Ord 119-92 12/15/1992p
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ORDINANCE NO. /�j—�
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WICHITA
FALLS ADOPTING NEW COMPREHENSIVE REGULATORY PRACTICES
FOR MULTI-CHANNEL SERVICE PROVIDERS, INCLUDING THOSE
PROVIDERS KNOWN AS CABLE OPERATORS, AND INCLUDING
PROVISIONS FOR INSURANCE, REPORTS AND RECORDS, CONSUMER
PRACTICES, CONSUMER PROTECTION MEASURES, CONSTRUCTION
AND CONSTRUCTION-RELATED PRACTICES, FRANCHISE FEES AND
ALTERNATIVE USER CHARGES, OPERATION PROCEDURES, AND
HEALTH, SAFETY AND WELFARE MEASURES; REPEALING ALL
ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT
THEREWITH; PROVIDING A SAVINGS CLAUSE; FINDING AND
DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE
WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW;
PROVIDING FOR A PENALTY; PROVIDING FOR PUBLICATION IN
THE NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Wichita Falls finds that the health,
safety, and welfare of the citizens of Wichita Falls, Texas,
requires that a comprehensive ordinance be adopted which
establishes a regulatory framework applicable to the provision of
all multi-channel service providers within its territorial
jurisdiction.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF WICHITA FALLS, TEXAS:
SECTION 1. There is hereby adopted by the City Council of
the City of Wichita Falls a new comprehensive regulatory
practices for multi-channel service providers known as the
"Multi-Channel Service Providers Regulatory Ordinance for the
City of Wichita Falls, Texas" , a copy of which is on file with
the City Clerk and the same is hereby adopted and incorporated as
fully as if set out at length herein.
SECTION 2 . That all ordinances or parts of ordinances in
conflict with the provisions of this ordinance are hereby
repealed.
SECTION 3 . Should any section, paragraph, sentence, clause,
phrase or word of this ordinance be declared unconstitutional or
invalid for any purpose, the remainder of this ordinance shall
not be affected thereby.
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SECTION 4. It is hereby found and determined that the
meetings at which this ordinance was passed were open to the
public, as required by Article 6252-17, V.A.T.C. S. , and that
advance public notice of time, place and purpose of said meetings
was given.
SECTION 5. A person who violates any section of this
ordinance is guilty of a misdemeanor and upon conviction is
punishable in accordance with Section 1-5 of the Wichita Falls
City Code.
SECTION 6. That the City Clerk is directed to publish this
ordinance in some newspaper of general circulation in the City of
Wichita Falls in compliance with the provisions of Section 37 of
the City Charter, which publication shall be sufficient if it
contains the title of this ordinance and the penalty provided
therein for violation thereof.
SECTION 7. That this ordinance shall take effect from and
after its final passage and publication as required by law. The
effective date of this ordinance will be / in,i,,t.!!,� /V, /ff� •
PASSED AND APPROVED this the ea day of Q /,-Lk/t/ ,
1992 .
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M A Y O R
ATTEST:
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City C erk
COMPREHENSIVE REGULATORY ORDINANCE
OF THE CITY OF WICHITA FALLS
FOR MULTI-CHANNEL SERVICE PROVIDERS
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Table of Contents
Section 1. Title 3
Section 2 . Construction 3
Section 3. Scope 3
Section 4. Severability 3
Section 5. Definitions 3
Section 6. Statement of Intent 13
Section 7. Administration; Delegation of Powers and
Authority 15
Section 8. Applicability of this Ordinance to an MCS
Provider 15
Section 9. Exemption from this Ordinance for Certain
MCS Providers 15
Section 10. Non-Exempt MCS Providers Seeking Relief from
this Ordinance 16
Section 11. Failure of the Council/Franchising Authority to
Enforce this Ordinance 18
Section 12 . MCS Providers or their Assignees Subject to
Present and Future Ordinances 18
Section 13. Repeal of Prior Inconsistent Resolutions and
Ordinances 18
Section 14. Resolution of Inconsistencies with Federal or
State Rules, Regulations or Laws 18
Section 15. Resolution of Conflicts between this Ordinance and
an Existing Franchise Agreement 19
Section 16. Criminal Penalties 19
Section 17. Civil Penalties 20
Section 18. The Council/Franchising Authority's Retained
Rights and Authorities 20
Section 19. MCS Provider may Promulgate Rules 21
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Section 20. Notices 21
Sections 21-25. RESERVED
Section 26. Indemnity 22
Section 27. Liability Insurance 23
Section 28. Performance and Construction/Completion Bond 24
Section 29. The Council/Franchising Authority's Policy
with Respect to Reports and Records 25
Section 30. Furnishing of Reports 26
Section 31. Books and Records 27
Sections 32-37. RESERVED
Section 38. Notification of Customers and MCS Provider's
Rights and Responsibilities; General Policy 28
Section 39. Notice of Customer's and MCS Provider's Rights
and Responsibilities with Respect to the
Provision of Multi-Channel Service;
Minimum Contents 29
Section 40. Billing Practices 30
Section 41. Billing Credit for Service Outages, Interruptions,
Substandard Signal or Picture Quality or
Unsolicited Service 31
Section 42. Prohibition against "Negative Option" Promotional
Packages 31
Section 43. Special Rules Concerning Sales Solicitations 32
Section 44. Special Rules for Menu-Driven Systems, Service
Clusters, and Packaging of Service Tiers 33
Section 45. Customer Service Hours/ Capabilities of Customer
Service Office; and Telephone 34
Section 46. RESERVED
Section 47. Preferential or Discriminatory Practices
Prohibited 36
Section 48. Use of Equipment, Return of Equipment, Security
Deposits, and their Return 37
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Section 49. Service Inquiry Logs 38
Sections 50-55. RESERVED
Section 56. Restoration of a Subscriber's Property 39
Section 57. Service Inquiries, Requests, Complaints, and
Response Times 40
Section 58. MCS Providers Required to Maintain Sufficient
Repair Parts and Sufficient Repair Personnel 42
Section 59. New Installations; Connections - Regular,
Promotional, Seasonal, Short-Term, Pay-Per-View,
and Menu-Driven; Reconnections 43
Section 60. Disconnection for Non-Payment 43
Section 61. Voluntary Disconnections and Downgrades 44
Sections 62-65. RESERVED
Section 66. Protection of Subscriber Privacy 46
Section 67. Resolution of Complaints/Inquiries 46
Section 68. Policy with Respect to Continuity of Multi-
Channel Service Provisions 47
Section 69. Continued use of Individual Antennas
Protected 49
Sections 70-75. RESERVED
Section 76. Construction Schedule and Construction-Related
Requirements 49
Section 77. Construction of Good Quality 49
Section 78. Conditions on Use of Streets and Public Ways 50
Section 79. Franchised MCS Provider's Duty to Remove
Franchised Properties from the Public Streets 51
Section 80. Construction Standards
52
Section 81. System Construction Schedule for Franchised MCS
Providers 53
Section 82 . System Expansion for MCS Providers 53
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Section 83. Permits and Licenses 54
Sections 84-89. RESERVED
Section 90. Council/Franchising Authority's Policy with
Respect to Safety Requirements 54
Section 91. Safety Alert 54
Section 92. Provisions to Alert Subscribers in the Event of
an Emergency; Standby Power 55
Section 93. Implementation of a Preventive Maintenance
Program 56
Section 94. Construction, Fire and Safety Codes 56
Sections 95-99. RESERVED
Section 100. Alternative User Charge 56
Section 101. Franchise Required; Exception 58
Section 102. Authority to Grant Non-Exclusive Franchises 59
Section 103. Franchise Agreement; Minimal Requirements 60
Section 104. Extent of Grant of Franchise 60
Section 105. Term of Franchise 61
Section 106. Application for Franchise; Application Fee 62
Section 107. Franchise Fees 62
Section 108. Assignment or Transfer of Franchise 65
Section 109. Default of Franchise; Revocation, Termination
or Cancellation of Franchise 67
Section 110. Performance Evaluations 69
Sections 111-115. RESERVED
Section 116. Specific Additional Rules for MCS Providers
Classified as Cable Operators 69
Section 117. Specific Additional Public, Educational, and
Governmental Rules for MCS Providers Classified
as Cable Operators 70
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Section 118. The Council/Franchising Authority's Objective
as it Relates to the Provision of Broad
Categories of Video Programming 71
Sections 119-125. RESERVED
Section 126. Miscellaneous Provisions - Tampering and
Unauthorized Reception of Certain Services 72
Section 127. Effective Date 73
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MULTI-CHANNEL SERVICE PROVIDER REGULATORY ORDINANCE
FOR THE CITY OF WICHITA FALLS, TEXAS
SECTION 1. TITLE.
This ordinance may be known and cited as the Multi-Channel
Service Providers Regulatory Ordinance for the City of Wichita
Falls, Texas.
SECTION 2. CONSTRUCTION.
This ordinance shall be construed in light of applicable
Federal and State laws and regulations governing multi-channel
service practices which specifically includes cable television.
SECTION 3. SCOPE.
This ordinance shall be effective within the geographical
limits of the City, including any areas subsequently annexed by
the City.
SECTION 4. SEVERABILITY.
If any word, phrase, sentence, part, section, subsection ,
or other portion of this ordinance, or any application thereof to
any person or circumstance is declared void, unconstitutional, or
invalid for any reason, such word, phrase, sentence, part,
section, subsection, or other portion, or the proscribed
application thereof, shall be severable, and the remaining
provisions of this ordinance, and all applications thereof, not
having been declared void, unconstitutional, or invalid, shall
remain in full force and effect. The Council/franchising
authority declares that no invalid or proscribed provision or
application was an inducement to this ordinance, and that it
would have enacted this ordinance regardless of the invalid or
proscribed provision or application.
SECTION 5. DEFINITIONS.
"A/B switch" or "Input selector switch" means any device
that enables a viewer to select between any video source
(including any type of multi-channel service) or any ancillary
equipment. Such a device may be more sophisticated than a mere
two-sided switch, may utilize other multi-channel system
interface equipment, and may be built into television receivers.
"Access channel" means a government, education, or public
channel which is carried on a multi-channel system, but which is
not part of any institutional network.
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"Activated channel" has the same meaning as defined by
Federal or State law if such a definition is permitted.
"Abandoned calls" mean telephone calls that are connected to
an MCS provider's general information number, but the caller
hangs up without being attended by a representative of the MCS
provider, or by a device capable of receiving a message.
"Alternative user charge" means a charge used in place of a
franchise fee that the Council requires as 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 multi-channel system. An alternative user fee is not
based on an MCS provider's gross annual revenues (as is the case
in a franchise fee) , but rather is based on the value of the City
property that an MCS provider is using to construct, maintain,
and operate its multi-channel system.
"Annual gross revenues" means any and all compensation which
is derived from the operation of the MCS system, and which is
attributable to the subscribers or customers within the City.
Further, "annual gross revenues" means any, and all,
compensation, in whatever form (except as exempted by this
definition) , exchange or otherwise derived from all multi-channel
services, MCS operations, and MCS-related activities within the
City, including but not limited to: revenues from subscriber
rates; bulk billing rates; pay-per-view events or channels;
premium channels; service tiers; service clusters; institutional
networks; advertising; installations; rebates or commissions
received from travel or home shopping services; infomercial
channels; or commercial access. Also, unless prohibited or pre-
empted by either Federal or State law, "annual gross revenues"
shall mean any and all compensation from all ancillary multi-
channel services, MCS operations, and MCS-related activities
within the City, including, but not limited to: sale of MCS or
MCS equipment revenues from advertising stuffers inserted into
periodic billing statements or other notices; revenues from 900
numbers or revenues from other interactive cable or informational
services; revenues from personal communications networks (PCNs) ;
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; pay-per
view of interactive games or computer programs; rental or sale of
digital radio equipment to receive programming off the cable
system; sale of satellite antenna-received programming for a
programmer or distributor of services; or from revenues received
as the billing agent, collector, or retailer of satellite
antenna-received service. However, "annual gross revenues" does
not mean any taxes imposed and/or assessed by law on subscribers
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(including State sales taxes, but excluding any state or local
franchise fees) which an MCS provider is obligated to collect and
pay in full to the applicable authorities.
"Applicant" means a person submitting an application or
proposal to the City for a license or franchise to operate a
multi-channel system under the terms and conditions set forth in
this ordinance, and any State regulations.
"Application" or "Proposal" are synonymous for the purposes
of this ordinance. An "application" or "proposal" means the
process by which the applicant submits a request and indicates a
desire to be granted a license or franchise for all, or a part,
of the City. An "application" or "proposal" includes all written
documentation, and verbal statements and representations, in
whatever form or forum, made by an applicant to the
Council/franchising authority concerning the construction,
rendering of services, maintenance, or any other matter
pertaining to the proposed multi-channel system.
"Assignment of a franchised MCS provider's franchise" or
"Transfer of a franchised MCS provider's franchise" means any
transaction or action which effectively or actually changes
operations or managerial control from one person or entity to
another.
"Auxiliary Auxiliary equipment means equipment supplied by the MCS
provider (such as a converter, remote control unit, or input
selector switch) , which enhances or assists in the reception or
provision of multi-channel service.
"Basic cable television service" means any service tier
which includes the retransmission of local television broadcast
signals.
"Cable Act" or "CCPA" means the Cable Communications Policy
Act of 1984 , as amended.
"Cable channel" or "Cable television channel" means a
portion of the electromagnetic or light frequency spectrum which
is capable of delivering a television channel (as "television
channel" is defined by the FCC regulation) .
"Cable operator" or "operator" means 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 in such cable system; or
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(b) otherwise controls or is responsible for, through any
arrangement, the management and operation of such a
cable system.
"Cable service" means:
(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.
"Cable system" or "Cable television system" means 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, and which is provided to
multiple subscribers within the City. However, such terms do not
include the following:
(a) a facility that serves only to retransmit the
television signals of one (1) or more broadcast
stations; or,
(b) a facility that services only subscribers in one (1) or
more multiple unit dwellings under common ownership,
control, or management unless such facility or
facilities uses any public rights-of-way; or,
(c) a facility or a common carrier which is subject, in
whole or in part, to the provisions of Title II of the
Communications Act of 1934, except that such facility
shall be considered a cable system (other than for
purposes of Section 621(c) of the CCPA -- codified at
47 USC 541) to the extent such facility is used in the
transmission of video, voice, or data programming or
service directly to subscribers; or,
(d) any facilities of any electric utility used solely for
operating its electric utility.
"Charge" means a one-time or non-regularly occurring cost
paid by the subscriber, and which is associated with the
installation, maintenance, service, or repair of the multi-
channel service. Specifically, a "charge" includes, but is not
limited to: disconnection fees; downgrade charges; costs for
closed-captioned devices and equipment, remote control devices
and equipment for hearing-impaired customers; installation
charges for video camera recorders and players; installation
charges for digital radio; and trip or service call charges.
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"City" means the City of Wichita Falls, Texas, or its lawful
successor.
"Collection charge" means a charge or fee imposed on a
customer by an MCS provider for such provider's efforts at
collecting, or attempting to collect, a past due account.
"Commercially impracticable" means excuse by failure of
presupposed conditions as specified in Section 2-615 of the
Uniform Commercial Code.
"Converter" means any electric, electronic, or other device,
separate p rate 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.
"Council" or "Council/franchising authority" means the City
Council of the City of Wichita Falls, Texas, or its lawful
successor, which is the lawful legislative body for the City.
"Customer" means a subscriber, or user of the services
and/or facilities of the multi-channel system provided by an MCS
provider.
"Data Channel" or "Information Channel" means the use of the
electromagnetic or light spectrum for the purpose of transporting
data or non-video programming.
"Decoder" or "Descrambler" means a device which enables a
subscriber to convert a scrambled signal into a viewable or
otherwise useable signal.
"Disaster emergency" or "Disaster" or "Emergency" means an
imminent, impending, or actual natural or humanly induced
situation wherein the health, safety, or welfare of the residents
of the City are threatened. A "disaster emergency" (by
illustration) may include a sudden or expected insect infestation
(such as with locusts or bees) , snowstorm, flood, hail storm,
tornado, severe thunderstorm, hazardous waste infiltration, fire,
petroleum, munitions, or nuclear explosion, or aircraft crash.
"Drop" means a small branch of cable, or other transmitting
medium which connects the terminals on the back of the
subscriber's receiver to the feeder cable or future technical
equivalent on the street, easement, rights-of-way, or public way.
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"Easement" means and shall include any public easement or
other compatible use created by dedication, or by other means, to
the City for public utility purposes or any other purpose
whatsoever, including cable television, or any multi-channel
service. "Easement" shall include a private easement used for
the provision of cable service or any other multi-channel
service.
"FCC" or "Federal Communications Commission" means the
Federal administrative agency, or lawful successor, authorized to
oversee cable television and other multi-channel regulation on a
national level.
"Fiber cable" or "Fiber optic cable" means pliable
cylinders, or strands of glass or plastic, or any future
developed technical equivalent, used to carry wide bands of
multiple frequencies.
"Franchise" means the initial authorization, or subsequent
renewal granted by the Council/franchising authority to construct
and operate a franchised multi-channel system, within all, or
part, of the City. The term "franchised MCS provider"
specifically includes the term "cable operator. "
"Franchise expiration" means the date of expiration, or the
end of the term of a franchised MCS provider, as provided under a
franchise agreement.
"Franchise fee" means a fee or charge that the City requires
as payment for the privilege of using the streets, rights-of-way,
public ways, and easements of the City in order to construct,
maintain, and operate a franchised MCS system.
"Franchising authority" or "Council/franchising authority"
means the City Council of the City of Wichita Falls, Texas. This
definition specifically includes the situation wherein the
Council in its franchising authority capacity grants a franchise,
or renews a franchise, or approves a franchise transfer by an
applicant for an MCS franchise, or a franchised MCS provider.
"Headend" means the electronic control center, where
incoming signals, including those of television broadcast
stations, are amplified, modulated, filtered, converted, or in
any way processed or converted for redistribution to subscribers.
"Hub" means the satellite or remote receiving, processing
and/or transmitting facility, enabling the signal to be extended
beyond the physical/electronic capabilities of the multi-channel
electronics and/or to serve as a remote switching facility.
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"Late charge" means a charge which is added to a
subscriber's account or bill for non-payment of a previously due
and delinquent account.
"Mayor" means the Mayor for the City of Wichita Falls,
Texas.
"MCS" means multi-channel service.
"MCS provider" or "Multi-channel service provider" means any
person or group of persons who:
(a) provides multi-channel communications service over a
multi-channel system and directly or indirectly owns a
significant interest in such multi-channel system; or,
(b) who otherwise controls or is responsible through any
arrangement, for the management and operation of such a
multi-channel system.
The term "MCS provider" or "multi-channel service provider"
specifically includes the terms "cable operator, " "MMDS provider"
or "multi-point distribution system provider, " "MMDA provider, "
personal communications network system provider (where
applicable) , and "SMATV operator. "
"MDS" means multi-point distribution system.
"MDS provider" or "Multi-point distribution system provider"
means any person or group of persons authorized by the FCC,
within frequency boundaries established by the FCC, to transmit
specialized multi-channel programming or data or facsimile
transmission to subscriber-selected locations.
"Menu-driven" or "menu-driven cable" or "menu-driven
program/service" means the process whereby the MCS provider
offers multi-channel services via the multi-channel system in a
format that allows the subscriber to select and be charged for
multi-channel services on either a per channel, per program, or
per event basis. Menu-driven cable allows the subscriber to
create his or her own service tier(s) or cluster(s) , and the
opportunity to change the composition of his or her tier(s) or
cluster(s) on a periodic basis.
"Multi-channel programming service" or "Multi-channel
service" means:
(a) the one-way transmission to subscribers of video
programming, or other programming service; and,
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(b) subscriber interaction, if any, which is required for
the selection of such video programming or other
ro rammin
P 9 g service.
"Multi-channel system" means:
(a) facility consisting of a set of closed transmission
paths and associated signal generation, reception, and
control equipment; or,
(b) facility consisting of infrared transmission or point-
to-point transmission (as permitted by law) ; or,
(c) any functional equivalent -- that is designed to
provide multi-channel service which includes video
voice or data programming and which is provided to
multiple subscribers within the City.
However, such term does not include the following:
a re-transmit) a facility li y that services only to re transmit the
television signals of one (1) or more broadcast
stations; or,
(b) a facility that serves only subscribers and one (1) or
more multi-unit dwellings under common ownership,
control, or management unless such facility or
facilities uses any public rights-of-way; or,
(c) a facility or common carrier which is subject, in whole
or in part, to the provision to Title II of the
Communication Act of 1934 except that such facility
shall be considered a multi-channel system (other than
for purposes of Section 621 (c) of the CCPA -- codified
at 47 USC 541) to the extent such facility is used in
the transmission of video, voice, or data programming
or service directly to subscriber; or,
(d) any facilities of any electric utility used solely for
operating its electric utility.
"Ordinance" means the Multi-Channel Service Providers
Regulatory Ordinance for the City of Wichita Falls, Texas.
"Other programming service" means information than an MCS
provider (specifically including a cable operator) makes
available to all subscribers generally.
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"Pay-per-view" or "Premium channel" means the delivery on
the multi-channel system of audio and/or video signals to
subscribers for a fee or charge on a per program or per channel
basis.
"Person" means 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.
"Private communications network," or "PCN," or "Private
communications system" means any ancillary or aligned component
of an MCS provider's system consisting of communications lines,
cables, equipment or facilities which are used to provide
telecommunications service that in any manner uses or occupies
the streets, easement, public ways, or rights-of-way within the
City (as annexed) . However, "private communications network"
does not include any part of a State or FCC licensed local
government local exchange telephone company, or any part of a
Federal, State, County, or local government owned
telecommunications system.
"Proposed abandonment of multi-channel service" or "Proposed
withdrawal of multi-channel service" or "Proposed cessation of
multi-channel service" means the anticipated, contemplated,
imminent, or expected (either voluntary or involuntary)
disruption, discontinuance, desertion, or removal of an MCS
provider's operation and provision of multi-channel service from
all, or part, of the City.
"Public, educational or governmental access facilities"
means:
(a) Channel capacity designated exclusively for non-
commercial public, educational or governmental use;
and,
(b) Facilities and equipment for the use of such channel
capacity.
"Rate" means the periodic price paid for the receipt of any
multi-channel service provided by an MCS provider.
"Revocation," "Termination," or "Non-renewal" means an
official act by the City whereby the Council/franchising
authority removes, repeals, or rescinds previously approved
authorization for a licensed or franchised MCS provider to
conduct the running of a multi-channel system within the City.
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"Service cluster" means the grouping, aligning, or packaging
of one (1) or more multi-channel programming services by category
(such as sports and/or news) , or by rate, or by some other
identifiable method, and charging a separate price or rate for
each service cluster.
"Service outage" for purposes of credit means the loss of
picture or sound on all basic subscriber channels, or one (1) or
more auxiliary programming channels (including tiers and
clusters) . For purposes of response to a service call, a
"service outage" means a loss of a picture or sound or other
informational service provided by an MCS provider. Both of these
situations assume the outage is not caused by the failure or
malfunction of a subscriber's television receiver or by the
error, misfeasance or malfeasance of the subscriber.
"Service tier" means a category of multi-channel service or
other programming service provided by an MCS provider, and for
which a separate rate is charged by an MCS P rovider.
"SMATV" means Satellite Master Antenna Television.
"SMATV operator" or "Satellite Master Antenna Television
operator" means any person or group of persons who:
(a) provides multi-channel service over an SMATV system;
or,
(b) otherwise controls or is responsible for, through any
arrangement, the management of an SMATV system.
"SMATV system" means a private multi-channel system not
crossing any public rights-of-way and which is located on private
property, and serving private dwellings.
"State" means the State of Texas.
"Street" or "Public Way" means the surface of, and the space
above and below a public street, road, highway, freeway, land,
path, public way or place, alley, court, boulevard, parkway,
drive, or other easement now or hereafter held by the City
(including any street, as defined, which is acquired by eminent
domain) for the purpose of public travel, and shall include other
easements or rights-of-way now or hereafter held by the City
(including any easements or rights-of-way acquired by eminent
domain) which shall, with their proper use and meaning, entitle
the City and MCS provider to use thereof for the purpose of
installing or transmitting multi-channel system transmissions
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over poles, wires, cable, conductors, ducts, conduits, viaducts,
manholes, amplifiers, appliances, attachments, and other property
as may ordinarily be necessary and pertinent to a multi-channel
system.
"Subscriber" means a person lawfully receiving multi-channel
service delivered by the MCS provider.
"USC" means United States Code.
"User" means a person or organization utilizing a multi-
channel system and/or its equipment for purposes of production
and/or transmission of material, as contrasted with receipt
thereof in a subscriber capacity.
"Video programming" means programming provided by, or
generally considered comparable to programming provided by, a
television broadcast station.
SECTION 6. STATEMENT OF INTENT
A. The Council recognizes the United States Congress'
intent in approving the CCPA (expressed in Section 601 --
codified at 47 USC 521) . As such, the Council reaffirms and
adopts those principles and ideals as part of the City's intent
with respect to cable television and expands its intent (where
applicable) to cover all MCS providers.
B. As expressed by Congress, and adopted by the Council,
its intent is as follows:
(1) establish a local policy concerning communications and
technologies;
(2) establish franchise procedures and standards which
encourage the growth and development of cable systems
which assure that cable systems are responsive to the
needs and interests of the City;
(3) establish guidelines for the exercise of local
authority with respect to the regulation of cable
systems;
(4) assure that cable communications provide, and are
encouraged to provide, the widest diversity of
information and services to the public;
(5) establish an orderly process for franchise renewal
which protects cable operators against unfair denials
of renewal where an operator's past performance and
proposal for future performance meet the standards set
by the CCPA, and this ordinance; and,
(6) promote competition in cable communications and
minimize unnecessary regulation that would impose an
undue economic burden on cable systems.
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C. In addition to principles and ideals listed in
Subsection (B) , the Council also expresses that its intent covers
the following:
(1) to create a set of regulations, standards, and
procedures for MCS providers;
(2) to create a comprehensive customer service and consumer
protection policy for MCS providers;
(3) to provide for access and inspection of an MCS
provider's books and records in order to monitor
compliance of local, State and Federal laws, and any
franchise agreement (if one has been granted) ;
(4) to create a thorough construction and installation
policy for an MCS provider's system;
(5) to provide for the health, safety, and welfare of the
citizens of the City in light of the MCS provider's
construction, operation, and maintenance;
(6) to provide for emergency override capability, so that
citizens of the City may be warned of a potential,
imminent, actual disaster or emergency situation that
exists in the area;
(7) to provide for the introduction and installation of
safety alert technology in order to notify subscribers
of imminent disaster emergencies;
(8) to create a thorough procedure for collecting and
monitoring franchise fees and alternative user charges;
(9) to create a viable alternative to franchise fees in
case such fees, or their collection, are ruled invalid,
unenforceable, or unconstitutional;
(10) to create a thorough default and revocation procedure
for licensed and franchised MCS providers;
(11) to provide for continuity of services in the event of
City acquisition, abandonment, withdrawal, cessation of
service, revocation, termination, non-renewal, or
expiration of an MCS provider;
(12) to create a performance review procedure in order to
assist the City in its periodic evaluation of a
franchised MCS provider's performance; and,
(13) to create procedures for: the evaluation and grant of
MCS provider applications for authorization; the
identification of multi-channel service related to
community needs; and the establishment and enforcement
of rules and regulations of MCS providers consistent
with the identified needs of the community.
D. Further, the Council recognizes that with respect to
cable operators, the Council's power to adopt regulations is, in
part, authorized under the Cable Act, as well as the Council's
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police powers, due to the potential for physical scarcity and
public disruption when cable either occupies or uses the public
rights-of-way.
SECTION 7. ADMINISTRATION; DELEGATION OF POWERS AND AUTHORITY.
A. The Council/franchising authority is hereby designated
the officer of the City which is responsible for the continuing
administration of this ordinance.
B. Unless prohibited by Federal or State law, the
Council/franchising authority may delegate its powers and
authorities with respect to administering either an MCS provider
or a franchise agreement, to a duly authorized representative of
the City, including the Mayor, the City Manager, and/or the City
Cable Advisory Committee.
C. However, the Council/franchising authority may never
delegate its franchising or revocation power to another person.
SECTION 8. APPLICABILITY OF THIS ORDINANCE TO AN MCS PROVIDER.
A. Unless exempted entirely from this ordinance, or
exempted under one (1) or more provisions of this ordinance, or
granted relief (by the Council/franchising authority) from one
(1) or more provisions and/or requirements of this ordinance,
then this ordinance shall be applicable to an MCS provider, and
this ordinance shall have full effect and be enforceable in its
entirety. Moreoever, a non-exempt MCS provider shall be expected
to comply with this ordinance no later than six (6) months after
this ordinance becomes effective, except where a different
compliance date is given or noted (including a different date
noted in an applicable franchise agreement) .
B. This ordinance is not intended to repeal, and does not
have the effect of repealing any current franchising ordinance
that presently exists between the Council/franchising authority
and a franchised MCS provider.
C. As a result of Subsection B of this Section, the
provisions of this ordinance shall have no effect on conflicting
provisions of an existing franchise ordinance until the
expiration of said existing franchise, or until one of the
following events occurs:
(1) Prior to the expiration of the franchise, the
Council/franchising authority and the affected MCS
provider either execute an amended franchise or renewal
franchise in which both parties agree to be bound by
the terms of the ordinance or to the expiration of said
existing franchise.
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SECTION 9. EXEMPTION FROM THIS ORDINANCE FOR CERTAIN MCS
PROVIDERS.
A. Recognizing the inherent technological differences
between various types of MCS providers, and taking into account a
number of financial, operational, and maintenance considerations,
the Council/franchising authority exempts certain MCS providers
from complying with the provisions contained in this ordinance.
B. MCS providers who are exempted from complying with the
provisions of this ordinance are as follows:
(1) an MCS provider who is exempted from this ordinance as
a result of an applicable FCC ruling; or,
(2) an MCS provider who is exempted from this ordinance as
a result of an applicable judicial ruling.
C. It is expressly understood that an exempted MCS
provider remains exempted only as long as it meets one (1) or
more of the specifications of this particular section.
D. It also is expressly noted that the extent of the
exemption for a qualified MCS provider is only for this
ordinance. Consequently, such an exempted MCS provider is
expected to abide by, and comply with, any other applicable City,
State, or Federal laws and regulations, including any applicable
Federal or State consumer protection or customer service laws and
regulations.
SECTION 10. NON-EXEMPT MCS PROVIDERS SEEKING RELIEF FROM THIS
ORDINANCE
A. Any MCS provider affected by this ordinance may file a
written petition, at any time, with the Council/franchising
authority seeking relief from one (1) or more provisions of this
ordinance. The relief requested may specifically include the
delay in implementation (as to the petitioning MCS provider only)
of one (1) or more provisions of this ordinance.
B. In order to receive any relief from one (1) or more of
the provisions of this ordinance, a non-exempt MCS provider must
satisfactorily demonstrate to the Council/franchising authority
that at least one (1) of the following facts exist:
(1) the provision and/or requirement is expressly
prohibited by Federal law, the FCC, or State law; or,
(2) where applicable, that the provision in question
materially affects, and is in conflict with an
expressed right that is specifically noted in an
existing franchise agreement (but only for the term of
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the existing franchise) -- (this provision covers
situations where an MCS provider known as a cable
operator seeks, and is granted, modification of an
existing franchise agreement under Section 625 of the
CCPA [codified at 47 USC 545] ) ; or,
(3) that the imposition of such provisions and/or
requirements will create such an undue economic
hardship on an MCS provider so as to imperil or
eliminate an MCS provider's ability to provide multi-
channel service to a majority of current subscribers;
or,
(4) that one (1) or more time frames listed in this
ordinance are either impossible to meet, or impractical
to meet in light of the MCS provider's operational
policy; or,
(5) that the MCS provider has its own construction,
maintenance, operation, or customer service policy,
which the Council/franchising authority deems
comparable to, or exceeding, any provision and/or
requirement from which the MCS provider seeks relief.
C. The Council/franchising authority shall have the
responsibility of determining whether an MCS provider's
construction, maintenance, operation, or customer service policy
is comparable to, or exceeds, a similar provision in this
ordinance. Note well, however, that the Council/franchising
authority may delegate investigative and reporting functions to
an authorized representative of the City.
D. As an alternative to seeking an exemption, or
requesting relief, an MCS provider may submit a written request
or petition for clarification on the precise intent and effect
that one (1) or more provisions or sections of this ordinance has
on the petitioning MCS provider.
E. In accordance with this ordinance, the
Council/franchising authority may charge the petitioning MCS
provider with the actual costs for processing such a petition,
including any costs incurred by outside consultants who are
retained by the City to review an MCS provider's petition.
F. In those instances where the Council/franchising
authority grants an exemption or relief to a franchised MCS
provider, or deems a franchised MCS provider's operational policy
to be comparable to an ordinance provision, then the franchise
agreement (initial, existing, or renewal) shall be amended within
thirty (30) days to reflect the exact extent of such exemption
and/or relief. It should be specifically noted that the benefit
of such exemption, relief, clarification, or comparable policy
extends only to the MCS provider granted such exemption, relief,
clarification, or comparable policy.
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SECTION 11. FAILURE OF THE COUNCIL/FRANCHISING AUTHORITY TO
ENFORCE THIS ORDINANCE.
A non-exempt MCS provider shall not be excused from
complying with any of the requirements of this ordinance, or any
subsequently adopted amendments to this ordinance, by any failure
of the Council/franchising authority on any one (1) or more
occasions to seek, or insist upon, compliance with such
requirements or provisions.
SECTION 12. MCS PROVIDERS OR THEIR ASSIGNEES SUBJECT TO PRESENT
AND FUTURE ORDINANCES.
A. Any non-exempt MCS provider, its assignee, or
transferee shall be subject to, and expected to comply with, all
ordinances now or hereafter adopted and in effect within the
City, including this ordinance, to the extent that said MCS
provider has not received an exemption or relief from said
ordinance(s) .
B. Any non-exempt MCS provider, its assignee, or
transferee shall be subject to, and expected to comply with, all
Federal and State laws, and with all rules issued by all
applicable regulatory agencies now or hereafter in existence.
C. Any non-exempt MCS provider, its assignee, or
transferee shall be subject to all lawful exercise of the City's
police power.
D. With respect to future ordinances noted in this
section, nothing contained herein prevents an MCS provider from
exercising any, and all, of its administrative and legal rights
as to challenging the constitutionality, applicability, and
enforceability of said future ordinances.
SECTION 13. REPEAL OF PRIOR INCONSISTENT RESOLUTIONS AND
ORDINANCES.
Subsection to Section 8.B. of this ordinance, to the extent
that there is any prior resolution or ordinance which in part or
in whole is directly inconsistent with this ordinance, such part,
or such whole, of the prior resolution or ordinance shall be
repealed to the extent of the inconsistency.
SECTION 14. RESOLUTION OF INCONSISTENCIES WITH FEDERAL OR STATE
RULES, REGULATIONS OR LAWS.
A. In any case of an actual inconsistency between any
provision or section of this ordinance, and any provision or
section of a Federal or State rule, regulation, or law, then the
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Federal or State rule, regulation or law shall not only supersede
the effect of the ordinance, but also control in any local
application.
B. The above subsection specifically includes any
situation wherein an applicable Federal or State judicial
decision creates an actual inconsistency with any provision or
section of this ordinance. In such a situation, the Federal or
State judicial decision shall not only supersede the effect of
the ordinance, but also control in any local application.
SECTION 15. RESOLUTION OF CONFLICTS BETWEEN THIS ORDINANCE AND
AN EXISTING FRANCHISE AGREEMENT.
A. Where there is a conflict (actual or apparent) between
this ordinance and an existing and applicable franchise
agreement, the ordinance shall control, and prevail, unless
administratively or judicially determined invalid, unenforceable,
or unconstitutional.
B. In the case where a franchised MCS provider receives an
exemption, relief, clarification from one (1) or more provisions
or section of this ordinance, or has one (1) or more of its
policies deemed comparable to a provision contained in this
ordinance, then the franchise agreement should specifically note
such exemption, relief, clarification, or comparable policy, and
to the extent that such an exemption, relief, clarification, or
comparable policy is inconsistent with a provision contained in
this ordinance, then the specifically noted exemption, relief,
clarification, or comparable policy language contained in the
franchise agreement shall control.
SECTION 16. CRIMINAL PENALTIES.
A. Any violation or failure to abide by, and comply with,
any provision or requirement of this ordinance shall be a
violation of City Ordinance, and shall be punished as a Class C
Misdemeanor, subject to a fine up to Five Hundred ($500. 00)
Dollars per occurrence, unless otherwise provided by State law.
B. Each day upon which there exists a violation of this
ordinance, or a failure to abide by or comply with any provision
or requirement of this ordinance shall constitute a separate
occurrence, and may subject the MCS provider to separate criminal
penalties.
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SECTION 17. CIVIL PENALTIES.
A. Civil penalties may be imposed for the violation of any
provision of this ordinance, as follows:
(1) up to Five Hundred ($500.00) Dollars for each
violation, and each day of a continuing violation may
be considered a new violation; and/or,
(2) if applicable, default and revocation of a franchise
granted pursuant to this ordinance, and further subject
to any limitations imposed by Federal or State law;
and/or,
(3) prior to the imposition of any civil penalty, the MCS
provider shall be given ten (10) days written notice of
the violation and be given an opportunity to address
the Council/franchising authority for the purpose of
presenting its position relative to the violation.
B. Monetary civil penalties may be imposed in the manner
prescribed by either local or State law.
SECTION 18. THE COUNCIL/FRANCHISING AUTHORITY'S RETAINED RIGHTS
AND AUTHORITIES.
A. Subject to pre-emption by or other approval authority
of the FCC or any other Federal or State governmental entity or
agency, and to the extent permitted by any applicable law, the
Council/franchising authority retains the authority to provide
for:
(1) the regulation and control of any multi-channel system
within the geographical limits of City;
(2) the award and grant of an MCS franchise (where
required) subsequent to review of an application or
proposal by the Council/franchising authority;
(3) the periodic review and/or amendment or repeal of all,
or part, of this ordinance; and
(4) if mutually agreed to with a franchised MCS provider,
the periodic review and/or amendment of any existing
franchise agreement.
B. The Council/franchising authority, to the extent
permitted by Section 623 of the CCPA (codified at 47 USC 543)
retains the power to regulate rates or charges associated with
the providing of multi-channel service classified as cable
service by an MCS provider classified as a cable operator.
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C. Subject to pre-emption by or other approval authority
of the FCC or any other Federal or State governmental entity or
agency, the Council/franchising authority retains the
jurisdiction to enforce all laws and regulations relating to
multi-channel customer service practices and consumer protection.
D. If the FCC, Congress or other governmental agency with
authority over cable or any other MCS provider ever abrogates,
deletes, removes or otherwise disposes of rules or standards that
are referenced in this ordinance, or relief upon by the
Council/franchising authority for purposes of mcs provider
compliance with this ordinance, then the Council/franchising
authority may, to the extent not pre-empted by or inconsistent
with, later adopted law or regulations, re-instate such rules or
standards. In such case, the re-instated rules will have the
same weight (as allowed under prevailing law) as they had prior
to their initial deletion.
SECTION 19. MCS PROVIDER MAY PROMULGATE RULES.
To the extent that they are consistent with the requirements
and responsibilities detailed in this ordinance, an MCS provider
is authorized to promulgate such rules and internal practices as
shall be necessary to enable it to exercise its rights and
perform its duties under this ordinance, and the rules of any
federal or state agency charged with the responsibility of
regulating MCS providers.
SECTION 20. NOTICES.
A. Both the Council/franchising authority and each non-
exempt MCS provider shall provide the other party with the name
and address of the contact person designated to receive notices,
filings, reports, records, documents, and other correspondence
All notices shall be delivered to each party's contact person by
certified mail, return receipt requested, personal service with a
signed receipt of delivery, or overnight with receipt
verification. All other filings, reports, records, documents,
and other correspondence may be delivered by any permissible
means, including, but not limited to: facsimile transmission
("faxing") ; personal service; overnight mail or package delivery;
or delivery via cable. The delivery of all notices, reports,
records, and other correspondence shall be deemed to have
occurred at the time of receipt (unless otherwise designated by
State law) .
B. If the MCS provider is required to maintain a
franchise, then the designation of such contact person for notice
purposes may be contained within a franchise agreement.
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SECTIONS 21 - 25. RESERVED.
SECTION 26. INDEMNITY.
A. To the extent permitted by law, a non-exempt MCS
provider shall at all times defend, indemnify, protect, save
harmless, and exempt the City, the Mayor, the City Manager, the
Council/franchising authority, their officers, agents, servants,
and employees from any and all penalty, damage, or charges
arising out of claims, suits, demands, causes of action, or award
of damages, whether compensatory or punitive, or expenses arising
therefrom, either at law or in equity, which might be claimed now
in the future, which may arise out of, or be caused by workers'
compensation, or by the construction, erection, location,
products performance, operation, maintenance, repair,
installation, replacement, removal or restoration of the multi-
channel system within the City by a negligent act or omission of
an MCS provider, its agents or employees, contractors,
subcontractors, independent contractors, or implied or authorized
representatives. With respect to the penalties, damages or
charges referenced herein, reasonable attorney's fees,
consultants' fees, and expert witness fees are included as those
costs which may be recovered by the Council/franchising
authority.
B. The City and the Council/franchising authority
specifically reserve the right to retain counsel of their own
choice, at their own expense.
C. If an MCS provider obtains counsel for the City or the
Council/franchising authority, then any one of them shall have
the right to approve counsel.
D. Neither the City nor the Council/franchising authority
shall unreasonably withhold its approval of counsel.
E. With respect to an MCS provider's own defense of such
actions, noted in this section, it is understood that such MCS
provider reserves the right to select and retain, without the
Council/franchising authority's approval, counsel of the MCS
providers' choice, at such provider's expense.
F. Where arbitration is permitted in a franchise
agreement, or agreed to in writing by the MCS provider and
Council/franchising authority, the arbitration provisions shall
specify to what extent costs are to be borne by either the
Council/franchising authority, and the MCS provider.
23
SECTION 27. LIABILITY INSURANCE.
A. An MCS provider may be required to secure and maintain,
for as long as it provides multi-channel service to subscribers,
public liability, property damage insurance, and umbrella
coverage in at least the following amounts:
(1) Public liability: $2 , 000, 000. 000 per person/per
occurrence;
(2) Property damage: $2, 000, 000. 00 per any one (1) claim;
(3) Umbrella liability: $4, 000, 000. 00 with up to a
$50, 000. 00 deductible and/or base insurance.
B. Note well, however, that insurance requirements should
be consistent for MCS providers who offer multi-channel service
to more than ten (10%) percent of the residents within the City.
Consequently, the Council/franchising authority may not impose
more restrictive or burdensome insurance requirements on any
other MCs providers who meet the above service thresholds.
C. An MCS provider's public and personal liability and
property damage insurance policy shall specifically include the
City, the Mayor, and the Council/franchising authority as
additional insureds.
D. The public and personal liability and property damage
insurance policy shall be issued by an agent or representative of
an insurance company licensed to do business in the State, and
which has one (1) of the three highest or best ratings from the
Alfred M. Best Company.
E. Should the Council/franchising authority make a formal
determination that due to the financial, operational, technical,
or legal status (or lack thereof) or condition of the MCS
provider, the above-referenced requirements for minimal insurance
are inadequate, then the Council/franchising authority may
require the MCS provider to obtain and maintain insurance for
greater minimal amounts (up to, but not exceeding Five Million
[$5, 000, 000. 00] Dollars for public liability, Five Million
[$5, 000, 000. 00] Dollars for property damage, and Ten Million
[$10, 000, 000. 00] for umbrella liability) .
F. The public liability and property damage insurance
policy shall contain an endorsement obligating the insurance
company to furnish the Council/franchising authority with at
least thirty (30) days written notice in advance of the
cancellation of the insurance.
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G. Renewal or replacement policies or certificates shall
be delivered to the Council/franchising authority at least
fifteen (15) days before the expiration of the insurance which
such policies are to renew or replace.
H. Before a multi-channel system provides multi-channel
service to subscribers, the MCS provider shall deliver the
policies or certificates representing the insurance to the
Council/franchising authority, and each policy or certificate
delivered shall be accompanied by evidence of payment of the
premium thereon.
I. If the State permits an MCS provider to self-insure,
then the MCS provider may exercise its right to self-insure, as
long as the minimal amounts of insurance coverage outlined in
this section are met and maintained for the entire period that
the affected MCS provider is self-insured. However, for the
reasons listed in Subsection (D) of this section, the
Council/franchising authority may make a formal determination and
require an increase in the minimal amounts of insurance coverage.
SECTION 28. PERFORMANCE AND CONSTRUCTION/COMPLETION BOND.
A. An MCS provider shall furnish to the
Council/franchising authority, in an amount totaling at least One
Hundred Thousand ($100, 000.00) Dollars, a performance bond or
security bond executed by a surety licensed to do business in
this State. The purpose of the performance bond is to ensure
performance of any requirements imposed by this ordinance on an
MCS provider. Further, the purpose is to guarantee that should
the MCS provider not fulfill any obligations imposed by this
ordinance (or where applicable, a franchise agreement) , then the
surety will make whole (to the extent of the policy) any monetary
losses incurred by the City.
B. An MCS provider shall furnish to the
Council/franchising authority a construction/completion bond
prior to the time it commences a construction, upgrade, rebuild,
or repair/maintenance project that has a capital construction
cost or outlay exceeding Fifty Thousand ($50, 000. 00) Dollars in
value. The amount of the bond shall equal at least ninety (90%)
percent of the projected capital construction cost or outlay.
The construction/completion bond shall remain in force at all
times, unless relief is granted or a reduction schedule is
detailed in an agreement between the Council/franchising
authority, and the MCS provider.
C. The construction/completion bond or security bond shall
specifically guarantee than an MCS provider will timely abide by
its construction, upgrade, rebuild, or repair/maintenance
schedule for the multi-channel system and/or any timetable for
25
technical and service improvements or additions to the multi-
channel system as may be committed to, or agreed upon, from time
to time, by the Council/franchising authority and MCS provider.
D. If the City draws on a performance or completion bond
or cash deposit as a result of an MCS provider's failure to
timely discharge its obligations, or failure to construct and
activate the multi-channel system, or failure to complete a
multi-channel system upgrade or rebuild or repair/maintenance,
then the MCS provider shall be required, within thirty (30) days
to replenish the completion and performance bond or security bond
to the minimal level required by the Council/franchising
authority.
E. Should the Council/franchising authority make a formal
determination that due to the MCS provider's past performance
(such as a documented history of repeated or multiple franchise
violations) , or increased cost (greater than fifty [50%] percent
of the original estimated cost) , or documented untimeliness or
incompletion of projects listed in construction schedules, the
Council/franchising authority may raise the required amount of
either the performance or the construction/completion bond.
F. The performance bond or security bond shall be in force
at all times unless relief is granted or a reduction schedule is
detailed in an agreement between the MCS provider and the
Council/franchising authority.
G. In lieu of a performance bond and
construction/completion bond, the Council/franchising authority
may accept a written guarantee of an MCS provider pledging the
full faith and credit of the affected MCS provider should there
be a breach in a material franchise term, or failure to meet any
construction schedule.
SECTION 29. THE COUNCIL/FRANCHISING AUTHORITY'S POLICY WITH
RESPECT TO REPORTS AND RECORDS.
A. The Council/franchising authority recognizes that
advances in technology, and the adoption and application of
multi-channel laws, rules, regulations, and court decisions may
have a profound effect and impact on an MCS provider in any given
year.
B. Consequently, it is incumbent that the
Council/franchising authority take measures to reduce the risk
that multi-channel service or the multi-channel system will be
adversely affected in any given year.
26
C. Therefore, the evaluation of legal, technical,
financial, and character qualifications of an MCS provider is
viewed as a constant undertaking on the part of the City. As a
result, the Council/franchising authority requires that the
operator maintain and retain all records and reports necessary
for the Council/franchising authority to determine compliance
with the obligations imposed on an MCS provider, and to determine
the MCS provider's (legal, technical, financial, and character)
qualifications.
SECTION 30. FURNISHING OF REPORTS.
A. Within ninety (90) days after this ordinance becomes
effective, and thereafter at least once every twelve (12) months,
an MCS provider may be required by the City to submit a list to
the Council/franchising authority, or designee, of files,
reports, records, data, or other information that the MCS
provider periodically files with the FCC, or another Federal or
State agency concerning the local cable system. If the MCS files
a non-periodic or non-regular filing with the FCC, or another
Federal or State agency, then the MCS shall (within sixty [60]
days of that filing) notify the Council/franchising authority of
such Federal or State filing. As part of a performance
evaluation, or for any legitimate matter related to the
administration of an MCS provider (or if application the MCS
provider's franchise) , the Council/franchising authority may
specifically request that it be provided with any or all listed
reports, records, data, or other information that were originally
filed with the FCC or another Federal or State agency. However,
unless specifically authorized by the State, an MCS provider
shall not be required to provide to the Council/franchising
authority, any State or Federal tax returns, or any documents
(inclusive of all above-referenced categories) exempted under
Federal privacy laws, including Section 631 of the CCPA (codified
at 47 USC 551) .
B. In addition to the requirements noted in Subsection (A)
of this Section, an MCS provider shall timely submit those
reports, statements, and logs required by this ordinance,
including, but not limited to, the following:
(1) a periodic gross revenue statement in the manner set
forth in this ordinance;
(2) a periodic certification that answering of phones is
meeting the specifications listed in this ordinance;
(3) preventive maintenance reports in the manner set forth
in this ordinance; and,
27
(4) any other reports or information required by another
Section of this ordinance, or by the
Council/franchising authority which are necessary to
protect the health, safety and welfare of the citizens
of the City.
SECTION 31. BOOKS AND RECORDS.
A. An MCS provider shall keep complete and accurate books
of accounts and records of the business and operations under, and
in connection with, the MCS system.
B. The Council/franchising authority shall have the right
to review (either by mail or at the MCS provider's local office)
all records (needed for the administration enforcement of this
ordinance or any franchise) on seven (7) days written notice,
unless specifically exempted by the Council/franchising
authority. Such review, unless mutually agreed upon, or
judicially ordered, should occur within the MCS provider's
regular office hours.
C. The Council/franchising authority shall have the right
to hire, at its own expense, an independent certified public
accountant, or other business or financial expert, to review the
annual books and records of an MCS provider. If after a
financial audit it is determined that the MCS provider has
underpaid amounts owed to the City (in excess of two [2%)
percent) , then the City may require the MCS provider to reimburse
the City for the actual cost of the audit. Note well, however,
that absent fraud, all audits shall be binding on the City.
Further, the MCS provider shall only be required to maintain the
financial records necessary to verify franchise fees.
D. A false entry into the books and/or records of an MCS
provider, of a material and substantial fact shall constitute a
material violation of this ordinance. However, an erroneous
entry, made in good faith, shall not constitute a material
violation of this ordinance.
E. An MCS provider shall keep complete and accurate books
and records of the key aspects of the multi-channel system's
operation for at least the preceding three (3) years in such a
manner that all matters pertaining to the franchise operations in
the City can be easily produced and/or verified at the City's
request. Also, the MCS provider shall keep, at its local office,
and shall make available and produce upon request, any other
application records and information that may be required by any
other Federal or State agency having jurisdiction over MCS
providers, with respect to the Wichita Falls MCS system.
SECTIONS 32 - 37. RESERVED.
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SECTION 38. NOTIFICATION OF CUSTOMERS AND MCS PROVIDERS' RIGHTS
AND RESPONSIBILITIES; GENERAL POLICY.
A. The Council/franchising authority recognizes that it is
critical that a customer of an MCS provider fully understands and
realizes the rights and responsibilities of both the customer and
MCS provider with respect to the provision, maintenance, and
repair of multi-channel service.
B. Further, the Council/franchising authority believes
that if sufficient information is provided to a customer on
certain customer service practices such as rates, billing
periods, number and types of services provided, and rules
concerning equipment use and return, then that customer will have
the information necessary to make an informed decision on what,
if any, multi-channel services to subscribe to and receive.
C. 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 MCS provider's
rights and responsibilities with respect to the multi-channel
system, an MCS provider must provide a customer with a written
"Notice of a Customer's and MCS Provider's Rights and
Responsibilities With Respect to the Provision of Multi-Channel
Service. "
D. The "Notice of a Customer's and MCS Provider's Rights
and Responsibilities With Respect to the Provision of Multi-
Channel Service" shall be provided at the time of initial
installation. Thereafter, a subscriber shall be provided with a
written "Notice" at least once each calendar year. If, however,
an MCS provider amends, repeals, adds, deletes, modifies, or
makes other changes to any customer service practice that is
required in this ordinance, then said MCS provider shall provide
a subscriber with such written notification at least thirty (30)
days prior to the effective date, if possible, of such amendment,
repeal, addition, deletion, modification, or other change.
E. Unless expressly prohibited by the State, an MCS
provider may comply with the "Notice" requirements by providing
said "Notice" over the MCS system, on a channel clearly
designated for the dissemination of such information (such a
channel need not be solely designated for dissemination of such
information, and may, in fact, be used at other times for any
lawful purpose) .
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SECTION 39. NOTICE OF CUSTOMER'S AND MCS PROVIDER'S RIGHTS AND
RESPONSIBILITIES WITH RESPECT TO THE PROVISION OF MULTI-CHANNEL
SERVICE; MINIMUM CONTENTS.
A. At the time an MCS provider is required to furnish an
initial or annual "Notice, " such "Notice" shall contain, at a
minimum, the following:
(1) an up-to-date listing of the specific multi-channel
services provided -- clearly indicating and isolating
the basic, premium, and informational services offered,
as well as the service tiers or service clusters
offered;
(2) notification of a subscriber's ability to purchase or
lease, from the MCS provider, a lock box, parental
control mechanism, or other device which will prohibit
the viewing of a particular multi-channel service
during a period selected by the subscriber;
(3) pursuant to FCC regulations, a subscriber's ability of
purchasing or using an A/B or input selector switch;
(4) a comprehensive listing and explanation of all rates
and charges (including rates for standard or basic and
premium channels/services, particular service tiers or
service clusters, current discount or promotional fees,
installation charges, and security deposits, if any) ;
(5) if service clustering is available, then a description
and explanation of any penalties, credits,
restrictions, upcoming (within sixty [60] days, if
possible, of the "Notice") service clustering changes
or differing alignments, or other pertinent
information;
(6) a comprehensive listing and explanation of all billing
options available (such as monthly, quarterly, or
yearly, and/or discounts for pre-payments) ;
(7) the customer service office hours and telephone
number(s) in a manner consistent with the specific
policy set forth in this ordinance;
(8) the billing practices of an MCS provider in a a manner
consistent with the specific policy set forth in this
ordinance;
(9) the specific customer complaint/inquiry resolution
policy that is adopted and followed by an MCS provider
and which is consistent with the parameters set forth
in this ordinance;
(10) if applicable, and permitted, the rules and regulations
for using any facilities, including a studio or mobile
van of an MCS provider;
(11) the method of securing a voluntary disconnection in a
manner consistent with the specific policy set forth in
this ordinance;
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(12) rules relating to both connections and involuntary
disconnections;
(13) the extent of the credit/refund policy in a manner
consistent with the specific policy set forth in this
ordinance;
(14) the equipment use and return policy, together with any
required security deposits in a manner consistent with
the specific policy set forth in this ordinance; and,
(15) the additional rights of blind, hearing-impaired or
ambulatory-impaired customers in a manner consistent
with applicable law or a franchise agreement.
B. The "Notice" shall be written in plain, simple-to-
understand English. The "Notice" shall contain no fine print,
and any exclusions, limitations, or caveats shall be clearly
indicated as such in the "Notice. "
C. The "Notice" may be delivered to a subscriber via an
insert in the subscriber's periodic invoice, or through a special
mailing, or over an MCS channel clearly designated for the
dissemination of such information.
SECTION 40. BILLING PRACTICES.
A. Within the "Notice" that is required by this ordinance,
subscribers shall be informed of at least the following billing
practices of an MCS provider:
(1) billing procedures (including payments necessary to
avoid discontinuance of service) ;
(2) payment due and delinquent dates;
(3) amount of percentage of late charges, if any;
(4) advance billing options;
(5) resolution procedures for billing disputes, complaints,
and inquiries;
(6) refund policy for service interruptions, substandard
signal quality, or uncontracted service;
(7) current service rates in a detailed and understandable
format;
(8) procedure and amount of charges for installation or
relocation of an MCS provider's facilities and/or
equipment;
(9) current schedule and explanation for any billed charges
or other non-regularly occurring fees invoiced to
subscribers; and,
(10) any lower-income or fixed-income rates, together with
any qualifications to obtain such rates.
B. All periodic service bills shall plainly state that
there shall be no later charge or penalty assessed if payment is
received by the last date of the billing period.
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C. Existing subscribers shall be informed of the items
listed in Subsection (1) at least once every calendar year.
D. Whenever there is a change in an MCS provider'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.
E. In any case where a subscriber requests a cancellation
or reduction of service within thirty (30) days after the
notification of a scheduled rate or charge adjustment, then the
subscriber's liability for the newly implemented rate or charge
shall cease from the moment that the rate or charge adjustment
becomes effective.
SECTION 41. BILLING CREDIT FOR SERVICE OUTAGES, INTERRUPTIONS;
SUBSTANDARD SIGNAL OR PICTURE QUALITY OR UNSOLICITED SERVICE.
A. An MCS provider shall provide a subscriber with a pro-
rated credit for service outage exceeding eight (8) hours in
duration upon request.
B. where not expressly prohibited by the State, the
Council/franchising authority may prescribe rules for giving
credit to a subscriber in cases of substandard signal or picture
quality.
C. In the case of a charge for unsolicited service, an MCS
provider shall provide a subscriber with an adjustment or billing
credit on the next available billing statement. Moreoever, in
such a case, an MCS provider shall not consider a subscriber
delinquent for failure to pay a charge for unsolicited service.
SECTION 42. PROHIBITION AGAINST "NEGATIVE OPTION" PROMOTIONAL
PACKAGES.
A. The Council/franchising authority both recognizes and
determines that as a matter of consumer protection, a subscriber
should be charged only for those services that such subscriber
has affirmatively requested. Therefore, an MCS provider may not
bill or invoice any subscriber for any multi-channel service that
is not affirmatively requested by the subscriber.
B. For purposes of this section, a subscriber's
affirmative request need not be in writing, but an MCS provider
relying on an oral request must keep an accurate, precise, and
exact record of the date and time on which -- and the CSR, or
service technician to whom -- the request was made.
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C. For purposes of this section, a subscriber shall be
deemed to have affirmatively requested a multi-channel service
if:
(1) the subscriber voluntarily makes payment for the multi-
channel service after an initial free trial period;
and,
(2) there was included, in the notice or advertising
material describing the service, a statement clearly
advising the subscriber that such subscriber has
incurred no obligation to pay for such service, and
that such subscriber need not take any action to avoid
incurring any such obligation.
D. Moreoever, an MCS provider may not automatically enroll
a subscriber into a different class or tier or multi-channel
service without first informing (at least thirty [30] days in
advance) such subscriber of any, and all, costs associated with
such a different class or tier or multi-channel service.
E. Additionally, an MCS provider may not invoice a
subscriber for disconnecting or downgrading from a "negatively
promoted" or automatically enrolled class or tier of multi-
channel service.
F. Should a subscriber be charged for a multi-channel
service in violation of this section, then the MCS provider shall
provide a subscriber with an adjustment or billing credit on the
next available billing statement. Moreoever, in such case, an
MCS provider shall not consider a subscriber delinquent for
failure to pay a charge for a non-affirmatively requested multi-
channel service.
SECTION 43. SPECIAL RULES CONCERNING SALES SOLICITATIONS.
A. For MCS providers engaged in sales solicitations (via
phone, cellular phone, interactive multi-channel system, PCN, or
other type of personal, communications system) , the following
rules apply (unless pre-empted by Federal or State law) :
(1) sales solicitors identify themselves at the outset of
the communication;
(2) sales solicitors must not engage in bait-and-switch
tactics -- that is, they must not initially offer a
lower-priced service only to inform the customer of its
unavailability, or offer the lower-priced service in
order to pressure sale a higher-priced service; and,
(3) sales solicitors must quote the full and complete cost
for any service sold or subscribed to during the course
of the communication.
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B. The restrictions outlined in Subsection (A) of this
section shall not apply to sales solicitations which are done or
occur in the following circumstances:
(1) in response to a customer's specific request;
(2) at a time mutually agreed upon by an authorized
representative of the MCS provider and the customer;
(3) in connection with a charitable contribution or
charitable purpose;
(4) in connection with a home shopping or travel-related
service; and,
(5) where the sales solicitor has established (and can
document) a previous, or on-going commercial
relationship with the customer.
C. These restrictions outlined in Subsection (A) of this
section shall not apply to sales solicitations via printed
material in that such printed solicitations or advertisements are
deemed not as disruptive or intrusive as solicitations noted in
Subsection (A) of this Section.
SECTION 44. SPECIAL RULES FOR MENU-DRIVEN SYSTEMS, SERVICE
CLUSTERS, AND PACKAGING OF SERVICE TIERS.
A. The Council/franchising authority recognizes that the
concept of menu-driven program/service selection has both
positive and negative aspects. On the one hand, menu-driven
program/service selection allows the greatest flexibility for a
subscriber in that it permits the subscriber to essentially
create a program/service package tailored to the subscriber's
budget, viewing habits, and informational needs. On the other
hand, menu-driven program/service selection is susceptible to
unauthorized or unknowing purchases, and uninformed program
choices if certain procedural and operational safeguards are not
maintained.
B. Should an MCS provider implement and/or offer menu-
driven program/service selection for all, or the majority, of the
MCS provider's multi-channel services, then the
Council/franchising authority reserves the power to adopt
additional rules and regulations (subject to the conditions
listed in Subsection [C] of this section) concerning the
following potential problem areas:
(1) notification to the subscriber on a periodic (at least
monthly) basis of the exact costs for each menu-driven
program/service, including any installation or
equipment rental charges;
(2) notification of what constitutes, or what is required
for selection or subscription to a particular
program/service;
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(3) limitations on negative option marketing plans when
done in connection with a menu-driven system, unless
the subscriber is initially informed, consents (in
writing) , and periodically (at least semi-annually)
renews the consent to be included on a list of
potential subscribers; and,
(4) restricting access to menu-driven program/service
selection by subscribers (through the use of
individual, non-duplicative access codes or some other
means) , in order to limit unauthorized purchases, or
purchases above a certain pre-set amount (without
additional written approval) .
C. If, at the time an MCS provider implements and/or
offers menu-driven program/service selection, such MCS provider
also adopts an operational policy which protects subscribers from
those potential problem areas listed in Subsection (B) of this
section, then the Council/franchising authority shall not
exercise its additional regulatory authority on this subject,
unless there is documentation that the adopted policy of the MCS
provider is not being enforced, or is ineffective in safeguarding
subscribers from the potential abuses listed above.
D. As for service clusters, and the packaging of service
tiers, and to provide both a disincentive for "bait and switch
tactics, " and to promote cluster and tier stability, an MCS
provider may not switch any particular multi-channel service from
one tier or cluster to another without thirty (30) days notice,
if possible; provided, however, that upon thirty (30) days prior
notice, an MCS provider may rearrange, re-tier, re-cluster, or
otherwise offer its multi-channel service.
E. Nothing contained in this section shall be construed as
mandating any particular programming choice being provided to a
subscriber. Nor should this section be construed as requiring
any particular program, service, cluster, or tier. Rather, this
section is designed to promote cluster and tier stability, so
that a subscriber may choose a program, service, cluster, or tier
that best suits the subscriber's individual programming and
informational needs.
SECTION 45. CUSTOMER SERVICE HOURS; CAPABILITIES OF CUSTOMER
SERVICE OFFICE; AND TELEPHONES.
A. In order to facilitate the needs of the local
customers, an MCS provider shall maintain a customer service
office which is both within the City and easily accessible to
customers.
B. The customer service office shall be open at least
forty (40) hours per week (exclusive of holidays) .
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C. Within the forty (40) hours per week that a customer
service office must be open, an MCS provider must provide office
hours either on at least two (2) evenings (after 5 p.m. ) , or on
Saturdays and/or Sundays (if not prohibited by State law) .
D. The customer service 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.
E. An MCS provider may install (at its customer service
office) an after-hours depository in order to collect invoice
payments and receive requests for service appointments (including
connections and disconnections) after scheduled office hours.
F. An MCS provider may install an automated (audio or
video) customer assistance device or machine which can handle
various types of customer inquiries.
G. Neither the presence of an after-hours depository or
automated customer service device relieves an MCS provider from
maintaining the minimal required number of office hours, or
adequate CSR staff to handle the majority of service inquiries
(unless the MCS provider can demonstrate to the
Council/franchising authority's satisfaction that the efficiency
of such devices reduces the need for customer service hours or
CSR personnel) .
H. At least annually, any non-exempt MCS provider shall
certify to the Council/franchising authority that each customer
service representative (CSR) has taken an MCS provider-
implemented course designed to train CSR's to handle their jobs
in a courteous, efficient and responsive manner.
I. An MCS provider shall maintain at least one (1) toll-
free and/or local telephone number to accommodate normal business
inquiries.
J. An MCS provider shall maintain a separate twenty-four
(24) hour toll-free or 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 MCS provider must have or make available in-house
personnel to address a customer's inquiries. During other hours,
a telephone may be manned by an automatic answering device,
provided that the use of an answering device or answering service
still results in an initial phone call by the MCS provider within
sixty (60) minutes, in order to at least determine the extent of
the outage; except that the MCS provider shall not be required to
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make in-person telephone contacts to subscribers at a rate which
exceeds sixty (60) calls per hour, and shall not be required to
make such calls between the hours of 10: 00 p.m. and 7 : 00 a.m.
K. An non-exempt MCS provider shall have adequate staff
and/or extension lines (except during special marketing promotion
periods, peak billing cycles, and service outages) in order to
handle calls to the general information number to the following
specifications:
(1) Eighty-five (85%) percent of all customer calls
received in a year shall be answered within three (3)
minutes by a representative of the MCS provider, or by
a device that is capable of receiving complaint/inquiry
resolution; and,
(2) The rate of abandoned calls shall be less than five
(5%) percent over a year's period of time. "Abandoned
calls" shall in no event be deemed to include calls in
which the caller hangs up within forty-five (45)
seconds of making the call.
L. With respect to the specifications listed in Subsection
(K) of this section, it shall be the MCS provider's
responsibility to annually certify to the Council/franchising
authority that the affected MCS provider is meeting the minimal
specifications.
SECTION 46. RESERVED.
SECTION 47. PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED.
A. An MCS provider shall not, as to rules, regulations,
rates, charges, provision of service, or use of a provider's
facilities and equipment, make, allow, or grant any undue
preference or advantage to any person, nor subject any person to
prejudice or disadvantage on the basis of age, race, creed,
color, sex, national origin, handicap, religious affiliation or
location of residence.
B. Consistent with Section 621(a) (3) of the CCPA (codified
at 47 USC 541[a] [3] ) , MCS providers 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.
C. Subsection (A) of this section, however, does not
prohibit an MCS provider from offering a promotional or incentive
discount rate or charge as long as the rate or charge does not
exceed three hundred seventy (370) days in length. This
subsection does not prohibit an MCS provider from offering
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special incentive rates such as one (1) month basic service free,
if twelve (12) months of basic service are paid in one (1)
payment or within a certain time frame.
D. Subsection (A) of this section also does not prohibit
an MCS provider from denying service based on location of
residence, if that residence is outside the parameters for line
extension as detailed in a franchise agreement (if applicable) .
E. Subsection (A) of this section also does not prohibit
an MCS provider from denying service to a subscriber who is more
than thirty (30) days delinquent in the payment of any periodic
service, or special service bill,so long as the requirements for
disconnection (as outlined in this ordinance) have been
satisfied.
F. Subsection (A) of this section also does not prohibit
an MCS provider from implementing a carefully designed no-frills
service tier or service cluster for "lower income, " and/or fixed
income individuals.
G. Subsection (A) of this section also does not prohibit
an MCS provider from making agreements or entering into multi-
channel service agreements with multiple dwelling unit owners
(including hotel, motel, and mobile home park owners) to provide
multi-channel service under a bulk billing or other type of
arrangement.
SECTION 48. USE OF EQUIPMENT, RETURN OF EQUIPMENT, SECURITY
DEPOSITS, AND THEIR RETURN.
A. Prior to formally delivering any equipment, including
auxiliary equipment (such as a converter, input selector switch,
or video control recorder) to a customer, an MCS provider shall
have tested a representative sample (at least one [1%] ) percent
of such equipment to make sure it is in proper working order.
B. If needed for proper operation, or requested by a
customer, an MCS provider shall deliver to a customer,
handwritten or typed instructions detailing the proper use of
rented, loaned, or purchased equipment. Unless required by
another section of this ordinance, an MCS provider may comply
with this section by delivering the manufacturer's instructions
to a customer.
C. An MCS provider is not required to seek a security
deposit from a customer for use or rental of the MCS provider's
equipment.
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D. An MCS provider shall comply with any and all
applicable State rules concerning the imposition, retention, and
return of security deposits.
E. If the State is silent on the security deposit for a
particular piece of equipment, then the MCS provider shall be
prohibited from charging any security deposit for equipment which
exceeds the replacement cost to the MCS provider.
F. As a matter of consumer protection, an MCS provider
shall be prohibited from charging any security deposit for multi-
channel service which exceeds twice the basic monthly rate.
G. An MCS provider may charge an appropriate security
deposit (consistent with Subsection [F] of this section) in those
instances where a customer is re-connected after an involuntary
disconnection for non-payment or prior history of unsatisfactory
payment.
H. An MCS provider shall return a security deposit
(together with any interest earned) after the equipment is
satisfactorily returned.
I. A customer shall maintain any equipment rented or leased
from an MCS provider in good working order, and operate such
equipment only in the manner specified by the MCS provider or
manufacturer of the equipment.
J. A customer shall totally and fully reimburse an MCS
provider for any damage or loss to an MCS provider's equipment
that is due to the customer's failure to properly maintain and
operate such equipment.
K. A customer shall be relieved from any responsibility
for reimbursing an MCS provider 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, or for equipment damaged or
destroyed by an act of nature, and which is not covered by a
customer's home or apartment insurance policy.
SECTION 49. SERVICE INQUIRY LOGS.
A. An MCS provider shall be required to keep and maintain
service inquiry logs which require further action of the MCS
provider to resolve, subject to any limitations imposed by State
or Federal law, including (for MCS providers classified as cable
operators) any subscriber privacy limitations imposed by the
CCPA.
39
B. The purpose of the service inquiry logs is to assist
the City in assessing (in the aggregate) the type, degree, and
resolution of customer service requests, inquiries, and
complaints.
C. At a minimum, the service inquiry logs should contain
the following:
(1) the time and date of initial receipt of any service
request, inquiry, or complaint, together with the time
and date of initial response to that service request,
inquiry or complaint;
(2) the nature of the service request, inquiry, or
complaint;
(3) the precise action taken by an MCS provider in order to
resolve the service inquiry, request, or complaint;
(4) whether the service request, inquiry, or complaint was
resolved by allowing a credit or refund of some sort;
and,
(5) the area, location, or quadrant of the City where the
service request, inquiry, or request was generated.
D. In addition to any other right of inspection that the
Council/franchising authority may possess, it shall have the
right to review and inspect a compilation of such logs. However,
the Council/franchising authority shall not have the right of
access, review, or inspection for any service inquiry logs or any
information contained within service inquiry logs that are
otherwise protected from access, review, or inspection by State
or Federal law.
E. This section does not require MCS providers to maintain
service inquiry logs on scheduled installations.
SECTIONS 50 - 55. RESERVED.
SECTION 56. RESTORATION OF A SUBSCRIBER'S PROPERTY.
A. At any time an MCS provider (in furtherance of its
right to construct, operate, and maintain a multi-channel
system) , disturbs the yard, residence or other real or personal
property of a subscriber, such MCS provider shall ensure that the
subscriber's yard, residence or other personal property is
returned, replaced, and/or restored to a condition that is
sufficiently comparable to the condition that existed prior to
the commencement of the work.
B. The costs associated with both the disturbance and the
return, replacement, and/or restoration shall be borne by the MCS
provider. This subsection also requires the MCS provider to
reimburse a subscriber or private property owner, for any damage
40
caused by the MCS provider, its subcontractor, or its independent
contractor, in connection with the disturbance of a subscriber or
private property owner's property.
C. The types of acts specifically included in this section
are the following:
(1) removal of a subscriber's sod, lawn, plants, shrubbery,
flowers, trees, driveway, or fence, to install, trench,
repair, replace, remove, or locate cable or other
equipment of an MCS provider;
(2) installation or removal of cable or other equipment of
an MCS provider within a subscriber's residence which
requires drilling, excavating, plastering, or the like
on the part of the MCS provider;
(3) temporarily relocating or moving a piece of personal
property or a fixture of a subscriber (such as a motor
vehicle, fence, air conditioning or heating unit, or
the like) , in order to perform some sort of
construction, maintenance, or repair on the multi-
channel system; or
(4) permanently removing an MCS provider's cable or
equipment due to either the revocation, termination, or
non-renewal of a franchise (if applicable) , or the
abandonment, withdrawal, or cessation of multi-channel
service to any portion of the City.
D. The requirements imposed upon the MCS provider extend
to any subcontractor or independent contractor that the MCS
provider might employ to perform the tasks outlined in this
section.
E. In light of the foregoing, an MCS provider has the
authority and responsibility to diligently trim trees of a
private property owner (including a subscriber) , but only to the
extent necessary to prevent the branches of the trees from coming
in contact with the MCS provider's wires and cables.
SECTION 57. SERVICE INQUIRIES, REQUESTS, COMPLAINTS, AND
RESPONSE TIMES.
A. Except in times of a natural or man-made emergency, or
an appointment scheduled with the mutual consent of a subscriber,
an MCS provider shall respond to the service inquiries, requests,
and complaints of subscribers, within such MCS provider's normal
business or service hours, and within the time schedules detailed
in subsections (B) through (G) of this section. Moreover, except
in emergency situations, an MCS provider shall inform the
customer whether the service call is scheduled for the morning,
afternoon, or evening hours. If the service call has to be
canceled or rearranged, then the MCS provider shall make every
•
41
effort to notify the customer as soon as possible, and shall
(unless the subscriber decides otherwise) re-schedule the service
call for a time within twenty-four (24) hours of the
cancellation. The term "service call" as used in this section
does not refer to initial installation.
B. In the case of a signal or service interruption, an MCS
provider shall respond to, and make repairs as are necessary to
resume the signal or service to the subscriber within twenty-four
(24) hours from the time the MCS provider first received
notification of the signal or service interruption.
C. In the case of a "blank" or "no-picture" situation of
any given level of billing or service (except for pay-per-view
events) , an MCS provider shall respond to, and make repairs as
are necessary to return the multi-channel service within twenty-
four (24) hours from the time the MCS provider first received
notification of the "blank" or "no-picture" situation.
D. In the case of a defective, improperly operating, or
non-operating piece of equipment, an MCS provider shall respond
to, and make repairs as are necessary to correct the problem
within thirty-six (36) hours from the time the MCS provider first
received notification of the defective, improperly operating, or
non-operating piece of equipment.
E. In the case of repair to a piece of equipment in a
subscriber's residence, or repair to the cable (coaxial, fiber or
functional equivalent) , the repair should be completed, and the
situation resolved, at the conclusion of the first service visit.
If the repair is not completed and resolved within three (3)
visits, and if as a result of the insufficient repair, a
situation remains wherein there is a visually or audibly detected
degradation of a multi-channel signal, then the MCS provider
shall take whatever steps are necessary to correct the situation.
F. In no case shall a subscriber's service request or
inquiry go unresponded or unattended to for more than one (1)
work day from the time the MCS provider first received
notification of the service inquiry or request. Moreover, except
in emergency situations, all requests and inquiries shall be
handled or corrected within thirty-six (36) hours from the time
the MCS provider first received notification. If a cancellation
of a service call occurs, then the MCS provider shall re-schedule
the call in a manner consistent with the guidelines expressed in
Subsection (A) of this section.
G. In case of a dispute concerning the precise time that
the MCS provider received notification, or the precise
circumstances surrounding the MCS provider receiving the
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notification, or whether notification was received at all, the
Council/franchising authority shall reserve the right and
authority to settle such a dispute.
H. Provided, however, that the MCS provider may rank
service calls in order of severity. That is, total outages will
take precedence over area outages; area outages take precedence
over a single home, and multi-channel problems take precedence
over a single channel.
SECTION 58. MCS PROVIDERS REQUIRED TO MAINTAIN SUFFICIENT REPAIR
PARTS AND SUFFICIENT REPAIR PERSONNEL.
A. Except in times of natural or man-made emergency, an
MCS provider shall, at all times, have access to, and be able to
secure, sufficient maintenance and repair parts and equipment for
the MCS system, so that the MCS provider can respond to, and
correct, all subscriber service interruptions within the time
periods specified in this ordinance.
B. Having access to, and being able to secure sufficient
maintenance and repair parts and equipment, is necessary to
promptly restore a subscriber's multi-channel service, and avoid
delays caused by having to obtain needed parts and equipment.
C. Except in times of natural or man-made emergency, or a
strike (whose duration has been less than seventy-two [72]
hours) , an MCS provider shall have sufficient maintenance and
repair personnel so that the MCS provider can respond to, and
correct, subscriber service interruptions within the time periods
specified in this ordinance.
D. An MCS provider shall annually certify to the
Council/franchising authority that each service technician has
taken an MCS provider-implemented course designed to train
service technicians to handle their jobs in a courteous,
efficient, and responsive manner. Also, the course should be
designed to provide continuing education to service technicians
in changes in technology, repair/maintenance procedures and
related matters.
E. Notwithstanding the other requirements and provisions
contained in this section, an MCS provider shall maintain at
least one (1) service technician on call twenty-four (24) hours
per day.
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SECTION 59. NEW INSTALLATIONS; CONNECTIONS--REGULAR,
PROMOTIONAL, SEASONAL, SHORT-TERM, PAY-PER-VIEW, AND MENU-DRIVEN;
RE-CONNECTIONS.
A. New installations, promotional, short-term, or seasonal
connections, re-connections, and upgrades of multi-channel
service by an MCS provider shall be performed and completed
within seven (7) days of a customer requesting such.
B. The provisions of Subsection (A) of this section shall
not apply to pay-per-view or menu-driven connections.
C. While an MCS provider may charge a customer for
installing, connecting, or re-connecting multi-channel service,
such charge must be understood, and approved by the customer
prior to the installation, connection, or re-connection.
D. In the case of a promotional or seasonal connection,
any limitations or restrictions must be explained prior to the
promotional or seasonal connection.
E. An MCS provider may charge an appropriate re-connection
charge or require a security deposit in those instances where a
customer is re-connected after an involuntary disconnection for
non-payment or a prior history of unsatisfactory payment.
However, the re-connection charge or security deposit must be
based on the prior unsatisfactory payment history, or involuntary
disconnection or the customer, and not the location or address of
the residence or structure.
F. Downgrading a particular service level or service
cluster to a lower-priced or less comprehensive service or
cluster level shall not be considered a connection to the lower-
priced or less comprehensive level of service. An MCS provider
shall comply with any and all rules concerning downgrading.
SECTION 60. DISCONNECTION FOR NON-PAYMENT.
A. A subscriber shall not be considered delinquent for
disconnection purposes in payment until at least forty-five (45)
days after the posting of the bill to the subscriber, and payment
has not been received by an MCS provider.
B. Before disconnection of a subscriber's multi-channel
service (either physically or electronically) takes place, the
following must occur:
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(1) the subscriber must in fact be delinquent in payment of
multi-channel service; and,
(2) at least five (5) days have elapsed after a separate
written notice of impending disconnection has been
personally served upon the subscriber; or,
(3) at least eight (8) days have elapsed after mailing a
separate written notice of impending disconnection to
the subscriber; or,
(4) at least five (5) days have elapsed after the
subscriber has either signed for, or refused to accept,
a separate written notice of impending disconnection.
C. The written notice of disconnection must expressly and
clearly state the amount that is owed by the subscriber to an MCS
provider, the minimum amount required to be paid to avoid
disconnection, and the date and place where such payment must be
made.
D. An MCS provider who physically retrieves its equipment
(including converter, remote control unit, or digital audio
tuner) from a subscriber must do so between the hours of 8: 00
o'clock a.m. to 9: 00 o'clock p.m.
E. Receipt of a "bad check" from a subscriber in response
to a written notice of disconnection, does not constitute
payment, and the affected MCS provider need not give the
subscriber further notice prior to disconnecting multi-channel
service.
F. An MCS provider may add a reasonable collection charge
to the subscriber's bill if the applicable provisions of this
ordinance and any applicable State regulations are followed.
G. Any refund due a subscriber after such a disconnection
shall be made within sixty (60) days of the disconnection for
non-payment.
SECTION 61. VOLUNTARY DISCONNECTIONS AND DOWNGRADES.
A. At any time, a subscriber who does not have a separate
contract with the MCS provider may request that a particular
service tier, service cluster, menu-driven program/service, pay
channel, premium channel, informational service, or the entire
multi-channel service be disconnected.
B. Any contract for service, if requested, must be a
separate, individual document requiring the subscriber's
signature and shall not merely be on the back of a work order or
other document.
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C. Where provided by an MCS provider, a subscriber may
request a downgrade from a particular level of service to a less
comprehensive level of service, or a less expensive level of
service.
D. From the date that such a subscriber makes such a
request for either a disconnection or downgrade, then the MCS
provider shall have seventy-two (72) hours or three (3) service
days, whichever is longer, to disconnect or downgrade the service
tier, pay channel, premium channel, informational service, or
entire multi-channel service. In the event than an MCS provider
does not disconnect or downgrade service within seventy-two (72)
hours, a subscriber's obligation to pay for such service shall
cease, or in the case of a downgrade, a subscriber's obligation
to pay for the more comprehensive and/or higher priced service
shall cease.
E. For a service tier, service cluster, menu-driven
service, premium channel or informational service which is
voluntarily disconnected, a subscriber shall pay a pro rata share
of the monthly rate for such service tier, service cluster, menu-
driven service, premium channel or informational service.
F. Once a valid connection to a menu-driven program, or a
pay-per-view event occurs, then the MCS provider may collect the
full advertised or quoted rate, should the customer then attempt
to disconnect the menu-driven program or pay-per-view event.
G. No separate disconnect or downgrade charge may be
passed onto a subscriber if it chooses to take advantage of a
lower-priced service tier/cluster or an optional service
tier/cluster, if the MCS provider does not have to make a trip to
the subscriber location to perform a change to a lower level of
service. However, to prevent subscriber abuse of the voluntary
disconnection or downgrade policy, a subscriber shall be charged
a minimum one (1) month's full rate for any one service
tier/cluster which is disconnected and/or downgraded at least
three (3) times within a span of one hundred eighty (180) days.
H. If, however, an MCS provider's equipment is or has been
damaged by a subscriber, prior to such disconnection, then the
MCS provider may charge the subscriber with the entire cost for
such damage, provided that the MCS provider notify the subscriber
within thirty (30) days of the disconnection. A subscriber shall
not be required to pay for equipment failure, if the
circumstances fall within the normal wear and tear guidelines
established in this ordinance.
I. Any refund due a subscriber after disconnection (both
for non-payment and voluntary disconnections) shall be made
within sixty (60) days after such disconnection. This subsection
46
specifically includes the situation where a subscriber
voluntarily disconnects service but is entitled to a refund as a
result of a service outage that exceeds eight (8) hours in
duration. In such case, a subscriber will also receive any
refund due as a result of the service outage within sixty (60)
days after the voluntary disconnection.
J. In no event will this section be viewed as abridging
the rights and remedies afforded by the subscriber
complaint/inquiry resolution process outlined in this ordinance.
SECTIONS 62 - 65. RESERVED.
SECTION 66. PROTECTION OF SUBSCRIBER PRIVACY.
A. An MCS provider shall abide by any and all subscriber
privacy rules or regulations of the Federal or State governments.
B. For MCS providers classified as cable operators, such
operators shall also abide by and comply with any subscriber
privacy protection requirements and procedures listed in Section
631 of the CCPA (codified at 47 USC 551) .
SECTION 67. RESOLUTION OF COMPLAINTS/INQUIRIES.
A. An MCS provider is required to develop a comprehensive
complaint/inquiry resolution policy that is consistent with the
rules and regulations outlined in this ordinance.
B. An MCS provider's complaint/inquiry resolution policy
shall be reduced to writing, and such policy shall be available
upon request to any person. In any event, a subscriber shall
receive notice of such policy in the manner that is prescribed by
this ordinance.
C. An MCS provider's complaint/inquiry resolution policy
shall contain at least the following minimal standards:
(1) the initial response to a complain/inquiry shall occur
no later than twenty-four (24) hours after receipt of
the complaint/inquiry or the next business day;
(2) every attempt will be made to resolve the
complaint/inquiry within seventy-two (72) hours after
receipt of the complaint/inquiry;
(3) complaints/inquiries that fall into the category of
service inquiries shall abide by the procedure set
forth in this ordinance;
(4) informing subscribers of the credit/refund policy which
is consistent with this ordinance and any applicable
State regulations; and,
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(5) informing subscribers of the billing disputes policy
which is consistent with this ordinance and any
applicable State regulations.
SECTION 68. POLICY WITH RESPECT TO CONTINUITY OF MULTI-CHANNEL
SERVICE PROVISIONS.
A. The Council/franchising authority declares that as part
of its right to establish multi-channel customer service
guidelines, it has the duty to ensure continuity of multi-channel
service for all subscribers. In that light, the
Council/franchising authority also determines that it may take
appropriate measures in order to ensure that no portion of the
City is threatened or faced with a disruption, interruption, or
discontinuance of multi-channel service due to the actions of any
MCS provider.
B. In addition to the principles and ideals enumerated in
Subsection (A) , the Council/franchising authority also expresses
that its policy covers the following:
(1) to provide for continuity of multi-channel service in
the event of acquisition by the City;
(2) to provide for continuity of service in the event of a
proposed abandonment, withdrawal, or cessation of
multi-channel service by an MCS provider;
(3) to provide for continuity of service in the event of
revocation, termination, or non-renewal of a franchised
MCS provider's franchise;
(4) to provide for continuity of service in the event a
transaction occurs that affects the ownership or
control of the MCS provider, such as an assignment,
sale, transfer, or merger;
(5) to provide for continuity of service in the event of an
expiration of a franchise;
(6) to prevent disruption of multi-channel service which
would provide a hardship on those subscribers who rely
on a multi-channel system as their primary or secondary
source for information; and,
(7) to prevent the interruption or cessation of multi-
channel service which would disrupt or eliminate the
diversity of programming choices enjoyed by subscribers
of a multi-channel system, and thereby restricting
their ability to receive information.
C. In any situation (including those mentioned above)
which threatens the City and subscribers with the loss or
interruption in the continuity of multi-channel service, then the
MCS provider shall provide the Council/franchising authority with
at least forty-five (45) days notice (except in extreme
circumstances) prior to the effective date of any action which
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would cause a loss or interruption in the continuity of multi-
channel service. The purpose of the notice is to apprise the
, PP
Council
Council/franchising authority g hority of the possibility of such loss or
interruption in the continuity of multi-channel service, so that
it might explore its options and take appropriate measures.
D. Whenever any situation occurs (including those
mentioned above) which threatens the City and subscribers with
the loss or interruption in the continuity of multi-channel
service, then the Council/franchising authority may direct the
MCS provider for a period twenty-four riod of up to twent four 24
P p y ( ) months to do
everything in its power to ensure that all subscribers receive
continuous, uninterrupted multi-channel nnel service.
E. During the interim period, the Council/franchising
authority shall work with the MCS P rovider in order to secure a
new multi-channel system owner, or rectify the problem so that
the threat of loss of continuity is removed at the earliest
possible instance.
F. During any interim period in which the MCS provider
continues to provide multi-channel service to subscribers, the
MCS provider is entitled to all revenues collected, except any
sums owed (including franchise fees, alternative user charges,
and taxes) to the City or to other persons.
G. In the event that the threat of loss of continuity is
not resolved within twenty-four (24) months, then the
Council/franchising authority may extend the interim period on a
month-to-month basis until the situation is satisfactorily
resolved. Also in such a circumstance, the Council/franchising
authority may adopt any emergency y rules or procedures which will
ensure that the subscribers will receive continuous,
uninterrupted multi-channel service.
H. Nothing in this section should be construed as
requiring an MCS provider to operate a multi-channel system at a
continued financial loss (due to bankruptcy or insolvency) for an
extended eriod of time. In such case, while the
Council/franchising authority may require continuity of service,
it must lift such requirement as soon as the threat of loss of
service is removed. Consequently, the Council/franchising
authority must take appropriate steps to both ensure the
continuity of service and minimize the financial loss incurred by
the MCS provider if the abandonment, cessation or withdrawal is
caused by bankruptcy or insolvency.
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SECTION 69. CONTINUED USE OF INDIVIDUAL ANTENNAS PROTECTED.
A. The Council/franchising authority does not intend to
prohibit the erection or continued use of individual television
antennas within the City so long as the individual television
antennas conform to any and all applicable zoning and/or land use
regulations. Consequently, no person shall be required to
receive multi-channel service or to physically connect to a
multi-channel system.
B. It is also noted that no person shall be penalized or
fined (through either a home sales contract, deed of restrictive
covenants, or other type of agreement) for failing or refusing to
receive multi-channel service, or physically connecting to a
multi-channel system.
SECTIONS 70 - 75. RESERVED.
SECTION 76. CONSTRUCTION SCHEDULE AND CONSTRUCTION-RELATED
REQUIREMENTS.
In order to establish minimum uniform standards, the
Council/franchising authority requires any MCS provider to adopt
the following minimal construction schedule and construction-
related requirements:
(1) construct, install, maintain, and repair the multi-
channel system in accordance with the requirements
noted in this ordinance;
(2) use streets and public ways as set forth in this
ordinance;
(3) where applicable, remove franchise property from public
streets, as set forth in this ordinance;
(4) adopt the construction standards as set forth in this
ordinance;
(5) adopt the system expansion standards as set forth in
this ordinance;
(6) adopt the construction schedule as referred to in this
ordinance;
(7) abide by and act in strict accordance with all current
technical codes adopted by the City or the State or the
United States, as noted in this ordinance; and,
(8) maintain all permits and licenses as noted in this
ordinance.
SECTION 77. CONSTRUCTION OF GOOD QUALITY.
During any phase of construction, installation, maintenance, and
repair of the multi-channel system, the MCS provider shall use
materials of good and durable quality and all such work shall be
performed in a safe, thorough, and reliable manner.
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SECTION 78. CONDITIONS ON USE OF STREETS AND PUBLIC WAYS.
A. All wires, conduits, cable (coaxial, fiber, or
functional equivalent) and other property and facilities of an
MCS provider shall be so located, constructed, installed and
maintained so as not to endanger or unnecessarily interfere with
usual and customary use, traffic and travel upon the streets,
rights-of-way, easement,s and public ways of the City.
B. In the event an MCS provider's system creates a
hazardous or unsafe condition or an unreasonable interference
with property, then at its own expense such MCS provider shall
voluntarily, or upon the request of the Council/franchising
authority, remove that part of the system that creates the
hazardous condition from the subject property.
C. An MCS provider 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.
D. An MCS provider, at either its own expense or that of a
private contractor, shall protect rights-of-way, easements, and
support or temporarily disconnect or relocate in the same street
or other public way, any property of such MCS provider when
necessitated by reason of:
(1) traffic conditions;
(2) public safety;
(3) a street closing;
(4) street construction or re-surfacing;
(5) change or establishment of street grade;
(6) installation of sewers, drains, water pipes, storm
drains, lift stations, force mains, power or signal
lines; or,
(7) an improvement, construction or repair related to the
City's or its residents' health, safety or welfare.
E. It shall be the responsibility of an MCS provider
(acting alone or in conjunction with another person) to locate
and mark or otherwise visibly indicate and alert others to the
location of its underground cable (coaxial, fiber or functional
equivalent) before employees, agents, or independent contractors
of any entity install cable in the marked-off area.
F. An MCS provider shall, on the request of any person
holding a building moving permit, temporarily remove, raise or
lower the cable wires to allow the moving of the building. The
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expense of temporary removal shall be paid by the person
requesting it, and such MCS provider may require payment in
advance. The affected MCS provider shall be given not less than
twenty-one (21) days notice of a contemplated move to arrange for
temporary wire changes.
G. For any new installations occurring after the effective
date of this ordinance, and at the time that an MCS provider
rebuilds or upgrades the multi-channel system, all trunk or
feeder r cable (coaxial, fiber, or functional equivalent) shall be
placed underground, when and if utilities are placed underground.
Further, where both power and utilities are presently
underground, multi-channel system cable shall also be placed
underground.
H. It shall be the responsibility of any MCS provider to
comply with the most current FCC technical standards.
SECTION 79. FRANCHISED MCS PROVIDER'S DUTY TO REMOVE FRANCHISED
PROPERTIES FROM THE PUBLIC STREETS.
A. This section is applicable to any MCS provider required
to maintain a franchise to operate within the City.
B. Whenever the following occurs:
(1) a franchised MCS provider ceases to operate all or part
of the multi-channel system for a continuous period of
six (6) months;
(2) a franchised MCS provider ceases and fails to construct
the multi-channel system outlined in the application or
proposal for renewal, or renewal franchise agreement;
(3) the Council/franchising authority elects not to renew
the franchise pursuant to the provisions set forth in
this ordinance; or,
(4) the franchised MCS provider's franchise is revoked
pursuant to the provisions set forth in this ordinance;
Then--unless the City or another MCS provider uses such
multi-channel system under the continuity provisions outlined in
this ordinance, the affected franchised MCS provider shall
promptly remove its multi-channel system property from the
streets, public ways, and private property located within the
City.
C. If not removed voluntarily by a franchised MCS
provider, then the Council/franchising authority may notify such
franchised MCS provider that if removal of the property is not
accommodated within two hundred seventy (270) days, or
substantial progress towards removal is not made within two
hundred ten (210) days, then the Council/franchising authority
F
52
may direct officials or representatives of the City to remove
such franchised MCS provider's system property at that franchised
MCS provider's expense. The performance and/or construction
bond, irrevocable letter of credit, cash deposit, or full faith
and credit guarantee required as set forth in this ordinance
shall be available to pay for such work.
D. If officials or representatives of the City remove a
franchised MCS provider's system property, and such franchised
MCS provider does not claim the property within ninety (90) days
of its removal, then the Council/franchising authority may take
whatever steps are available under State law to declare the
property surplus and sell it, with the proceeds of such sale (if
permitted by State law) going to the City.
E. When such franchised MCS provider removes its multi-
channel system property from the streets, public ways and private
property located within the City, the franchised MCS provider
shall, at its own expense and in a manner approved by the
PP Y
Counci
1/franchising authority, replace and restore such public or
private property in as good a condition as before the work
causing the disturbance was done.
SECTION 80. CONSTRUCTION STANDARDS.
A. Methods of construction, installation, maintenance and
repair of any multi-channel system shall comply with the most
current editions of the National Electrical Safety Code and the
National Electric Code 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 State or local law shall apply.
B. All construction, installation, maintenance and repair
shall treat the aesthetics of the property as a priority, shall
not substantially affect the appearance of the structure, and
shall not be installed on the bias across the property or any
side of a residence or other structure without the property
owner's permission.
C. All underground drops shall follow (to the greatest
extent possible) property lines, and cross property only at right
angles, unless otherwise permitted by the property owner,
required due to the physical characteristics of the subsurface,
or required under City, State, or Federal rules.
D. For existing multi-channel system construction,
installation and repair, the provisions of Subsections (C) and
(D) of this section shall apply only at the time a scheduled
upgrade or rebuild of the MCS provider's multi-channel system is
53
actually commenced. For newly served areas, then the provisions
of Subsections (C) and (D) of this section shall apply at the
time of initial construction and/or installation.
SECTION 81. SYSTEM CONSTRUCTION SCHEDULE FOR FRANCHISED MCS
PROVIDERS.
A. This section is applicable to any MCS provider required
to maintain a franchise to operate within the City.
B. A franchised MCS provider's construction schedule for
the multi-channel system shall be detailed in the franchise
agreement in a form and format determined by the
Council/franchising authority.
C. A franchised MCS provider who does not abide by the
system construction schedule shall be handled in the manner
allowed under either this ordinance, or where applicable, a
franchise agreement.
SECTION 82. SYSTEM EXPANSION FOR MCS PROVIDERS.
A. The Council/franchising authority recognizes that one
of its primary purposes in the franchising process is to ensure
that the widest diversity of programming sources be available to
the greatest number of City residents. The Council/franchising
authority is also cognizant that an MCS provider may have some
constitutionally protected rights with respect to when and what
areas of the City are provided service.
B. In order to balance those interests, the
Council/franchising authority sets the minimum guidelines for any
system expansion on the part of a franchised MCS provider.
C. A franchised MCS provider shall submit, within six (6)
months of the effective date of this ordinance, a detailed plan
for multi-channel system expansion to any area not presently
served within the City. Such plan should not be construed as a
requirement for universal service, but rather as a means for
achieving the Council/franchising authority's goals, mentioned in
Subsection (A) . However, at a minimum, a franchised MCS provider
shall extend multi-channel service to any area within the City
that has a density of twenty (20) potential subscribers per mile,
or fractional equivalent thereof, as measured from the extremity
of the system nearest the unserved area. Also, in such a case, a
newly installed subscriber shall not be assessed or apportioned
the cost for installation, except for the usual and normal
connection fees paid by subscribers, so long as the system
expansion is technically feasible.
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D. The detailed plan must include criteria for extending
the provision of service to isolated subscribers. For purposes
of this section, "isolated subscribers" means any potential
customer of a franchised MCS provider who dwells in a house more
than one-half (1/2) mile from the nearest franchised MCS provider
connection.
SECTION 83. PERMITS AND LICENSES.
An MCS provider shall obtain, at its own expense, all permits and
licenses required by law, rule, regulation, or ordinance, and
maintain the same, in full force and effect, for as long as
required.
SECTIONS 84 - 89. RESERVED.
SECTION 90. COUNCIL/FRANCHISING AUTHORITY'S POLICY WITH RESPECT
TO SAFETY REQUIREMENTS.
A. The Council/franchising authority requires that the MCS
provider's construction, operation, and maintenance of the multi-
channel system meet certain threshold safety levels which are
designed to protect the public and lessen the likelihood of
interruption of multi-channel service.
B. Consequently, the Council/franchising authority
requires any MCS provider to adopt the following safety
requirements:
(1) emergency alert override activation in the manner set
forth in this ordinance;
(2) minimum standby power as noted in this ordinance;
(3) the provision of signal alert technology in the manner
noted in this ordinance;
(4) implementing a periodic preventative maintenance
program as set forth in this ordinance;
(5) follow all FCC rules and regulations concerning maximum
cumulative leakage index (CLI) limits; and,
(6) comply with and abide by any construction, safety or
fire codes as noted in this ordinance.
SECTION 91. SAFETY ALERT.
A. The City may require an MCS provider, as a means of
protecting the health, safety and welfare of the public and of
communicating with the public, who utilizes a means of
transmission that allows such, to provide a technology or service
that:
55
- provides effectively instantaneous access into
potentially every home;
- provides a different alert notification for emergency
and non-emergency situations;
- is tied directly into the local EOC site.
B. Any MCS provider whose technology allows the provision
of such service shall, at the very least, reserve the bandwidth
necessary for the provision of the service for use by any third
party designated or approved by the Council/franchising
authority.
C. The Council/franchising authority designates the
necessary bandwidth as a form of Governmental Access and as such
may require the provision of the necessary bandwidth at no
charge.
D. The Council/franchising authority requires the MCS
provider providing the necessary bandwidth to fully and
completely cooperate with the Council/franchising authority, and
any third party provider of the service, in all matters related
to the provision of the service, including but not limited to:
(1) making the public aware of the availability of the
service;
(2) educating the public as to the benefits, value and use
of the service;
(3) the distribution and installation of any in-home
device(s) needed for the reception and use of the
service;
(4) the provision of the service to the public.
SECTION 92. PROVISIONS TO ALERT SUBSCRIBERS IN THE EVENT OF AN
EMERGENCY; STANDBY POWER.
A. In order that subscribers may be alerted in the event
of an impending, imminent or actual, natural or man-made
emergency, then all MCS providers shall ensure that the multi-
channel system providing multi-channel service to all, or part,
of the City is designed so as to permit an authorized official of
the City to override the audio portion of all channels, by touch-
tone phone (or functional equivalent) from any location.
B. In addition to any other requirements listed in this
section, an MCS provider shall:
(1) designate a channel which will be used for emergency
broadcasts of both audio and video (this channel need
not be solely used for emergency broadcasts, and may in
fact be used for any lawful purpose) ;
56
(2) inform subscribers of the designated emergency channel
on a periodic basis (not less than twice a month) ;
(3) maintain all channel video blanking capability to
facilitate the needs of hearing and sight-impaired
customers;
(4) test the emergency override system not less than once a
month;
(5) cooperate with the City on the use and operation of the
emergency alert override system; and,
(6) develop a plan (with the City's concurrence) in order
to provide continuity of multi-channel service, and
response to service calls in the event of a natural or
man-made emergency.
C. As one method of providing continuity of multi-channel
services in the event of a natural or man-made emergency, an MCS
provider shall, unless exempted by the Council/franchising
authority, have the capacity for three (3) hour automatically
activated standby power on all trunk and feeder cable, and all
headends, hubs, and receive sites associated with the
distribution of cable service to and throughout the City.
SECTION 93. IMPLEMENTATION OF A PREVENTIVE MAINTENANCE PROGRAM.
A. It shall be the duty of an MCS provider to devise and
implement a periodic preventive maintenance program for the
multi-channel system in order to ensure that there is no material
degradation of the multi-channel system that would affect the
citizens' health, safety and welfare, or negatively affect the
quality of multi-channel services being provided.
SECTION 94. CONSTRUCTION, FIRE AND SAFETY CODES.
A. An MCS provider shall construct, operate, maintain,
repair, remove, replace, or restore the multi-channel system in
strict compliance with all current technical codes adopted by the
Council/franchising authority, the State, or the United States.
B. The codes referred to specifically include, but are not
limited to, construction, fire and safety, and zoning codes.
SECTIONS 95 - 99. RESERVED.
SECTION 100. ALTERNATIVE USER CHARGE.
A. This section is applicable to any licensed, but
otherwise authorized MCS provider, and to any MCS provider who
has had its franchise ruled unconstitutional, unenforceable, or
invalid. For all franchised MCS providers the provisions
concerning franchise fees shall be applicable.
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B. Where not specifically prohibited by Federal or State
law, and as an alternative to the imposition of a franchise fee
as set forth in this ordinance, the Council/franchising authority
may impose and collect a charge from an affected MCS provider for
the use by such provider of the streets, rights-of-way,
easements, and public ways of the City.
C. The alternative user charge shall be based on the
following mathematical mode:
(1) determine the present value of all public streets,
rights-of-way, easements, and public ways of the City
in which are located multi-channel system facilities
and equipment of the affected MCS provider;
(2) take the average percentage increase in land appraisals
within the City (as determined by the Property
Appraiser for the City) , for the five preceding years;
(3) take the average percentage increase for the five
preceding years and use it to determine the dollar
amount of property value increase for the remaining
term of the franchise (if no franchise applicable, then
use five years) ;
(4) add the present value to the dollar amount of property
value increase for the remaining term of the franchise
(if no franchise applicable, then use five years) ;
(5) divide the adjusted value by the remaining number of
years on the term of the franchise (if no franchise
applicable, then use five years) ;
(6) multiply that figure by five (5%) percent to arrive at
the annual user charge that is to be collected from the
affected MCS provider.
For purposes of illustration only, the formula reads as follows:
present value, = (plus) dollar amount of
property increase for remaining term of
the franchise (based on average
percentage increase of land appraisals
for past years of franchise term,
divide the adjusted value by the
remaining years on the term of the
franchise, multiply that figure by five
percent (5%) , = (equals) the annual
alternative user charge.
D. The Council/franchising authority adopts such an
alternative user charge in order to receive fair compensation for
the affected MCS provider's use of the public streets and public
ways if such compensation cannot be obtained by imposing a flat
percentage fee on such MCS provider's annual gross revenues.
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However, an affected MCS provider may agree to an alternative
charge that is based on a flat percentage of gross revenues, as
long as that charge does not exceed five (5%) percent of an
affected MCS provider's annual gross revenues.
E. Also, recognizing that an alternative user charge may
affect a franchised MCS provider, please note that the franchise
agreement may contain express language which details a different
method or manner to handle a situation in which franchise fees as
historically calculated (as a percentage of gross revenues) are
ruled unconstitutional, or unenforceable, in order to protect and
preserve the City's source of revenue and compensation for the
use of the public rights-of-way.
F. It is expressly understood that a franchise fee and an
alternative user charge will not be imposed on the same MCS
provider at the same time for the same period.
G. An affected MCS provider shall at no time be charged or
obligated to pay an alternative user charge that exceeds five
(5%) percent of such provider's gross revenues (as defined by
this ordinance) for any particular reporting period. In the
event that the alternative user charge does exceed five (5%)
percent of gross revenues, then such alternative user charge
shall be reduced to reflect an amount not greater than the five
(5%) percent cap.
H. An affected MCS provider shall pay twenty-five (25%)
percent of the alternative user charge within fifteen (15) days
of the end of each quarter.
SECTION 101. FRANCHISE REQUIRED; EXCEPTION.
A. Except as provided in Subsections (B) and (C) and (D)
of this section, no person or MCS provider shall be permitted to
construct, operate or maintain a multi-channel system which
requires the laying or positioning of cable (coaxial, fiber or
functional equivalent) across the rights-of-way of the City,
without having first obtained a franchise, and then entering into
a franchise agreement with the City.
B. Pursuant to the CCPA, a local government may own and
operate a multi-channel system classified as a cable system.
Consequently, should the Council/franchising authority directly
or indirectly, through any legal means available to the
Council/franchising authority, decide to purchase, acquire,
construct, lease, control, or otherwise own a cable system within
the territorial limits of the City, then the Council/franchising
authority 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 geographical limits of the City.
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C. In the case of a person or MCS provider lawfully
providing multi-channel service on July 1, 1984, then such person
or MCS provider shall not be required to obtain a franchise, and
enter into a franchise agreement unless the Council/franchising
authority expressly requires the person or MCS provider to do so.
D. If as a result of annexation (either previous to, or
subsequent to, the effective date of this ordinance) , a
previously unfranchised MCS provider comes under the jurisdiction
of the City, then such MCS provider shall not be required to
obtain a franchise and enter into a franchise agreement unless
the MCS provider wishes to expand its service area and
Council/franchising authority expressly requires the operator to
do so.
E. Where a person or MCS provider is required by the
Council/franchising authority to obtain a franchise, then the
Council/franchising authority shall notify the person or MCS
provider, in writing, within thirty (30) days of the
Council/franchising authority's formal action.
F. After receipt of notification, the affected person or
MCS provider has ninety (90) days to submit an application or
proposal in substantially the same form and format as required by
the council/franchising authority. Then the affected person or
MCS provider's application will be handled as set forth by either
State or local law.
G. It is the intent of the Council/franchising authority
that as a matter of policy all MCS provider franchises shall
contain substantially similar minimum terms and conditions.
H. The Council/franchising authority, to the extent
permitted by law, shall always have the right to grant or deny a
franchise as may be deemed in the public interest.
SECTION 102 . AUTHORITY TO GRANT NON-EXCLUSIVE FRANCHISES.
A. Consistent with Section 621 (a) (1) of the CCPA (codified
at 47 USC 541) , the Council/franchising authority may award one
(1) or more non-exclusive multi-channel service franchises within
its geographical limits.
B. A franchised MCS provider shall be selected as part of
a public proceeding and hearing which affords due process to both
the City and the applicant, and after which, if the applicant is
selected as a franchised MCS provider, then such applicant will
enter into a franchise agreement with the City, pursuant to the
provisions of Federal, State and local laws and regulations.
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SECTION 103. FRANCHISE AGREEMENT; MINIMAL REQUIREMENTS.
A. If the Council/franchising authority awards an
applicant a franchise to construct, operate, or maintain a multi-
channel system in all or part of the City, or approves a proposal
for a renewal of a franchise, then within one hundred eighty
(180) days, an applicant or a renewal franchised MCS provider and
the City shall enter into a franchise agreement which details the
rights, duties, responsibilities, and liabilities of both
parties.
B. A newly franchised MCS provider may not lay any cable
(coaxial, fiber, or functional equivalent) until the franchise
agreement is executed by both the newly franchised MCS provider
and the Council/franchising authority.
C. A franchise agreement shall be in sufficient detail in
order to clearly delineate the rights and duties of the
franchised MCS provider, and the Council/franchising authority.
D. At a minimum, a franchise agreement shall contain
provisions for the following: (1) a detailed definition of
"annual gross revenues" or "gross revenues" which specifically
includes an explanation of what constitutes the revenue base for
determining what revenues are subject to any franchise fee or
alternative user charge; (2) the term or duration of the
franchise; (3) indemnity and hold harmless clauses; (4)
insurance; (5) performance and completion bonds or security
deposits; (6) construction, upgrade or rebuild schedule; (7)
franchise fees; (8) continuity of multi-channel programming
service; (9) repeal of prior inconsistent franchise agreements;
(10) a severability clause; and (11) any exemptions or relief
from this ordinance granted, or any ordinance clarifications
noted with respect to the MCS provider's operation of a
franchised multi-channel system.
E. Regardless of the need for a franchise (for any
particular technology or provider) the Council/franchising
authority, to the extent allowed by State or Federal law, retains
the right to impose certain minimum requirements as may be deemed
in the public interest. Such minimum requirements shall
specifically include matters related to customer service
standards and consumer protection requirements as set forth in
this ordinance.
SECTION 104. EXTENT OF GRANT OF FRANCHISE.
A. Upon an award of a franchise, and the subsequent
execution of the franchise agreement, an MCS provider required to
obtain a maintain a franchise may construct, erect, install,
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maintain, operate, repair, replace, remove, or restore a multi-
channel system within the geographical limits set forth in the
franchise agreement.
B. The franchised multi-channel system may be located in,
upon, along, across, over, and under the streets, rights-of-way,
easements, and public ways of the City.
C. If necessary, the responsibility of obtaining easements
for private property (including privately owned utility or street
light poles) shall be that of a franchised MCS provider.
D. A franchised MCS provider, through a separate pole or
utility easement agreement with an affected utility, may locate
the multi-channel system on, or within the, property of such
utility company. This provision specifically includes MCS
providers classified as cable operators.
SECTION 105. TERM OF FRANCHISE.
A. The term of an initial or renewal franchise may be for
a period not to exceed fifteen (15) years from the date that a
franchise renewal agreement is approved by the
Council/franchising authority.
B. If an initial franchise or renewal franchise is for a
period of six (6) years or less, then the franchise agreement
shall detail the reasons for granting the shorter franchise term.
C. The reasons for a franchise term of six (6) years or
less, 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 ordinance, or
any mandated provisions of the CCPA;
(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 comply with any construction, rebuild, or
upgrade schedule;
(6) failure to timely pay in their entirety any franchise
fees or taxes, or other charges due to the City.
D. The Council/franchising authority reserves the right to
grant a franchised MCS provider a variable franchise term
(wherein the initial or renewal term may be extended by up to
three [3] years, not to exceed fifteen [15] years total) upon the
franchised MCS provider attaining an excellent rating during the
course of a periodic performance evaluation.
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E. Should the highest court of the Nation or State
invalidate, void as unenforceable or unconstitutional, the
concept of a franchise or franchise duration, then the
Council/franchising authority may adopt emergency rules and
regulations in order to preserve and protect the rights and
duties of both the Council/franchising authority and any
franchised MCS provider. During the interim, the invalid
franchise may be considered (unless prohibited by the State) and
interpreted in the same manner and fashion as a business license.
Upon the adoption of emergency rules, the Council/franchising
authority should enter into a new agreement which describes under
which terms and conditions of the franchised MCS provider's
system may be reviewed and examined, and under what circumstances
may a franchised MCS provider forfeit its right to operate a
multi-channel system within all or part of the City.
SECTION 106. APPLICATION FOR FRANCHISE; APPLICATION FEE.
A. The Council/franchising authority may develop rules and
regulations with respect to the submission and processing of
applications for an initial franchise or franchise renewal. Such
rules and regulations shall primarily be aimed at determining the
legal, financial, technical, and character qualifications of the
applicant.
B. Unless prohibited by law, an initial or a renewal
applicant shall pay an application fee which shall be equal to
the administrative and consulting costs associated with
processing an application for a franchise or a franchise renewal.
The total application fee must be paid, unless waived, regardless
of whether the applicant receives or does not receive a
franchise. The total application fee must be paid (or waived)
prior to the Council/franchising authority's formal action on the
applicant's request for a franchise or renewal.
SECTION 107. FRANCHISE FEES.
A. Any franchised MCS provider (specifically including any
MCS provider classified as a cable operator) awarded a franchise
or renewal franchise after the date this ordinance becomes
effective 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 the multi-channel
system, and for the City's supervision thereof during the term of
the franchise, a sum of up to five (5%) of the annual gross
revenues of such non-exempt franchised MCS provider.
B. If the FCC, Congress or other governmental entity with
authority over multi-channel service ever allows a governmental
entity or Council/franchising authority to increase the franchise
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fee beyond five (5%) percent, then the Council/franchising
authority shall have the authority to increase the franchise fee
to the maximum rate allowable.
C. It is intended that the franchise fees will promote the
health, safety, and welfare of the citizens of the City.
Therefore, the five (5%) percent franchise fee shall be deposited
into the general revenues of the City unless specifically
authorized elsewhere.
D. A franchised MCS provider shall file with the
Council/franchising authority, within ninety (90) days after the
expiration of each of the franchised MCS provider's fiscal
quarters, a detailed financial and revenue statement clearly
showing the gross revenues received by such franchised MCS
provider during the preceding quarter and certified by a
certified public accountant or officer of a franchised MCS
provider attesting to the accuracy, completeness, and veracity of
the revenue figures. Such statement shall be in the form and
format approved by the Council/franchising authority, in
accordance with acceptable accounting principles. Such statement
shall include revenue from whatever source, directly or
indirectly derived from, or allowed, or caused to be derived
from, or applicable to the operation of the multi-channel system,
or the provision of any multi-channel service by or to the multi-
channel system, for those revenues and revenue sources applicable
to or affecting the franchise fee or the computational base for
the franchise fee. Revenue will be reported by service category,
type, and level showing computations and using incremental
billing rates for all sources, levels, tiers, and types of
service and other revenue sources of all kinds and types.
E. Payment of the quarterly portion of the franchise fee
shall be rendered to the City at the time the financial and
revenue statement is filed.
F. In the event that payment is not made within forty-five
(45) days after the date specified in this section, then such
franchised MCS provider may be declared in default of the
franchise, and the franchise may be revoked, terminated or
canceled in the manner prescribed by this ordinance.
G. The Council/franchising authority reserves the right to
audit a franchised MCS provider's books, if the
Council/franchising authority deems it necessary. If such audit
discovers an underpayment of franchise fees that exceeds two (2%)
percent of the total fee paid for any reporting year, then the
affected franchised MCS provider shall reimburse the City for the
cost of such an audit. It is specifically understood that the
right of audit and re-computation of any and all amounts paid
under a franchise fee shall always be accorded to the
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Council/franchising authority. It is further understood that the
Council/franchising authority shall be bound by the result of any
audit it performs or causes to be performed, except for instances
involving fraud.
H. If an audit or other research discovers that franchise
fees have been either underpaid or not paid for a period
exceeding six (6) months from the original due date, then the
City may seek full recovery of the underpaid or non-paid fees
plus interest, not to exceed fifteen (15%) percent or the maximum
allowable under State law (whichever is lesser) .
I. All annual reports due and pertaining to the payment of
franchise fees will be certified by an officer of the franchised
MCS provider, and such provider shall maintain records used in
the preparation of said report, to be produced in their
originality and totality upon request or demand by the
Council/franchising authority for at least a five (5) year
period.
J. No acceptance of any payment shall be construed as a
release, or an accord, or satisfaction of, any claim that the
City might have for further or additional sums payable under the
terms of this ordinance, or for any other performance or
obligation of a franchised MCS provider hereunder.
K. Payments of compensation made by a franchised MCS
provider 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 presently in effect, or subsequently
adopted.
L. A franchise fee does not include any items excluded by
Section 622 (g) (2) (D) of the CCPA (codified at 47 USC
542 (g( (2) (D) .
M. Nothing in this section shall be construed to limit the
authority of the Council/franchising authority to impose a tax,
fee or other assessment of any kind on any person (other than a
franchised MCS provider) with respect to multi-channel service or
other programming or communications service provided by such
person over a multi-channel system for which charges are assessed
to subscribers, but not received by a franchised MCS provider.
For purposes of illustration only, this subsection shall include
the situation(s) where a premium service directly bills a
subscriber, or the franchised MCS provider merely acts as a
collection agent for a premium service billing directly to a
subscriber, or where a person leases a channel for commercial use
and sells advertising or goods on that channel, and receives the
money directly or through a third party.
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N. For any twelve (12) month period, the fees paid by any
person subject to Subjection (M) who provides any such multi-
channel service shall not exceed five (5%) percent of such
person's gross revenues derived in such period from the provision
of such service over the multi-channel system, or the maximum
allowed by law at any time.
O. If at any time the highest court of the nation, or the
highest court of the State, invalidates, voids, or rules as
unconstitutional the concept of franchise fees, then the
Council/franchising authority may impose an alternative user
charge on the franchised MCS provider, in the manner set forth in
this ordinance.
P. In light of Subsection (0) of this section, and
recognizing that an alternative user charge may affect a
franchised MCS provider, please note that the franchise agreement
may contain express language which details a different method or
manner for collection of franchise fees should the way they
historically have been calculated (as a percentage of gross
revenues) be ruled unconstitutional or unenforceable, so that the
City's source of revenue and compensation for the use of the
public right-of-way may be protected.
SECTION 108. ASSIGNMENT OR TRANSFER OF FRANCHISE.
A. Where required for operation, an MCS provider's
franchise may not be assigned or transferred in whole or in part
by the affected MCS provider, without the prior express written
approval by the Council/franchising authority.
B. Any attempted assignment or transfer without such prior
written consent shall constitute a default of such franchise.
C. In the event of such a default, the Council/franchising
authority shall proceed according to the procedure set forth in
this ordinance, and any applicable State law.
D. At least ninety (90) days before a proposed assignment
or transfer of an MCS provider's franchise is scheduled to become
effective, such franchised MCS provider shall petition in writing
for the Council/franchising authority's written consent for such
a proposed assignment or transfer.
E. The Council/franchising authority will not unreasonably
withhold its consent to such an assignment or transfer. However,
in making such a determination, the Council/franchising authority
may consider the following:
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(1) experience of proposed assignee or transferee
(including conducting an investigation of proposed
assignee or transferee's service record in other
communities) ;
(2) qualifications of proposed assignee or transferee;
(3) legal integrity of proposed assignee or transferee;
(4) financial ability and stability of the proposed
assignee or transferee;
(5) if requested by the Council/franchising authority,
submittals from the proposed assignee or transferee, on
what, if any, changes it intends to make in the
operation and maintenance of the present multi-channel
system;
(6) the corporate connection, if any, between the
franchised MCS provider and the proposed assignee or
transferee;
(7) the economic viability or non-viability of the multi-
channel system in the future, based upon certain
factors, including the impact of the purchase price on
the City and/or the proposed assignee or transferee;
and,
(8) any other legitimate aspect of the proposed assignee's
or transferee's background which could affect the
health, safety, and welfare of the citizenry of City as
it relates to the operation of the multi-channel
system.
F. A copy of the completed sales agreement, or a
functionally equivalent instrument, between the franchised MCS
provider and proposed assignee or transferee shall be provided to
the Council/franchising authority, so that the
Council/franchising authority may discover the assumption of
obligations by the franchised MCS provider and proposed assignee
or transferee with respect to the multi-channel system. In lieu
of the sales agreement, the Council/franchising authority may
accept an attested summary of obligations assumed by the above-
referenced parties.
G. Before an assignment or transfer is approved by the
Council/franchising authority, the proposed assignee or
transferee shall execute an affidavit, acknowledging that it has
read, understood, and intends to abide by both this ordinance and
the applicable franchise agreement.
H. In the event of any approved assignment or transfer,
the assignee or transferee shall assume all obligations and
liabilities of the former franchised MCS provider, except as
noted in Subsection (I) .
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I. An assignment or transfer shall not relieve the former
franchised MCS provider of its liabilities under the franchise
agreement until the assignment actually takes place, or unless
specifically relieved by Federal or State law, or unless
specifically relieved by the Council/franchising authority at the
time an assignment or transfer is approved.
SECTION 109. DEFAULT OF FRANCHISE; REVOCATION, TERMINATION OR
CANCELLATION OF FRANCHISE.
A. When any event, act or omission (on the part of the
franchised MCS provider) occurs which represents a violation of
an integral provision of this ordinance, or compromises the
corporate character, or legal, financial or technical integrity
and/or stability of the multi-channel system or the franchised
MCS provider to such a degree that the interests of the
subscribers and users are negatively affected, then such event,
act or omission may be considered a major breach of this
ordinance. Under this circumstances, the Council/franchising
authority shall notify the affected MCS provider in writing of
the specific breach, and direct such franchised MCS provider to
comply with all such provisions of its proposal, franchise
agreement, or this ordinance.
B. For illustrative purposes only, the events, acts and
omissions include, but are not limited to: bankruptcy,
insolvency, failure to pay taxes or franchise fees (including the
alternative user charge if applicable) , failure to receive
written Council/franchising authority approval for an assignment
or transfer, or failure to abide by the integral terms and
conditions of the franchise agreement, or integral provisions of
this ordinance. For purposes of this section, "integral" means a
provision which either (1) affects the ability of the customer to
receive multi-channel service, or (2) affects the ability of the
Council/franchising authority to receive compensation for the use
of its rights-of-way, or (3) affects the ability of the
Council/franchising authority to evaluate an MCS provider's
performance in the technical, financial, and legal aspects of the
multi-channel system.
C. Where a franchised MCS provider satisfactorily corrects
any of the enumerated conditions within sixty (60) days, then in
no event shall the enumerated conditions be weighed against such
franchised MCS provider in any subsequent review of franchise
performance.
D. A copy of such notice of material breach shall be
mailed to the surety on the performance bond.
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E. Within seventy-five (75) days after such written notice
is mailed to a franchised MCS provider, the Council/franchising
authority shall conduct a public hearing on the matter (unless
State law requires a different procedure in which the State
procedure would control) .
F. The Council/franchising authority shall provide written
notice to a franchised MCS provider and the surety of the time
and place of said public hearing in a manner consistent with
either State law, or approved by the Council/franchising
authority.
G. At the time of the hearing, the affected franchised MCS
provider may present information on the current status of the
alleged breach of the franchise agreement. If the situation has
been resolved, or steps are being taken to resolve the situation,
then the franchised MCS provider should present the information
at the hearing.
H. If the affected franchised MCS provider fails to attend
the hearing and has not requested a continuance of the hearing,
then such franchised MCS provider shall be deemed to have waived
its right to a further continuation of the matter, and may be
declared in default of the franchise agreement.
I. After the public hearing, the Council/franchising
authority may determine the franchised MCS provider to be in
compliance and dismiss the matter, or may determine that the MCS
provider has cured any non-compliance and thereby dismiss the
matter. However, the Council/franchising authority may determine
that an ordinance violation exists and remains uncured.
Consequently, upon a finding that the MCS provider violated an
integral ordinance provision, or failed to cure an outstanding
ordinance violation, the Council/franchising authority may direct
the affected franchised MCS provider to take corrective action
within a specified period of time, or may declare such franchised
MCS provider in default of the franchise agreement and thereafter
may revoke, terminate, or cancel the franchise, unless the
franchised MCS provider presents sufficient mitigating
circumstances.
J. If the Council/franchising authority directs corrective
action to take place within a specified time or declares such
franchised MCS provider in default of the franchise agreement,
then that declaration shall be reduced to writing, and the notice
of corrective action or default shall be mailed to such
franchised MCS provider, and surety, within fifteen (15) days of
the Council/franchising authority's action.
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K. If within forty-five (45) days of the public hearing
the affected franchised MCS provider, or surety, does not take
significant action to rectify the breach, or submit a plan
detailing how the affected MCS provider will eliminate the
breach, then the Council/franchising authority may revoke such
MCS provider's franchise, and may notify the affected franchised
MCS provider and surety forthwith, unless there are mitigating
circumstances.
L. The Council/franchising authority reserves the right to
assess any charges incurred (including costs for consultants,
witnesses, and hearing preparation) in a default and/or
revocation proceeding to the franchised MCS provider.
SECTION 110. PERFORMANCE EVALUATIONS.
The Council/franchising authority is authorized to design a
performance evaluation procedure which periodically monitors
compliance of the franchised MCS provider with the terms and
conditions of both the franchise and this ordinance. Moreover,
the Council/franchising authority may periodically review, and
examine whether a franchised MCS provider's financial, technical,
legal, and character qualifications continue to meet required
operational, maintenance, and performance levels in order to
ensure that identified community needs are met and the
uninterrupted provision of multi-channel services. Such
performance evaluations may be conducted every three (3) years
during the franchise term, and may be done as part of any
required survey.
SECTIONS 111 - 115. RESERVED.
SECTION 116. SPECIFIC ADDITIONAL RULES FOR MCS PROVIDERS
CLASSIFIED AS CABLE OPERATORS.
A. In addition to any requirements contained within this
ordinance, all MCS providers that are classified as cable
operators shall be expected to abide by and comply with all
applicable provisions of the Cable Communications Policy Act of
1984 and its amendments.
B. The specific provisions of the CCPA include, but are
not limited to, the following:
(1) cable channels for public, educational, or governmental
use (Section 611 CCPA -- codified at 47 USC 531) ;
(2) cable channels for commercial use (Section 612-47 USC
532) ;
(3) general franchise requirements (Section 621-47 USC
541) ;
(4) franchise fees (Section 622-47 USC 542) ;
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(5) regulation of rates (Section 623-47 USC 543) ;
(6) regulation fo services, facilities, and equipment
(Section 624-47 USC 544) ;
(7) modification of franchise obligations (Section 625-47
USC 545) ;
(8) franchise renewal (Section 626-47 USC 546) ;
(9) conditions of sale of a franchise (Section 627-47 USC
547) ;
(10) subscriber privacy (Section 631-47 USC 551) ; and,
(11) equal employment opportunity (Section 634-47 USC 554) .
C. Further, as an additional requirement, before the third
anniversary of the effective date of this ordinance, any non-
exempt MCS provider classified as a cable operator and providing
cable service within the City shall have designed and activated a
multi-channel system with a minimum capability of providing sixty
(60) full-time video services.
SECTION 117. SPECIFIC ADDITIONAL PUBLIC, EDUCATIONAL, AND
GOVERNMENTAL RULES FOR MCS PROVIDERS CLASSIFIED AS CABLE
OPERATORS.
A. The Council/franchising authority recognizes that under
Section 611 of the CPA (codified at 47 USC 531) , the
Council/franchising authority has certain power with respect to
certain aspects for public, educational, or governmental (PEG)
use that is provided by MCS providers classified as cable
operators.
B. To the extent permitted by law, and in order to fulfill
the Council/franchising authority's desired goal of a public,
educational, and governmental (PEG) access policy that will
facilitate the long-range needs of the City, the
Council/franchising authority adopts the following:
(1) At the time of an initial application for an MCS
franchise for a cable system, and contained within any
renewal franchise agreement, an MCS provider classified
as a cable operator shall pledge to include the
following guarantees:
(a) An MCS provider classified as a cable operator
shall provide at its own expense one (1) twelve
(12) hour educational channel; and,
(b) An MCS provider classified as a cable operator
shall provide, at its own expense, one (1) twelve
(12) hour governmental channel that is available
for providing coverage of Council meetings, and
other related programming offered or designed by
the City Manager or designated official, including
department heads; and,
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(c) An MCS provider classified as a cable operator
shall provide, at its own expense, one (1) twelve
(12) hour public access channel that is available
for use by various community groups and
organizations.
(d) such requirements may not require three separate
channels; rather that sufficient channel capacity
exist at any time to accommodate the needs of the
users of the PEG channels.
(2) Both the Council/franchising authority and the affected
cable operator shall review use after every six (6)
months, including the percentage of use of every PEG
channel. At the end of each six (6) month period, the
Council/franchising authority shall evaluate the
response and actual use of such channels. If, after
any six (6) month period, the percentage of use for any
required PEG channel drops below twenty-five (25%)
percent of the total time allocated, then the required
number of hours shall be reduced to a number that most
closely approximates the average hours of use per day.
If the Council/franchising authority determines the
average hours of use per day for any required PEG
channel is less than four (4) hours, then the
requirement for that channel's availability shall case,
and an affected cable operator may use such channel for
any lawful purpose.
(3) If, at any time, ninety (90%) percent of the total time
allocated for any required PEG channel is consistently
used five (5) days a week for a period of six (6)
months, then the cable operator shall provide an
additional PEG channel.
(4) A cable operator may be required to provide both
mobile, portable, and stationary equipment to be used
for access, together with the aid of technical and
production assistance provided by the cable operator.
A cable operator may be required to provide equipment
that can store programs for delayed cablecasting.
SECTION 118. THE COUNCIL/FRANCHISING AUTHORITY'S OBJECTIVE AS IT
RELATES TO THE PROVISION OF BROAD CATEGORIES OF VIDEO
PROGRAMMING.
A. The Council/franchising authority recognizes that under
Section 624 of the CCPA (codified at 47 USC 5440, the legal power
of local government is severely restricted in requiring and/or
demanding that particular video programming or other services be
provided to subscribers over the multi-channel system.
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B. Nevertheless, the Council/franchising authority
recognizes that it should strive to ensure that its citizens
receive the widest and most diverse section of video programming
possible. Consequently, for those MCS providers required to
maintain a franchise, the Council/franchising authority states as
its objective to such franchised MCS providers, that the
provision of video programming to subscribers should include the
following broad categories:
(1) local broadcast stations;
(2) three (3) distant carriage signals, or satellite-fed
broadcast stations;
(3) PEG programming on the lowest offered and/or available
tier;
(4) sports programming services (regional and/or national) ;
(5) news, information, or public affairs/interest
programming services;
(6) financial/consumer-oriented programming services;
(7) scientific and/or cultural programming services;
(8) children's programming services; and,
(9) ethnically sensitive programming services.
SECTIONS 119 - 125. RESERVED.
SECTION 126. MISCELLANEOUS PROVISIONS - TAMPERING AND
UNAUTHORIZED RECEPTION OF CERTAIN SERVICES.
A. Consistent with Section 633 of the CCPA (codified as 47
USC 533) , no person shall intercept or receive or assist in
intercepting or receiving any communications service offered over
a multi-channel system, unless specifically authorized to do so
by an MCS provider, or as may otherwise be specifically
authorized by law.
B. For the purpose of this section, the term "assist in
intercepting or receiving" shall include the manufacture or
distribution of equipment intended by the manufacturer or
distributor (as the case may be) for the unauthorized reception
of multi-channel service as noted in Subsection (A) of this
section.
C. Without security permission from an MCS provider, or
making payment to an MCS provider, then no person shall be
authorized to make any connection, whether physically,
electrically, acoustically inductively, or otherwise, with any
part of an authorized or franchised multi-channel system for the
purpose of receiving or intercepting, or assisting others to
receive or intercept, any cable service provided lawfully by the
MCS provider.
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73
D. No person shall be authorized to willfully tamper with,
remove, or damage any cable, wires, equipment, or facilities used
for the distribution of multi-channel services.
E. Any and all MCS providers are encouraged to work with
the Council/franchising authority in developing and implementing
a plan designed to control and eliminate the unauthorized
reception of certain cable services within the City.
SECTION 127. EFFECTIVE DATE.
This ordinance shall take effect and be in full force from
and after passage and publication as provided by law.
r
&IA. : I ,j. //%-90-
Affidavit of Publication
ORDINANCE NO. 119-92
AN ORDINANCE OF THE CITY THE STATE OF TEXAS
COUNCIL OF THE CITY OF
WICHITA FALLS COMPREHENSIVED OPTING REGULATORY COUNTY OF WICHITA A d 496450
PRACTICES FOR MULTI-CHAN-
(p• NEL SERVICE PROVIDERS,
\• CLUDING THOSE PROVIDERS IN-
.re)
KNOWN AS CABLE OPERATORS,
28 t h D e c e m b e r
AND INCLUDING PROVISIONS On this day of
FOR INSURANCE,REPORTS AND
RECORDS, CONSUMER PRAC-
TICES,CONSUMER PROTECTION 1992
MEASURES, CONSTRUCTION A.D. personally appeared before me, the undersigned authority
AND CONSTRUCTION-RELATED
PRACTICES, FRANCHISE FEES D a r i c e Min!?
AND ALTERNATIVE USER bookkeeper
CHARGES, OPERATION
PROCEDURES, AND HEALTH, , for the Times Publishing Company of Wichita Falls, publishers of the Wichita Falls
SAFETY AND WELFARE
MEASURES.REPEALING ALL OR- Times/Record News, a newspaper published at Wichita Falls in Wichita County,
OR-
DINANCES OR PARTS OF ORDI- P Y
NANCES IN CONFLICT THERE-
WITH; PROVIDING A SAVINGS Texas, and upon being duly sworn by me, on oath states that the attached
CLAUSE; FINDING AND DE- '
TERMINING THAT THE MEETING advertisement is a true and correct copy of advertising published
AT WHICH THIS ORDINANCE
WAS PASSED WAS OPEN TO THE in one ( 1) issues thereof on the following dates:
PUBLIC AS REQUIRED BY LAW;
PROVIDING FOR A PENALTY;
PROVIDING FOR PUBLICATION December 18 , 1992
IN THE NEWSPAPER; AND
PROVIDING AN EFFECTIVE
DATE.
SECTION 5. A person who viol-
nan any guilty f this ord-
nance is guilty of ,p misde-
meanor and upon eaviction is
Bookkeeper for Times Publishing Company
I punishable in accordance with
Section 1-5 of the Wichita Falls of Wichita Falls
City Code.
(SEAL) Subscribed and sworn to before me this the day and year first above written.
—
2$- e.y NORM S.LEWIS
i f f NCY ZT PUS= O
" •� 1 r SLUE OF TEXAS
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ORDINANCE NO. 113-92 Affidavit of Publication
ORDINANCE APPROPRIATING
$325,000 FROM THE SANI- THE STATE OF TEXAS
ANDFILL OPERATIONAL ACE Ad 497426
COUNT COUNTY OF WICHITA
ORDINANCE NO.114-92
ORDINANCE WAIVING SEC-
( TION 27-29 OF THE CODE OF re)
ORDINANCES WITH RESPECT TO
January
PLACING A SIDEWALK ALONG On this 5th day of
THE WEST AND SOUTH LINES OF
LOT 1A, BLOCK 4, ELMWOOD
ADDITION 1993
ORDINANCE NO.115-92 A.D. personally appeared before me, the undersigned authority
ORDINANCE WAIVING APPEN-
DIX A,SUBDIVISION SECTION 9 ' D a r i c e Ming
(B) (2) (a) OF THE CODE OF bookkeeper
ORDINANCES WITH RESPECT TO
PLACING CURB AND GUTTER
ON THE EAST SIDE OF BACON for the Times Publishing Company of Wichita Falls, publishers of the Wichita Falls
STREET, ADJACENT TO THE
WEST LINE OF LOT IA,BLOCK 4, Times/Record News, a newspaper published at Wichita Falls in Wichita County,
ELMWOOD ADDITION
ORDINANCE NO.116-92 Texas, and upon being duly sworn by me, on oath states that the attached
ORDINANCE MAKING AN AP-
PROPRIATION IN THE GENERAL
FUND FROM DESIGNATED FUND advertisement is a true and correct copy of advertising published
BALANCE AND AUTHORIZING in one , issues thereof on the following dates:
THE REPLENISHMENT OF FUNDS
FROM UNDESIGNATED FUND
BALANCE December 31/ 1992
ORDINANCE NO.117-92
ORDINANCE WAIVING N-
DIX A, SUBDIVISIONS ONS SECTION 14004 9(B)
ORDINANCES(a)WITH H THE RESPECT TO OF C n ''
ORDINANCES WITH RESPECT TO ...ilJ�.�-
PLACING CURB AND GUTTER Q 3
ON THE SOUTH SIDE OF -4=>
RATHEGEBER ROAD,ADJACENT Bookkeeper for Times Publishing Company
TO THE NORTH LINE OF LOT 1,
BLOCK 1, BARRINGTON AD- ,- of Wichita Falls
DITION
ORDINANCE NO.118-92
AN ORDINANCE AUTHORIZING !
AND ALLOWING, UNDER THE EA L.) Subscribed and sworn to before me this the day and year first above written.
ACT GOVERNING THE TEXAS
MUNICIPAL RETIREMENT SYS- I /
TEM, "UPDATED SERVICE j
CREDITS" IN SAID SYSTEM ON ,..�,.�.".,, I'� / O( ,; �S cv y .c
AN ANNUAL BASIS FOR SER- ``�� y"
VICE PERFORMED BY QUALIFY- L81�s S.
ING MEMBERS OF SUCH SYS- irjuty PUBLIC f
TEM WHO AT THE EFFECTIVE
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DATE OF THE ALLOWANCE ARE 'TE OFMICAS
IN THE EMPLOYMENT-OF THE , Expg,547-E8?
CITY OF WICHITA FALLS:
PROVIDING FOR INCREASED 446'.raw...41.%.1
PRIOR AND CURRENT SERVICE
. ANNUITIES FOR RETIREES AND
BENEFICARIES OF DECEASED RE- 1
TIREES OF THE CITY; AND ES-
TABLISHING AN EFFECTIVE ORDINANCE NO.121-92
DATE FOR THE ORDINANCE. ORDINANCE WAIVING SEC-
ORDINANCE NO.119-92 ' TION 32-139 OF THE CODE OF
AN ORDINANCE OF THE CITY ORDINANCES WITH RESPECT TO
COUNCIL OF THE CITY OF DETENTION REQUIREMENTS
WICHITA FALLS ADOPTING NEW FOR THE CONSTRUCTION OF A
COMPREHENSIVE REGULATORY SINGLE FAMILY RESIDENCE FOR
PRACTICES FOR MULTI-CHAN- . LOT 1, BLOCK 1, BARRINGTON
NEL SERVICE PROVIDERS, IN- ADDITION
CLUDING THOSE PROVIDERS
KNOWN AS CABLE OPERATORS,
AND INCLUDING PROVISIONS
FOR INSURANCE,REPORTS AND
RECORDS, CONSUMER PRAC- '
TICES,CONSUMER PROTECTION
MEASURES, CONSTRUCTION
AND CONSTRUCTION-RELATED
PRACTICES, FRANCHISE FEES
AND ALTERNATIVE USER
CHARGES, OPERATION
, PROCEDURES, AND HEALTH,
SAFETY AND WELFARE
MEASURES;REPEALING ALL OR-
DINANCES OR PARTS OF ORDI-
NANCES IN CONFLICT THERE-
WITH; PROVIDING A SAVINGS '
CLAUSE; FINDING AND DE-
TERMINING THAT THE MEETING
•
AT WHICH THIS ORDINANCE
WAS PASSED WAS OPEN TO THE
PUBLIC AS REQUIRED BY LAW;
PROVIDING FOR A PENALTY;
PROVIDING FOR PUBLICATION
IN THE NEWSPAPER; AND
PROVIDING AN EFFECTIVE
DATE.
ORDINANCE NO.120-92
ORDINANCE WAIVING SEC-
TION 27-29 OF THE CODE OF
ORDINANCES WITH RESPECT TO
PLACING A SIDEWALK ALONG
THE NORTH LINE OF LOT 1,
BLOCK 1, BARRINGTON AD-
DITION.
ORDiNANev Nn ,.,, en