HomeMy WebLinkAbout90-6-4427881
ORDINANCE NO. 90-6-4427
AN ORDINANCE REPEALING AND RE-ENACTING CHAPTER 7 1/2,
CABLE COMMUNICATIONS, OF THE CODE OF ORDINANCES OF THE CITY
OF PADUCAH, KENTUCKY. CHAPTER 7 1/2 OF THE CODE OF
ORDINANCES IS HEREBY REPEALED AND A NEW CHAPTER 7 1/2 IS
HEREBY ENACTED TO READ AS FOLLOWS:
SECTION 1. Short Title
This chapter shall be known as the "Paducah Ordinance
for Regulation of Cable Communications."
SECTION 2. DEFINITIONS
"As used in this chapter, the following definitions
shall apply:
(1) A/B Switch or Input Selector switch shall mean
any device that enables a viewer to select between a cable
service and off the air television signals. Such a device
may be more sophisticated than a mere two-sided switch, may
utilize other cable interface equipment, and may be built
into consumer television receivers.
(2) Access Channel or Non -Broadcast channel shall
mean a government, education, or public channel which is
carried on a cable television system, but which is not part
of any institutional network.
(3) Authority shall mean the Paducah Cable
Communications Authority provided for in this chapter.
(4) Activated channel shall mean a channel
engineered at the head end of the cable system for the
provision of services generally available to residential
subscribers of the cable system, regardless of whether such
services actually are provided, including any channel
designated for governmental, education, or public use.
(5) Affiliate shall mean another person who owns or
i controls, is owned or controlled by, or is under common
ownership or control with, such person.
(6) Alternative user charge shall mean a charge
used in place of a franchise fee that the City requires as
a
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payment for the privilege of using the streets, easements,
public ways, or rights-of-way, of the City in order to
construct, maintain, and operate a cable system. An
alternative user charge is not based on a franchisee's
gross annual .revenues (as is the case in a franchise fee),
but rather is based on the value of the City property that
a franchisee is using to construct, maintain, and operate
its cable system or value to the operator of the use of
City property.
(7) Annual gross revenues or gross revenues shall
mean any, and all, compensation which is attributable to
subscribers within the City. Further, 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), from
all cable services, cable operations, and cable -related
activities within the City including, but not limited to,
revenues from subscriber rates, pay television, premium
channels, advertising, installations. Also, unless
prohibited or pre-empted by either federal or state law,
annual gross revenues shall mean any, and all, compensation
from all ancillary cable services, cable operations, and
cable -related activities within the City, including but not
limited to, sale of cable or cable equipment, rental or
sale of video discs, rental or sale of video cassettes,
rental or sale of descrambling converters, or other
devices, rental or sale of remote control devices
(including those with volume control), rental or sale of
a/b or input switches, rental or sale of interactive games
*or software, rental or sale of digital radio equipment,
sale of satellite antenna dishes, sale of satellite
antenna -received programming for a programmer or
distributor of services, or from revenue received as the
billing agent, collector, or retailer of satellite antenna -
received service. However, annual gross revenues shall not
mean, any taxes imposed and/or assessed by law on
subscribers (including state sales taxes, but excluding any
state or local franchise fees) which a franchisee is
obligated to collect and pay in full to the applicable
taxing authorities.
(8) Basic cable television service shall mean any
service tier which includes the retransmission of local
television broadcast signals.
(9) Board shall mean Board of Commissioners for the
City of Paducah, Kentucky.
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(10) Cable channel or cable television channel or
data channel shall mean.,,a portion of the electromagnetic or
light spectrum which is capable of delivering a television
channel (as "television channel" is defined by FCC
regulation), or data or such other information in an
unintelligible, coded, scrambled, or encrypted manner.
(11) Cable operator (for purposes of this
1 definition, a "cable operator" may, though not necessarily
be a cable franchisee) shall mean any person or group of
persons who:
(a) provides cable television service over a
cable system and directly or through one (1) or more
Affiliates owns a significant interest (at least ten
percent (100)) in such cable system; or
(b) otherwise controls or is responsible for,
through any arrangement, the management and operation of
such a cable system.
(12) Cable service shall mean:
(a) the one-way transmission to subscribers of
video programming, or other programming service; and
(b) subscriber interaction, if any, which is
required for the selection of such video programming
service.
(13) Cable communication system, cable system, CATV
or system shall mean 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) a facility that serves only to retransmit
the television signal of one or more television broadcast
stations;
(b) a facility that serves only subscribers in
one or more multiple unit dwellings under ownership
control, or management, unless such facility or facilities
uses a public right-of-way;
(c) a facility of a common carrier which is
subject, in whole or in part, to the provisions of Title II
- of Public Law 95549, amendment of Communications Act of
1934, except that such facility shall be considered a cable
system (other than for purposes of Section 621(c) to the
extent such facility issued in the transmission of video
programming directly to subscribers; or
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(d) any facilities of any electric utility
used solely for operating its electric utility system.
(14) CCPA shall mean the Cable Communications
Policy Act of 1984.
(15) Charge shall mean a one-time or non -regularly
occurring cost paid by the subscriber, and which is
associated with the installation, maintenance, or repair of
the cable service, or other programming service.
(16) City shall mean 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.
(17) City manager means the designated or acting
city manager of the City of Paducah, Kentucky.
(18) Commercially impracticable shall mean with
respect to any requirement applicable to any franchisee,
that it is commercially impracticable for such a franchisee
to comply with such requirement as a result of a change in
conditions which is beyond the control of such a
franchisee, and the non-occurrence of which, was an y'
assumption on which the requirement was based.
(19) Commonwealth shall mean the Commonwealth of
Kentucky.
(20) Converter shall mean 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, video, or data 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.
(21) Customer shall mean a potential subscriber, or
actual subscriber, or actual user of the services and/or
facilities of the cable system provided by a cable
operator.
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(22) Decoder or descrambler shall mean a device
which enables a subscriber to convert a scrambled signal
into a viewable or otherwise usable signal.
(23) Disaster emergency or disaster or emergency
shall mean an imminent,, impending, or actual, natural or
humanly -induced situation wherein the health, safety, or
welfare of all, or a representative portion of the
residents of the City, are threatened. A disaster
emergency (by illustration) may include a hurricane,
tornado, petroleum or nuclear explosion or mishap, or
aircraft crash.
(24) Easement shall mean and include 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.
(25) FCC or Federal Communications Commission shall
mean the federal administrative agency, or lawful successor
authorized to oversee cable television regulation on a
national level.
(26) Fiber optics shall mean very thin and pliable
cylinders, or strands of glass or plastic, or any future
developed technical equivalent, used to carry wide bands of
multiple frequencies.
(27) Franchise shall mean the initial
authorization, or subsequent renewal granted by the City
(or franchising authority) in order for a person to
construct, operate, and maintain a cable system in all, or
part, of the City.
(28) Franchisee shall mean and include 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
(herein collectively called the 'franchise'), 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.
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(29) Franchise agreement means that separate
agreement by which the franchise is granted to the
franchisee as required by this chapter.
(30) Franchise expiration shall mean the date of
expiration, or the end of the term of a franchise, as
provided under a franchise agreement.
(31) Nonexclusive franchise shall mean that the
city specifically reserves the right to grant, at any time,
such additional permits or franchises for additional cable
communication systems as it deems appropriate.
(32) Normal business hours shall mean the weekday
or weekend hours when a cable operator's customer service
office is regularly open for processing customer service
inquiries, requests, and/or complaints.
(33) Ordinance shall mean the Paducah Ordinance for
Regulation of Cable Communications.
(34) Other programming service shall mean
information that a franchisee makes available to all
subscribers generally.
(35) Pay-per-view or premium channel shall mean the
delivery over the cable system of audio and/or video
signals in an unintelligible form to subscribers for a fee
or charge (over and above the charge for basic service) on
a per program, or per channel, or per tier basis where said
unintelligible or unusable form for viewing is made
intelligible only to subscribers paying a separate fee or
charge for the viewing or use of the signals.
(36) Person shall mean 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.
(37) Proposed abandonment of cable service or
proposed withdrawal of cable service or proposed cessation
of cable service shall mean the anticipated, contemplated,
imminent, or expected (either voluntary or involuntary)
disruption, discontinuance, desertion, or removal of a
cable operator's or franchisee's operation and provision of
cable service from all, or part, of the City for a
projected period exceeding three (3) months in duration.
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(38) Public agency shall mean an agency which is
supported wholly or substantially by public funds.
(39) Public, educational or governmental access
facilities shall mean:
(a) channel capacity designated exclusively
for public, educational or governmental use; and
(b) facilities and equipment for the use of
such channel capacity.
(40) Rate shall mean the monthly, bi-monthly,
quarterly, semi-annual, annual, or other periodic price
paid by a subscriber in order to receive cable service.
(41) Revocation, termination, or non -renewal shall
mean an official act of the City whereby the board removes,
repeals or rescinds a franchisee's franchise.
(42) Service day shall mean 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.
(43) Service tier shall mean a category of cable
service or other programming service provided by a
�i franchisee, and for which a separate or individual rate is
charged by a franchisee.
(44) Streets and public ways means the surface of
and the space above and below any public street, sidewalk,
alley or other public way of any type whatsoever now or
hereafter existing as such within the City.
(45) Subscriber shall mean a person lawfully
receiving service delivered over a cable system by either a
cable operator or franchisee.
(46) Subscriber service drop shall mean such
extension wiring from the franchisee's distribution lines
to a subscriber's building.
J (47) Two-way cable shall mean a cable system
- providing services in which information can flow from the
subscriber, as well as to the subscriber.
(48) USC shall mean United States Code.
M.
(49) User shall mean a person or organization
utilizing a cable system and/or its equipment for purposes
of production and/or transmission of material, as
contrasted with receipt thereof in a subscriber capacity.
(50) Video programming shall mean programming
provided by, or generally considered comparable to
programming provided by, a television broadcast station.
SECTION 3.FRANCHISE REOUIRED; VIOLATIONS GENERALLY;
LITIGATION COSTS.
(A) Necessity of franchise. Except as provided in
subsections (B) and (C) of this section, no person, or
cable operator shall operate, or maintain a cable system
without having first obtained a franchise, and then
entering into a franchise agreement with the City.
(B) Exception under CCPR. In the case of a person
or cable operator providing cable service on July 1, 1984,
then such person or cable operator, shall not be required
to obtain a franchise, and enter into a franchise agreement
unless the franchising authority expressly requires the
person or cable operator to do so.
(C) 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.
(D) Contravention of franchise; costs of
litigation. A material breach by the franchisee of the
franchise agreement, in addition to constituting a breach
of contract, shall constitute a violation of this chapter 7
1/2. 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 said litigation. Such
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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 4. TERM; RENEGOTIATION PERIODS; AND
TERMINATION OF FRANCHISE
(A) Term. No franchise granted hereunder, or any
renewal thereof, shall be for a term of more than fifteen
(15) years.
(B) Term 6 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.
(C) Reasons for term 6 years or less. The reasons
for a shorter franchise term may include, but are not
limited to, the
following:
(1) multiple or repeated violations of the
prior franchise agreement;
(2) multiple or repeated violations of this
Chapter 7 1/2;
(3) a continuing and documented pattern of
substandard or non-responsive service;
(4) reckless disregard for the safety and
welfare of the citizens of the City;
(5) failure - to furnish any required annual
reports;
(6) repeated failure to furnish any required
or demanded reports:
(7) failure to comply with any construction
schedule;
(8) failure to timely pay in their entirety
any franchise fees, or taxes or other charges due to the
City.
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(D) Termination and cancellation of franchise. In
addition to all other rights and powers of the city by
virtue of the franchise of this chapter 7 1/2, the city may
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 7 1/2, or any
legal rule, order, or determination of the Board 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; or
(2) Attempts to dispose of any of the
facilities or property of its CATV business to prevent or
hinder the city from purchasing same, as provided for
herein; or
(3) Attempts to evade any of the provisions of
this franchise ordinance or the franchise agreement or
practices any fraud or deceit upon the city.
(4) Becomes insolvent, files bankruptcy, or
abandons the franchise or, subject to Section 8(h) hereof,
fails to pay any franchise fee when due. Such
determination and cancellation shall be made by ordinance
of the Board duly adopted after twenty (20) days notice to
the franchisee and shall in no way affect any of the city's
rights under this franchise or any provisions of law;
provided, however, that before the franchise may be
terminated and cancelled under this section, the franchisee
shall be provided with an opportunity to be heard at a
public hearing before the Board, upon twenty (20) days
written notice to the franchisee of the time and place of
the public hearing, provided further, that said notice
shall affirmatively cite the reasons alleged to constitute
a cause for revocation; and provided further, that notice
of said public hearing shall be published in a local
newspaper of general circulation at least five (5) days
before the hearing.
(E) Performance evaluation provisions.
(1) The City and franchisee shall hold
scheduled performance evaluation sessions within thirty
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(30) days prior to the fifth and tenth 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.
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. All such
performance evaluation sessions shall be open to the public
and announced in a newspaper of general circulation at
least five (5) days before each session.
SECTION 5. SELECTION OF FRANCHISE
(A) REQUEST FOR PROPOSAL. In selecting a
franchisee pursuant to this chapter, the City shall prepare
a request for proposal to seek bids for a cable system to
be established under 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 7 1/2-3(C), 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.
(B) CRITERIA FOR SELECTION OF FRANCHISEE.
Applicants shall be evaluated according to the following
criteria:
(1) Nonprofit ownership. A preference shall
be given to applicants for 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
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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. Preference may be
given to 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 of the date
of the franchisee receives FCC certificate of compliance
and to operate a fiscally sound system throughout the term
of the franchise.
(5) Demonstrated experience in operating a
CATV system under city franchise. Preference shall be
given upon satisfactory evidence of the applicant's
experience in operating a CATV system under 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) Past or present franchisees. No past
franchisee of the city shall have preference among
applicants.
(7) Educational. A preference shall be given
to a system which presents a program whereby the Paducah
public schools may benefit, utilize and develop education
programs for students and subscribers.
(8) Award of franchise: Hearing; publication
of ordinances. The Board may award the 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 of the City of Paducah, Kentucky,
which ordinance shall be.thereafter published in the manner
prescribed by law in a local newspaper of general
circulation.
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SECTION 6. FRANCHISE PROVISIONS AND RESTRICTIONS
(1) FRANCHISE SUBJECT TO CERTAIN PROVISIONS. All
franchises granted pursuant to this chapter shall be
subject to, and shall expressly indicate that they are
subject to, the following provisions:
(a) Any franchise granted hereunder shall be
subject to the right of the city, by appropriate action of
its Board, to revoke the franchise for cause shown pursuant
to the provisions of this chapter 7 1/2 or the applicable
law of the Commonwealth of Kentucky or the United States of
America.
(b) Any franchise granted hereunder shall be
subject to all applicable provisions of city ordinances,
and any amendments thereto.
(c) Any franchise granted hereunder shall be
subject to the right of the city:
1. To repeal the same for failure to
comply with the provisions of this chapter 7 1/2, or any
other local, state or federal laws, or Federal
Communication Commission rules or regulations.
2. To require proper and adequate
extensions of the plant and service and maintenance thereof
at the highest practicable standard of efficiency; the city
shall require reasonable extension of subscriber service to
all residents of the city within eighteen (18) months of
the franchisee's receipt of the FCC's certificate of
compliance, and the city shall further require reasonable
extension of subscriber service to all residents of newly
developed residential or business areas within the
corporate limits of the city within twelve (12) months
after the completion of their construction, and the city
shall further require the reasonable extension of the
system to all newly acquired or annexed territories within
twelve (12) months after the new territory has become a
part of the corporate limits of the city. The city
recognizes that unusual circumstances beyond the control of
the franchisee may prevent it from fully complying with the
provisions hereof. If such unusual circumstances arise,
the franchisee shall immediately advise the city thereof
and for good cause shown shall immediately request to be
relieved from the provisions hereof, in whole or in part.
Upon the submission of such and a showing of good cause and
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good faith efforts to comply by the franchisee, the city's
approval of such request shall not be unreasonably
withheld.
3. To establish reasonable standards of
service and quality of products, and to prevent unjust
discrimination in service or rates.
4. To require continuous and
uninterrupted service to the public in accordance with the
terms of the franchise through out the entire period
thereof.
5. To control and regulate the use of its
streets, 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 and other utilities insofar
as such joint use may be reasonably practicable and upon
payment of reasonable rental 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 subsection (27) hereof.
6. Through its appropriately designated
representatives, to inspect all construction, relocation
installation work performed subject to the provisions of
the franchise and this chapter, and make such other
inspections as it shall find necessary to insure compliance
with the terms of the franchise, this chapter, and other
pertinent provisions of law.
7. At the expiration of the term for
which this 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,
and all provisions of the CATV system from the public ways
within the city.
8. To require the franchisee to pay the
cost of newspaper publication of this ordinance and any
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amendments thereto.
(2) FRANCHISE AGREEMENT.
(A) Every Franchisee shall enter into a
franchise agreement with the City which details the rights,
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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 Ordinance, the
franchise agreement itself, and the submitted proposal
(including supplemental agreements or verbal or written
commitments or guarantees). Moreover, a new franchisee may
not lay any cable until the franchise agreement is executed
by both the new franchisee and the City.
(B) In addition to those matters required
elsewhere in this chapter 7 1/2 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 7 1/2 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 7 1/2.
2. It has examined all the provisions of
this chapter and waives all claims that any provisions
hereof are unreasonable, arbitrary or void.
3. It recognizes the right of the city to
make reasonable amendments to the ordinance during the term
of the franchise upon thirty (30). days notice to the
franchisee, or without notice with respect to an emergency
amendment.
4. It recognizes and agrees that it may
be considered as a licensee 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.
(C) No franchise shall be exclusive.
(D) 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.
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(E) 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, or ambiguity
between any terms or provisions of the franchise agreement
and this chapter 7 1/2, the words of this chapter 7 1/2
shall be deemed to control unless the franchise agreement
expressly provides to the contrary.
(F) Any application filed for a 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.
(3) 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. However, under no
circumstances shall the channel capacity be less than sixty
(60) channels. Further, the City is committed that the
goal of the CCPR, as set forth in Section 601 (4) of the
Act (codified at 47 USC 521 (4)), is met at all times.
Consequently, the City expressly requires that upon the
advent, implementation, and transmission of high definition
television (HDTV), its functional equivalent, or any
subsequently developed technological advancement affecting
channel capacity or needed bandwidth for any video
programming source or service, the franchisee shall not
lessen, dilute, or decrease the mix, level, quality, or
quantity of programming services carried on the cable
system for reasons of lack of adequate channel capacity.
(4) STATE OF THE ART; MAINTAINING SYSTEM TO
LEVEL OF CURRENT TECHNOLOGY
It is incumbent that during the term of a franchise, a
franchisee constructs, maintains, and operates 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 institute measures that will guarantee
that the franchisee constructs, maintains, and operates,
such a system. Although not an exhaustive list, among the
technological areas the City may request a franchisee to
implement are the following: compatibility with built-in
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stereo capability; pay-per-view; high definition television
(HDTV); improved definition" television (IDTV); Advanced
Television (ATV); digital cable radio; harmonically related
carriers (HRC).;...fiber optic cable:�,.system; and fire,
medical, emergency services. Nothing herein shall require
the franchisee to undertake any modification or upgrade of
facilities which would not be technologically or
economically feasible or which would cause unacceptable
increases in subscriber rates.
(5) USE OF CHANNELS.
(A) The City recognizes that under
Section 611 CCPA (codified at 47 USC 531), the City has
certain authority with respect to certain aspects for
public, educational, or governmental use.
(B) To the extent permitted by law, and
in order to fulfill the City's desired goal of achieving a
public, education, and governmental (PEG) access policy
that will facilitate the long-range needs of the City, the
Board adopts the following:
(1) At the time of an initial
application or proposal, and contained within a franchise
agreement, or subsequent renewal franchise agreement, a
franchisee shall pledge to include the following
guarantees:
(a) A franchisee shall
provide, at its own expense, one educational channel that
is available for providing primary and secondary
educational programming.
(b) A franchisee shall provide
at its own expense, one public channel that is available
for providing public access, senior citizen, and library
programming.
(c) A franchisee shall
provide, at its own expense, governmental channel that is
available for providing non-commercial governmental
programming.
(2) If at any time, eighty percent
(800) of the total time allocated for any required PEG
channel is consistently used five (5) days a week for a
17
period of three (3) consecutive months, then the franchisee
shall provide an additional PEG channel.
(C) A franchisee shall provide both mobile,
portable, and stationary equipment to be used for public
access, together with the aid of technical and production
assistance provided by the franchisee. A franchisee shall
provide equipment that can store programs for delayed
cablecasting. There will be no cost for technical
production assistance required for PEG access use that does
not exceed three hundred fifty (350) actual production
manhours. Moreover, the cost of maintenance of a public
access studio, and equipment required to run the studio
shall be borne by the franchisee or its agents or
designees.
(D) A franchisee shall develop a plan for
handling requests for use of PEG access facilities,
channels, or programming. Before implementing such a plan,
the City shall review and approve it. Such a plan should
be non-discriminatory 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 nonetheless must be
weighted against the legitimate health, safety, and welfare
interests of all citizens. 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 -primetime hours (before 7 p.m. and
after midnight) and allowing the audio, but not video, of
such programming to be provided over the PEG channel. For
purposes of this Chapter 7 1/2, 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.
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(6) PUBLIC SERVICE INSTALLATIONS.
The franchisee- shall, without charge for installation,
maintenance
maintenance or service, make single installations of its
standard community antenna service facilities at city hall,
the Paducah Public Library, each fire and police station,
each public and private school within the city, including
the Paducah Community College. 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. Any charge for relocation of
such installation shall, however, be charged at actual
cost. Additional installations at the same location shall
be made at cost. No monthly service charges shall be made
for distribution of the franchisee's signals within such
publicly owned buildings.
(7) INTERCONNECTIONS.
The franchisee shall interconnect the Paducah CATV
System with other contiguous systems if directed to do so
by the Paducah Cable Communications Authority, where the
franchisee agrees that such interconnection is legally,
technically and economically feasible.
(8) CONSTRUCTION STANDARDS AND TECHNICAL
REQUIREMENTS.
(a) Methods of construction, installation,
maintenance and repair of any cable system shall comply
with the franchisee's Construction Manual, National
Electric Safety Code, and National Bureau of Standards,
what is commonly known as the Bell Blue Book as affects the
construction, installation, and maintenance of electrical
supply and communication lines and attachments and
supports. To the extent that these are inconsistent with
other provisions of a franchise, or state, or local law,
then the more stringent shall govern in order to protect
the public health, safety, and welfare.
(b) It shall be the duty of a franchisee to
devise and implement a preventative maintenance program for
the cable system in order to insure 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.
Before the franchisee implements such a program, it shall
19
_L: !1
900
be reviewed and approved by the Board. Although not an
exhaustive list, the following areas should be included in
a preventative maintenance program: inspection and repair,
if needed, of head end; inspection and repair, if needed,
of antenna tower; requiring weather -proofing and protection
on the antenna lead connectors; requiring the conducting or
proof -of -performance tests; requiring the conducting of
signal leakage tests that account for at least seventy-five
percent (750) of the entire system and are in accord with
FCC requirements; removing or cause to have removed tree
roots, limbs and branches that interfere with, or come in
contact with, the franchisee's cable. Upon request by the
City, the franchisee shall prepare and submit a written
report to the City detailing the results of the
preventative maintenance program.
(c) All wires, conduits, cable, and other
property and facilities of a franchisee shall be so
located, constructed, installed, and maintained so as 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.
(d) In the event a franchisee's system creates
a hazardous or unsafe condition, or an unreasonable
interference with property, then at its own expense the
franchisee shall voluntarily, or upon the request of the
City, remove that part of the system that creates the
hazardous condition from the subject property.
(e) A franchisee shall not place equipment
where it will interfere with the rights of 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 that benefits the City's or its
residents' health, safety, or welfare.
(f) 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, subcontractors, or independent contractors of a
franchisee install cable in a marketed -off area.
(g) 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
20
901
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 notice in order to
facilitate the temporary cable changes.
(h) 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 or
locate 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.
(i) A franchisee's construction schedule and
system expansion plan shall be detailed in the franchise
agreement in a form and format determined by and acceptable
to the City.
(j) 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.
(k) In the (public) interest of providing
service to the maximum number of residences that is not
commercially impracticable, the City requires that a
franchisee provide service to all uncabled areas of the
City with a housing density of twenty (20) passings/homes
per street mile, or fractional equivalent thereof, at the
prevailing installation charge throughout the rest of the
system.
(1) A franchisee may never refuse to provide
service to an area based on race, religion, sex, national
origin, age, or handicap (medical, mental, or physical).
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 or more persons within a part of a
franchisee's franchise area.
21
902
(m) A franchisee shall have and maintain
accurate as built maps and schematic drawings of facilities
which may be reviewed and inspected by the City, or
designee.
(n) A franchisee shall construct, operate,
maintain, repair, remove, replace, or restore the cable
system in strict compliance with all current codes adopted
ter,
by the City. The codes referred to specifically include,
but are not limited to, construction, fire, and safety
codes.
(o) 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.
(p) Any and all Institutional Networks
existing or constructed in the future shall be fully
activated in a bidirectional mode, consisting of at least
twenty (20) channels operating in the upstream or reverse
mode.
(9) RIGHT OF CITY TO PURCHASE SYSTEM
(a) 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 have the
right to purchase and take over the system. The procedure
for determining the fair market value of the system shall
be as follows: Subject to Section 626 of the CCPA within
sixty (60) days following the expiration of the franchise
term, both the city and the franchisee shall submit to
arbitration (as provided for in Sec. 7 1/2-6 (15)
"Resolution of Disputes") in writing their respective
declarations of the fair market value of the system as a
going business including physical assets, all intangibles, ✓
including good will, according to the accepted and usual
industry practice. The valuation, however, shall not
include any valuation for the franchise privilege itself.
Following its receipt of the respective value declarations
22
903
the arbitrator or arbitration panel shall thereafter
determine which of the two declarations most nearly
represent the true fair market value of the system. In its
determination:,.the..arbitrator or arbitration panel shall
utilize the general definition and criteria of fair market
value set forth herein, and no others. It shall make its
determination within thirty (30) days after its receipt of
the city and franchisee's declaration of value and forward
its decision to both the city and franchisee in writing.
Within ninety (90) days following its receipt of the
arbitration decision, the city may tender the fair market
value of the system as determined by arbitration to the
franchisee. The franchisee thereafter shall immediately
transfer to the city possession and title of all facilities
and property, real and personal, of the CATV business, free
from any and all liens and encumbrances not agreed to be
assumed by the city in lieu of some portion of the purchase
price set forth above, and the franchisee shall execute
such warranty deeds or other instruments of conveyance to
the city as shall be necessary for this purpose. The
franchisee shall make it a condition of each contract
entered into by it with reference to its operation of any
franchise within this city that the contract shall be
subject to the exercise of this privilege by the city and
that the city shall have the right to succeed to all
privileges and obligations thereof upon the final exercise
of its rights provided for herein. In the event ninety
(90) days shall elapse following the city's receipt of the
arbitration decision or without the city having paid the
purchase price as specified above, its rights and
privileges under this paragraph shall immediately
terminate.
(b) Upon default. Upon 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 ordinance, 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 violation of the franchise privilege itself),
shall have the right to purchase and take over the system.
The procedure for determining the fair market value of the
system and for the city's election to purchase same,
following the decision of arbitration shall be as set forth
in subsection 7 1/2-6(15)(d) above. In the case of the
23
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904
city's purchase of the system and these circumstances, the
franchisee shall transfer to the city possession and title
to all facilities and property, real and personal, of the
CATV 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.
(c) Upon sale. If the franchisee desires to
transfer, assign (or otherwise dispose of) its franchise
under this ordinance to a third party in a manner
consistent with this ordinance, it shall give written
notice to the city of same, which notice shall include
written proof of any bona fide offer to the franchisee to
purchase the system, including all terms and conditions
thereof, including price. Within ninety (90) days of such
notice the City shall have the right of first refusal to
purchase the system 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, shall have the right to purchase and
take over the system (except that the valuation shall not
include any valuation of the franchise privilege itself.)
The procedure for establishing the fair market value of the
system and the city's election to purchase same following
the arbitrator or arbitration panel's determination of the
fair market value shall be set forth in subsection 7 1/2-
7(13)(a) above, except that in this instance the
franchisee's declaration of the fair market value of the
system shall also include the bona fide offer(s) it has
received; and the arbitrator or arbitration panel shall
give due consideration to the terms of such offer(s) in
reaching its determination of fair market value, in
addition to the criteria described in subsection 7
1/26(13)(a) above. In the event that the transferee,
assignee or other party acquiring all or part of the
franchisee's rights in the Paducah CATV System agrees to be
bound by all of the provisions of this ordinance and of the
current franchise agreement the city's approval shall not
be unreasonably withheld.
(10) TRANSACTIONS AFFECTING OWNERSHIP OR CONTROL OF
FRANCHISE FACILITIES.
(a) To protect the interest of the city under
any franchise granted pursuant to this chapter, and in
order that the city may exercise its option to take over
the facilities and property of the system as authorized
24
905
herein upon expiration of forfeiture or revocation of the
rights and privileges of the franchisee, the franchisee
shall not make, execute or enter into any conditional sales
contract, transfer, assignment, or merger of assets, where
such transactionswould be materially adverse to the rights
of the city under any franchise granted pursuant to this
chapter, if consummated without adherence to the provisions
of subsection (1) and (2) hereinafter set forth.
1. Without the express approval of the
authority, which shall not be unreasonably withheld, and
2. Without a written assent filed with
the authority 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 authority 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 shall not apply to
the disposition of worn out or obsolete facilities or
personal property in the normal course of carrying out the
CATV business. The authority shall determine what
transactions may be adverse to the rights of the city if
consummated without adherence to these provisions.]
(b) Prior approval of the Board shall be
required where ownership or control of more than twenty-
five (25%) percent of the right or control of or interest
in the franchise is acquired by a person, corporation,
firm, or group of persons acting in concert, none of whom
already own or control twenty-five (25) percent or more of
such right or control or interest, singularly or
collectively. The Board shall receive and consider a
written report from the Authority concerning such a
transfer prior to approving or rejecting said transfer.
(c) No franchise granted hereunder may be
transferred unless such transfer is approved by the Board,
by ordinance, after public hearing. The Board shall
receive and consider a written report from the Authority
concerning such a transfer prior to approving or rejecting
said transfer. Said report shall designate how the city's
25
franchise would .be affected in the area of technical,
legal, financial and character concerns of the city.
(d) By its acceptance of the 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 7
1/2 by the franchisee. !T`
(11) RECEIVERSHIP, FORECLOSURE, ETC.
The franchise herein granted shall, at the option of the
Board, cease and terminate ninety (90) days after the
appointment or 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 said ninety (90) days or unless:
(a) Such receivers or trustees shall have,
within ninety (90) days after their election or
appointment, fully complied with all the terms and
provisions of this chapter 7 1/2 and the franchise granted
pursuant hereto, and the receivers or trustees within said
ninety (90) days shall have remedied all defaults under the
franchise; and
(b) Such receivers or 'trustees shall, within
said ninety (90) days, execute an agreement duly approved
by the court having jurisdiction in the premises whereby
such receivers or trustees assume and agree to be bound by
each and every term, provision and limitation of the
franchise herein granted.
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 this franchise, the
Board or its designee, may serve notice of termination upon
the franchise and the successful bidder at such sale, in
which event the franchise herein granted and all rights and
privileges of franchisee hereunder shall cease and
terminate thirty (30) days after service of such notice,
unless:
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907
(a) The, Board shall have approved the
transfer of this franchise, as and in the manner in this
chapter provided; and
(b) Unless such successful bidder shall
have covenanted and agreed with the city to assume and be
bound by all the terms and conditions of this franchise.
(12) CITY'S RIGHT OF INTERVENTION
The franchisee shall not oppose intervention by the city
in any suit or proceeding to which the franchisee is a
party.
(13) 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, at the same time, upon request, submit those
reports, data, or other information to both the Authority,
and the City. However, unless specifically authorized by
statute, a franchisee shall not be required to submit state
or federal tax returns.
(14) REPORTS
Each franchisee shall subject to applicable law make
available plans, contracts, engineering data, statistical
data, customer and service records relating to its system
and to all other records required to be kept hereunder; and
shall, at all times, maintain complete and accurate books
of account, records of its business and operation, and all
other records required by this chapter or the franchise.
(a) 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 (5) percent or more.
(b) 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.
(15) RESOLUTION OF DISPUTES
27
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908
(a) 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. Fact
finding and mediation shall be the means of resolving the
great majority of such controversies or disputes. Only
those matters specifically designated as arbitrable may be
submitted to that process for binding resolution. None of
these methods, 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.
(b) Fact finding. Any controversy or
dispute, upon the election of either the city or the
franchisee, shall 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
fees and other expenses resulting from such fact finding
shall be equally borne by both the city and the franchisee.
(c) Mediation. Any 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 fees or expenses resulting
from such mediation shall be equally borne by both the city
and the franchisee.
(d) Arbitration. Only those matters which are
expressly arbitrable under the provisions of this chapter
may be submitted for arbitration. Such matters shall
always include disputes over:
1. The fair market value of the system;
2. Revocation of the franchise.
Arbitrable matters may be submitted to a single expert
individual, if both parties agree to do so. Otherwise,
arbitrable matters shall be submitted pursuant to the
provisions of KRS Chapter 417, "Arbitration and Award." All
fees or other expenses resulting from such arbitration
28
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shall be paid by the city and the franchisee as hereinafter
provided.
(e) Fees and expenses. The fees of single
experts and:,.arbiters- shall be jointly borne by the
franchisee and the city. The fee of an arbiter who
represents one of the parties shall be borne by that party.
The fee for the umpire shall be jointly borne by the
franchisee and the city. The expenses of fact finding and
mediation shall be jointly borne by the franchisee and the
city. The expenses of arbitration shall be borne as
determined by the arbitration panel in its award of
finding, but in no event shall the city be obligated for
more than one-half (1/2) of the expenses.
(16) NEW DEVELOPMENTS
The Board may amend this chapter 7 1/2 or the franchise
whenever necessary to enable the franchisee to take
advantage of any developments in the field of transmission
of communication signals which will afford it an
opportunity to more effectively, efficiently or
economically serve its customers; provided, however, that
this section shall not be construed to require the city to
make any such amendment.
(17) INSURANCE; BONDS AND INDEMNIFICATION
(a) Liability and indemnification of city.
The franchisee shall indemnify and hold harmless the city
at all times during the term of the franchise granted
hereby 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 CATV 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
29
910
pay said judgment and all costs and hold the city harmless
therefrom.
(b) Upon the effective date of the franchise
agreement, 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 and fifty thousand dollars
($250,000.00); however, for the first five (5) years of the
franchise term, the bond shall be reduced in twenty five
thousand dollar ($25,000.00) increments per year for each
year of faithful performance. Following the five (5) years
of faithful performance by the franchisee; i.e., during
which no amounts of said bonds shall have been recovered by
the city as damages, the amount of said bond shall be
reduced to its minimum of one hundred and twenty five
thousand dollars ($125,000.00); said bond shall be
conditioned that the franchisee shall well and truly,
observe, fulfill and perform each and every term and
condition of the Paducah Ordinance for Regulation of Cable
communications 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
ordinance 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 Paducah Cable
Communications Authority.
(c) 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
Bodily injury per occurrence 5,000,000
Property damage per occurrence
1,000,000
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911
Property damage aggregate 1,000,000
Automobile Insurance
Bodily injury per person $1,000,000
Bodily injury per occurrence 3,000,000
Property damager per occurrence
1,000,000
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 said policies prior to the date
said 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.
(d) 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.
(18) OPERATIONAL STANDARDS
Technical standards for operation of the system shall
comply in all respects with the standards establishes by
the Federal Communications Commission or, where applicable
the City.
SECTION 7. SUBSCRIBER RATES, CHARGES AND REFUNDS
(a) Unless permitted by Section 623 of the CCPR
(codified at 47 USC 543), or any amendment thereto, or
subsequent superseding legislation, then the City shall not
be permitted to set any rates and charges for the provision
of cable services by a franchisee to subscribers or users.
However, if permitted, then the City shall hold an
advertised public hearing (in accordance with Commonwealth
and local law) before any rates and/or charges are adopted,
set, or approved. If, after the public hearing, the City
decides that it is in the interest of the public welfare to
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912
regulate rates and/or charges, the franchisee will be given
ninety (90) days from adoption to implement such rates
and/or charges.
(b) As part of the procedure for setting any rate
or charge, or in the case of a request for an increase in
the rate for basic service, or any charge, in order to
assure fair and reasonable treatment of the franchisee, and
to avoid arbitrary treatment of the franchise with respect
to setting and regulating rates and/or charges, the City
may require an audit be performed of the financial
situation of the franchisee, by an independent financial
analyst or Certified Public Accountant the cost of which
shall be borne equally by the franchisee and the City.
(c) A franchisee shall give adequate public notice
of any and all proposed rate increases, whether or not
subject to regulation. This public notice by the
franchisee shall consist of a minimum advance notice of
thirty (30) days of any and all proposed rate increases to
the City and all subscribers.
SECTION 8. FRANCHISE FEES
(a) Any franchisee awarded a franchise or renewal
franchise shall pay to the city for the privilege and use
of the streets, rights-of-way, easements, and public ways,
and other facilities of the City in the operation of a
cable system, and for the City's supervision thereof during
the term of the franchise, a sum equal to five percent (5a)
of the annual gross revenues derived from and attributable
to the operation of the system within the City.
(b) If the FCC, Congress or other governmental
entity with authority over cable ever allows the City, or
other franchising authority to increase the franchise fee
beyond five percent (50), then the City or other
franchising authority shall have the right to increase the
franchise fee to the maximum rate allowable to the extent
agreed upon in any franchise agreement.
(c) It is intended that the franchise fee will
promote the health, safety, and welfare of the citizens of
the community in part by providing funding for community
oriented cable programs, projects, and services, and to
allow and provide for the necessary regulation of a
franchisee's activities and its use of the streets, public
ways, right-of-way, and easements. Therefore, three
32
913
percent (3%), which represents sixty percent (600) of the
total collected, shall be deposited into the general
revenues of the City. Further, two percent (2%), which
represents forty percent (40%) of the total collected,
shall be set ..aside for the Authority to assist in its
regulatory and advisory roles with respect to cable.
(d) According to Section 622 (c) of the CCPA
(codified at 47 USC 542 (c)), a franchisee may pass
through, to subscribers the amount of any increase in a
franchise fee. It is explicitly noted that the language is
permissive and not mandatory.
(e) If the City ever decreases the franchise fee,
then the franchisee shall pass through to subscribers, the
amount of any decrease in a franchise fee.
(f) A franchisee shall file with the Authority
quarterly a report of its gross revenues attested to by an
officer of the franchisee within forty-five (45) days of
the end of its fiscal quarter. A franchisee shall file
with the City within ninety (90) days after the expiration
of each of the franchisee's fiscal year, a detailed
financial and revenue statement clearly showing the gross
revenues received by such franchisee during the preceding
year, and certified by a certified public accountant or
officer of a franchisee attesting to the accuracy,
completeness, and veracity of the revenue figures. Such
statement shall include revenue from whatever source,
directly or indirectly derived from, or allowed, or caused
to be derived from, or applicable or attributable to the
operation of the cable system, or the provision of any
service by or to the cable system. Revenue will be
reported by individual service category, type, and level
showing computations and using incremental billing rates
for all sources, levels, tiers, and types of service and
revenue sources of all kinds and types.
(g) Payment of the quarterly portion of the
franchise fee shall be rendered to the City at the time the
revenue statement is filed.
(h) In the event that payment is not made within
(45) days after the date specified in this Section, then
such failure shall be a material breach of this Chapter 7
1/2 which shall entitle the City to terminate the franchise
if not remedied by the franchisee within thirty (30) days
of receipt of written notice.
33
914
(i) The City reserves the right to audit a
franchisee's books, if the City deems it necessary in order
to carry out its regulatory duties. All reports due and
pertaining to the payment of franchise fees, will be
certified as their accuracy and veracity by an officer of
the franchisee, and the franchisee shall maintain for a
period of three years records used in the preparation of
said report, to be produced in their originality and
totality upon request or demand by the City. If the audit
discloses that franchise fees have been underpaid in any
year by an amount greater than five percent, then the
franchisee shall reimburse the City's expenses of
performing the audit.
(j) The right of audit and recomputation of any and
all amounts paid under a franchise shall always be accorded
to the City in accordance with Subsection 8.(i).
(k) No acceptance of any payment shall be construed
as a release of, or an accord, or satisfaction of, any
claim that the
City might have for further or additional sums payable
under the terms of this Chapter 7 1/2, or for any other
performance or obligation of the franchisee hereunder,
except as may be provided by any applicable statute of
limitations. _ J
(1) Payments of compensation made by a franchisee
to the City, pursuant to the provisions of this Ordinance,
shall be considered in addition to, and exclusive of, any
and all authorized taxes, business license fees, other
fees, other levies or assessments of general applicability
presently in effect, or subsequently adopted.
(m) A franchise fee does not include any, and all,
items excluded by Section 622 (g)(2)(D) of the CCPA
(codified at 47 USC 542).
(n) Nothing in this Section shall be construed to
limit the authority of the City to impose a tax, fee, or
other assessment of any kind, on any person (other than a
franchisee) with respect to a cable service or other
programming or communications service provided by such
person over a cable system for which charges are assessed
to subscribers, but not received by a franchisee. For
purposes of illustration only, this subsection shall
include the situation(s) where a premium service directly
34
915
bills a subscriber, or thel franchisee merely acts as a
collection agent for a premium service billing directly to
a subscriber.
(o) For any twelve (12) month period, the fees paid
by any such person subject to subsection (n) with respect
to any such cable service shall not exceed five percent
(50) of such person's gross revenues derived in such period
from the provision of such service over the cable system.
\� (p) 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 may impose an alternative user charge on the
franchisee to the maximum extent permitted by law, but
which shall in no event exceed five percent of franchisee's
gross revenues.
SECTION 9. ENFORCEMENT GENERALLY
(a) Nonenforcement - No estoppel. The franchisee
shall not be relieved its obligation to comply promptly
with any of the provisions of the franchise by any failure
of the city to enforce prompt compliance.
SECTION 10. PADUCAH CABLE COMMUNICATIONS
AUTHORITY
(a) Established. Before any franchise is granted
there shall be adopted an authority to be known as the
"Paducah Cable Communications Authority."
(b) Membership; chairman. 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. 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
35
jA-1_— —_ su_.. ..... __ - . J=== :_s_ .] .Ism1 --V u- , —±--U-- I ., . ..: I. _.. r:_.
916
authority shall annually select from among its number a
chairman who shall preside over the meetings.
(c) Functions and powers. 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 7 1/2-8(b)(2) above.
(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 and
public and private users of the system to the extent
possible.
(4) Advise the Board commission on regulation
of rates in accordance with this chapter.
(5) Facilitate government, education,
community groups and individual use of the public channels.
(6) 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 system time, or prime times.
(7) Encourage use of access channels along the
widest range of institutions, groups or individuals within
the city.
(8) Submit an annual report to the Board,
including, but not limited to, the total number of hours of
utilization of access channels, a review of any plans
submitted during the year by franchisees for development of
new services and hourly subtotals for various programming
categories. The annual report shall also include relevant
information concerning education uses, public access for
local programming under public control, local government
access, pay TV and channel leasing.
36
917
(9) Cooperate with other
supervising interconnecting of systems.
(10) Maintain a knowledge
developments in cable.. communications by
trade publications and attending cable
seminars and meetings.
systems in
of current
subscribing to
communication
(11) Submit a budget request to the city
manager to cover expenses incurred in respect of
\y performance of functions provided by this chapter over and
above moneys received by it from section 7 1/2-8(b)(2).
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.
(12) Audit all franchise records required by
this chapter 7 1/2 and, in the authority's discretion,
require the preparation and filing of information
additional to that required herein.
(13) Conduct a detailed evaluation of the
system at least every three (3) years and make
recommendations to the Board for amendments to this chapter
7 1/2.
(14) Employ, as necessary, services of a
technical, accounting, legal and administrative nature.
(15) 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.
(16) 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 authorities, functions and responsibilities, and to
adopt rules and procedures in relation thereto. Prior to
the publication of said manual, and upon any significant
37
918
amendments thereto, the authority shall submit the same to
the Board for final approval.
(17) 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 cable 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 communication needs and
interests.
b. To establish deadlines for the
franchisee to submit a proposal for renewal of the
franchise and develop required material to be submitted by
the franchisee, including upgrade information.
C. 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.
d. If the authority wishes, or at the
request of the franchisee, the authority shall give public
notice and begin administrative proceedings which gives all
parties an opportunity to introduce evidence, produce
witnesses and otherwise participate in a public hearing.
The cable authority shall have a transcript made of said
hearing.
e. 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;
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 service,
facilities and equipment in its proposal; and
38
919
4.. Whether the proposal is
reasonable to meet the future cable related needs and
interests.
SECTION 11. CUSTOMER PROTECTION AND CUSTOMER
SERVICE STANDARDS
(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."
(4) The "Notice" shall be provided at the time
of initial installation. If however, a franchisee amends,
repeals, adds, deletes, modifies, or makes other changes to
any customer practice unilaterally or that is required by
federal, Commonwealth, or local law, then said franchisee
shall provide a customer with written notification at least
ten (10) days prior to the effective date of such
amendment, repeal, addition, deletion, modification, or
other change.
(5) Unless expressly prohibited by federal or
Commonwealth law, a franchisee may comply with the "Notice"
requirements by providing said."Notice" over the cable
system, on a channel clearly designated for the
dissemination of such information.
39
r/`
920
(B) Minimum Contents of Notice.
(1) At the time a franchisee is
required to furnish an initial or annual, or periodic
"Notice", such "Notice" shall contain, at a minimum, the
following:
(a) an up-to-date listing of
the specific cable services provided --clearly indicating
and isolating the basic,
premium, pay -pew -view, and informational services
offered, as well as the service tiers, or clusters offered;
(b) pursuant to the CCPA, a
subscriber's ability to purchase or lease from the
franchisee a lock box,
parental control mechanism, or other device which will
prohibit the viewing of a particular cable service during a
period selected by the subscriber.
(c) pursuant to FCC
regulations, a subscriber's ability of purchasing or using
an A/B or Input Selector Switch;
(d) a comprehensive listing
and explanation of all rates and charges (including rates
for basic and premium channels/services, particular service
tiers or clusters, current discount or promotional fees,
installation charges, and security deposits, if any);
(e) a comprehensive listing of
all billing options available;
(f) the customer service
office hours and telephone number(s) in a manner consistent
with the policy set forth in this Chapter 7 1/2;
(g) the billing practices of
the franchisee in a manner consistent with the policy set
forth in this Chapter 7 1/2.
(h) Information about how the
subscriber can obtain a copy of the specific customer
complaint/ inquiry resolution policy that is adopted and
followed by a franchisee and which is consistent with the
parameters set forth in this Chapter 7 1/2;
40
921
(i) Information about how the
subscriber can obtain a copy of the rules and regulations
for seeking access time on any channel of a franchisee;
(j) the method of securing a
voluntary disconnection policy in a manner consistent with
this Chapter 7 1/2;
(k) Information about how the
( subscriber can obtain a copy of the refund policy;
(1) Information about how the
subscriber can obtain a copy of the security deposit
policy; and
(m) the additional rights of
blind, hearing impaired, or wheelchair customers in a
manner consistent with Federal law;
(C) Customer Service Office and Telephones.
(1) In order to facilitate the. needs of the
local customers, a franchisee shall maintain a customer
service office within the City, which is easily accessible
to customers.
(2) The customer service office shall be open
at least forty (40) hours per week (exclusive of holidays,
and disaster emergencies).
(3) The customer office should have an
adequate and knowledgeable staff in order to handle the
vast majority of customer service inquiries, specifically
including, but not limited to: billing inquiries, refunds,
service outages, equipment service and repair, payment of
bills and other charges, inquiries from disabled or
physically -impaired customers and inquiries concerning the
use of PEG facilities and equipment.
(4) A franchisee shall maintain at least one
(1) toll-free and/or local telephone number to accommodate
normal business inquiries.
(5) A franchisee shall maintain a separate
twenty-four (24) hour local telephone number to facilitate
calls concerning repair of equipment and extended
interruption of service. During any hours that the
customer service office is open, the franchisee must
41
922
provide personnel to address a customer's inquiries.
During other hours, a telephone may be manned by an
automatic answering device, which shall be regularly
monitored.
(6) A franchisee shall have adequate staff
and/or extension lines (except during special marketing
promotion periods, peak billing cycles, and service
outages) in order to handle an average of twenty (20) phone
calls of five (5) minutes duration per hour.
(D) Special Requirements for the Disabled.
In addition to any other requirements mandated by this
Chapter 7 1/2, or by federal or Commonwealth law, a
franchisee shall comply with the following special service
requirements for blind, hearing impaired, or wheelchair
customers:
0
(1) provide wheelchair accessibility to
franchisee's customer service office;
(2) for any customer declared legally blind by
the Commonwealth, a franchisee must provide, if requested
by customer, large type, braille, voice synthesized or
functionally equivalent notices, bills, and other pertinent
information;
(3) provide at a non-discriminatory cost, a
special closed -captioned converter for the hearing-
impaired;
(4) provide at a non-discriminatory 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; and
(E) Preferential or Discriminatory Practices
Prohibited.
(1) A franchisee shall not, as to rules,
regulations, rates, charges, provision of service, or use
of a franchisee's facilities and equipment, make, allow, or
42
923
grant any undue preference.or>.advantage on the basis of
age, race, creed, color, sex, national origin, handicap,
religious affiliation, or location of residence. Moreover,
consistent with Section 621 (a)(3) of the CCPA (codified at
47 USC 541 (A)(3)), a franchisee shall not deny cable
service, or the extension of cable service, to any group of
potential residential cable subscribers because of the
income of the residents of the local area in which such
group resides.
(2) Subparagraph (1) of this subsection,
however, does not prohibit a franchisee from offering a
promotional or incentive discount rate or charge or from
offering customized bulk billing arrangements.
(3) Subparagraph (1) of this subsection also
does not prohibit a franchisee from denying service based
on location of a residence, if that residence is outside
the parameters for line extension as detailed in the
franchise agreement.
(F) Restoration of a Subscriber's Property.
(1) At any time a franchisee disturbs the
yard, residence, or other real or personal property of a
subscriber, such 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 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.
(2) The types of acts specifically included in
this subsection are the following:
(a) removal of a subscriber's sod, lawn,
plants, shrubbery, flowers, trees, driveway, or fence to
install, trench, repair, replace, remove, or locate cable,
or other equipment of the franchisee; or
(b) installation or removal of a cable or
other equipment of operator within a subscriber's
residence, or around a subscriber's swimming pool or tennis
43
924
court, or which requires drilling, excavating, plastering,
or the like on the part of the franchisee; or
(c) 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; or
(d) 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.
(3) The requirements for the franchisee extend
to any subcontractor or independent contractor that the
franchisee might employ to perform the tasks outlined.
(4) 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.
(G) Service Repair Requests and Calls
(1) Except in times of extreme inclement
weather or a natural, man-made, or disaster emergency, or
an appointment scheduled with the mutual consent of a
subscriber, a franchisee shall make a reasonable effort to
respond to the service repair calls and requests of
subscribers, within such franchisee's normal business
hours, and within the time schedules listed below.
Moreover, except in emergency situations, a franchisee
shall inform the customer whether the service repair call
is scheduled for all day, morning, afternoon, or evening
hours. Except for situations arising through no fault of
the franchisee, if the service call has to be cancelled or
rearranged, then the franchisee shall make every reasonable
effort to notify the customer as soon as possible, and
shall reschedule the service repair call for a time within
twenty-four (24) hours of cancellation. \
(2) In the case of a signal or service
interruption, degradation or interference, except for
situations arising through no fault of the franchisee, a
franchisee shall make a reasonable effort to respond to,
44
925
and provide adjustments or repairs as are necessary to
resume the signal or service'to the subscriber within
twenty-four (24) hours or one (1) service day from the time
the franchisee first received notification of the signal or
service interruption.
(3) Except for situations arising through no
fault of the franchisee or in the case of extreme inclement
weather in the case of a "blank" or "no -picture" situation,
on all channels a franchisee shall make every reasonable
effort to respond to, and provide adjustments or repairs as
are necessary to return the cable picture within twelve
(12) hours or one-half (1/2) service day from the time the
franchisee first received notification of the "blank" or
"no -picture" situation.
(4) Except for situations arising through no
fault of the franchisee or in the case of extreme inclement
weather a subscriber's service repair request or call shall
not go unresponded to for more than twenty-four (24) hours
or one (1) service day from the time the franchisee first
received notification of the service request or call.
(H) Emergency Alert; Standby Power.
(1) In order that subscribers may be alerted
r
in the event of an impending, imminent or actual, natural,
man-made, or disaster emergency, the franchisee shall
insure that the cable system providing cable service to
all, or part, of the City is designed so as to permit an
authorized official of the community 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) from any location. Moreover, the franchisee
shall, in the case of a disaster emergency, make the entire
cable system available without charge to the City or to any
governmental or civil defense agency that the City shall
designate.
(2) In addition to any other requirements
listed in this Chapter 7 1/2, a franchisee shall:
(a) cooperate with the City on the use
and operation of the emergency alert override system; and
(b) develop a plan with the City's
concurrence) on methods to provide continuity of cable
45
All k Ij, : 11 II
926
service, and response to service calls in the event of a
natural, man-made, or disaster emergency.
(3) As one method of providing continuity of
services in the event of a natural, man-made, 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.
(I) Sufficient Parts and Personnel.
(1) Except in times of natural, man-made, or
disaster emergency, a franchisee shall make a reasonable
effort at. all times, 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, man-made, 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.
(J) Billing Practices.
(1) Within the "Notice" that is required by
this Chapter 7 1/2, customers shall be provided with the
following information:
(a) billing procedure (including payments
necessary to avoid discontinuance of service);
(b) payment due and delinquent dates;
(c) amount or percentage of late charges,
if any;
(d) advance billing options;
46
927
(e) How to obtain information regarding
resolution procedures for billing disputes, complaints, and
inquiries;
(f) refund policy for service
interruptions, substandard signal quality, or uncontracted
service;
(g) current service rates in a detailed
and understandable format;
(h) procedure and amount of charges for
installation or relocation of a franchisee's facilities
and/or equipment; and
(2) Existing subscribers shall be informed of
the above items at least once every twelve (12) months.
(3) Whenever there is a substantial change in
a franchisee's billing practices or payment requirements,
all subscribers must be notified in writing at least thirty
(30) days before such billing practices or payment
requirements become effective.
(K) Billing Credit
A franchisee shall provide a subscriber upon request
with credit for a service outage exceeding twenty-four (24)
hours; substandard signal, picture, or sound quality
exceeding 24 hours.
(L) Disconnection for Non -Payment.
(1) A subscriber shall not be considered
delinquent in 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.
(2) Before disconnection of a subscriber's
cable service (either physically or electronically) takes
place, the following must occur:
(a) the subscriber must in fact be
delinquent in payment of Cable Service; and
(b) at least eight (8) days have elapsed
after mailing a written NOTICE of impending disconnection
(for which postage is paid by the franchisee); or
47
I-- ._-.=. ]. _.. ...... . ,. .:... 1_L-LULL^LL'_1_ 1111 L _ --j 1j __.. _
928
(c) at least five days have elapsed after
the subscriber has either signed for or, refused to accept,
a separate written notice of impending disconnection.
(3) The written notice of disconnection must
expressly state the amount that is owned by the subscriber
to a franchisee, the minimum amount required to be paid to
avoid disconnection, and the date and place where such a
payment must be made.
(4) Receipt of a "bad check" from a
subscriber, in response to a written notice of
disconnection, does not constitute payment, and the
franchisee need not give the subscriber further notice
prior to disconnecting cable service.
(5) A franchisee may add a collection charge
to the subscriber's bill as long as it does not exceed any
Commonwealth, or local law limits.
(6) Except in the case of a disconnection and
unless authorized by the subscriber, a franchisee shall not
apply a security deposit on the rental or lease of a
specific piece of equipment in order to satisfy a
subscriber's past due or delinquent account.
(M) Voluntary Disconnections.
(1) At any time, a subscriber may request that
a particular service tier, service cluster, pay channel,
premium channel, informational service, or the entire cable
service be discontinued.
(2) From the date that such a subscriber makes
such a request, then the franchisee shall have seventy-two
(72) hours or three (3) service days, whichever is longer,
to disconnect the service tier, service cluster, pay
channel, premium channel, informational service, or entire
cable service. In the event that a franchisee does not
disconnect service within seventy-two (72) hours, a
subscriber's obligation to pay for such service shall
cease.
(3) 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.
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(4) Notwithstanding the above provisions, and
in order to reduce subscriber abuse of this voluntary
disconnection,.pol.icy, a subscriber, shall :be charged a
minimum one of (1) month's full rate for any one service
(basic, premium, informational, cluster, or tier) which is
disconnected at least three (3) time in a span of one
hundred eighty (180) days.
(5) Unless damage has occurred, then no charge
may be passed onto a subscriber for the actual
disconnection of a channel or service, if the disconnection
involves a single residence with fewer than five (5)
outlets.
(6) However, if a franchisee's equipment is,
or has been damaged by a subscriber, prior to or after such
disconnection, then the franchisee may charge the
subscriber with the entire cost for such damage, provided
that the franchisee notifies the subscriber within twenty
(20) service days of the disconnection. A subscriber shall
not be required to pay for equipment failure, if
circumstances fall within the normal wear and tear of the
equipment.
(7) Any refund due a subscriber after
disconnection (both for non-payment and voluntary) shall be
made within sixty (60) days after such disconnection.
(N) Protection of Subscriber Privacy.
A franchisee shall abide by any, and all, subscriber
protection requirements and procedures listed in Section
631 of the CCPA (codified at 47 USC 551) , as well as any
subscriber privacy rules of the Commonwealth.
(0) Substandard Picture Quality; Remedies.
(1) 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.
(2) The City declares as one of its primary
objectives to preserve, protect, and promote that all cable
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_,. ,.. s _. �— ._ . J3 _�__ — -I _ I— - I= 1 •�-J�r — I I, it . a,
930
subscribers within the City receive good and acceptable
picture and sound quality.
(3) At a minimum, the franchisee must meet all
FCC standards, and any local standards which have an FCC
waiver 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.
(4) If the franchisee does not make a
reasonable effort to rectify or cure the substandard
picture quality within one (1) service day after the
franchisee made an initial service call to the subscriber's
residence, then that subscriber shall be entitled to
receive a credit for service or a refund.
(5) 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.
(6) The City reserves the right to develop and
adopt comprehensive regulations on the technical aspects of
signal quality should the FCC permit such.
(P) Use of Equipment, Return of Equipment, Security
Deposits, and their Return.
(1) Prior to formally delivering any equipment
(such as a converter, Input Selector Switch, or video
control recorder)
to a customer, a franchisee shall test the equipment to
make sure that it is in proper working order.
(2) If needed for proper operation, or
requested by a customer a franchisee shall deliver 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 subsection (except in the
case of sight or hearing-impaired customers) by delivering
the manufacturer's instructions to a customer.
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(3) A franchisee is not required to seek a
security deposit from a customer for the use or rental of a
franchisee's equipment.
(4) When a security deposit is required from a
customer by a franchisee, then the customer shall first
receive a written statement from the franchisee
acknowledging that the equipment is in working order.
(5) If the Commonwealth is silent on the
security deposit for a particular piece of equipment, then
the franchisee shall be prohibited from charging any
security deposit for equipment which exceeds seventy-five
percent (750) of the retail cost of such equipment unless
the franchisee can document the critical need for such a
larger deposit, Moreover, unless authorized by the
subscriber, a security deposit shall not be used to satisfy
any other account or bill that the subscriber may have with
the franchisee.
(6) A franchisee shall be prohibited from
charging any security deposit for cable service which
exceeds twice the basic monthly rate.
(7) A franchisee shall return a security
deposit (together with any interest earned) after the
equipment is satisfactorily returned, or the subscriber
maintains a satisfactory payment history (which is
determined as no payment delinquencies within the preceding
twelve (12 ) month period) .
(8) A customer shall maintain any equipment
rented or leased from a franchise in good working order,
and operate such equipment only in the manner specified by
the franchisee or manufacturer of the equipment.
(9) A customer shall totally and fully
reimburse a franchisee for any damage or loss to the
franchisee's equipment that is due to the customer's
failure to properly maintain and operate such equipment.
(10) A customer shall be relieved from any
responsibility for reimbursing a franchisee for equipment,
which malfunctions or does not operate due to a hidden or
latent defect in the equipment, or for equipment which
fails to operate, or improperly operates due to natural
occurrences conditioned by the normal wear and tear of such
equipment.
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932
(Q) Continuity of Service.
(1) 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 insure 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.
(2) In addition to the above principles and
ideals, the City also expresses that its policy covers the
following:
(a) providing for continuity of cable
service in the event of acquisition by the City;
(b) providing for continuity of service
in the event of a proposed abandonment, withdrawal, or
cessation of cable service by a franchisee;
(c) providing for continuity of service
in the event of revocation, termination, or non -renewal of
a cable franchise;
(d) providing for continuity of service
in the event of a transaction that affects the ownership of
control of the cable operator or franchisee;
(e) providing for continuity of service
in the event of an expiration of a franchise;
(f) preventing disruption of cable
service which would provide a hardship on those subscribers
who rely on cable as their primary or secondary source for
information; and
(g) preventing the interruption of
cessation of cable service which would disrupt or eliminate
the diversity of
programming choices enjoyed by subscribers of cable
television, and thereby restricting their ability to
receive information.
(3) Whenever any situation occurs (including
those mentioned above) which threatens the city and
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933
subscribers with loss or interruption in the continuity of
cable service, then the City may direct the franchisee
and/or cable operator (for a period up to twenty months) to
do everything in its power to insure that all subscribers
receive continuous, uninterrupted cable service of the same
quality, mix, and level(s) regardless of the circumstances.
(4) 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.
(5) 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.
(R) Resolution of Complaints/Inquiries.
(1) A franchisee is required to develop a
comprehensive complaint/ inquiry resolution policy that is
consistent with the policies outlined in these customer
service practices. Before implementing the
complaint/inquiry resolution policy, the City shall review
the policy together with any amendments that might be added
from time to time.
(2) A franchisee's resolution policy shall be
reduced to writing, and such policy shall be available upon
request to any person.
(S) Implementation of Consumer Protection
Requirements.
(1) Unless relief is granted by the City, then
the franchisee operating under a renewed franchise shall
have either one (1) year from the date that this Ordinance
becomes effective, or nine (9) months from the date that a
franchise agreement (initial or renewal).
- (2) All new franchisees shall be required to
comply from the date of execution of the franchise
agreement.
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934
SECTION 12. MISCELLANEOUS PROVISIONS
(A) Reservation of Right to Charge Franchisee for
Costs Associated with Awarding and Enforcing this
Ordinance.
(1) In addition to any other rights the City
may have under this Chapter 7 1/2, the City specifically
reserves the right to charge the franchisee for any , and
all, costs incidental to the awarding or enforcing of the
franchise.
(B) Fair Employment and Contracting Practices
(1) A franchisee shall not refuse to hire or
employ, nor bar or discharge from employment, nor
discipline or threaten to discipline, nor discriminate
against any person in compensation or in terms, conditions
or privileges or employment because of age, race, creed,
color, national origin, sex, marital status, handicap,
religious, political affiliation or belief.
(2) Specifically, these provisions apply to
the following situations: recruitment; advertising;
employment interviews; employment; rates of pay; upgrading;
transfer;. demotion; re-classification; freezing of pay or
promotions; layoff; and termination.
(3) A franchisee shall exercise its best
effort to insure that local minority and female -owned
business receive a fair and representative share of the
economic benefits from the development of cable systems
within the City. To this end, any franchisee must provide
to the City a detailed plan for the soliciting and hiring
of locally qualified minority and female -owned businesses
as subcontractors in contracts secured by the franchisee
for all aspects of the franchisee's construction,
operation, and maintenance of the cable system.
(4) In addition to the provisions noted above,
a franchisee shall comply with all Commonwealth laws, FCC
regulations, and Section 634 of the CCPA (codified at 47
USC 554) at they relate to equal employment and contracting
opportunity within the cable industry. --
(C) Construction.
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935
(1) This Chapter 7 1/2 shall be construed in
light of applicable Commonwealth and federal laws and
regulations governing cable practices in general, and cable
consumer practices in particular.
(2) Wherever possible, this Chapter 7 1/2
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 with respect
to cable television, and cable consumer practices.
(D) Compliance with the CCPR.
A franchisee shall abide by, and comply with, all
provisions of the CCPR, including those on renewal, and
modification of franchise obligations.
(E) Effect on New and Existing Franchisees.
(1) For persons awarded a cable franchise
after the effective date of this Chapter 7 1/2, this
Chapter 7 1/2 shall have full effect, and be enforceable in
its entirety. Moreover, unless granted relief, or a
provision in Chapter 7 1/2 prescribes a different
implementation date, then a new franchisee shall comply and
implement the various provisions of this Chapter 7 1/2
immediately upon execution of a franchise agreement by both
parties.
(2) For a franchisee existing on the date that
this Ordinance becomes effective, then such Ordinance shall
have no effect during the present franchise term. However,
upon expiration of the present franchise term, and
concurrent with the franchisee executing a renewal
franchise agreement, then this Ordinance shall have full
effect, and be enforceable in its entirety. Moreover,
unless granted relief, or and Ordinance provision
prescribes a different implementation date, then the
existing franchisee shall comply with and implement the
various provisions of this Ordinance within nine (9) months
after the renewal franchise agreement is executed by both
parties.
(3) 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 7 1/2. The relief requested may specifically
55
936
include the delay in implementation (as to the petitioning
franchisee only) of one (1) or more provisions of this
Chapter 7 1/2.
(4) In order to receive any relief from one
(1) or more provisions of this Chapter 7 1/2, a franchisee
must satisfactorily demonstrate to the City that one (1) of
the following facts exist:
(a) the provision and/or requirement is
expressly prohibited by federal law, the FCC, Commonwealth
law; or
(b) the provision materially affects and
is in conflict with an expressed right that is specifically
noted in an existing franchise agreement; or
(c) 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 of eliminate
the franchisee's ability to provide cable service to a
majority of current subscribers; or
(d) 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.
(5) 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 7 1/2.
(6) In accordance with this Chapter 7 1/2, the
City may charge the petitioning franchisee with the
incidental costs of processing such a petition.
(F) Delegation of Power. j
Unless prohibited by the Commonwealth, the City and/or
Board may delegate its powers and authorities (except its
ultimate franchising authority) with respect to cable to
56
937
the Authority, or a duly authorized representative of the
City, including the Mayor,'and City manager.
(G) City Ownership of a 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 ordinance and be bound by
and comply with all the requirements of this Chapter 7 1/2
as if it were a franchisee.
SECTION 13. CAPTIONS; NO RECOURSE;
WORD DERIVATIONS; SEVERABILITY
(a) Captions. The captions to sections herein are
inserted solely for information and shall not affect the
meaning or interpretation of the chapter.
(b) Word derivations. When not inconsistent with
the context, words used in the present tense herein include
the future tense, words in the plural number include the
singular number, and words in the singular number include
the plural number. The word "shall" is always mandatory
and not merely directory.
(c) Severability. If any parts of this chapter are
for any reason held to be invalid, such decision shall not
affect the validity of the remaining portions of this
chapter. The Board hereby declares that it would have
passed this chapter or each part or parts thereof
irrespective of the fact that any one part or parts to
declared invalid.
SECTION 14
This ordinance shall be read on two separate days and
will become effective upon publication of title and a certified
summary thereof.
GERRY B. MONTGOMERY
Mayor
Introduced by the Board of Commissioners May 22, 1990
Adopted by the Board of Commissioners June 12, 1990
Recorded by Lenita Smith, City Clerk, June 12, 1990
Published by The Paducah Sun June 18, 1990.
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