Section 107-130; Ord. 18917; Enacting a new Chapter 10 of the City Code relating to franchise regulations including cable television franchise regulations and open video systems regulations; enacting transition provisions for existing cable television franchises


Ordinance No. 18917                            Council Bill No. B 436-05 A

AN ORDINANCE

repealing Chapter 10 of the City Code relating to franchise regulations; enacting a new Chapter 10 of the City Code relating to franchise regulations including cable television franchise regulations and open video systems regulations; enacting transition provisions for existing cable television franchises; and fixing the time when this ordinance shall become effective.


BE IT ORDAINED BY THE COUNCIL OF THE CITY OF COLUMBIA, MISSOURI, AS FOLLOWS:

    SECTION 1.    Chapter 10 of the Code of Ordinances of the City of Columbia, Missouri is hereby repealed subject to the provisions of section 3.

    SECTION 2.    A new Chapter 10 of the Code of Ordinances of the City of Columbia, Missouri is enacted to read as follows:


CHAPTER 10

FRANCHISE REGULATIONS

ARTICLE I.  IN GENERAL


DIVISION 1.  GENERALLY

Sec. 10-1 Purposes.

    The purposes of this chapter are to:

    (1)    Establish a non-discriminatory local policy concerning cable systems, open video systems, and private communication systems that use the public rightsofway;

    (2)    Promote the availability of diverse, multimedia information resources to the community;

    (3)    Provide for enhancing educational opportunities throughout the community and building a stronger community;

    (4)    Encourage the provision of advanced and competitive cable or open video system services on the widest possible basis to the businesses, institutions and residents of the city;

    (5)    Encourage economic development while preserving aesthetic and other community values and preventing proliferation of aboveground facilities; and  

    (6)    Establish the potential for universal access to video programming services for all residents and businesses.

Sec. 10-2.  Definitions.
 
    Words not defined in this chapter or in chapter 1 of this code shall have the same meaning as in Title 47 of the United States Code, § 521 et seq., and, if not defined therein, their common and ordinary meaning.  The following definitions apply to this chapter.

      "Access," "PEG access," or "PEG use" refers to the availability of a cable system or open video system for public, education or government use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals, including the city and its designated access providers, to acquire, create, and distribute programming  not under a franchisee's editorial control.

    “Affiliate” means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person.

    “Basic service” means any service tier regularly provided to all subscribers which includes the retransmission of local television broadcast signals.

    “Cable act” means the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time.

    “Cable communications system” refers to open video systems (OVS) and cable systems.

    “Cable 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 which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:


    (1)    A facility that serves only to retransmit the television signals of one or more television broadcast stations;



    (2)    A facility that serves subscribers without using, or connecting to a facility that uses, any public right-of-way within the city;



    (3)    A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming or cable services directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;



    (4)    Any facilities of any electric utility used solely for operating its electric utility systems; or



    (5)     An OVS that is certified by the FCC.   Any reference to a cable system includes the cable system as a whole, or any part thereof, including all facilities, pedestals, equipment cabinets, electronic equipment and devices appurtenant to the system.


    “Cable service” means:

    (1)    The one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and

    (2)    Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

    “Change of Control” or “Controlling Interest”  means actual working control in whatever manner exercised, including, without limitation, working control through ownership or management of the Franchise.

    “Channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system or OVS and which is capable of delivering a television signal whether in an analog or digital format.  The definition does not restrict the use of any channel to the transmission of analog television signals or one way transmission.

    “City Manager” means the city manager or  the city manager’ s designee.

    “Construction, operation or repair” and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.

    "Downstream channel" means a channel designed and activated to carry a transmission from the headend to other points on a cable communications system, including interconnections.

    “FCC” means the Federal Communications Commission.

    “Franchise”  means an initial authorization, or renewal thereof, issued by the city which authorizes the construction or operation of a cable system.

    “Franchise area” means the area of the city that a franchisee is authorized to serve by the terms of its franchise or by operation of law.

    “Franchisee” means a person holding a cable communications system franchise granted by the city.

    “Gross revenues" means all revenue of any kind, nature or form in any way derived from a franchisee's operation of a cable system within the franchise area.  Gross revenues include, but are not limited to, fees charged to subscribers for basic service; fees charged to subscribers for any optional, premium, per-channel, or per-program service; monthly fees charged to subscribers for any tier of service other than basic service; installation, disconnection, re-connection, and change-in-service fees; leased channel fees; fees, payments, or other payment received as consideration from programmers for carriage of programming on the cable system; converter rentals or sales; studio rental, production equipment, and personnel fees; advertising revenues, including a per capita share of advertising revenues for advertising carried on more than one cable system; revenues from home shopping channels; sales of programming guides; and such other revenue sources as may now exist or hereafter develop.  The definition shall be interpreted in a manner that permits the city to collect the maximum franchise fee permitted by law, irrespective of the source of revenue.  Gross revenues, however, shall not include any unpaid subscriber or advertiser accounts or any sales taxes collected by a franchisee. The amount paid as a franchise fee shall not be deducted from gross revenues unless required to be deducted under federal law.  

    “Operator” when used with reference to a system, refers to a person (a) who directly or through one or more affiliates provides cable service regardless of the technology used over a cable communications system using the public rights of way and directly or through one or more affiliates owns a significant interest in such facility; or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility.

    “OVS” means an open video system.  A reference to an OVS includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the OVS, or installed in conjunction with the OVS.

    “Person” includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the city.

    “Public rights-of-way” means the surface of and the space above and below any street or easement primarily dedicated to travel, now or hereafter existing within the city which may be properly used for the purpose of installing, maintaining, and operating a cable communications system; and any other property that a franchisee is entitled by state or federal law to use by virtue of the grant of a franchise.

    “ Public Property” means any property that is owned or under the control of the city that is not a public right-of-way, including, but not limited to, buildings, parks, poles, structures in the public rights-of-way such as utility poles and light poles, or similar facilities or property owned by or leased to the city.

    “ Revocation” means the city’ s affirmative act of terminating a franchise.

    "School" means any accredited primary school, secondary school, college, or university.

    "Subscriber" means the city or any person who is lawfully receiving any cable service from a cable communications system.

     “Termination” means the conclusion of a franchise by any means, including, but not limited to, by expiration of its term, abandonment, or revocation.

    “ Transfer”  includes any transaction in which:

    (1)    There is any change, acquisition, or transfer in the identity of the person in control of the franchisee, or any person that controls franchisee, including, without limitation, forced or voluntary sale, merger, consolidation, or receivership; or

    (2)    The rights or obligations under the franchise are sold, conveyed, transferred, assigned, encumbered (except as set forth herein) or leased, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise. 

        It will be presumed, for purposes of clause (1) above, that any transfer or cumulative transfer of a voting interest by a person or group of persons acting in concert of ten percent (10%) or more of franchisee, or person that controls franchisee, or any change in the managing general partners of a franchisee is a change of control. 

     “Transfer” does not include:

    (1)    A lease to a UVPP pursuant to 47 U.S.C. Sections 532 or 573;

    (2)    A lease or other right to use facilities mandated pursuant to 47 U.S.C. Section 224; or

    (3)    A pledge in trust, mortgage or other encumbrance against the facilities, or any portion thereof, given to a bona fide institutional lender in connection with a loan or other financing required to secure the construction, operation, or repair of the facilities (“loan”) provided that such loan is subject to the rights and powers of the city pursuant to the franchise and applicable law, including, without limitation, the right of the city to approve any transfer upon foreclosure.

    “ Unaffiliated Video Programming Provider” or “UVPP” means any person who uses capacity on a franchised cable system to deliver cable service or other communications service (as that term is used in 47 U.S.C. Section 542(h)) to subscribers and who is not an affiliate of the franchisee.

    "Upstream channel" means a channel designed and activated to carry transmissions from a point on the cable system, other than the headend, to the headend or another point on the cable system.

Sec. 10-3.  Franchise required.

    General rule:  It shall be unlawful for any person to construct or operate a cable communications system in the city using public rights-of-way without first obtaining a franchise.

Sec. 10-4.  Removal of facilities.  

    The city may remove all or any portion of a cable communications system located in the public rights-of-way that are not authorized by an existing franchise.

Sec. 10-5.  Form of franchise.  

    Any franchise shall be issued in the form of a written agreement between the city and the franchisee.  The city manager shall execute a franchise agreement on behalf of the city only when specifically authorized to do so by an ordinance enacted by the city council.

Sec. 10-6.  Nature of franchise.
    
    (a)    Scope.  A franchise granted  under this  chapter shall authorize a franchisee to construct, operate, maintain and repair a cable system, or an OVS to provide cable service in the city, and for that purpose to construct, repair, replace,  and maintain facilities appurtenant to such system in those public rights-of-way that the city authorizes a franchisee to use.  Notwithstanding the foregoing, this Ordinance shall not be construed to diminish or expand an operator’ s rights to provide telecommunications or information services.

(b)    Nothing passes by implication.   A franchise shall not convey rights other than as specified in this ordinance or in the franchise agreement or under applicable law.  No rights shall pass by implication.  

(c)    Franchise not in lieu of other authorizations.  A franchise shall not be a substitute for:

    (1)    Complying with requirements for carrying on a business within the city, including complying with conditions the city may establish before constructing facilities for, or providing, non-cable services;

      (2)       Any permit, agreement or authorization required in connection with operations on or in public rights-of-way or public property;

    (3)    Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the franchise.

(d)    Franchisee must comply with other laws.   A franchisee must comply with all city ordinances and regulations.  Rights granted under a franchise are subject to the exercise of the city’ s police and other powers, including the power of eminent domain.

(e)    Franchise not a grant of property rights.  A franchise does not convey title, equitable or legal, in the public rights-of-way.   Rights granted may not be subdivided or subleased.

(f)    Franchise non-exclusive.  No franchise shall be exclusive.

(g)    Costs borne by franchisee.  Unless otherwise specifically stated in a franchise or required by law, all acts which a franchisee is required to perform under the franchise or applicable law must be performed at the franchisee’ s expense.  If a cable communications system operator fails to perform such work timely, the city may perform the work and bill the operator.  The operator shall pay the amounts billed within 30 days.  Nothing in this section shall preclude the city from exercising any other remedies available at law or in equity.

Sec. 10-7.  Administration of ordinance; adoption of regulations.

(a)    Adoption of regulations.   The city may adopt regulations to implement the provisions of this ordinance.  

(b)    Delegation.  The city manager is authorized to administer the provisions of this chapter and any franchise issued under it, and to provide any notices and to take any action on the city’ s behalf that may be required or permitted under this chapter, the franchise or applicable law.

(c)    No waiver.  The failure of the city to exercise a right or to require compliance or performance under a franchise or any other applicable law shall not constitute a waiver of such right or a waiver of compliance or performance.  The city’ s rights under a franchise or under any law pertaining to a franchise can only be waived by the city council.

    (d)    Administration of public, educational and government access. The city may designate one or more entities, including itself, to control and manage the use of public, educational and government access channels, facilities and equipment.

Sec. 10-8 .  Rights of individuals.

    A franchisee shall not deny, delay, or otherwise burden service or discriminate against subscribers, programmers, or any other persons on the basis of age, race, religion, color, sex, national origin, ancestry, marital status, sexual orientation, or physical or mental disability.  A franchisee shall comply at all times with all other applicable federal, state, or local laws, rules and regulations relating to nondiscrimination.

Secs. 10-9 –  10-17.  Reserved.


DIVISION 2.  APPLICATIONS

Sec. 10-18.  Filing an application.

    Any person seeking to (i) obtain a franchise; (ii) extend the term of an existing franchise, (iii) renew a franchise, or (iv) modify an existing franchise to add new services that are required to be authorized by a franchise pursuant to this chapter, shall submit a signed original application and six (6) copies to the city clerk.  The application must conform to all of the requirements of this chapter.  Requests for other types of franchise modifications may be  submitted to the city without an application.  However, the city may require an application for any request if it determines that an application would be in the public interest. 
    
Sec. 10-19.  Application fee. 

    (a)    Reasonable costs .  An applicant shall pay all reasonable costs
incurred by the city related to the processing of  the application.  Processing costs shall include, but not be limited to, publication costs and the costs of services rendered by any city employee, agent or representative, including consultants and attorneys.

    (b)    Deposit.  The applicant shall make an initial deposit of $5,000.00 with the application.  The city shall draw upon the deposit to recover its processing costs.  The city manager, at any time, may require the applicant to deposit additional sums if the manager determines that the initial deposit or subsequent deposits will be exhausted  before the final action by the city  on the application.  The application will not be further processed until the additional deposit has been made.  The city shall return to the applicant any deposit that exceeds the amount of the processing costs.

Secs. 10-20 –  10-25.  Reserved.


DIVISION 3.  TRANSFERS.

Sec. 10-26.  Transfer approval required.  

Any franchise transfer that is made without the prior approval of the city council is invalid.  



Sec. 10-27.   Transfer application fee.

    An applicant shall pay all reasonable costs incurred by the city related to the processing of the application.  The applicant shall make an initial deposit of $5,000.00 with the application.  The city shall draw upon the deposit and may require the applicant to deposit additional funds in the same manner as described in Sec. 10-19.  

Sec. 10-28.   Transfer application.  

    In addition to any Federally-required information required to be filed with the city (e.g., FCC Form 394), the city manager may specify additional information that must be provided in connection with a transfer, and the form in which the information is to be provided.  A transfer application must include the following:

    (1)    Identification of the applicant, showing that the applicant is financially, technically and legally qualified to construct, maintain and operate the cable system;

    (2)    A pro forma showing capital expenditures and expected income and expenses for the first five years the applicant is to hold the franchise, and show that the applicant is willing to comply unconditionally with its franchise obligations;

    (3)    A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of any changes to capacity, facilities and support for public, educational, and governmental use of the system (including institutional networks) the applicant proposes to provide and why applicant believes that the proposal is adequate to meet the future cable-related needs and interests of the community;

    (4)    A demonstration of the financial qualifications of the applicant, including at least the following:

        a.  The proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services;

        b.  A statement regarding the applicant's financial ability to complete any required construction  and to operate the cable system, certified by the applicant's chief financial officer.

    (5)    A demonstration of the applicant's technical ability to complete any required construction and operate the cable system;

    (6)    A demonstration that the applicant is legally qualified, including a demonstration that the applicant:

    a.  Has received, or is in a position to receive, necessary authorizations from state and federal authorities;

    b.  Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that  indicates the applicant cannot be relied upon to comply with requirements of franchise, or provisions of this chapter;

        c.  Is willing to enter into a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or repair of its facilities; and has not entered into any agreement that would prevent it from doing so.

    (7)    If an applicant previously submitted an application for a transfer, or an initial or renewal franchise to the city, which was denied, it must demonstrate that the reasons for the previous denial are no longer valid.

    (8)    To the extent to which the applicant is in any respect relying on the financial or technical resources of another person, including another affiliate, all relevant information must be provided for that person.

    (9)    A description of the applicant's prior experience in cable system ownership, construction, and operation, and identification of cities and counties in Missouri in which the applicant or any of its principals have a cable franchise or any interest in a cable franchise.

    (10)    An affidavit or declaration of an authorized officer of the applicant certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.

 Sec. 10-29.  Filing and consideration of application.  

    (a)    Filing application.  The applicant shall submit an original and six copies of a complete application to the city clerk.  All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.   

      (b)    Requests for information.  The transferor and transferee shall respond to any request for information from the city, by the time specified by the city.

    (c)    Incomplete applications.  An application may be rejected if it is incomplete, or if the response to requests for information is not timely and complete.

    (d)    Consideration of application.  The city council shall either approve or disapprove a transfer application within the time required by federal law.  However, the city and the party requesting the transfer may agree to an extension of time.  Before acting on the application, the city council shall hold an advertised public hearing.  The city council shall approve the transfer unless it finds that the proposed transferee lacks the legal, technical, or financial qualifications to perform its obligations under the franchise or unless it determines that the transfer would be detrimental to the public interest.  In determining whether the transfer would be detrimental to the public interest, the council may take into account all relevant factors including the history of the proposed transferee in operating cable systems in other jurisdictions.

Secs. 10-30 –  10-35.  Reserved.


DIVISION 4.  GENERAL CONDITIONS UPON CONSTRUCTION,
OPERATION AND REPAIR

Sec. 10-36.  Franchisee must follow local rules.

    The construction, operation, and repair of cable communications systems shall be performed in compliance with all laws, ordinances, and regulations pertaining to such systems.  Persons engaged in the construction, operation, or repair of cable communications facilities shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.

Sec. 10-37.  Permits.  

    In constructing and repairing a cable communications system, a franchisee shall obtain all permits that the city may require and shall comply with all permit conditions.

Sec. 10-38.   No interference.  

    Interference with the use of the public rights-of-way  shall be minimized.   The city may require a franchisee to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the rights-of-way.  City shall give a franchisee written notice of a joint trenching operation at least two weeks before the operation begins.

Sec. 10-39.  Plans for and publicizing work.

    (a)    Construction plan.  Each franchisee shall provide the city a plan for any initial system construction, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected.

    (b)    Publicizing.  To minimize inconvenience and disruption to the public, a franchisee shall publicize, as the city may direct, all work that involves blocking one or more lanes of traffic.


Sec. 10-40.  Existing poles to be used.


    (a)    Existing poles.  To the extent possible, operators of cable communications systems shall use existing poles and conduit.   Additional poles may not be installed in the right-of-way, nor may pole capacity be increased by vertical or horizontal extenders, without the permission of the city manager.  


    (b)    Excess space.  The city manager may require a franchisee that is installing poles or conduit to provide sufficient pole or conduit space for the purpose of renting such space to the city or to another franchisee or to a public utility.


Sec. 10-41.   Undergrounding.

    (a)    Undergrounding required.  Whenever all existing utilities are located underground in an area in the city, every cable communications system operator in the same area must locate its cable communications system underground.
 
    (b)    Relocation.  Whenever the owner of a pole locates or relocates underground within an area of the city, every cable communications system operator in the same area shall concurrently relocate its facilities underground.  

    (c)    Exemption.  The city manager may, for good cause shown, exempt a particular system or facility or group of facilities from the obligation to locate or relocate facilities underground.

Sec. 10-42.   Prompt repairs.  

    All public rights-of-way, other public property, or private property that is disturbed or damaged during the construction, operation, maintenance or repair of a cable communications system shall be promptly repaired by the operator to the satisfaction of the city.   No tree trimming shall be performed without the permission of the city and other affected utilities.

Sec. 10-43.  Movement of facilities for government.

    (a)    Requirement.  A cable communications system operator shall, by a time specified by the city, protect, support, temporarily disconnect, relocate, or remove any of its facilities when required by the city for any public purpose.

    (b)    Procedure; emergencies.  Except in the case of emergency, the city shall provide written notice describing the cable facilities involved at least one week prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities.  However, in an emergency involving imminent danger to health, safety, or property, the city shall notify franchisee and franchisee shall immediately dispatch its local personnel to take appropriate action.  If the franchisee cannot be reached or if the franchisee fails to immediately dispatch its personnel, or if franchisee’ s personnel fails to arrive in a reasonable time, the city may protect, support, temporarily disconnect, remove, or relocate any or all parts of the cable communications system, and charge the cable communications system operator for costs incurred.


Sec. 10-44.  Movement for others.

(a)    Requirement; procedure.  To accommodate the construction, operation, or repair of the facilities of another person authorized to use the streets or public property, a franchisee shall, by a reasonable time specified by such person, protect, support, temporarily disconnect, relocate or remove its facilities.  The franchisee must be given written notice describing where the construction, operation or repair is to be performed and at least fifteen (15) days before its work must be completed.  The costs to accommodate the construction, operations, or repair of the facilities of another person shall be paid by the person requesting such accommodation.

(b)    Temporary removal.  A cable communications system operator shall, on the request of any person holding a valid permit issued by the city, temporarily remove, raise or lower its wires by a time specified to permit the moving of buildings or other objects. A cable communications system operator shall be given at least seven (7) days advance written notice to arrange for such temporary wire changes.  The expense of such temporary removal or raising or lowering of wires shall be paid by the person making the request.

Sec. 10-45.   Abandonment in place.

(a)    Procedure.  A cable communications system operator may abandon any property in place in the public rights-of-way upon written notice to the city.  However, if, within 90 days of the receipt of written notice of abandonment, the city determines, that the safety, appearance or use of the public rights-of-way and facilities in the public rights-of-way will be adversely affected, the property must be removed by a date specified by the city.

    (b)    Transfer to city.  A cable communications system operator that abandons its property must, upon request, transfer ownership of the properties to the city at no cost, and execute necessary quitclaim deeds and indemnify the city against future costs associated with mitigating or eliminating any environmental hazard associated with the abandoned property.

Sec. 10-46.  System subject to inspection.  

    Every cable communications system shall be subject to inspection and testing by the city.  Each operator must  provide information requested by the City, within a timeframe set by the city which shall not exceed thirty (30) day, regarding the operator’ s system and plans for the system, including requests for information regarding plans for construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired.  

Sec. 10-47.   Underground services alert.  

    Each franchisee shall be a member of Missouri One Call System, Inc. and shall field mark the locations of its underground communications facilities upon request.  The operator shall locate its facilities for the city at no charge.



Sec. 10-48.   Plan for construction.  

    When requested by the city manager, every franchisee shall specify for the city a construction schedule that will apply to any required construction, upgrade, or rebuild of the cable communications system. The schedule shall provide for the prompt completion of the project, shall show its timetable for construction of each phase of the project, with benchmarks for deliverables and the areas of the city that will be affected. The city shall have the right to impose penalties on the operator for a failure to meet the accepted timetable and benchmarks.

Sec. 10-49.  Use of facilities by the city.
 
    The city shall have the right to install and maintain, free of charge, upon any poles or in any conduit owned by a franchisee any wire and pole fixtures that do not unreasonably interfere with the cable service operations of the franchisee.

Secs. 10-50 –  10-58.  Reserved.


DIVISION 5.  INDEMNIFICATION AND INSURANCE

Sec. 10-59.    Indemnification required.  

    Each franchise shall include provisions that:

    (1)    Release the city from all liability arising out of the construction, operation or maintenance of the cable communications system.

    (2)    Indemnify and hold harmless the city, its elected and appointed officers, agents, and employees, from and against all claims and causes of action, and the resulting losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders, judgments, or decrees sustained by the city or any third party arising out of the acts, errors, or omissions of the cable communications system operator, or its agents, independent contractors or employees related to the construction, operation or repair of the system.

    (3)    Provide that the indemnification shall survive the term of the franchise consistent with applicable statute of limitations.

Sec. 10-60.   Insurance required.  
 
    A franchisee (or those acting on its behalf) shall not begin construction or operation of the system without obtaining insurance in amounts and of a type satisfactory to the city. The required insurance must be maintained for the entire period the franchisee has facilities in the rights-of-way.  If the franchisee, its contractors, or subcontractors do not have the required insurance, the city may order such entities to stop operations until the insurance is obtained and approved.

Sec. 10-61.   Proof of insurance.  

    (a)    Proof.  The cable communications system operator shall keep on file with the city, current and valid certificates and endorsements of insurance, providing evidence of the required insurance and naming the city as an additional insured, and other proofs as the city may find necessary. The cable communications system operator shall furnish, at least thirty (30) days prior to the expiration of an insurance policy, a new or renewed certificate of insurance as proof that the required coverage has been obtained.

    (b)  Certificate contents.  Certificates and endorsements shall contain a provision that coverages afforded under these policies will not be canceled until at least thirty (30) days' prior written notice has been given to the city.  All insurance policies shall be with a reputable, qualified, and financially sound sureties, license to do business in the State of Missouri and subject to the approval of city counselor.

Sec. 10-62.  Insurance amounts.

    A cable communications system operator (and those acting on its behalf to construct or operate the system) shall maintain the following minimum insurance.  The city shall be named as an additional insured on the general liability and automotive policies; those insurance policies shall be primary and contain a cross-liability clause.

    (1)    COMPREHENSIVE GENERAL LIABILITY insurance to cover liability, bodily injury, death, and property damage.  Exposures to be covered are: premises, operations, products/completed operations, and certain contracts.  Coverage must be written on an occurrence basis, with the following limits of liability:    


     Bodily Injury
                1.  Each Occurrence        $1,000,000  
                2.  Annual Aggregate        $3,000,000  
            
             Property Damage
                1.  Each Occurrence        $1,000,000  
                2.  Annual Aggregate        $3,000,000   

             Personal Injury  
                Annual Aggregate        $3,000,000

Completed Operations and Products Liability shall be maintained for two years after the termination of the franchise (in the case of the cable communications system owner or operator) or completion of the work for the cable communications system owner or operator (in the case of a contractor or subcontractor).


Property Damage Liability Insurance shall include coverage for the following hazards:
X - explosion, C - Collapse, U  underground.
        
    (2)    WORKERS' COMPENSATION insurance shall be maintained during the life of the franchise to comply with statutory limits for all employees, and in the case any work is sublet, each cable communications system operator shall require the subcontractors similarly to provide workers' compensation insurance for all the latter's employees unless such employees are covered by the protection afforded by each cable communications system operator.  Each cable communications system operator and its contractors and subcontractors shall maintain during the life of the franchise employers liability insurance in the minimum amount of $1,000,000 per occurrence.

    (3)    COMPREHENSIVE AUTO LIABILITY

             Bodily Injury
                1.  Each Occurrence        $1,000,000
                2.  Annual Aggregate        $3,000,000

             Property Damage
                1.  Each Occurrence        $1,000,000
                2.  Annual Aggregate        $3,000,000

Coverage shall include owned, hired, and non-owned vehicles. In every franchise the city shall reserve the right to require any other insurance coverage it deems necessary depending upon exposures.

Sec. 10-63.  Construction bonds.  

    Every operator of a cable communications system shall obtain and maintain a construction bond during periods of building or upgrading the cable system to ensure the faithful performance of its responsibilities under this chapter and its franchise.  The amount of the bond shall be set in the cable franchise and shall be at least 10 percent (10%) of the estimated cost of constructing or  upgrading the system, and shall include a sufficient amount to cover the removal of facilities and restoration of city facilities within the right-of-way.  The bond is not in lieu of any additional bonds that may be required through the permitting process. The bond shall be in a form acceptable to the city counselor.  Bonds must be obtained before the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.

Sec. 10-64.  Security fund.  
 
    Every cable communications system operator shall establish and maintain a cash security fund or provide the city with an irrevocable letter of credit in the amount of $150,000 to secure the payment of fees owed, to secure any other performance promised in a franchise, and to pay any taxes, fees, fines, liquidated damages or any other debt owed to the city.  The letter of credit shall be in a form acceptable to the city.  The city manager shall notify the cable communications system operator if, in the manager’ s opinion, the institution fails to properly allow city to draw on the letter of credit.  The cable communications system operator shall then provide a letter of credit from another institution acceptable to the city.  If the city draws upon the cash security fund or letter of credit, the cable communications system operator shall, within 21 days, restore the fund or the letter of credit to the full-required amount.  This security fund/letter of credit may be waived or reduced by the city for a franchisee if the city determines that a particular franchisee's operations are sufficiently limited that a security fund/letter of credit is not necessary to secure the required performance.   The city may require or allow a franchisee to change the amount of the required security fund/letter of credit to reflect changed risks to the city and to the public.   The cash security fund or letter of credit must be obtained before the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.

Secs. 10-65 –  10-69.  Reserved.


DIVISION 6.  RECORDS AND REPORTS

Sec. 10-70.  Records.

    (a)    Generally.  Each cable communications system operator shall provide the city access to records related to the construction, operation, or repair of the cable communications system, or a group of systems of which the system is a part, so that the city may inspect and copy these records.  The records include, but are not limited to, revenue records, and other records related to compliance with any provision of this chapter or a franchise.  A franchisee is responsible for obtaining or maintaining the necessary possession or control of all such records, so that it can produce the documents upon request.  Records must be maintained for a period of five years, except that a franchise may specify a shorter period for certain categories of voluminous records where the information contained in the records can be derived simply from other materials.  “Records" shall be read expansively to include information in whatever format stored.

    (b)    Production.  Records requested shall be produced to the city by a time and at a location designated by the city manager. However, if the requested records are too voluminous, or for security reasons cannot be copied and moved, then the franchisee may request that the inspection take place at some other location mutually agreed to by the city and the franchisee, provided that (i) the franchisee must make necessary arrangements for copying documents selected by the city after its review; and (ii) the franchisee must pay all reasonable travel and additional copying expenses incurred by the city (above those that would have been incurred had the documents been produced in the city) in inspecting those documents or having those documents inspected by its designee.

    (c)    Failure to provide.  Failure or refusal to provide the records requested by the city under this section shall be grounds for revocation of the franchise in accordance with the provisions set forth in this chapter.

Sec. 10-71.  Reports.

    (a)    Obligation to submit.  In addition to the reports required by this chapter, the city manager or the city council may require a franchisee to prepare and submit reports pertaining to the operation of the cable system and the franchise by a date certain. Franchisee shall be provided a least thirty (30) days to comply with the city request for such additional reports.

    (b)    Quarterly reports.  Unless an exemption is granted by the city manager, or by a franchise agreement granted under this chapter, within forty-five (45) days of the end of each calendar quarter, a franchisee shall submit a report to the city containing the following information:

    (1)    The number of service calls (calls requiring a truck roll) received during the prior quarter and the percentage of service calls compared to the subscriber base; and

    (2)    The total estimated hours of known outages as a percentage of total hours of operation.  An outage is a loss of sound or video on any signal, or a significant deterioration of any signal affecting two or more subscribers.

    (c)    Annual reports.  A cable communications system operator shall submit to the city a report containing the following information within ninety (90) days after the end of the operator’ s fiscal year:

    (1)    An audited or certified revenue report from the previous calendar year for the cable communications system, and a certified statement setting forth the computation of gross revenues used to calculate the franchise fee for the preceding year and a detailed explanation of the method of computation showing (i) gross revenues by category (e.g., basic, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); and (ii)  what, if any, deductions were made from gross revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction.

    (2)    A report showing the franchisee's performance with respect to each applicable customer service standard for each quarter of the preceding year.  In each case where a franchisee concludes it did not comply fully, the franchisee will describe the corrective actions it is taking to assure future compliance.  The report shall also identify the number and nature of all the customer service complaints received and an explanation of their dispositions.

    (3)    An ownership report, indicating all persons who, at the time of filing, control or own an interest in the franchisee of ten percent (10%) or more.

    (d)    Contemporaneous reports.  Within ten (10) days of their receipt or (in the case of documents created by the franchisee or its affiliate) filing, a franchisee shall provide the city:

    (1)    Notices of deficiency or forfeiture related to the operation of the system; and

    (2)    Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly.

Sec. 10-72.  Maps required.

Each franchisee shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the public rights-of-way and any power supply sources (including voltages and connections).  Maps shall be based upon post-construction inspection to verify location.  Each franchisee shall provide a map to the city showing the location of its facilities, in such detail and scale as may be directed by the city manager and update the map at least annually, and whenever the facility expands or is relocated.  Copies of maps shall be provided in hard copy and on disk, in a commercially available electronic format specified by the city manager.

Sec. 10-73.  Other records required.  

    Unless the city manager waives the requirement, a franchisee shall at all times maintain all records required under applicable federal law and in addition:

    (1)    Complaint records.   Records of all complaints received, their nature and resolution.  The term "complaints" refers to complaints about any aspect of the franchisee’ s operations.

    (2)    Outage records.  Records of outages known to the franchisee, their cause and duration.

    (3)    Service calls.  Records of service calls for repair and maintenance indicating the date and time service was requested, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved.
    (4)    Installation records.   Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended.

    (5)    Customer service.  Records sufficient to show whether the franchisee has complied with each customer service standard that applies to it.  

Sec. 10-74.  Exemptions.  

The city manager may temporarily exempt any franchisee from its obligations under Sections 10-71 -- 10-73 if the city manager determines that the requirement would be unduly burdensome or unnecessary, and that the city and subscriber interests may be adequately protected in some other manner.

Sec. 10-75.  Privacy.  

A franchisee shall take all reasonable steps required to provide reports and records to the city without violating any applicable subscriber privacy laws.  Each franchisee shall be responsible for redacting data that applicable law prevents it from providing to the city.  Nothing in this section shall be read to require a franchisee to violate state or federal subscriber privacy laws.

Sec. 10-76.  Proprietary and confidential records.

    If a franchisee believes that any records provided to the city are closed records under the Missouri Sunshine Law (Sec. 610.010, et seq. RSMo.), franchisee shall label the records as closed and specifically reference the law which protects them from disclosure.  The city shall not allow inspection or copying of such records without first informing franchisee of the request and affording franchisee the opportunity to litigate the issue at its sole expense.  Franchisee shall pay all costs, including penalties and attorneys fees, incurred by the city or city’ s agents or employees in connection with any litigation involving disclosure of such records.

Secs. 10-77 –  10-85.  Reserved.


DIVISION 7.  PROCEDURES FOR PAYING FEES

Sec. 10-86.  Payments and statements.

    (a)    Fees paid quarterly.  The franchise fee paid pursuant to Article II, or fee in lieu of franchise fee paid pursuant to Article III shall be paid quarterly.  Payment for each quarter shall be made to the city not later than thirty (30) days after the end of each calendar quarter.  

    (b)    Quarterly statement.  A franchisee or other entity subject to a fee under Article II or III shall file with the city within thirty (30) days of the end of each calendar quarter a statement showing gross revenues during the preceding quarter and the number of subscribers served.

Sec. 10-87.  Acceptance of payment not a release.  

    No acceptance by the city of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such payment be construed as a release of any claim the city may have for additional sums payable.

Sec. 10-88.  Fee not in lieu of taxes.  

    The franchise fee is compensation for permission to use the public rights of way.  The franchise fee is in addition to all other fees, taxes, and payments that a franchisee may be required to pay to the City.  Neither the franchise fee under Article II, nor the fee paid in lieu of the franchise fee under Article III, is a payment in lieu of any other lawful tax, fee or other assessment of general applicability.  Nothing in this section shall limit a franchisee's liability to pay local taxes.

Sec. 10-89.  Failure to pay franchise fee.  

    If a fee payment is not received by the city by the due date set forth in this article, or the fee owed is not fully paid, the person subject to the fee will be charged interest from the due date at the rate of ten percent (10%).

Sec. 10-90.  Final statement of gross revenues.  

    Within ninety (90) days of the date a franchisee ceases operations under a franchise, the franchisee shall file a final statement of gross revenues covering the period from the beginning of the calendar year in which the operations ceased to the date operations ceased.  The statement shall contain the information and be audited or certified as required by Section 10-71 (c) (1).

Sec. 10-91.  Audit.

    All amounts paid shall be subject to audit and recomputation by the city.  Upon thirty (30) days written notice to a franchisee, the city shall have the right to audit the books and reports of the franchisee to determine whether the franchisee has paid the franchise fees owed. The franchisee shall be responsible for providing the records to the city. The City’ s audit expenses shall be borne by the franchisee if the franchise fees paid during the audit period are less than ninety-eight percent (98%) of the amount owed according to the audit. Any additional amounts due to the city as a result of the audit shall be paid within sixty (60) days following written notice to the franchisee by the City of the underpayment, which notice shall include a copy of the audit report, or within sixty (60) days following resolution of any dispute regarding such notice, whichever is later. If re-computation results in additional revenue to be paid to the City, such amount shall be subject to interest as specified in Section 10-89 of this ordinance.

Secs. 10-92 -- 10-98.  Reserved.


DIVISION 8.  ENFORCEMENT AND REMEDIES

Sec. 10-99.  Franchise violation -- notice and procedures.  

    Before revoking a franchise, shortening a franchise or assessing liquidated damages, the city shall follow the procedures set forth below:

    (1)    The city shall provide a cable communications system operator with a written violation notice for any alleged violation of a franchise or this chapter.  The violation notice shall: (i) identify the violation; (ii) direct the cable communications system operator to cure the violation or explain why the violation cannot or should not be cured; and (iii) state the time for the cable communications system operator’ s response, which shall be at minimum thirty (30) days from the date of issuance of the violation notice, except for violations that present a danger to public health, safety or welfare, in which case the time for response may be shortened.

    (2)    Within the time period designated for response in the violation notice, the cable communications system operator shall respond in writing to the city indicating that: (i) the cable communications system operator disputes the alleged violation; or (ii) the cable communications system operator has completely cured the violation, in which case the cable communications system operator shall provide documentation demonstrating that the violation has been completely cured; or (iii) the cable communications system operator has begun to correct the violation, however, the violation cannot be corrected immediately despite the cable communications system operator’ s continued due diligence, in which case the operator shall describe in detail the steps already taken and operator’ s proposed plan and time schedule for completely curing the violation.  The city may accept, modify, or reject the cable communications system operators proposed plan and time schedule. Correction of the violation is not complete until any damages and fines owed are paid in full.

    (3)    If the city determines that the cable communications system operator has failed to completely cure the violation, to submit an acceptable plan to cure the violation, or to work diligently to cure the violation, the city may institute proceedings to revoke or shorten the franchise, or assess liquidated damages in accordance with the provisions of the franchise agreement.

(4)    The city manager is authorized to assess liquidated damages against a franchisee for any violation of the franchise agreement or this chapter.  Before assessing liquidated damages, the city manager must provide the franchisee the opportunity to meet informally with the city manager to discuss the alleged violation.

Sec. 10-100.   Revocation.   

    The city council may revoke a franchise or reduce the term of a franchise if it finds that a cable communications system operator has violated a material provision of this chapter or its franchise; has defrauded or attempted to defraud the city or subscribers; or has attempted to evade the requirements of this chapter or its franchise.  Except as to violations that are impossible to cure, and as provided in Sections 10-101 and 10-102, the franchise may only be revoked if the franchisee (i) was given notice of the default; (ii) was given 30 days to cure the default; and (iii) the franchisee failed to cure the default, or to propose a schedule for curing the default acceptable to the city where it is impossible to cure the default in thirty (30) days.  If the City elects to shorten the remaining term of the operator’ s franchise in accordance with this section it shall not shorten a franchise to less than a term of  thirty-six (36) months from the date of the imposition of a final order permitting such action to shorten the term.

Sec. 10-101.   Exception for certain acts.   

    No opportunity to cure is required for repeated violations (provided that notice was given pursuant to Section 10-99), and fraud and attempted fraud shall be deemed incurable.  Further, the city may declare a franchise forfeited without opportunity to cure where a franchisee (i) voluntarily stops providing service it is required to provide; (ii) transfers the franchise without the prior consent of the city.

Sec. 10-102.   Exception for bankruptcy.  

    To the extent not prohibited by the United States Bankruptcy Code, a franchise under this ordinance shall terminate automatically by force of law one hundred twenty calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee (including a debtor-in-possession in a reorganization) to take over the business of the owner or operator, whether in bankruptcy  or under a state law proceeding; provided, however, that such franchise shall not so terminate if, within that one-hundred-twenty-day period: (i) such assignment, receivership or trusteeship has been vacated; or (ii) such assignee, receiver, or trustee has cured any defaults and has fully complied with the terms and conditions of this ordinance and any applicable agreement and has executed an agreement, approved by any court having jurisdiction,  under which it assumes and agrees to be bound by the terms and conditions of this ordinance and any applicable agreement.  In the event of foreclosure or other judicial sale of any of the facilities, equipment, or property of an owner or operator of facilities in the public rights-of-way, its franchise under this ordinance shall automatically terminate thirty (30) calendar days after such foreclosure or sale, unless: (i) the city has approved a transfer to the successful bidder; and (ii) the successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions binding its predecessor.



Any mortgage, pledge or lease of facilities in the public rights-of-way shall be subject and subordinate to the rights of the city under this ordinance, any applicable agreement, and other applicable law.


Sec. 10-103.   Effect of termination or forfeiture.  

    Upon termination or forfeiture of a franchise in accordance with the procedures set forth in this ordinance, whether by action of the city or by passage of time, the franchisee must stop using the cable communications system for the purposes authorized by the franchise.   The city may take possession of some or all of franchisee's facilities consistent with applicable law,
or require the franchisee or its bonding company to remove some or all of the franchisee's facilities from the city, and restore affected property to its same or better condition.   This provision does not permit the city to remove facilities that are used to provide another service for which the franchisee holds a valid franchise issued by the city.

Sec. 10-104.   Remedies cumulative.  

    Remedies provided for under this chapter, or under a franchise are cumulative except that the city may not collect both liquidated damages and actual damages for the same violation.  Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, does not limit a franchisee’ s duty to indemnify the city; or relieve a franchisee of its franchise obligations or limit the amounts owed to the city.

Sec. 10-105.  Liquidated damages.

    Franchises granted under this chapter shall provide for liquidated damages for failure of the franchisee to comply with the provisions of the franchise or this chapter.

Secs. 10-106 –  10-125.  Reserved.


ARTICLE II   SPECIAL RULES APPLICABLE TO CABLE SYSTEMS

DIVISION 1.  APPLICATIONS

Sec. 10-126.  Applications.

    (a)    Application required.  An application must be filed for an initial and renewal cable system franchise,  and for approval of a transfer. A request for renewal filed under 47 U.S.C. §546(h) need not contain the information required by Section 10-126 (b).

    (b)    Application contents.  Each application must contain the following information:

    (1)    Identification of the applicant including any affiliate.

    (2)    A pro forma showing capital expenditures and expected income and expenses for the first five years the applicant is to hold the franchise.

    (3)    A statement that the applicant is willing to comply unconditionally with its franchise obligations.

    (4)    A detailed description of the cable system that the applicant proposes to build, showing where it will be located, setting out the system construction schedule, and showing that the applicant will provide adequate channels, facilities and other support for public, educational and government use (including institutional network use if required by the city) of the cable system.

    (5)    A description of the channel capacity, technical design, performance characteristics, headend, access (and institutional network, if required) facilities and equipment.

    (6)    The location of proposed facility and facility design, including a description of the miles of plant to be installed, and a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of the facilities. If some of the descriptive data is not available at the time of application, the franchise may be granted subject to the conditions that the data be filed and approved by the city before construction begins and that the franchise will be deemed to be forfeited if the data is not supplied and approved.  However, the city will not grant a franchise if there is not sufficient information to appraise the impact of the applicant's proposal.

    (7)    A map of the system designating the portions of the system that will be placed above ground and the portions that will be placed underground.  

    (8)    A description of the construction techniques that the applicant proposes to use in installing the system above ground and underground.  

    (9)    A schedule for construction of the facility, describing when and where construction will begin, how it will proceed, benchmarks indicating the scheduled  completion of portions of the system and when construction will be completed.

    (10)    Information on the expected effect on right-of-way usage, including information on the ability of the public rights-of-way to accommodate the proposed system, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities.

    (11)    A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities.

    (12)    A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of the capacity, facilities and support for public, educational, and governmental use of the system (including institutional networks if required) applicant proposes to provide and why applicant believes that the proposal is adequate to meet the future cable-related needs and interests of the community.

    (13)    A demonstration of the financial qualifications of the applicant, including at least the following:

        a.    The proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services;

        b.    A statement regarding the applicant's financial ability to complete the construction to meet the time frame proposed and to operate the cable system proposed certified by the applicant's chief financial officer; and

        c.    To the extent that the applicant is in any respect relying on the financial or technical resources of another person, including another affiliate, adequate proofs should be provided for that person.

    (14)    A demonstration of the applicant's technical ability to construct and operate the proposed cable system.

    (15)    A demonstration that the applicant is legally qualified, including a demonstration that the applicant and any affiliate of applicant:

        a.    Is willing to comply with the provisions of this chapter and applicable laws; and to comply with such requirements of a franchise as the city may lawfully require.

        b.    Has not had any cable system or OVS franchise validly revoked by the city within three (3) years preceding the submission of the application.
        c.    Has not had an application to the city for an initial or renewal cable system franchise  or OVS franchise denied within three (3) years preceding the submission of the application.

        d.    Has not at any time during the ten (10) years preceding the submission of the application been convicted of fraud, racketeering, anticompetitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the city and the subscribers, or to substantially comply with its obligations.

        e.    Has the necessary authority under Missouri and federal law to operate a cable system.

f.    Has not filed materially misleading information in its application or intentionally withheld information that the applicant lawfully is required to provide.

    (16)    A description of the applicant's prior experience in cable system ownership, construction, and operation, and identification of cities and counties in Missouri in which the applicant or any of its principals have a cable franchise or any interest in a cable franchise.  If an applicant has no other franchise in Missouri, it shall provide the information for its operations in other states.

    (17)    Other information specified by the city manager.

    (18)    An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.

    (c)     Filing and fee requirements.  All applications required under this section must comply with the filing and application fee requirements of Sections 10-18 and 10-19.  All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.  
 
    (d)    Previous denials.  An application shall not be accepted from any person that, within three (3) years preceding the submission of the application, was denied an initial or renewal franchise by the city on the grounds that the applicant failed to propose a cable system meeting the cablerelated needs and interests of the community.

    (e)    Further information.  An applicant filing under this section shall respond to any request for information from the city, by the time specified by the city.

    (f)    Incomplete applications.  An application may be rejected if it is incomplete, or if the response to a request for information is not timely and complete.

Sec. 10-127.  Application for an initial franchise or renewal franchise.

    (a)    Scope.  This section establishes additional provisions that apply to an application for an initial franchise, or a renewal franchise application that is not governed by 47 U.S.C. §546(a)-(g).

    (b)    Process.   Any person may apply for an initial or renewal franchise by submitting an application on that person’ s own initiative, or in response to a request for proposals issued by the city.  If the city receives an unsolicited application, it may choose to issue a request for additional proposals, and require the applicant to amend its proposal to respond to the request.

    (c)    Consideration of application.   In determining whether to grant a franchise,  the city may consider:

    (1)    The extent to which an applicant for renewal has substantially complied with the applicable law and the material terms of any existing cable franchise;

    (2)    Whether the quality of service provided by an applicant for renewal under the applicant’ s existing franchise, including signal quality, response to customer complaints, billing practices, and the like has been reasonable in light of the needs of the community;

    (3)    Where the applicant has not previously held a cable system franchise in the city, whether the applicant's record in other communities indicates that it can be relied upon to provide high-quality service throughout any franchise term;

    (4)    Whether the applicant has the financial, legal, and technical ability to provide the services, facilities, and equipment set forth in an application, and to satisfy any minimum requirements established by the city;

    (5)    Whether the applicant's application is reasonable to meet the future cable-related needs and interests of the city, taking into account the cost of meeting such needs and interests;

    (6)    Whether issuance of a franchise is warranted in the public interest considering the immediate and future effect on streets, public property, and private property that will be used by the applicant's cable system;

    (7)    Such other matters as the city is authorized or required to consider.

    (d)    Grant of franchise.  If the city determines that it is in the public interest to grant a franchise considering the factors described above, it may negotiate a franchise agreement with the applicant.

Sec. 10-128.  Application for renewal franchise filed pursuant to 47 U.S.C. §546.

    (a)    Scope.  This section establishes additional provisions that apply to applications for renewal governed by 47 U.S.C. §546(a)-(g).

    (b)    Process.  A franchisee that intends to exercise rights under 47 U.S.C.  §546(a)-(g) shall submit a notice in writing to the city in a timely manner clearly stating that it is activating the procedures set forth in those sections.  The city shall thereafter commence any proceedings that may be required under federal law.  Upon completion of those proceedings, the city may issue a request for proposals and an application may be submitted for renewal.  The city may preliminarily deny the application by resolution, and if the application is preliminarily denied, the city may conduct such proceedings and by resolution establish such procedures and appoint such individuals as may be necessary to conduct any proceedings to review the application.  

    (c )    Nothing in this section shall be construed to limit the city and a franchisee from negotiating a renewal informally as permitted under 47 U.S.C. §546(h).  

Secs. 10-129 –  10-138.  Reserved.


DIVISION 2.  FRANCHISE FEE

Sec. 10-139.  Franchise fee.   

    (a)    Amount and nature.  A cable communications system operator shall pay the city a franchise fee in an amount equal to three percent (3%) of gross revenues as compensation for permission to use public rights-of-way for construction and operation of the cable communications system.  The city reserves the right to increase the amount of the franchise fee up to the maximum amount permitted by law.

    (b)    Bundled services.  If a cable communications system operator offers bundled, tied, or combined cable services (which are subject to the franchise fee) with non-cable services (which may not be subject to the franchise fee) to individual subscribers, the combined revenues from such bundled services shall be allocated consistent with the rates or prices advertised by the cable communications system operator through its marketing materials or on its published rate card.  If the cable communications system operator does not advertise or publish separate prices for the combined services, the percentage that the price for the combined services is discounted from the regular retail rates of the individual services shall be pro-rated across all the services in the bundled package; provided, however, that the net revenues derived from services subject to mandatory tariff rates imposed by the Missouri Public Service Commission (or other governmental entity having such authority) shall be deducted from the combined revenue to determine the revenue subject to the franchise fee. As an example, a cable communications system operator may offer a “bundle” of video, voice and data services for a flat fee of $75.00 where the retail rate for the services purchased on an individual basis would equal $100.00.  Assuming that there is no service subject to the mandated tariff rate, the cable communications system operator would apply a twenty-five percent (25%) discount to each service.  Thus, if the retail rate for the cable service in the bundle were $50.00, the cable communications system operator would recognize cable service revenue in the amount of $37.50 and pay a franchise fee on that revenue.

    (c)    Gross revenue.  The definition of gross revenue is to be as inclusive as possible consistent with existing applicable law.  If a change in federal law occurs subsequent to the effective date of this ordinance, such change shall not impact the gross revenues definition in such a way to reduce gross revenues –  unless the change specifically preempts the affected portion of the definition above.

Secs. 10-140 –  10-145.  Reserved.


DIVISION 3.  MINIMUM FRANCHISE REQUIREMENTS

Sec. 10-146.  System design.    

    Each franchisee shall provide a cable system that uses equipment of high quality and reliability and is capable of delivering at least 143 channels of programming.  Each franchisee shall install and activate the return portion of the cable system.

Sec. 10-147.  Public, educational and government use of the system.    

    (a)    PEG channels.  A franchisee shall provide a minimum of three (3) channels for PEG access to each subscriber.

    (b)    Primary access center link.  Each franchisee shall install, maintain, and replace as necessary, a dedicated, bi-directional fiber optic link between its headend and a location designated by the city as the primary access center.

    (c)    Two-way cable plant.  Each franchisee shall install, maintain, and replace activated two-way cable plant and all headend, cable plant, and node equipment required to make it operable so that the city, public school system, institutions of higher education and all designated PEG access centers and access facilities located within the franchise area will be able to send and receive signals (video, audio, and data) using the activated two-way cable plant.  

    (d)    Access interconnections quality.  Each franchisee shall ensure that technically adequate signal quality, routing systems, and switching and processing equipment are initially and continuously provided for all access interconnections both within franchisee's cable system and with other cable systems throughout the duration of its franchise.

      (e)    Technical assistance.  If a franchisee makes any change in the cable system and related equipment and facilities or in the franchisee's signal delivery technology which substantially affects the signal quality or transmission of access programming, the franchisee shall at its expense take necessary steps or provide necessary technical assistance, including the acquisition of all necessary equipment, to ensure that the capabilities of access programmers are not diminished or adversely affected by such change.

    (f)    Technical quality.  A franchisee shall maintain all access channels (both upstream channels and downstream channels) and all interconnections of access channels at the same level of technical quality and reliability as the best commercial channels carried on the franchisee’ s system.  

Sec. 10-148.  Service to franchise area.   

    It is the policy of the city to ensure that every cable system provide service in its franchise area upon request to any person or any government building.  Each franchisee shall extend service upon request within its franchise area, provided that, a franchise may permit a franchisee to require a potential subscriber to contribute a fair share of the capital costs of installation or extension as a condition of extension or installation in cases where such extension or installation may be unduly expensive.

Sec. 10-149.  Time for extension.   

    Except as a franchise otherwise provides, service must be extended upon request to any person or to any government building in a franchisee’ s franchise area (i) within seven days of the request, where service can be provided by activating or installing a drop; (ii) within 90 days of the request where an extension of onehalf mile or less is required; or (iii) within six months where an extension of onehalf mile or more is required.

Sec. 10-150.  Technical standards.  

    A cable system within the city shall meet or exceed the technical standards set forth in 47 C.F.R. § 76.601 and any applicable state and federal technical standards.

Sec. 10-151.  Testing.

    Upon request by the city, but no more than every two (2) years, a franchisee shall provide the city with a report by an independent certified electrical engineer which evaluates a franchisee's compliance with the applicable technical standards. The evaluation shall be at the franchisee's cost. The city council may, at its option, choose its own engineer to conduct such review at the city's cost.

Sec. 10-152.  Interconnection.   

    Upon request of the city, every cable system shall be required to interconnect with every other cable system within the city, or adjacent to the city, on fair and reasonable terms for purposes of providing PEG and institutional network services.  A franchisee shall cooperate with any interconnection corporation, regional interconnection authority, or county, state or federal regulatory agency which may be hereafter established for the purpose of regulating, facilitating, financing, or otherwise providing for the interconnection of cable systems beyond the boundaries of the city.

Sec. 10-153.  Continuity of service.  

    Each franchisee shall, during the term of the franchise, ensure that subscribers are able to receive continuous service. If the franchise is revoked or terminated, the franchisee may be required to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity.  A franchise may establish more particular requirements under which these obligations will be satisfied.

Secs. 10-154 -- 10-163.  Reserved.


DIVISION 4.  CUSTOMER SERVICE STANDARDS

Sec. 10-164.  In general.

    The franchisee shall comply with the customer service and reporting requirements in this division and the requirements set forth in FCC regulations, including 47 C.F.R. §76.309 and other applicable law. To the extent the provisions of this division differ from applicable FCC regulations or any applicable law, the provision or provisions that impose the highest standard or greatest legal duties or obligations upon the franchisee shall take precedence, unless a different order of precedence is expressly established in this division.

Sec. 10-165.  Office availability.  

    (a)    Location and hours.  Each franchisee will maintain at least one office at a convenient location within the city boundaries or within one-quarter mile of the city boundaries that will be open for walk-in traffic at least ten (10) hours per day (except legal holidays) Monday through Friday, with some evening hours, and at least four (4) hours on Saturday to allow subscribers to pay bills, drop off equipment and to pick up equipment.  

    (b)    Service calls.  Each franchisee will perform service calls, installations, and disconnects at least ten (10) hours per day Monday through Saturday, except legal holidays, provided that a franchisee will respond to outages twenty-four (24) hours a day, seven (7) days a week.  

Sec. 10-166.  Telephones.  

    (a)    Call response statistics.  All call response statistics shall be measured on the basis of call response statistics in all call centers where franchise area subscribers are primarily assigned unless otherwise agreed to in a franchise agreement.  If the call centers serve subscribers located in other communities, the franchisee shall insure that call center representatives do not give priority or preferential treatment to subscribers located in other communities.

    (b)    Definitions of call response terms.  The following call response terms definitions apply to this division:

    “Answer time” is the interval between when the franchisee receives a call and when an interactive voice response (IVR) or agent answers.

    “Speed of answer” is the amount of time between when the customer is transferred into the agent queue from either an IVR or an agent and the time an agent answers.

    “Calls abandoned” is the percentage of calls in any agent queue that are abandoned.

    “Trunks busy” represents the percentage of time customers receive a busy signal when they call customer service during normal business hours.

    (c)    Availability of telephone service.  Each franchisee will establish a publicly listed local toll-free telephone number.  Customer service representatives must answer the phone at least ten (10) hours per day, Monday through Saturday, except legal holidays, for the purpose of receiving requests for service, inquiries, and complaints from subscribers. After such business hours the phone will be answered so that customers can register complaints and report service problems on a twenty-four (24) hour per day, seven (7) day per week basis, and so that the franchisee can respond to service outages as required in this division.  

    (d)    Standards for call response.  Each franchise will comply with the following standards for call response:

    (1)    Answer time will not exceed thirty (30) seconds or four (4) rings. Under normal operating conditions the franchisee shall meet this requirement at least ninety (90) percent of the time measured on a quarterly basis.

    (2)    The average speed of answer shall not exceed thirty (30) seconds. Under normal operating conditions the franchisee shall meet this requirement at least ninety (90) percent of the time measured on a quarterly basis.

    (3)    The percentage of calls abandoned shall not exceed three (3) percent under normal operating conditions measured on a quarterly basis.  

    (4)    Subscribers shall receive a trunks busy signal less than three (3) percent of the time under normal operating conditions.

    (e)    Call response reports.  Franchisee shall submit reports on call response statistics every calendar quarter, except as otherwise provided in this division.  If any of a franchisee’ s quarterly call response statistics fail to demonstrate compliance with any applicable requirement, the franchisee must thereafter submit monthly reports on all call response times until the franchisee requests and the city approves resuming quarterly reporting. Information in the reports about call response times shall be determined on the basis of the simple average of results during business hours under normal operating conditions for the entire reporting period, and any report submitted at the end of a calendar quarter shall report the total number of calls during the proceeding quarter and the average call response times during that quarter.  

Sec. 10-167.  Other reports.

    (a)    Customer service standards.  A franchisee shall submit reports on all customer service standards identified in this division during each successive calendar quarter for the term of the franchise except as otherwise might be provided herein.  If a franchisee’ s reports for two (2) quarters within a calendar year fail to demonstrate that the franchisee has complied with any customer service standard in Section 10-166 of this section, the franchisee shall thereafter submit monthly reports about performance of each such requirement until it reports three (3) consecutive months with less than five (5) percent deviation from any minimum required standard unless the franchisee demonstrates to the city’ s satisfaction that the deviation occurred when it was not operating under normal operating conditions as defined in 47 C.F.R. § 76.309 and reports on the nature and duration of such non-normal operating conditions.

    (b)    Timing.  A franchisee shall submit reports within thirty (30) days after the close of the applicable reporting period. Each report shall include data from the applicable reporting period.

    (c)    No notice required.  The city does not need to provide additional notice or an opportunity to cure in order to establish that the franchisee has committed a breach of these requirements.

    (d)    Compliance.  If a monthly or quarterly report indicated that a franchisee has failed to meet any of the minimum required standards, the franchisee shall provide a written explanation of the deviation within ten (10) business days of the report, including steps being taken to cure the deviation, and the time expected to implement the cure.  A franchisee must cure within thirty (30) days unless a longer period is agreed to in writing by the city, which agreement shall not be unreasonably withheld.

Sec. 10-168.  Scheduling work.

    (a)    Appointments.  All appointments for service and installation will be specified by date.  All appointments for disconnection that require franchisee contact at the customer residence will be specified by date. Each franchisee will set a specific time at which the work will be done, or offer a choice of time blocks, which will not exceed four (4) hours in length.  A franchisee may also, upon request, schedule service installation calls outside normal business hours, for the express convenience of the customer.  

    (b)    Late and missed appointments.  If at any time an installer or technician is late for an appointment or believes a scheduled appointment time will be missed, an attempt to contact the customer will be made before the time of appointment and the appointment rescheduled at a time convenient to the customer, if rescheduling is necessary.

    (c)    Compensation for missed appointment.  The franchisee will offer to subscribers who have experienced a missed appointment for reasons not caused by the subscriber the following options:  

    (1)    Installation or service call free of charge, if the appointment was for an installation or service call for which a fee was to be charged; or

    (2)    One (1) month of the most widely subscribed to service tier free of charge for other appointments

    (d)    Confirmation of appointment.  If the franchisee makes reasonable and no less than three (3) attempts to confirm an appointment during the scheduled appointment time or appointment window and is unsuccessful in obtaining such confirmation, the franchisee may assume that the customer has cancelled the appointment.

Sec. 10-169.  Service standards.

    (a)    Acknowledging service requests.  Under normal operating conditions, requests for service, repair, and maintenance must be acknowledged by a trained customer service representative within twenty-four (24) hours, or before the end of the next business day, whichever is earlier.  For purposes of this section, “acknowledged” means that a customer service representative has directly contacted (or left a message for) the customer regarding the service request.

    (b)    Other inquiries.  A franchisee will respond to all other inquiries (including billing inquiries) within five (5) business days of the inquiry or complaint.

    (c)    Time for completing service problems.  Under normal operating conditions, repairs and maintenance for outages or service interruptions must be completed within twenty-four (24) hours after the outage or interruption becomes known to franchisee where the franchisee has adequate access to facilities to which it must have access in order to remedy the problem.  Under normal operating conditions, work to correct all other service problems must be begun by the next business day after notification of the service problem, and must be completed within five (5) business days from the date of the initial request.  When normal operating conditions do not exist, a franchisee will complete the work in the shortest time possible.

    (d)    Canceling appointment.  A franchisee will not cancel a service or installation appointment with a customer within 24 hours of the appointment or after the close of business on the business day preceding the scheduled appointment, whichever is earlier.

    (e)    Time for completing other service requests.  Requests for additional outlets, service upgrades or other connections (e.g., DMX, VCR, A/B switch) separate from the initial installation will be performed within seven (7) business days after an order has been placed.

    (f)    Minimum performance requirement.  Under normal operating conditions, the service standards set out in this section will be met at least ninety-five (95) percent of the time, measured on a quarterly basis.  The failure of the franchisee to hire sufficient staff or to properly train its staff will not justify a franchisee’ s failure to comply with this provision.



Sec. 10-170.  Disabled services.  



    With regard to subscribers with disabilities, upon subscriber request, each franchisee will arrange for pickup or replacement of converters or other franchisee equipment at the subscriber’ s address or by a satisfactory equivalent (such as the provision of a postage-prepaid mailer).



Sec. 10-171.  Notice to subscribers regarding service.

 

    A franchisee will provide each subscriber at the time service is installed, and annually thereafter, clear and accurate written information:


    (1)    On placing a service call, filing a complaint, or requesting an adjustment (including when a subscriber is entitled to refunds for outages and how to obtain them); showing the telephone number of the city office responsible for administering the cable television franchise;

    (2)    Detailing current rates and charges (which must include any senior, disabled or other discounts offered and the least expensive tier of service available), channel positions, services provided,  delinquent subscriber disconnect and reconnect procedures; information regarding  the availability of parental control devices, the conditions under which they will be provided and the cost (if any) charged;

    (3)    Describing conditions that must be met to qualify for discounts;

    (4)    Describing any other of the franchisee’ s policies in connection with its subscribers; and

    (5)    Describing any discounts, services, or specialized equipment available to subscribers who are seniors or with disabilities; explaining how to obtain them; and explaining how to use any accessibility features.


Sec. 10-172.  Notices to the city.

   

    Franchisee will provide the city with copies of all notices provided to its subscribers pursuant to this division.



Sec. 10-173.  Changes in notice information.



    Franchisee will provide the city manager (or designee) at least sixty (60) days, and all subscribers at least thirty (30) days, written notice of any material changes in the information required to be provided under this article, except that, if federal law establishes a shorter notice period and preempts this requirement, the federal requirement will apply.



Sec. 10-174.  Truth in advertising.  



    Each franchisee will take appropriate steps to ensure that all written franchisee promotional materials, announcements, and advertising of residential cable service to subscribers and the general public, where price information is listed in any manner, clearly and accurately discloses price terms.  In the case of telephone orders, a franchisee will take appropriate steps to ensure that price terms are clearly and accurately disclosed to potential customers in advance of taking the order.



Sec. 10-175.  Other notices.  



    Each franchisee will maintain a file open for public inspection containing all notices provided to subscribers under these customer service standards, as well as all promotional offers made to subscribers.  The notices and offers will be kept in the file for at least one (1) year from the date of such notice or promotional offer.  



Sec. 10-176.  Interruptions of service.  



    A franchisee shall give subscribers and the city counselor’ s office written notice, three (3) days prior to any scheduled or planned interruption of service for planned maintenance or construction; provided, however, that planned maintenance that does not require more than one (1) hour interruption of service or that occurs between the hours of 12:00 a.m. and 6:00 a.m. will not require such notice to subscribers, and notice to the city counselor’ s office must be given no less than twenty-four (24) hours before the anticipated service interruption.



Sec. 10-177.  Prorated billing.  



    A franchisee’ s first billing statement after a new installation or service change will be prorated as appropriate and will reflect any security deposit.



Sec. 10-178.  Billing statement

    (a)    Content.  Franchisee’ s billing statement must be clear, concise, and understandable and must itemize and state the charges for each category of service and equipment provided to the subscriber.

    (b)    Due date.  A franchisee’ s billing statement must show a specific payment due date not earlier than the later of:

    (1)    Fifteen (15) days after the date the statement is mailed; or

    (2)    The tenth (10th) day of the service period for which the bill is rendered.  

    (c)    Late fees.  A late fee or administrative fee (collectively referred to below as a "late fee") may not be imposed for payments earlier than twenty-seven (27) days after the due date specified in the bill.  A late fee may not be imposed unless the subscriber is provided written notice at least ten (10) days prior to the date the fee is imposed that a fee will be imposed, the date the fee will be imposed and the amount of the fee that will be imposed if the delinquency is not paid.  A late fee may not be imposed unless the outstanding balance exceeds ten dollars ($10.00).  The late fee may not exceed five dollars ($5.00) unless permitted by state or federal law.  If the late fee is increased, the franchisee shall provide thirty (30) days written notice to subscribers.  Subscribers will not be charged a late fee or otherwise penalized for any failure by a franchisee, including failure to timely or correctly bill the subscriber, or failure to properly credit the subscriber for a payment timely made.  Payments will be considered timely if postmarked on the due date.


    (d)    Payment.  A franchisee’ s bill must permit a subscriber to remit payment by mail or in person at the franchisee’ s local office.

Sec. 10-179.  Credit for service impairment.  

    Subscriber’ s account will be credited a prorated share of the monthly charge for the service upon subscriber request if a subscriber is without service or if service is substantially impaired for any reason for a period exceeding four (4) hours during any twenty-four (24) hour period.  A franchisee need not credit subscriber where it establishes that a subscriber will obtain a refund for a loss of service or impairment caused by the subscriber or by subscriber-owned equipment (not including, for purposes of this section, in-home wiring installed by the franchisee).

Sec. 10-180.  Billing complaints.  

    Franchisee will respond to all written billing complaints from subscribers within thirty (30) days.


Sec. 10-181.  Billing Refunds.  



    Refunds to subscribers will be issued no later than:



    (1)    The earlier of the subscriber’ s next billing cycle following resolution of the refund request, or thirty (30) days; or



    (2)    The date of return of all equipment to franchisee, if cable service has been terminated.

Sec. 10-182.  Credits for cable service.  

    Credits for cable service will be issued no later than the subscriber’ s next billing cycle after the determination that the credit is warranted.


Sec. 10-183.  Disconnections.  



    A franchisee will promptly disconnect from the franchisee’ s cable system or downgrade any subscriber who so requests.  No charges for service may be made after the subscriber is disconnected.  If disconnection requires a truck run, the franchisee shall complete disconnection within seven (7) days of when a subscriber requests disconnection.  No period of notice before voluntary termination or downgrade of cable service may be required of subscribers by any franchisee.  There will no charge for disconnection and any downgrade charges will conform to applicable law.


Sec. 10-184.  Security deposit.  

    Any security deposit and other funds due a subscriber that disconnects or downgrades service will be returned to the subscriber within thirty (30) days or in the next billing cycle, whichever is later, from the date disconnection or downgrade was requested except that such security deposits can be applied to any amount due from any subscriber that remains unpaid as of the date of disconnection or in the case where a subscriber does not return equipment belonging to the cable operator, the security deposit can be applied to the cost of the unreturned equipment.  In all other cases, the security deposit shall be paid to subscribers within thirty (30) days of the date the equipment was recovered, or in the next billing cycle, whichever is later.

Sec. 10-185.  Disconnection due to nonpayment.  

    (a)    When allowed.  A franchisee may not disconnect a subscriber’ s cable service for non-payment unless:

    (1)    The subscriber is delinquent in payment for cable service;

    (2)    A separate, written notice of impending disconnection, postage prepaid, has been sent to the subscriber at least twenty (20) days before the date on which service may be disconnected, at the premises where the subscriber requests billing, which notice must identify the names and address of the subscriber whose account is delinquent, state the date by which disconnection may occur if payment is not made, and the amount the subscriber must pay to avoid disconnection, and a telephone number of a representative of the franchisee who can provide additional information concerning and handle complaints or initiate an investigation concerning the services and charges in question;

    (3)    The subscriber fails to pay the amounts owed to avoid disconnection by the date of disconnection; and

        (4)    No pending inquiry exists regarding the bill to which franchisee has not responded in writing.


    (b)    Payment before disconnection.  If the subscriber pays all amounts due, including late charges, before the date scheduled for disconnection, the franchisee will not disconnect service.  Service may only be terminated on days in which the subscriber can reach a representative of the franchisee either in person or by telephone.

    (c)    Reinstatement.  After disconnection (except as noted below), upon payment by the subscriber in full of all proper fees or charges, including the payment of the reconnection charge, if any, the franchisee will promptly reinstate service.

Sec. 10-186.  Immediate disconnection.  

    (a)    When allowed.  A franchisee may immediately disconnect a subscriber if:

    (1)    The subscriber is damaging, destroying, or unlawfully tampering with or has damaged or destroyed or unlawfully tampered with the franchisee’ s cable system;

    (2)    The subscriber is not authorized to receive a service, and is facilitating, aiding or abetting the unauthorized receipt of service by others; or

    (3)    Subscriber-installed or attached equipment is resulting in signal leakage that is in violation of FCC rules.  


    (b)    Restoration of service.  After disconnection, the franchisee will restore service after the subscriber provides adequate assurance that it has ceased the practices that led to disconnection, and paid all proper fees and charges, including any reconnect fees and all amounts owed the franchisee for damage to its cable system or equipment.  Provided that, no reconnection fee may be imposed on a subscriber disconnected pursuant to this article if the leakage was the result of the franchisee's acts or omissions; or in any case unless the franchisee notifies the subscriber of the leakage at least three (3) business days in advance of disconnection, and the subscriber has failed to correct the leakage within that time. Except as applicable law may otherwise provide, a franchisee may remove its property from a subscriber’ s premises within thirty (30) days of the termination of service.  If a franchisee fails to remove its property in that period, the property will be deemed abandoned unless the franchisee has been denied access to the subscriber’ s premises, or the franchisee has a continuing right to occupy the premises under applicable law.  


Sec. 10-187.  Deposits.  

    A franchisee may require a reasonable, non-discriminatory deposit on equipment provided to subscribers.  Deposits will be placed in an interest-bearing account, and the franchisee will return the deposit, plus interest earned to the date the deposit is returned to the subscriber, less any amount the franchisee can demonstrate should be deducted for damage to such equipment.

Sec. 10-188.  Parental control option.  

    Without limiting a franchisee’ s obligations under federal law, a franchisee must provide parental control devices at no charge to all subscribers who request them that enable the subscriber to block the video and audio portion of any channel or channels of programming.

Sec. 10-189.  Relief.  

    Notwithstanding the requirements of this division, the city manager is authorized to relieve a franchisee of its obligations under this division if:

     (1)    Franchisee shows that there is an alternative standard that is substantially similar to that established by this division;

    (2)    In light of the number of customers served by a cable system operator, the requirements of this division are, in the city manager’ s sole discretion, unduly burdensome and there is an alternative way to serve the same interest.


Secs. 10-190 -- 10-194.  Reserved.


DIVISION 5.  MISCELLANEOUS

Sec. 10-195.  No exclusive contracts.
 
    A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service.  However, nothing herein prevents a franchisee from entering into an otherwise lawful, mutually desired exclusive arrangement with a building owner or manager of a multiple dwelling unit or commercial subscriber.  Nothing in this section shall impair the right of a franchisee to require a subscriber to enter into a short term contract not to exceed twelve (12) months to allow the subscriber to take advantage of a promotional rate and to impose a reasonable penalty if the subscriber terminates the service during the promotional period.

Sec. 10-196.  Rate regulation.

    The city reserves the right to regulate rates for cable television service to the extent permitted by federal law.  

Secs.  10-197 –  10-231.  Reserved.



ARTICLE III  SPECIAL RULES APPLICABLE TO OPEN VIDEO SYSTEMS

DIVISION 1.  APPLICATIONS

Sec. 10-232.  Applications .

    (a)    Application required.  A written application shall be filed with the city for grant of an initial or renewal OVS franchise.

    (b)    Application contents.  Each application must contain the following information:  
      
    (1)    Identity of the applicant; the persons who exercise working control over the applicant; and the persons who control those persons, to the ultimate parent.

    (2)    A proposal for construction of the open video system that includes at least the following:

        a.    A description of the services that are to be provided over the facility.

b.    Identification of the area of the city to be served by the proposed system, including a description of the proposed franchise area's boundaries.

        c.    The location of proposed facility and facility design, including a description of the miles of plant to be installed, and a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of the facilities.

        d.    A map of the system designating the portions of the system that will be placed aboveground and the portions that will be placed underground.

        e.    A description of the construction techniques that the applicant proposes to use in installing the system aboveground and underground.

        f.    A schedule for construction of the facility, describing when and where construction will begin, how it will proceed, benchmarks for completion of phases, and when construction will be completed.

        g.    Information on the expected effect on right-of-way usage, including information on the ability of the public rights-of-way to accommodate the proposed system, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities.

        h.  A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities.

    (3)    Evidence that the applicant has the financial resources to complete the proposed project, and to construct, operate and repair the proposed facility over the franchise term.  It is not the intent of the city to require an applicant to prove that the services it proposed to offer will succeed in the marketplace.  To the extent that the applicant is in any respect relying on the financial or technical resources of another person, including another affiliate, the proofs should be provided for that person.  An applicant will be presumed to have the requisite financial, or technical or legal qualifications to the extent such qualifications have been reviewed and approved by a state agency of competent jurisdiction; or if applicant is a holder of a franchise in the city for a cable system or open video system, and conduct under such other franchise provides no basis for additional investigation.

    (4)    Evidence that applicant is technically qualified to construct, operate and repair the proposed facility.  At a minimum, the applicant must show that it has experience or resources to ensure that work is to be performed adequately, and can respond to emergencies during and after construction is complete.

    (5)    Evidence that the applicant is legally qualified, including a demonstration that the applicant and any affiliate of applicant:

        a.    Is willing to comply with the provisions of this chapter and applicable laws, and to comply with such requirements of an OVS franchise as the city may lawfully require.

        b.     Has not had any cable system or OVS franchise validly revoked by the city within three (3) years preceding the submission of the application.

        c.     Has not had an application for an initial or renewal cable system franchise or OVS franchise to the city denied within three (3) years preceding the submission of the application.

        d.     Has not at any time during the ten (10) years preceding the submission of the application been convicted of fraud, racketeering, anticompetitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the city and the subscribers, or to substantially comply with its obligations.

        e.    Has the necessary authority under Missouri and federal law to operate an OVS, and must be certified by the FCC under Section 653 of the cable act.

        f.    Has not filed materially misleading information in its application or intentionally withheld information that the applicant lawfully is required to provide.

        g.    Has received necessary authorizations from state and federal authorities.

        h.    Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows city to conclude the applicant cannot be relied upon to comply with requirements of franchise, or provisions of this title.

        i.    Is willing to enter into a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or maintenance of its facilities, and has not entered into any agreement that would prevent it from doing so.

    (6)    Information showing that the applicant will provide adequate channels, facilities and other support for public, educational and government use of the OVS.

    (7)    An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.

    (c)    Filing and fee requirement.  All applications must comply with the filing and application fee requirements of Sections 10-18 and 10-19. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

    (d)    Additional information.  The city may request such additional information as it deems appropriate.  An applicant shall respond to requests for information completely, and within the time directed by the city, and must strictly comply with procedures, instructions, and requirements the city may establish.  

    (e)    Incomplete applications.  An application may be rejected if it is incomplete or if the response to a request for information is not timely and complete.  

Sec. 10-233.  Evaluation and grant of franchise.   

    (a)    Evaluation.  In evaluating a franchise application, the city may consider the following:

    (1)    The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing city OVS franchise;

    (2)    Whether the applicant has the financial, technical, and legal qualifications to hold an OVS franchise;

    (3)    Whether the applicant will provide adequate public, educational, and governmental use capacity, facilities, or financial support (including institutional networks); and

    (4)    Whether issuance of a franchise would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way.

    (b)    Grant of franchise.  Before deciding whether or not to grant a franchise, the city may hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. If the city finds that it is in the public interest to grant a franchise considering the factors above, and such other matters as it is required or entitled to consider, the city may negotiate a franchise agreement with the applicant.

Secs. 10-234 –  10-243.  Reserved.


DIVISION 2.  TRANSFERS

Sec. 10-244.  City approval of transfer required.

    No transfer shall occur without prior written notice to and approval of the city.  

Sec. 10-245.  Application for transfer approval.

    (a)    Notice.  A franchisee shall promptly notify the city of any proposed transfer, and submit an application for its approval.

    (b)    Information required.  The city manager may specify information that must be provided in connection with a transfer application.  At a minimum, an application must: describe the entities involved in the transaction and the entity that will hold the franchise; describe the chain of ownership before and after the proposed transaction; show that the entity that will hold the franchise will be legally, financially, and technically qualified to do so; attach complete information on the proposed transaction, including the contracts and all other documents that relate to the proposed transaction and attach  any shareholder reports or filings with the Securities and Exchange Commission ("SEC") that discuss the transaction.    

    (c)    Information requests.  For the purposes of determining whether it shall consent to a transfer, the city or its agents may inquire into all qualifications of the prospective transferee and such other matters as the city may deem necessary to determine whether the transfer is in the public interest and should be approved, denied, or conditioned.   If the transferee or franchisee refuse to provide information, or provide incomplete information, the request for transfer may be denied.

Sec. 10-246.  Determination by the city.

    (a)    Considerations.  In deciding whether a transfer application should be granted, denied or granted subject to conditions, the city may consider the legal, financial, and technical qualifications of the transferee to operate the OVS; whether the incumbent OVS operator is in compliance with its OVS agreement and this chapter and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other OVS or cable system in the city, and whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the city; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the public, or  the city’ s interest under this chapter, the OVS agreement, or other applicable law.

    (b)    Requirements.  In order to obtain approval of a transfer, an applicant must show, at a minimum, that: the transferee is qualified; the transfer will not adversely affect the interests of subscribers, the public, or the city; and that non-compliance issues have been resolved.  No application shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee for all purposes.  The proposed transferee shall pay all reasonable costs incurred by the city in reviewing and evaluating the applications.

Secs. 10-247 –  10-252.  Reserved.  


DIVISION 3.  FEE IN LIEU OF FRANCHISE FEE

Sec. 10-253.  Fee in lieu of franchise fee.

    (a)    OVS operators.  In lieu of the franchise fee required by Article II, an OVS franchisee shall pay a fee of three percent (3%) of the gross revenues of the franchisee, its affiliates or any OVS operator of the OVS.  The city reserves the right to increase the amount of the franchise fee up to the maximum amount permitted by law.

    (b)    Persons leasing OVS capacity.  

    (1)    A person leasing capacity from an OVS operator, other than a person whose revenues are included in the payment made under this section shall pay the city a fee in lieu of the franchise fee required by Article II of three percent (3%) of the gross revenues of such person.

    (2)    Notwithstanding the foregoing, where franchisee charges a person, other than an affiliate, to use its OVS (the “use payments”); and that person recovers those use payments through charges to its subscribers that are included in that person’ s gross revenues; and that person fully recovers the use payments through the charges to its subscribers and pays a fee on those charges pursuant to this section; then franchisee may deduct from its gross revenues the use payments it receives from that person.

Secs. 10-254 –  10-258.  Reserved.


DIVISION 4.  MINIMUM REQUIREMENTS

Sec. 10-259.  PEG access.   

    No OVS operator shall be granted a franchise, or may begin construction of an OVS system, until it agrees to abide by the PEG obligations imposed on cable communications system operators under this chapter.

Sec. 10-260.  Institutional network.  

    Any OVS operator that constructs an institutional network must match in all respects the institutional network obligations imposed on cable communications system operators under this chapter.

Sec. 10-261.   Construction provisions.   

    Every OVS agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the OVS.  The schedule shall provide for prompt completion of the project, considering the amount and type of construction required.

Sec. 10-262.   Testing.   

    Each OVS operator shall perform at its expense such tests as may be necessary to show whether or not the franchisee is in compliance with its obligations under this chapter or a franchise.

Sec. 10-263.  Consumer protection provisions.  

    Every franchisee must satisfy customer service and consumer protection requirements established from time to time under state or local law and applicable to OVS.

Secs. 10-264 –  10-273.  Reserved.


DIVISION 5.  MISCELLANEOUS

Sec. 10-274.  Special termination rules.  

    If a franchisee’ s FCC certification is revoked or otherwise terminates as a result of the passage of time or as a matter of law, the city may revoke the OVS franchise after a hearing. The OVS franchise may also be revoked if federal regulations or statutory provisions governing OVS are declared invalid or unenforceable, or are repealed.  

Sec. 10-275.  Rate regulation.  

    The city reserves the right to regulate a franchisee's rates and charges to the extent permitted by federal law.

Sec. 10-276.  No exclusive contracts.   

    A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service, nor may a franchisee enter into any arrangement that would effectively prevent other persons from using the OVS to compete in the delivery of cable services with a franchisee or its affiliates.

Secs. 10-277 –  10-291.  Reserved.


ARTICLE IV  MISCELLANEOUS

Sec. 10-292.  Connections to cable system; use of antennas.

    (a)    Subscriber right to attach.  To the extent consistent with federal law, subscribers shall have the right to attach receivers and other terminal equipment to a franchisee's cable system.  Subscribers also shall have the right to use their own remote control devices and converters, and other similar equipment.

    (b)    Removal of existing antennas.  A franchisee shall not, as a condition of providing service, require a subscriber or potential subscriber to remove any existing antenna, or disconnect an antenna except at the express direction of the subscriber or potential subscriber, or prohibit installation of a new antenna, provided that such antenna is connected with an appropriate device and complies with applicable law.

    SECTION 3.    Chapter 10 as it read immediately before passage of this ordinance shall continue to apply to both cable television companies currently holding franchises during the terms of their existing franchises and any extension of the existing franchises.  Chapter 10 as enacted by this ordinance, and any future amendments to Chapter 10, shall apply to a current cable television franchisee when a new franchise agreement with that franchisee takes effect as well as to any new or additional cable franchisee that may be granted a franchise after the passage of this ordinance.

    SECTION 4.    This ordinance shall be in full force and effect from and after its passage.  

    PASSED this 6th day of March, 2006.