements for the Disabled.
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:
Provide wheelchair accessibility to a Franchisee's customer service office.
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.
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.
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.
Where applicable, provide modified or special instructions for use of equipment
by Subscribers who have physical impairments.
Reserved.
Restoration of Subscribers' Property.
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 if Franchisee fails to
perform the restoration work required herein.
The types of acts specifically included in this section are the following:
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.
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.
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.
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.
The requirements for the Franchisee extend to any contractor that the Franchisee might
employ to perform the tasks outlined.
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.
Emergency Alert and Availability of Parts and Personnel.
Emergency alert; standby power.
At all times a Franchisee shall provide and maintain an Emergency Alert System
(EAS) consistent with Applicable Law and regulations including 47 CFR, Part 11, and
any Kentucky Emergency Management requirements. The City may identify authorized
emergency officials for activating the EAS consistent with Kentucky Emergency
Statewide Plan ("EAS Plan"). The City may also develop a local plan containing
methods of EAS message distribution, subject to Applicable Law and the EAS Plan.
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.
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.
Availability of parts and personnel.
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.
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.
Billing Practices; Billing Credit; Disconnection for Nonpayment of Charges.
Billing practices.
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.
In case of a billing dispute, the Franchisee must respond to a written complaint
from a Subscriber within thirty (30) days.
At all times Franchisee's billing practices shall comply with 47 CRR § 76.1619
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.
Disconnection for nonpayment. A Subscriber shall not be considered disconnect for non-
payment until at least thirty (30) days after the posting of the bill to the Subscriber and payment
has not been received by the Franchisee.
Voluntary Disconnection.
At any time, a Subscriber may request that a particular service tier, service cluster, Pay
Television, premium Channel, informational service or the entire Cable Service be discontinued.
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.
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.
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.
Any refund due a Subscriber after disconnection (both for nonpayment and voluntary)
shall be made within sixty (60) days after such disconnection.
Protection of Subscriber Privacy
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.
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.
Substandard Picture Quality
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.
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.
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 servicing by a Franchisee customer service technician or a
Franchisee field service technician.
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.
The City reserves the right to develop and adopt comprehensive regulations on the
technical aspects of signal quality should the FCC permit such.
Use and Return of Equipment; Security Deposits.
If needed for proper operation or requested by a customer, a Franchisee shall provide to a
customer printed or electronic 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.
A Franchisee is not required to seek a security deposit from a customer for the use or
rental of a Franchisee's equipment.
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.
Continuity of Service.
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.
In addition to the above principles and ideals, the City also expresses that its policy
covers the following:
Providing for continuity of Cable Service in the event of acquisition by the City;
Providing for continuity of Cable Service in the event of a proposed
abandonment, withdrawal or cessation of Cable Service by a Franchisee;
Providing for continuity of Cable Service in the event of the lawful revocation,
termination or nomenewal of a cable Franchise;
Providing for continuity of Cable Service in the event of a transaction that affects
the ownership of control of the Cable Operator or Franchisee;
Providing for continuity of Cable Service in the event of an expiration of a
Franchise; and
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.
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.
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.
During any interim period in which the Franchisee continues to provide Cable Service to
Subscribers, the Franchisee is entitled to all revenues collected, except for any sums owed
(including Franchise Fees, Alternative User Charges and taxes) to the City or other Persons in
accordance with Applicable Law.
Resolution of Complaints.
A Franchisee is required to develop a comprehensive complaint/inquiry resolution policy
that is consistent with the policies outlined in these customer service practices.
A Franchisee's resolution policy shall be reduced to writing and such policy shall be
available upon request to any Subscriber.
Date of Compliance.
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.
All new Franchisees shall be required to comply from the date of execution of the
Franchise Agreement.
Sees. 22-105-22-130. Reserved.
ARTICLE V. ADMINISTRATION AND ENFORCEMENT
Sec. 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 2. SEVERABILITY. That if any section, paragraph or provision of
this Ordinance shall be found to be inoperative, ineffective or invalid for any cause, the
deficiency or invalidity of such section, paragraph or provision shall not effect 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 3. COMPLIANCE WITH OPEN MEETINGS LAWS. The City
Commission hereby finds and determines that all formal actions relative to the adoption of this
Ordinance were taken in an open meeting of this City Commission, and that all deliberations of
this City Commission and of its committees, if any, which resulted in formal action, were in
meetings open to the public, in full compliance with applicable legal requirements.
SECTION 4. EFFECTIVE DATE. This Ordinance shall be read on two
separate days and become effective upon summary publication pursuant to KRS 424.
SECTION 5. REPEAL OF ORDINANCES. Upon the publication and on the
effective date of this ordinance, the following Chapter of the Code of Ordinances of the City of
Paducah, Kentucky shall be repealed in its entirety and superseded with this Ordinance:
Chapter 22.
Brandi Harless, Mayor
ATTEST:
P."
LN�say Parish, Ck y Jerk
Introduced by the Board of Commissioners, December 17, 2019
Adopted by the Board of Commissioners, January 14, 2020
Recorded by City Clerk, January 14, 2020
Published by The Paducah Sun, January 17, 2020
\ord\ 22 - Cable Communications Repeal & Replace 2019