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HomeMy WebLinkAbout1997-035 - Cable Communications CodeBILL NO. ~ ~~- ~j S ORDINANCE NO. 97- ~ ~ ~~ AN ORDINANCE APPROVING THE CABLE COMMUNICATIONS CODE FOR THE CITY OF RIVERSIDE RELATING TO THE REGULATION OF CABLE COMMUNICATION SYSTEMS AND THE USE OF PUBLIC PROPERTY RELATED THERETO. WHEREAS, many barriers to entry into the Cable Communication System market have been removed; WHEREAS, Cable Communication Systems are expanding across the county; WHEREAS, the City has been studying such matters; WHEREAS, the City desires to establish a uniform code to apply to Operators of Cable Communication Systems desiring to use Public Property; WHEREAS, the City desires to enact the Cable Communications Code attached as Addendum A, NOW, THEREFORE, be it ordained by the Board of Aldermen of Riverside, Missouri: Section 1. The Cable Communications Code attached hereto as Addendum A and incorporated herein is enacted, approved and adopted. Section 2. This ordinance shall take effect immediately. Passed this 18th day of March, 1997. ATTEST: ~ L~~' AYOR CITY CLE - ADDENDUM A RIVERSIDE, MISSOURI CABLE COMMUNICATIONS CODE ARTICLE 1. GF.NF.RAi, PROVLSIONS 1.1 Short Title. This ordinance shall be known as the Cable Communications Code. 1.2 Scope. The Cable Communications Code establishes the basic local regulatory scheme for all Operators within the City, whether operating with or without a Franchise. Notwithstanding the provisions of this chapter, the City reserves the right to manage public rights of way in accordance with the Telecommunications Act of 1996, 47 U.S.C. Section 253, subject to applicable law and the terms of a Franchise Agreement. 1.3 Definitions. For the purpose of the Cable Communications Code, the following terms, phrases, words and their derivations shall have the following meanings. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined in the Cable Communications Code shall be given their common and ordinary meaning. (a) Act means the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, Public Law Number 98-549, the Cable Television Consumer Protection and Competition Act of 1992, Public Law Number 102-385, the Telecommunications Act of 1996, Public Law Number 104-104, and any future amendments to the Communications Act of 1934. (b) Additional Service means any service other than Cable Service provided over a Cable Communications System by an Operator directly or as a carrier for any other Person, which may include by way of example but is not limited to, burglaz alarm, data or other electronic intelligence transmission, voice transmission, facsimile reproduction and interactive shopping service. (c) Affiliate, when used in relation to an Operator, means another Person which directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Operator, or an Operator's principal partners, 2 shareholders, or owners of some other ownership interest; and when used in relation to the City, means any agency, board, authority, or political subdivision affiliated with the City or other Person in which the City has a legal or financial interest. (d) Basic Service means any tier of Cable Service which includes the retransmission of local television broadcast signals, or such other definition as may be adopted by federal law. (e) Board means the Board of Aldermen of the City, or any succeeding elected governing board of the City. (f) Cable Communications Code means this ordinance. (g) Cable Communications System means any facility consisting of coaxial cable, optical fiber, or other transmission lines or forms of transmission, and associated equipment and devices which is used to provide Cable Service and/or Additional Service to Subscribers by receiving, through any means, including, without limitation, coaxial cable, optical fiber, antenna, or satellite or microwave transmission, and distributing, video, audio, voice, or data signals, whether originating within the City or elsewhere. (h) Cable Service means the one way-way transmission to Subscribers of video programming or other programming services, and Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming services. (i) Channel means a frequency band which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals, or some combination of such signals. (j) City means the City of Riverside, Missouri and all of the temtory within its present and future boundaries. (k) Dominant Provider means a provider of an Additional Service with the greatest market share with respect to that Additional Service. (1) Drop means the cable that connects the antenna terminal on a Subscriber's radio or television set, computer terminal, or other terminal to the nearest feeder cable of the Cable Communications System. (m) FCC means the Federal Communications Commission or any successor federal government agency. (n) Franchise means the rights and obligations extended by the City to an Operator to own, construct, maintain and operate its System within the Public Property and boundaries of the City. 3 (o) Franchise Administrator means the City Administrator of the City or a designee who shall receive inquiries from an Operator's Subscribers and the general public concerning an Operator's performance, coordinate the resolution of disputes between an Operator, its Subscribers and the general public, and act as the City contact for an Operator regarding cable television matters within the City. (p) Franchise Agreement means the contract between the City and an Operator under which the City grants a Franchise to that Operator. (q) Gross Revenues means all amounts actually received by or on behalf of an Operator from, the operation of all or any part of its System, including, but not limited to, Basic Service fees, Tier Service fees, Premium Service fees, Additional Service fees, payments received from programmers or other entities for carriage of programming or other services to Subscribers, advertising revenues as described below, and all other income derived from or by reason of the operation and/or use of the System in the Streets. For purposes of this defmition, an Operator shall include Affiliates. Gross Revenues do not include: receipts from any other business endeavor for which an Operator is paying an occupational license fee or charge and which business in no way uses the System; studio rental; production equipment rental; personnel fees; penalties charged for late payment; sales taxes or franchise fees collected; the revenue of any Person other than Operator, including, without limitation, a supplier of programming to an Operator to the extent the revenue is also included in gross revenue of the Operator; or revenue for any goods or services which are not provided over the System even if such goods and services are advertised and/or ordered using the System. In the event an Operator receives any revenue from disseminating advertisements or carrying programming or other services on the System outside the City, Gross Revenues shall include an amount derived by multiplying the revenue with respect to such advertisements, programming or other services by a fraction, the numerator of which is the number of Subscribers in the City reached by the advertisement, programming or other service and the denominator of which is the total number of Subscribers reached by the advertisement, programming or other service. (r) Operator means any Person operating a Cable Communications System. (s) Person means any individual, corporation, partnership, proprietorship, organization, group or other entity. (t) Premium Service means any Cable Service delivered on aper-channel or per- program basis. (u) Public Property is any real property, easement, right-of-way, or other interest in real estate, including a Street, now or hereafter owned or controlled by the City or any other governmental unit. (v) Resident means any individual residing in the City. 4 (w) Residential Dwelling Unit means each home, house, building, or other structure that normally accommodates the living quarters of one family, and each apartment, condominium, or co-operative unit that normally accommodates the living quarters of one family in any multiple-unit building or complex of multiple-unit buildings; provided, however, that if an Operator has not obtained, pursuant to a reasonable standard access agreement utilized by an Operator that does not require the Operator to pay any owner or association of owners for access, the permission or authority required by any owner or association of owners to extend its facilities to individual apartments, condominiums, and co-operative units within the interior of such multiple-unit buildings or complexes of multiple-unit buildings, then any such muitiple- unit building or complex of multiple- unit buildings shall be considered a single Residential Dwelling Unit. (x) Street means the surface of, and the space above and below, any public street, road, highway, freeway, lane, path, public way, alley, court, sidewalk, boulevard, parkway, drive, avenue, or bridge now or hereafter owned or controlled by the City or any other governmental unit. (y) Subscriber means any Person Operator, by means of or in connection with lawfully waived. who subscribes to a service provided by an its System, and pays a fee unless such fee is (z) System means the Cable Communications System operated by an Operator in the City. (aa) Tier Service means any tier of Cable Service delivered over a Cable Communications System to Subscribers other than Basic Service or Premium Service. ARTICLE 2. FRANCHISE 2.1 Franchise Required. No Person shall operate a Cable Communications System utilizing Streets or other Public Property within the City without first obtaining a Franchise from the City. 2.2 Current Operators. Any Operator operating a Cable Communications System utilizing Streets or other Public Property in the City without a Franchise on the effective date of the Cable Communications Code shall request issuance of a Franchise from the City within 90 days of the effective date of the Cable Communications Code, subject to the renewal provisions of the Act and other applicable law. 5 2.3 Application of Cable Communications Code. Any Operator operating a Cable Communications System utilizing Streets or Public Property in the City without a Franchise on the effective date of the Cable Communications Code shall be subject to the provisions of the Cable Communications Code. 2.4 Termination of Authority. Any Operator operating a Cabte Communications System utilizing Streets or Public Property in the City without a Franchise on the effective date of the Cable Communications Code may continue operating for only 90 days, unless a request is made of the City to issue a Franchise. If an Operator requests a Franchise within that time, it may continue providing service during the course of good faith negotiations with the City. 2.5 Sale or Transfer of Franchise. (a) Restriction. Neither a Franchise nor a Franchise Agreement shall be sold, assigned or transferred, either in whole or in part, or leased, sublet or licensed in any manner (each a "Transfer"), without full compliance with the procedures set forth in the Cable Communications Code or unless otherwise provided in a separate Franchise Agreement. (b) Procedure. In addition to the requirements of the Act, the following procedures shall be observed: (1) Request in Writing. The parties to the proposed Transfer shall make a written request of the City for its approval. (2) Decision in Writing. The City shall reply in writing within 120 days of the request indicating whether it grants or denies its approval. The City's approval shall not be unreasonably withheld. (3) Verification. Within 60 days after the completion of a sale or transfer of a Franchise, an Operator shall submit to the Franchise Administrator a copy of the deed, agreement, mortgage, lease or other written instrument evidencing the sale, transfer of ownership, control or lease, certified and sworn to as correct by the Operator. (c) Inquiry into Qualifications. In reviewing a request for sale or transfer of a Franchise, the City may inquire into the fmancial, technical, legal or other relevant qualifications of the prospective transferee, and a current Operator shall promptly assist the City in any and all inquiries. 6 (d) Acceptance of Franchise Terms Required. In no event shall any transfer or assignment of ownership or control be approved or effective without the transferee executing a document accepting the terms and conditions of the applicable Franchise and Franchise Agreement. ARTICLE 3. CONSTRUCTION A1~1D MAINTENANCE OF A CABLE COMMUNICATIONS SYSTEM DIVISION 1. USE OF PUBLIC PROPERTY 3.1 Grant of Authority and Use of Public Property. The scope of authority granted to an Operator to use Streets and other Public Property shall be established in a Franchise Agreement. 3.2 Compliance with Zoning and Construction Codes. An Operator shall comply with the terms of all applicable zoning ordinances, building codes, and other regulations, now or hereafter existing, controlling the location or construction of towers, poles, cables, amplifiers, conduits and other facilities owned, leased and otherwise used by the Operator for its System, including but not limited to requirements to obtain applicable permits and to pay applicable plan review, permit and/or inspection fees. 3.3 Franchise Nonexclusive. An Operator's right to use and occupy Streets and other Public Property shall not be exclusive. 3.4 Placement of Facilities. All transmissions and distribution structures, lines and equipment erected by an Operator within the City shall be so located as to cause minimum interference with the proper use of Streets and other Public Property and to cause minimum interference with the rights and reasonable convenience of property owners who join any of said Streets and/or other Public Property . The City has the right to regulate the erection, construction and/or installation of any and all facilities by an Operator lying in, under and/or over any Public Property, including but not limited to the right to require permits prior to excavation and maps showing where construction or excavation is planned. The City may designate where an Operator may place its System within the Streets and other Public Property. 7 3.5 Relocation for Public Improvements. (a) Request of the Ciry. Whenever because of public necessity or the welfare of the public generally, the City elects to change or alter the grade of any Street or to sell or vacate any Street or to construct or reconstruct any water lines, sanitary or storm sewers, watercourses, drainage ditches, conduits, playgrounds, traffic control devices or to make, remove, maintain, repair or replace any other public improvements, an Operator shall, temporarily or permanently, as the case may be, after 30 days written request from the City, but in cases of emergency immediately, raise, lower, remove, relay and/or relocate its poles, wires, cables, conduits and other fixtures as requested, all at Operator's sole expense. (b) Requests of Private Parties. Whenever an Operator is requested to raise, lower, remove, relay and/or relocate the Operator's poles, wires, cables, conduits and other fixtures by a private party, an Operator shall not unreasonably refuse to remove, relay or relocate those facilities. The private party requesting the change shall bear the reasonable cost of removing, relocating or relaying the Operator's facilities. An Operator may require the payment of a reasonable predetermined cost for the requested action prior to commencing work. DIVISION 2. DESIGN AND CONSTRUCTION 3.6 General Construction Practices. All construction practices shall be in accordance with all applicable federal, state and local laws, rules or regulations. All installation of electronic equipment shall be of a permanent nature and durable. All electronic equipment installed after the date hereof shall be installed in accordance with the applicable provisions of the City's Building and all other Codes. 3.7 Towers and Antennas. Antenna supporting structures (towers) and antennas shall be designed, painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable federal, state and local laws, rules and regulations. 3.8 General Operational Practices. The construction, operation and maintenance of an Operator's System, including but not limited to the antenna site, headend and distribution system, towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and practices, shall be performed by experienced maintenance and construction personnel. An Operator's System shall be kept in a safe and suitable condition and in good order and repair, so as not to endanger or interfere with improvements the City may deem necessary, or to interfere in any manner with the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or vehicular traffic on Streets or other Public Property. 8 3.9 Safety. An Operator shall at all times employ the standard of care attendant to the risks involved and shall install and maintain in use commonly accepted methods and devices for preventing failure and accidents which are likely to cause damage, injury or nuisance to the general public, including public employees. 3.10 Rf Leakage. An Operator shall perform Rf leakage monitoring and testing in accordance with FCC rules and regulations. An Operator shall have the right to discontinue its service to any Subscriber's premises where uncontrollable Rf radiation is originating from inside the premises; provided that if Operator desires to discontinue service, Operator shall provide written notice of discontinuance of service and specific information relating to the reason therefor to the Subscriber. 3.11 Undergrounding. In all areas of the City where the cables, wires and other facilities of public utilities exist underground, or are required by the City to be placed underground, an Operator shall also place its cables, wires or other facilities underground. 3.12 Pole Attachments. An Operator shall not construct, erect, maintain or own any poles within the City unless prior written approval is obtained from the City; such approval shall not be unreasonably withheld upon a showing of need by an Operator provided Operator has complied with all applicable laws, regulations and ordinances relating thereto. In all areas of the City where the cables, wires and other facilities of an Operator are attached to any City-owned utility poles, an Operator may maintain those attachments subject to the terms and conditions of its Franchise Agreement with the City. 3.13 Disturbances. In the case of any disturbance of a Street, other Public Property or any private property caused by an Operator for any reason, including during the course of constructing, maintaining, upgrading or removing its System, an Operator shall, at its own expense, replace and restore all paving, sidewalk, driveway, landscaping, surface or other property of any such property disturbed in as good condition as before the disturbance as is possible to the reasonable satisfaction of the City. 9 3.14 Authority to Trim Trees. An Operator shall have authority, upon prior written notice to the City (except in the case of emergency), to trim trees and shrubbery upon and overhanging Streets and other Public Property so as to prevent the branches and foliage of such trees and shrubbery from coming in contact and interfering with the wires, cables and other facilities of an Operator. All trimming shall be done at the expense of the Operator, and the City reserves the right to supervise such trimming. 3.15 Relocation of Facilities. An Operator shall, upon the request of any applicant for a building moving permit to be issued by the City, temporarily raise, lower, relay, relocate or remove its wires, cables and other facilities to accommodate the moving of the building, as the Operator shall determine. The reasonable expense of the temporary raising or lowering, relaying, relocation or removal of the Operator's facilities shall be paid by the Person requesting the change, and the Operator shall have the authority to establish the reasonable cost of such changes and require payment in advance. The Operator shall be given no less than seven days advance notice to arrange for temporary changes. 3.16 Performance Guidelines. The following performance guidelines shall serve as the initial minimum guidelines for the design, installation and operation of an Operator's System: (1) Continuous Operation. The System shall be capable of continuous 24-hour daily operation without severe material degradation of signal except during extremely inclement weather, and immediately following extraordinary storms which adversely affect utility services or which damage major System components. (2) Variables for Operation. The System shall be capable of operating over an outdoor temperature range of minus 20 degrees Fahrenheit to plus 120 degrees Fahrenheit and over variation in supply voltages from 105 to 130 volts AC, without catastrophic failure or irreversible performance changes. (3) Specifications. The System shall be capable of meeting all specifications over an outdoor temperature range of zero degrees Fahrenheit to plus 100 degrees Fahrenheit and over variation in supply voltages from 105 to 130 volts AC. (4) Lack of Interference. The System shall be operated in such a manner as to avoid causing interference with the reception of off-the-air signals of a Subscriber. (5) Picture and Sound Quality. The System shall be capable of producing a picture on each Subscriber's television screen in black and white or color, depending 10 upon whether color is being telecast and provided the Subscriber's television set is capable of producing a color picture, that is materially undistorted and materially free from ghost images other than those resulting from ingress which can normally be expected from off-the-air signals, without material degradation of color fidelity. The System shall produce sound that is materially undistorted on any properly functioning receiver of a Subscriber. (6) FCC Technical Standards. Should the FCC promulgate technical standards which exceed the performance guidelines contained in the Cable Communications Code, an Operator shall operate its System so that it meets or exceeds FCC standards. 3.17 Equipment for Hearing-Impaired Persons. An Operator shall inform Subscribers, upon request, where they may obtain equipment which facilitates the reception of Cable Service by hearing-impaired individuals, where such properly encoded programming exists. If that equipment is not available from other sources, an Operator shall make that equipment available for Subscribers for reasonable installation and rental charges. 3.18 Performance Standards. (a) Compliance with Technical Standards. All Cable Communications Systems shall be designed and installed to operate according to the technical standards and all applicable rules and regulations of the FCC, including all future amendments or standards required by the FCC. (b) Report of Compliance. Upon request, an Operator shall provide to the City a copy of its proof of performance test records that are maintained in accordance with the rules of the FCC. 3.19 Test Procedures. An Operator's methods and schedules for testing its System on an ongoing basis shall be at least as stringent as those in other high-quality, reliable, modern Cable Communications Systems of similar design. A summary of all ongoing tests shall be provided by the Operator for the City's review, upon the City's request. When a Subscriber has complained to an Operator directly, or through the City, about the technical quality of the service received by the Subscriber, and that complaint remains unresolved for 30 days, the City may request the performance by the Operator, at the Operator's cost, of reasonable tests in addition to those tests performed by the Operator as part of its ongoing testing program, to measure the technical quality of the System in the area of the complaint. Tests performed by the Operator in an effort to resolve the Subscriber complaint need not be duplicated by the Operator. 11 3.20 Emergencies. Subject to applicable law, an Operator shall incorporate into its System the capability to permit the City, in times of emergency, to override the audio portion of all Cable Service Channels simultaneously. The Operator shall cooperate with the City in the use and operation thereof. Additionally, if an emergency or disaster occurs, each Operator shall, upon request of the City, make immediately available at no cost to the City for emergency use during the period of such emergency or disaster access to the City's PEC channel(s). 3.21 Line Extension Policy. An Operator shall construct and extend its System pursuant to the following requirements: (1) Existing Subdivision or Other Developed Area. An Operator shall construct and extend its System and make Cable Service available to every Residential Dwelling Unit in any existing subdivision or other developed area within the City which is unnerved by any Operator when there is a minimum occupied density of 35 Residential Dwelling Units per Street mile or 20 Residential Dwelling Units per cable mile, as measured from the existing System. (2) Developing Subdivision or Other Area. An Operator shall extend its System and make Cable Service available to every Residential Dwelling Unit in any platted phase of a developing subdivision or other area which is unnerved by any Operator when there is a minimum occupied density of 35 Residential Dwelling Units per Street mile or 20 Residential Dwelling Units per cable mile, according to the overall System extension design necessary to make service available to the platted phase, as measured from the existing System. (3) Nonresidential Areas. An Operator shall extend its System and make Cable Service available to every nonresidential building when the potential Subscriber or Subscribers at that nonresidential building agree to pay for the labor costs incurred and materials used in making the extension. (4) Isolated Residents. An Operator shall extend its System and make Cable Service available at the regular connection charge, regardless of the density requirements in this section, to any isolated Resident requesting connection if the connection to the isolated Resident requires no more than a standard 200 foot Drop line. (5) Extensions from Other Systems. If there is an area within the City which is unnerved by any Operator, and that area does not meet the density requirements contained in the Cable Communications Code, an Operator shall extend Cable Service to the Residents of that area from other Cable Communications Systems operated by the Operator, if the extension is technically and economically feasible. In that case, requirements in a Franchise Agreement for public, 12 educational, and government Channels (if any) shall be waived by the City. Furthermore, requirements relating to the physical and technical characteristics and capabilities of the extension shall be controlled by the terns and conditions of the Franchise granted by the jurisdiction from which the service is imported. (6) Assistance by City. In all cases, an Operator may request the aid of the City, at Operator's expense, to obtain information from the City to determine density levels in unserved areas, the number of Residents committed to subscribe to the service once available, the boundaries between residential areas, or any other assistance which may facilitate extension and provision of Cable Service. When the City is unable to provide assistance for any reason, such services shall be obtained by the Operator at its own expense. (7) Density Per Cable Mile. For the purposes of the Cable Communications Code, density per cable mile shall be computed by dividing the number of Residential Dwelling Units in an area by the length, in miles or fractions of miles, of the total amount of aerial or underground cable necessary to make service available to the Residential Dwelling Units in that area in accordance with the design parameters of the Cable Communications System being constructed. The cable length shall be measured from the nearest point of access to the existing System, provided that such access is technically feasible, and located within the Streets, other Public Property, or private easements or rights-of-way the Operator is entitled to use. The total cable length shall exclude the length of the Drop necessary to serve individual Subscriber premises. 3.22 Low Density Service. For the purpose of providing Cable Service to Residents on an accelerated basis, the City, through its Franchise Administrator, and an Operator may mutually agree to any other alternative methods of extending Cable Service into areas of the City where the minimum occupied density is less than the requirements of the Cable Communications Code. 3.23 Interconnection. Provided there is no decrease in the technical quality of service provided to Subscribers in the City and such interconnection has no effect on the City's rights under the Cable Communications Code or any Franchise Agreement, a System may be interconnected with other Cable Communications Systems of the Operator or other Operators. 13 ARTICLE 4. OPERATION A.~iD MAINTENANCE PROVISIONS 4.1 Company Office. An Operator shall maintain an office in the greater Kansas City metropolitan area open during all normal business hours. The portion of the office open to the public shall comply with the terms of the federal Americans with Disabilities Act. 4.2 Telephone Access. An Operator shall establish and maintain at least one publicly listed telephone number where Subscribers may register service complaints, request service and conduct other business. Any telephone used to receive Subscriber complaints and requests for repairs shall be operated 24 hours a day, seven days a week. Telephone equipment shall be available to permit Persons with hearing impairments to communicate with the Operator. 4.3 Policies and Practices. An Operator shall have authority to promulgate, consistent with the terms of the Cable Communications Code and its Franchise Agreement, the Act, and any other applicable federal, state or local laws, such rules, regulations, policies, prices and Subscriber practices as are reasonably necessary for its business, including installation and disconnection policies, delinquent accounts collection procedures and late penalty charges. All financial reports prepared by an Operator and all records maintained by an Operator in connection with the Franchise fees shall be prepared in accordance with generally accepted accounting principles applied on a consistent and fair basis. 4.4 Refunds to Subscribers. If any Subscriber terminates any monthly Cable Service prior to the end of a prepaid period for any reason, a prorated portion of any prepaid Subscriber service fee, using the number of days within the billing period as a basis, shall be credited to the Subscriber's account by the Operator, and refunded to the Subscriber upon settlement of all outstanding obligations. 4.5 Customer Service Standards. Unless otherwise provided by ordinance, or by separate Franchise Agreement, FCC customer service standards, as they now exist or may be amended, are adopted and shall apply to an Operator's Subscribers. Acceptance of a Franchise Agreement by an Operator shall constitute any notice required by the FCC of the City's intent to enforce FCC customer service standards. 14 4.6 Maintenance and Complaints. (a) Dury to Provide Efftcient Service. An Operator shall render efficient service, make repairs promptly and in a workmanlike manner, and interrupt service only for good cause and for the shortest time possible. (b) Regular O„~ice Hours. An Operator's office staff will maintain regular office hours from Monday through Friday. Complaints concerning billing, employee courtesy, programming, safety, the Operator's operational policies, or any other matter raised by a Resident, shall be handled during those hours. (c) Repair Force. An Operator shall maintain a sufficient repair force of technicians to respond to Subscriber complaints, loss of service, or requests for service. (d) Resolution of Complaints. An Operator shall use its best efforts to resolve all complaints as soon as practicable and in all events within seven days from the date of the initial complaint, to the extent reasonably possible. (e) Prorated Billing Credit for Service Interruption. Upon request, a Subscriber's account shall be credited the amount of one-day charge (1/30 of the total monthly charges) for the service if the Subscriber is without Cable Service for any reason, except Subscriber-inflicted damages to the Operator's equipment, for a period exceeding four hours within a calendar day. An Operator shall provide written notice to its Subscribers of this right at least annually. (f) Complaints Received by the City. All Subscribers and Residents may direct complaints and inquiries regarding an Operator's service or performance to the City. Such complaints and inquiries will be promptly submitted to the Operator. If, in the sole discretion of the Franchise Administrator, it is concluded that the Operator may not have attempted to resolve a dispute to the reasonable satisfaction of the Person initiating a complaint, and if the complaint remains unresolved, the City may conduct public hearings regarding the complaint. If a hearing is conducted, all parties to the dispute shall be invited to participate. A record shall be maintained of the hearing. (g) Reports. An Operator shall, upon written request of the City from time to time, in response to Subscriber inquiries, complaints or disputes, provide to the City a report of complaint information, including the Operator's responses, on any individual Subscriber. The report shall include at least the following: (1) nature of the complaint; (2) actions taken to resolve the complaint; (3) whether the complaint was resolved, and if it was, the length of time taken to resolve the complaint; (4) if the complaint was not resolved, whether it is anticipated that the complaint will be resolved; and (5) if it is not anticipated that the complaint will be resolved, an explanation for that conclusion. Nothing in this section shall be construed to require the Operator to provide information it reasonably believes to be in violation of the privacy provisions contained in the Act or other applicable law. 15 4.7 Additional Duty to Remove Property. The City may require an Operator to remove and thereupon such Operator shall promptly remove any above-ground portion of the System if such Operator ceases to use that part of the System in the City for a continuous period of twelve (12) months. 4.8 Maps. Each Operator shall maintain true and accurate maps or plats of all existing and proposed installations upon the Streets and Public Property and copies of such shall be submitted to the City upon request by the City. These maps and plats shall conform to the requirements of the City and shall be kept continuously current. 4.9 Equal Employment Opportunity. An Operator shall comply with all federal, state and local laws applicable to contractors and Franchise holders doing business with the City concerning equal employment opportunity practices. 4.10 ding Communications with Regulatory Agencies. Upon the written request of the City or an Operator during a calendar year, copies of all petitions, applications and communications submitted during that year by an Operator or the City to the Federal Communications Commission, or any other federal or state regulatory agency having jurisdiction in respect to any matter directly affecting cable television operations, if not otherwise provided to the other party, addressing matters of technical conditions of the cable communications system, consumer protection or consumer relations matters, shall also be submitted to the other party simultaneously with the filing with the government agency. In addition, copies of all responses from the regulatory agencies to the party submitting the documents shall be furnished to the other party. 4.11 Annual Report. Within 90 days after the close of its fiscal year, an Operator shall submit to the City a written annual report, in a form approved by the Franchise Administrator, which shall contain at least the following information: (1) Review of System Development. A summary of the previous year's activities in the development of the System in the City, including, but not limited to, additions, deletions or improvements begun or discontinued during the reporting year, and a summary of the type and number of Subscribers of each type, and Subscribers gained or lost. 16 (2) Financial Information. An annual audited fmancial statement prepared in accordance with generally accepted accounting practices; provided, however, if audited fmancial statements are being prepared but are not yet available, Operator shall submit a balance sheet and income statement and shall submit the audited information as soon as reasonably possible thereafter. This information shall be in addition to that required to establish the Operator's Gross Revenues, for purposes of establishing the required franchise fee payable to the City. (3) Summary of Complaints/Compliance with Customer Service Standards. A summary of any written complaints received from Cable Service Subscribers concerning the operation of the System, and information verifying compliance with the FCC customer service standards and any locally imposed customer service standards. It is understood that reporting by an Operator of compliance may, if the Operator does not possess technology which can reasonably report compliance by jurisdiction serviced by the Operator, be done on a unified basis by the Operator. (4) Other Required Information. Unless directed otherwise by a separate Franchise Agreement, all reports, records, maps and other information required by the Cable Communications Code or a separate Franchise Agreement to be submitted to the City, but for which no specific time for submission is provided, shall be included in the annual report. ARTICLE 5. PROGRAMNIING AND OTHER SERVICES 5.1 Broad Categories of Programming. An Operator shall offer to Cable Service Subscribers a variety of programs generally available to Cable Communications Systems, designed to reflect the interests of the Residents and which shall be consistent with the programming provided to the Operator's customers in Kansas City, Missouri. It is recognized that programming may be affected by Channel capacity, programming availability, interests of Subscribers, and other circumstances. 5.2 Public, Educational, and Government (PEG) Channels. Any requirements for the provision and support of public, educational and government access Channels shall be established in a separate Franchise Agreement. 17 ARTICLE 6. FINANCIAL 6.1 Regulation of Rates. The City reserves the right to exercise its authority under the Act to regulate the rates charged by Operators for Basic Service and affiliated equipment. Should the Act be amended, or implementing regulations or other rules or decisions modify the authority of the City to regulate rates, the City shall retain the greatest discretion permissible to consider implementing federal or state law in this area. 6.2 FCC Submissions. Should the City elect to regulate rates, it shall provide copies of its submissions to the FCC to the Operator at the time it submits the information to the FCC. 6.3 Franchise Fee. (a) Use of Streets/Cost of Regulation. In consideration of the rights, powers, privileges, permission and authority granted to an Operator for use of the City's Streets and other Public Property, an Operator shall pay to the City an amount equal to five percent of its Gross Revenues. This amount represents compensation for the use of the Streets and other Public Property by an Operator. Notwithstanding the foregoing, if an Operator is providing Additional Services over the System in the City, and another Person is providing those Additional Services over the System in the City using Public Property and is the Dominant Provider of those Additional Services in the City, then with respect to those Additional Services the Operator shall pay a franchise fee in an amount equal to the franchise fee paid by Dominant Provider with respect to those Additional Services. (b) Payment of Fee. Except as otherwise provided, payment of annual Franchise fees shall be in lieu of all pole attachment charges imposed by the City in connection with the operation of the System. (c) Taxes of General Applicability. Imposition of a Franchise fee does not prohibit the City from imposing on Operators, as part of a group of businesses or activities, any tax, fee or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and Operators or their services, but not including a tax, fee or assessment which is unduly discriminatory against Operators or Subscribers). (d) Payment Time and Method. Franchise fee payments shall be made quarterly as follows: for the quarter ending December 31, the payment shall be made by the following January 31; for the quarter ending March 31, the payment shall be made by the following April 30; for the quarter ending June 30, the payment shall be made by the following July 31; and for the quarter ending September 30, the payment shall be made by the following October 31. Each payment shall be accompanied by a statement of Gross Revenues received for the quarter in 18 connection with the operation of the System in the City, and a report showing the computation of the fees in a form prescribed by the Franchise Administrator. (e) Acceptance of Payment not Accord or Release. No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of payment be construed as a release of any claim the City may have for further or additional sums payable under the provisions of the Cable Communications Code or a separate Franchise Agreement. All amounts paid by an Operator shall be subject to audit by the City. (f) Late Payment. In the event that any Franchise fee payment is not made on or before the applicable due date, an Operator shall pay interest, computed from the due date, at the annual rate equal to the prime rate in effect on the due date plus two percentage points. The prime rate will be the commercial prime interest rate charged by the Bank of New York, or its successor. (g) Early Termination of Franchise. In the event a Franchise is terminated for any reason before its normal termination date, an Operator shall immediately submit to the City a financial statement prepared in accordance with the terms of this section showing the Operator's Gross Revenues for the time elapsed since the last period for which the Operator has paid franchise fees to the City. An Operator shall pay the required franchise fees to the City not later than 30 days following termination of a Franchise. (h) Amendment of the Act. (1) Specific Federal Limit. Should the Act be amended by changing the authorized maximum amount for a Franchise fee which may be imposed by the City to a different specific percentage or amount, the City may, by ordinance, modify this section to increase the Franchise fee to that percentage or amount reflected in the amendment of the Act without the consent of the Operator. (2) Removal of Federal Limit. Should the Act be amended by removing any cap on the authorized maximum amount for a franchise fee which may be imposed by the City, the City may increase the franchise fee to an amount that shall not exceed seven percent (7~) of Gross Revenues. (3) Removal of Franchise Fee. Should the Act be amended or any other law enacted to prohibit the imposition of a franchise fee, each Operator will pay to the City an amount equal to the franchise fee for and in consideration of any right to use Public Property. (i) Approval of Franchise Fee Pass-Through. To the extent applicable law expressly provides for the Operator to pass through any portion of a franchise fee to its subscribers and City's approval is required under applicable law for such Operator to pass through such portion of a Franchise fee to its Subscribers, an Operator shall not be required to pay that portion of any 19 Franchise fee to the City until that approval has been granted and has become effective; provided, the Operator diligently pursues such approval. 6.4 Audits. The City may arrange for and conduct audits of the necessary fmancial records of an Operator for the purpose of verifying franchise fees. Audits may be conducted by any Person designated by the Franchise Administrator. The City shall notify an Operator at least seven days prior to the date it will begin reviewing the Operator's records. At that time the City will, to the best of its ability, describe the records and documents it wants to review, and the Operator shall make such of its books and records as may be relevant to the determination of Gross Revenues and franchise fees due available for inspection. For any record requested, but not disclosed by the Operator, the City shall be given a written explanation of why the Operator contends the record is not relevant. If requested, an Operator shall provide a copy of the written procedures used by the Operator to calculate the franchise fee base and payment to the City. An Operator's records shall be reviewed during normal business hours at a convenient time and place made available by the Operator. 6.5 Liability Insurance. (a) Insurance Required. Every Operator shall maintain, throughout the term of its Franchise, liability insurance from a company approved by the City insuring the Operator and the City against all damages described in section 6.7, in the minimum amounts of: $1,000,000.00 for property damage to any one Person; $2,000,000.00 for property damage in any one accident; $1,000,000.00 for Personal bodily injury or death to any one Person or individual; and $2,000,000.00 for Personal bodily injury or death in any one accident. Should the general assembly or the courts of the state modify the rule of sovereign immunity as it exists on the effective date of the Cable Communications Code, by increasing the potential liability of the City beyond these amounts, upon notice from the City, Operators will provide liability insurance which will meet or exceed those new amounts. (b) Certificate of Insurance. Every Operator shall submit a certificate of insurance to the City confirming that a satisfactory policy is in effect, which policy shall be renewed on its anniversary throughout the term of the Operator's Franchise. All of the foregoing insurance contracts shall be in form satisfactory to the City's Attorney, with deductibles reasonably acceptable to the City, and shall be issued and maintained with companies acceptable to the City. Each policy shall require thirty (30) days written notice of any cancellation to both the City and 20 Operations. The approval of the City or City Attorney to the form of insurance contract and the insurance company providing coverage shall not be unreasonably withheld. 6.6 Liquidated Damages. Liquidated damages for nonperformance of the following items during the construction of a System or the upgrade of a System shall be chazgeable as follows: (1) For failure to submit required plans regarding the construction of a System or the upgrade, per day .... $100.00 (2) For failure to commence the constriction of a System or the upgrade of a System in accordance with the requirements of the Cable Communications Code or a separate Franchise Agreement, per day .... $100.00 (3) For failure to complete the construction of a System or the upgrade of a System in accordance with the requirements of the Cable Communications Code or a separate Franchise Agreement, per day .... $1,000.00 6.7 Indemnification and Damages. (a) Indemnification of City and City Officials. Every Operator shall, at its sole expense, fully indemnify, defend and hold harmless the City, members of the Boazd (including the mayor), and all other officials, employees, and agents of the City, when acting in their capacity as municipal officials, employees, or agents, from and against the following claims, suits, actions, liability and judgments: (1) Damage to Persons or Property. For actual or alleged injury to Persons or damage to property, including loss of use of property due to an occurrence, whether or not such property is physically damaged or destroyed, in any way arising out of or through, or alleged to arise out of or through, any act or omission of the Operator or its officers, agents, employees, or contractors; (2) Violation or Rights or Interests. Arising out of or alleged to arise out of any claim for damages, with respect to the Operator's operation of a its System, for invasion of the right of privacy, defamation of any Person, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or any other right of any Person, but the Operator shall have no duty to indemnify the City against any claims arising from the operation of any Channel by the City; or (3) Statutory Violations. Arising out of or alleged to arise out of the Operator's failure to comply with the provisions any statute, regulation or ordinance of the 21 United States, State of Missouri, the City, or any local agency, applicable to the Operator in its business. (b) Defense of Actions. Nothing herein shall be deemed to prevent the parties indemnified and held harmless herein from participating in the defense of any litigation by their own counsel at their sole expense. Such participation shall not under any circumstances relieve the Operator from its duty of defending against liability or paying any judgement entered against such party. (c) City's Wild Misconduct. Operator shall provide a defense for the City in any action, suit or proceeding alleging the City has engaged in willful misconduct or criminal acts; provided, however, that notwithstanding any provision to the contrary contained in this Section, the City shall not be indemnified nor reimbursed in relation to any matter in said action, suit or proceeding where the City is so found, pursuant to a fmal nonappealable order of a court of competent jurisdiction, to have engaged in willful misconduct or criminal misconduct or criminal acts, and thereupon the Operator shall be reimbursed by the City for all reasonable amounts paid and expenses incurred by Operator in connection with such action, suit or proceeding, including reasonable attorney's fees. ARTICLE 7. VIOLATIONS AND REMEDIES 7.1 Procedure for Correcting FYanchise Violations. (a) Notice of Violation. Should the City determine that an Operator has violated one or more terms, conditions or provisions of the Cable Communications Code or a separate Franchise Agreement, a written notice shall be given to the Operator informing it of such alleged violation. The Operator shall have 14 days subsequent to receipt of the notice in which to inform the City in writing of the action the Operator will take to correct the violation and to begin corrective action. Such corrective action shall be completed within 30 days of the date the notice was given by the City, unless the Operator's notice shows that the corrective action cannot be completed within 30 days with the exercise of all due speed and diligence and such notice contains a proposed timetable for completion of the corrective action, in which case the City shall authorize a reasonable extension of time where extension can result in correction of the deficiency; provided, however, that the City is not required to grant an extension in the case of recurring defaults of the same character. If [he Operator disputes that a violation or failure has occurred, it shall give written notice of the dispute to the City within 14 days of the date the notice of violation was given by the City. Such notice of dispute shall specify with particularity the matter disputed by the Operator. The notice of dispute shall, pursuant to the procedure set forth below, stay the running of any performance or corrective deadlines pertaining to the matter in dispute, and stay any other action the City may be permitted to take under the ordinance, a separate Franchise Agreement, or applicable law with respect to the disputed matter. (b) Dispute Resolution. The Franchise Administrator shall consider the Operator's dispute within 30 days after receipt of the Operator's notice of dispute. The Franchise Administrator shall provide written findings of fact and appropriate conclusions. Consideration 22 shall be given to the matters described in the Operator's notification of dispute in a public hearing. (c) Request for Board Hearing. If the Franchise Administrator determines that a violation has not occurred, the City may, within fourteen (14) days from the date of such decision, request, in writing, a hearing before the Board. If the Franchise Administrator determines that a violation has occurred, Operator shall have fourteen (14) days from the date of decision to begin correction of the violation or request in writing a hearing before the Board. Operator's request for a hearing before the Board shall stay the running of any performance or corrective deadlines pertaining solely to the disputed matter. (d) Board Hearing. The Board shall hear the disputed matter at a regularly scheduled or specially called meeting, within twenty (20) days after receiving the City's or Operator's request for a hearing. City and Operator may present evidence in the hearing and call witnesses for specific testimony. The Board shall decide the matter within seven (7) days of the hearing and written findings of fact shall accompany its decision. (e) Correction/Appeal. If the Board determines that a violation has occurred, Operator shall have fourteen (14) days from receipt of written notice of the Board's decision to give written notice to the City of the corrective action Operator will take and begin said corrective action. Such corrective action shall be accomplished within thirty (30) days of the date of the decision. If, however, Operator intends to appeal the Board's decision, or offer to submit the matter to the arbitration of disinterested parties, such notice of intent to appeal or arbitrate shall be presented to the City in writing within fourteen (14) days of the date of the Board's decision. (f) Penalty. If an Operator does not dispute that a violation has occurred, or elects not to appeal a decision upholding a disputed claim by either the Franchise Administrator or the Board, and subsequently fails to begin corrective action within the fourteen (14) day period as required, and/or fails to notify the City of the corrective action to be taken within the fourteen (14) days period as required, or fails to correct the violation within thirty (30) days of the date of the decision, the City shall then have the option of charging Operator with a penalty in the amount of $100.00 per twenty-four (24) hour day for every day the violation remains uncorrected, from the date the Operator receives a written notice from the Franchise Administrator that the penalty will be levied. 7.2 Revocation and Removal. (a) Revocation for Cause. In addition to all other rights, powers and remedies available to the City, then following compliance with the applicable procedures of section 7.1, the City shall have the additional, separate and distinct right to revoke a Franchise and all the rights, authority, power, privileges and permissions granted the Operator by the Cable Communications Code and a separate Franchise Agreement, as a result of and in response to, any of the following events or reasons: 23 (1) Fraud. The Operator commits an act of fraud, as determined by a court of competent jurisdiction, against the City in obtaining its Franchise, or upon being granted the continuation of the Franchise commits such an act against the City;• or (2) Failure to Correct Defect. The Operator fails to (i) pay the Franchise fee within five (5) days following; or (ii) substantially correct a material violation of the Cable Communications Code within 30 days following: (a) written demand by the City to effect such compliance, unless such decision is stayed by a court of competent jurisdiction or agreed to by the City; or (b) a final decision of a panel of arbitrators, if used by the City and the Operator, or a court of competent jurisdiction reviewing the disputed matter. (3) Bankruptcy. An Operator is adjudged to be bankrupt. However, should the City be prohibited from revoking the Franchise due to an Operator's bankruptcy, the Operator agrees, as a means of assuring future payments of the Franchise fee payable under its Franchise Agreement and assuring future compliance with all other requirements of its Franchise Agreement, to provide to the City within 30 days of an order of a court of competent jurisdiction adjudging the Operator to be bankrupt, and entitled to the protection of state or federal bankruptcy laws, a bond in the amount of the Franchise fees paid by the Operator to the City the previous year. (b) Revocation by Ordinance. Revocation of a Franchise shall be accomplished by passage of an ordinance. An ordinance revoking a Franchise shall include the reason for the revocation, and a listing of facts found, and conclusions made, by the Board to justify revocation. The effective date of the revocation shall be stated in the Cable Communications Code. An ordinance revoking a Franchise shall not be passed without 30 days written notice to the Operator that an ordinance to revoke its Franchise will be considered by the Board. An Operator shall retain the privilege to be heard by the Board or any Board committee regarding the proposed revocation ordinance. An Operator may request a review of the revocation findings and conclusions pursuant to any applicable law. (c) Continuance of Service after Revocation. The City may require an Operator to continue operating its System after revocation until such time as operation of the System can be transferred to a new owner or the City exercises its rights under the Cable Communications Code. (d) Removal after Revocation. (1) Procedure. Upon revocation of a Franchise and after a review of the revocation findings and conclusions by a court of competent jurisdiction, if such review is sought by an Operator, the City may require the Operator to remove, at the Operator's expense, any above-ground portion of its System from any Street or 24 other Public Property. In removing its System, an Operator shall refill and compact, at its own expense, any excavation that shall be made, and shall leave all Streets and other Public Property, and private property, in as good a condition as that prevailing prior to the Operator's removal of its System, and without affecting, altering or disturbing in any way electric, telephone, gas, steam, or water utilities or other Operators' cables, wires or attachments. The insurance, indemnity and damage provisions of the Cable Communications Code or separate Franchise Agreement shall remain in full force and effect during the entire term of removal. (2) Failure to Remove System. If an Operator fails to commence removal of its System, or such part as was designated, in accordance with the Cable Communications Code, within 180 days after written notice of the City's demand for removal is given, or if the Operator fails to complete such removal within one year after removal has begun, the City shall have the right to exercise one of the following options: (a) Assumption of Ownership. Declare all right, title and interest to the System to be in the City or its designee with all right of ownership including, but not limited to, the right to operate the System or transfer the System to another for operation. (b) Abandonment of System. Declare the System abandoned and cause the above-ground portion of the System, or such part as the City may designate, to be removed at no cost to City. The cost of the removal shall be recoverable pursuant to the insurance and indemnity provisions of the Cable Communications Code or a separate Franchise Agreement, or from the Operator directly. ARTICLE 8. MISCELLANEOUS 8.1 Time is of the Essence. Whenever the Cable Communications Code or a separate Franchise Agreement sets forth any time for any action to be performed by, or on behalf of, the Operator, such time shall be deemed of the essence. 8.2 Access to Records. In addition to access to the records of an Operator for fmancial audits, an Operator shall provide reasonable access to records necessary to verify compliance with the terms of the Cable Communications Code and any Franchise Agreement. 25 8.3 Nonenforcement by City. An Operator shall not be relieved of its obligation to comply with any of the provisions of the Cable Communications Code or a separate Franchise Agreement by reason of any failure of the City to enforce prompt compliance. 8.4 Severability. Each provision of the Cable Communications Code or a separate Franchise Agreement shall be considered a separate, distinct and independent part of the Cable Communications Code or separate Franchise Agreement. If any provision of the Cable Communications Code or a separate Franchise Agreement is held by a court or by any federal or state agency to be invalid as conflicting with any federal or state law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, the conflicting provision shall be considered to be a separate, distinct and independent part of the Cable Communications Code or separate Franchise Agreement, and such holding shall not affect the validity and enforceability of any other provision of the Cable Communications Code or separate Franchise Agreement. 8.5 Compliance with Laws, Rules and Regulations. An Operator shall conform with all federal and state laws and rules regarding cable communications pursuant to the effective date of such laws or rules. An Operator shall also conform with all City ordinances, rules and regulations heretofore or hereafter adopted or established during the term of its Franchise. 8.6 Titles. Titles to sections and subsections of the Cable Communications Code and any separate Franchise Agreement are provided for ease of locating information within the Cable Communications Code or separate Franchise Agreement. A title shall not be deemed to change or alter the meaning of any section or subsection. 'The language of each section and subsection shall control its interpretation. 8.7 Conflicting Provisions. Specific provisions of the Cable Communications Code or any separate Franchise Agreement in conflict with any ordinance, or part of any ordinance of a general nature, shall apply. 26