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HomeMy WebLinkAbout1992-1943 - Ordinance - 02/13/1992ORDINANCE NO. 1943 AN ORDINANCE ADOPTING NEW COMPREHENSIVE REGULATORY PRACTICES FOR MULTI-CHANNEL SERVICE PROVIDERS INCLUDING THOSE PROVIDERS KNOWN AS CABLE OPERATORS, AND INCLUDING PROVISIONS FOR INSURANCE, REPORTS AND RECORDS, CONSUMER PRACTICES, CONSUMER PROTECTION MEASURES, CONSTRUCTION AND CONSTRUCTION- RELATED PRACTICES, FRANCHISE FEES AND ALTERNATIVE USER CHARGES, OPERATION PROCEDURES, AND HEALTH, SAFETY, AND WELFARE MEASURES~ PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of College Station City Council finds that the health, safety, and welfare of the citizens of College Station, Texas requires that a comprehensive ordinance be adopted which establishes a regulatory framework applicable to the provision of all multi-channel service providers within its territorial jurisdiction~ NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL FOR THE CITY OF COLLEGE STATION, TEXAS. SECTION 1. Section 12 Title. This ordinance may be known and cited as the Multi-Channel Service Providers Regulatory Ordinance for the City of College Station, Texas. Section 2~ Construction. This ordinance shall be construed in light of applicable Federal and State laws and regulations governing multi- channel service practices which specifically includes cable television. Section 3~ Scope. This ordinance shall be effective within the geographical limits of the City, including any areas subsequently annexed by the City. Section 4~ Severability. If any word phrase, sentence, part, section, subsection, or other portion of this ordinance, or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this ordinance, and all applications thereof, not having been declared void, Ordinance #1943 Page 2 unconstitutional, or invalid, shall remain in full force and effect. The Council/franchising authority declares that no invalid or proscribed provision or application was an inducement to this ordinance, and that it would have enacted this ordinance regardless of the invalid or proscribed provision or application. Section 5~ Definitions. (1) "A/B switch" or "Input selector switch" means any device that enables a viewer to select between any video source (including any type a multi-channel service) or any ancillary equipment. Such a device may be more sophisticated than a mere two-sided switch, may utilize other multi-channel system interface equipment, and may be built into television receivers. (2) "Access channel" or means a government, education, or public channel which is carried on a multi-channel system, but which is not part of any institutional network. (3) "Activated channel" has the same meaning as defined by Federal or State law if such a definition is permitted. (4) "Abandoned calls" mean telephone calls that are connected to an MCS provider's general information number, but the caller hangs up without being attended by a representative of the MCS provider, or by a device capable of problem resolution. (5) "Alternative user charge" means a charge used in place of a franchise fee that the Council requires as payment for the privilege of using the streets, easements, public ways, or rights-of-way of the City in order to construct, maintain, and operate a multi-channel system. An alternative user fee is not based on an MCS provider's gross annual revenues (as is the case in a franchise fee), but rather is based on the value of the City property that an MCS provider is using to construct, maintain, and operate its multi-channel system. (6) "Annual gross revenues" means any and all compensation which is derived from the operation of the MCS system, and which is attributable to the subscribers or customers within the City. Further, "annual gross revenues" means any, and all, compensation, in whatever form (except as exempted by this definition), exchange or otherwise derived from all multi-channel services, MCS operations, and MCS-related activities within the City including, but not limited to~ revenues from Ordinance #1943 Page 3 (7) (8) subscriber rates~ bulk billing rates~ menu-driven cable~ pay-per-view events or channels~ premium channels~ service tiers~ service clusters~ institutional networks~ advertising~ installations~ rebates or commissions received from travel or home shopping services~ infomercial channels~ or commercial access. Also, unless prohibited or pre-empted by either Federal or State law, "annual gross revenues" shall mean any, and all, compensation from all ancillary multi-channel services, MCS operations, and MCS-related activities within the City, including, but not limited to~ sale of MCS or MCS equipment~ revenues from advertising stuffers inserted into periodic billing statements or other notices~ revenues from 900 numbers or revenues from other interactive cable or informational services~ revenues from personal communications networks (PCNs)~ rental or sale of video discs~ rental or sale of video cassettes~ rental or sale of descrambling converters~ or other devices~ rental or sale of remote control devices (including those with volume control)~ rental or sale of a/b or input switches~ rental or sale of interactive games or software~ rental or sale of digital radio equipment~ sale of satellite antenna-received programming for a programmer or distributor of services~ or from revenues received as the billing agent, collector, or retailer of satellite antenna-received service. However, "annual gross revenues" does not mean, any taxes imposed and/or assessed by law on subscribers (including State sales taxes, but excluding any state or local franchise fees) which an MCS provider is obligated to collect and pay in full to the applicable authorities. "Applicant" means a person submitting an application or proposal to the City for a license or franchise to operate a multi-channel system under the terms and conditions set forth in this ordinance, and any State regulations. "Application" or "Proposal" are synonymous for the purposes of this ordinance. An "application" or "proposal" means the process by which the applicant submits a request and indicates a desire to be granted a license or franchise for all, or a part, of the City. An "application" or "proposal" includes all written documentation, and verbal statements and representations, in whatever form or forum, mede by an applicant to the Council/franchising authority concerning the construction, rendering of services, maintenance, or any other matter pertaining to the proposed multi-channel system. Ordinance #1943 Page 4 (9) (10) (11) (12) (13) (14) "Assignment of a franchised MCS provider's franchise" or "Transfer of a franchised MCS provider's franchise" means any transaction or action which effectively or actually changes operational or managerial control from one person or entity to another. "Auxiliary equipment" means equipment supplied by the MCS provider (such as a converter, remote control unit, or input selector switch), which enhances or assists in the reception or provision of multi-channel service. "Basic cable television service" means any service tier which includes the retransmission of local television broadcast signals. "Cable Act" or "CCPA" means the Cable Communications Policy Act of 1984, as amended. "Cable channel" or "Cable television channel" means a portion of the electromagnetic or light frequency spectrum which is capable of delivering a television channel (as "television channel" is defined by the FCC regulation). "Cable operator" or "operator" means any person or group of persons who~ a) b) provides cable television service over a cable system and directly or through one (1) or more affiliates owns a significant interest in such cable system; or otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system. (15) "Cable service" means~ (16) (a) the one-way transmission to subscribers of video programming, or other programming service; and (b) subscriber interaction, if any, which is required for the selection of such video programming service. "Cable system" or "Cable television system" means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video, voice or data programming, and which is provided to multiple subscribers within the City. However, such terms do not include the following: Ordinance #1943 Page 5 (a) a facility that serves only to retransmit the television signals of one (1) or more broadcast stations~ or (b) a facility that serves only subscribers in one (1) or more multiple unit dwellings under common ownership, control, or management unless such facility or facilities uses any public rights-of- way~ or (c) a facility or a co~unon carrier which is subject, in whole, or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered a cable system (other than for purposes of Section 621(c) of the CCPA -- codified at 47 USC 541) to the extent such facility is used in the transmission of video, voice, or data progranuuing or service directly to subscribers or~ (d) any facilities of any electric utility used solely for operating its electric utility. (17) "Charge" means a one-time or non-regularly occurring cost paid by the subscriber, and which is associated with the installation, maintenance, service, or repair of the multi-channel service. Specifically, a "charge" includes, but is not limited to~ disconnection fees~ downgrade charges~ costs for closed-captioned devices and equipment, remote control devices and equipment for hearing-impaired customers~ installation charges for video camera recorders and playersl installation charges for digital radio~ and trip or service call charges. (18) "City" means the City of College Station, Texas or its lawful successor. (19 - 24) RESERVED. (25) "Collection charge" means a charge or fee imposed on a customer by an MCS provider for such provider's efforts at collecting, or attempting to collect, a past due account. (26) "Commercially impracticable" means with respect to any requirement applicable to an MCS provider, that it is commercially impracticable for such an MCS provider to comply with such requirement as a result of a change in conditions which is beyond the control of such an MCS provider, and the non-occurrence of which, was the basic assumption on which the requirement was based. (27) "Converter" means any electric, electronic, or other device, separate and apart from the subscriber's receiver that is capable of converting or changing signals to a frequency not intended to be susceptible Ordinance #1943 Page 6 (28) (29) (3O) (31) (32) (33) (34) (35) to interference within the television, video, or data receiver of a subscriber, and by an appropriate channel or other type of selector may also permit a subscriber to view or otherwise use signals delivered at designated dial locations, or such other reception and use allocations as may be applicable and required for the practical use of the signal. "Council" or "Council/franchising authority" means the City Council for the City of College Station, Texas or its lawful successor, which is the lawful legislative body for the City. "Customer" means a subscriber, or user of the services and/or facilities of the multi-channel system provided by an MCS provider. "Data Channel" or "Information Channel" means the use of the electro magnetic or light spectrum for the purpose of transporting data or non video programming. "Decoder" or "Descrambler" means a device which enables a subscriber to convert a scrambled signal into a viewable or otherwise useable signal. "Disaster emergency" or "Disaster" or "Emergency" means an imminent, impending, or actual natural or humanly induced situation wherein the health, safety, or welfare of the residents of the City is threatened. A "disaster emergency" (by illustration) may include a sudden or expected insect infestation (such as with locusts or bees), snowstorm, flood, hail storm, tornado, severe thunderstorm, hazardous waste infiltration, fire, petroleum, munitions, or nuclear explosion, or aircraft crash. "Drop" means a small branch of cable, or other transmitting medium which connects the terminals on the back of the subscriber's receiver to the feeder cable or future technical equivalent on the street, easement, rights-of-way, or public way. Easement" means and shall include any public easement or other compatible use created by dedication, or by other means, to the City for public utility purposes or any other purpose whatsoever, including cable television, or any multi-channel service. "Easement" shall include a private easement used for the provision of cable service or any other multi-channel service. "FCC" or "Federal Communications Commission" means the Federal administrative agency, or lawful successor, authorized to oversee cable television and other multi- channel regulation on a national level. Ordinance #1943 Page 7 (36) (37) (38) (39) (40) (41) (42) (43) (44) "Fiber cable" or "Fiber optic cable" means very thin and pliable cylinders, or strands of glass or plastic, or any future developed technical equivalent, used to carry wide bands of multiple frequencies. "Franchise" means the initial authorization, or subsequent renewal granted by the Council/franchising authority in order for a person to construct, operate, and maintain a franchised MCS system in all, or part, of the City. "Franchised MCS provider" means a person that is awarded a franchise by the Council/franchising authority to construct and operate a franchised multi- channel system, within all, or part, of the City. The term "franchised MCS provider" specifically includes the term "cable operator". "Franchise expiration" means the date of expiration, or the end of the term of a franchised MCS provider, as provided under a franchise agreement. "Franchise fee" means a fee or charge that the City requires as payment for the privilege of using the streets, rights-of-way, public ways, and easements of the City in order to construct, maintain, and operate a franchised MCS system. "Franchising authority" or "Council/franchising authority means the City Council for the City of College Station, Texas. This definition specifically includes the situation wherein the Council in its franchising authority capacity grants a franchise, or renews a franchise, or approves a franchise transfer by an applicant for an MCS franchise, or a franchised MCS provider. "Headend" means the electronic control center, where incoming signals, including those of television broadcast stations are amplified, modulated, filtered, converted, or in any way processed or converted for redistribution to subscribers. "Hub" means the satellite or remote receiving, processing and/or transmitting facility, enabling the signal to be extended beyond the physical/electronic capabilities of the multi-channel electronics and/or to serve as a remote switching facility. "Late charge" means a charge which is added to a subscriber's account or bill for non-payment of a previously due and delinquent account. Ordinance #1943 Page 8 (45 54) RESERVED. (55) "Mayor" means the Mayor for the City of College Station, Texas (56) (57) "MCS" means multi-channel service. "MCS provider" or "Multi-channel service provider" means any person or group of persons who: (a) provides multi-channel communications service over a multi-channel system and directly or indirectly owns a significant interest in such multi-channel system~ or (b) who otherwise controls or is responsible through any arrangement, the management and operation of such a multi-channel system. (58) (59) The term "MCS provider" or "multi-channel service provider" specifically includes the terms "cable operator", "MDS provider" or "multi-point distribution system provider", "MMDS provider", personal communications network system provider (where applicable), and "SMATV operator." "MDS" means multi-point distribution system. "MDS provider" or "Multi-point distribution system provider" means any person or group of persons who is authorized by the FCC, within frequency boundaries established by the FCC, to transmit specialized multi- channel programming or data or facsimile transmission to subscriber-selected locations. (60) "Menu-driven" or "menu-driven cable" or "menu-driven program/service" means the process whereby the MCS provider offers multi-channel services via the multi- channel system in a format that allows the subscriber to select and be charged for multi-channel services on either a per channel, per program, or per event basis. Menu-driven cable allows the subscriber to create his or her own service tier(s) or cluster(s), and the opportunity to change the composition of his or her tier(s) or cluster(s) on a periodic basis. (61) "Multi-channel programming service" or "Multi-channel service" means~ (a) means the one-way transmission to subscribers of video programming, or other programming service; and (b) subscriber interaction, if any, which is required for the selection of such %ideo programming or other progranuaing service. Ordinance #1943 Page 9 (62) "Multi-channel system" means (a) facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment~ or (b) a facility consisting of infa-red transmission or point-to-point transmission (as permitted by law)~ or (c) any functional equivalent - - that is designed to provide multi-channel service which includes video voice or data programing and which is provided to multiple subscriber within the City. However, such term does not include the following~ (a) a facility that services only to re-transmitt the television signals of one (1) or more broadcast stations~ or (b) a facility that serves only subscribers and one (1) or more multi-unit dwellings under conanon ownership, control, or management unless such facility or facilities uses any public rights-of- way, or (c) a facility or common carrier which is subject, in whole, or in part, to the provision of title II of the Coaanunication Act of 1934 except that such facility shall be considered a multi-channel system (other than for purposes of Section 621 (c) of the CCPA - - codified at 47 USC 541) to the extent such facility is used in the transmission of video, voice, or data programming or service directly to subscriber or~ (d) any facilities of any electric utility used solely for operating its electric utility. (63) "Ordinance" means the Multi-Channel Service Providers Regulatory Ordinance for the City of College Station, Texas. (64) "Other programming service" means information that an MCS provider (specifically including a cable operator) makes available to all subscribers generally. (65 - 70) RESERVED. (71) "Pay-per-view" or "Premium channel" means the delivery over the multi-channel system of audio and/or video signals in an unintelligible form to subscribers for a fee or charge (over and above the charge for standard or basic service) on a per program, or per channel basis where said unintelligible or unusable form for viewing is mede intelligible only to subscribers paying a separate fee or charge for the viewing or use of the signals. Ordinance #1943 Page 10 (72) "Person" means any individual, corporation, business trust, estate, trust, partnership, association of two (2) or more persons having a joint common interest, governmental agency, or other legal entity, including the City. (73) "Private communications network", or "PCN", or "Private conununications system" means any ancillary or aligned component of an MCS provider's system consisting of communications lines, cables, equipment or facilities which are used to provide telecommunications service that in any manner uses or occupies the streets, easements, public ways, or rights-of-way within the City (as annexed). However, "private communications network" does not include any part of a State or FCC licensed local government local exchange telephone company, or any part of a Federal, State, County, or local government owned telecommunications system. (74) "Proposed abandonment of multi-channel service" or "Proposed withdrawal of multi-channel s~rvice" or "Proposed cessation of multi-channel service" means the anticipated, contemplated, imminent, or expected (either voluntary or involuntary) disruption, discontinuance, desertion, or removal of an MCS provider's operation and provision of multi-channel service from all, or part, of the City. (75) "Public, educational or governmental access facilities" means~ a) b) Channel capacity designated exclusively for public, educational or governmental use~ and facilities and equipment for the use of such channel capacity. (76) "Rate" means the periodic price paid for the receipt of any multi-channel service provided by an MCS provider. (77) "Revocation," "Termination," or "Non-renewal," means an official act by the City whereby the Council/ franchising authority removes, repeals, or rescinds previously approved authorization for a licensed or franchised MCS provider to conduct the running of a multi-channel system within the City. (78 - 84) RESERVED. Ordinance #1943 Page 11 (85) (86) (87) (88) (89) (90) (92) (93) "Service cluster" means the grouping, aligning, or packaging of one (1) or more multi-channel programming services by category (such as sports and/or news), or by rate, or by some other identifiable method, and charging a separate price or rate for each service cluster. "Service outage" for purposes of credit means the loss of picture or sound on all basic subscriber channels, or one (1) or more auxiliary programming channels (including tiers and clusters). For purposes of response to a service call a "service outage" means a loss of a picture or sound or other informational service provided by an MCS provider. Both of these situation assumes the outage is not caused by the failure or melfunction of a subscriber's television receiver or by the error misfeasance or melfeasance of the subscriber. "Service tier" means a category of multi-channel service or other programming service provided by an MCS provider, and for which a separate rate is charged by an MCS provider. "SMATV" means Satellite Master Antenna Television. "SMATV operator" or Television operator" persons who~ "Satellite Master Antenna means any person or group of a) b) provides multi-channel service over an SMATV system; or otherwise controls or is responsible for, through any arrangement, the management of an SMATV system. "SMATV system" means a private multi-channel system not crossing any public rights-of-way and which is located on private property, and serving private dwellings. "State" means the State of Texas. "Street" or "Public Way" means the surface of, and the space above and below a public street, road, highway, freeway, land, path, public way or place, alley, court, boulevard, parkway, drive, or other easement now or hereafter held by the City (including any street, as defined, which is acquired by eminent domain) for the purpose of public travel and shall include other easements or rights-of-way now or hereafter held by the City (including any easements or rights-of-way acquired by eminent domain) which shall, with their proper use Ordinance #1943 Page 12 (94) and meaning, entitle the City and MCS provider to use thereof for the purpose of installing or transmitting multi-channel system transmissions over poles, wires, cable, conductors, ducts, conduits, viaducts, manholes, amplifiers, appliances, attachments, and other property as may ordinarily be necessary and pertinent to a multi-channel system. "Subscriber" means a person lawfully receiving multi- channel service delivered by the MCS provider. (95) "USC" means United States Code. (96) "User" means a person or organization utilizing a multi-channel system and/or its equipment for purposes of production and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity. (97) "Video programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. Section 6: Statement of Intent. A) The Council recognizes the United States Congress' intent in approving the CCPA (expressed in Section 601 -- codified at 47 USC 521). As such, the Council reaffirms and adopts those principles and ideals as part of the City's intent with respect to cable television and expands its intent (where applicable) to cover all MCS providers. B) As expressed by Congress, and adopted by the Council, its intent is as follows: 1) ~) 4) establish a local policy concerning communications and technologies~ establish franchise procedures and standards which encourage the growth and development of cable systems which assure that cable systems are responsive to the needs and interests of the City~ establish guidelines for the exercise of local authority with respect to the regulation of cable systems~ assure that cable communications provide, and are encouraged to provide, the widest diversity of information and services to the public~ Ordinance #1943 Page 13 c) 5) 6) establish an orderly process for franchise renewal which protects cable operators against unfair denials of renewal where an operator's past performance and proposal for future performance meet the standards set by the CCPA, and this ordinance; and promote competition in cable communications and minimize unnecessary regulation that would impose an undue economic burden on cable systems. In addition to principles and ideals listed in subsection (B), the Council also expresses that its intent covers the followings 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) to create a set of regulations, standards, and procedures for MCS providers; to create a comprehensive customer service and consumer protection policy for MCS providers; to provide for access and inspection of an MCS provider's books and records in order to monitor compliance of local, State, and Federal laws, and any franchise agreement (if one has been granted); to create a thorough construction and installation policy for an MCS provider's system; to provide for the health, safety, and welfare of the citizens of the City in light of the MCS provider's construction, operation, and maintenance; to provide for emergency override capability, so that citizens of the City may be warned of a potential, imminent, actual disaster or emergency situation that exists in the area; to provide for the introduction and installation of safety alert technology in order to notify both subscribers and non-subscribers of imminent disaster emergencies; to create a thorough procedure for collecting and monitoring franchise fees and alternative user charges; to create a viable alternative to franchise fees in case such fees, or their collection, are ruled invalid, unenforceable, or unconstitutional; to create a thorough default and revocation procedure for licensed and franchised MCS providers; to provide for continuity of services in the event of City acquisition, abandonment, withdrawal, cessation of service, revocation, termination, non-renewal, or expiration of an MC$ provider; and to create a performance review procedure in order to assist the City in its periodic evaluation of a franchised MCS provider's performance; and Ordinance #1943 Page 14 13) To create procedures for~ the evaluation and grant of MCS provider applications for authorization~ the identification of multi-channel service related to community needs~ and the establishment and enforcement of rules and regulations of MCS providers consistent with the identified needs of the community. D) Further, the Council recognizes that with respect to cable operators, the Council's power to adopt regulations is, in part, authorized under the Cable Act, as well as the Council's police powers, due to the potential for physical scarcity and public disruption when cable either occupies or uses the public rights- of-way. Section 7~ Administration~ Delegation of Powers and Authority. A) The Council/franchising authority is hereby designated the officer of the City which is responsible for the continuing administration of this ordinance. B) Unless prohibited by federal or State law, the Council/ franchising authority may delegate its powers and authorities with respect to administering either an MCS provider or a franchise agreement, to a duly authorized representative of the City, including the Mayor, the City Manager, a City Cable Advisory Committee. c) However, the Council/franchising authority may never delegate its franchising or revocation power to another person. Section 8~ Applicability of this Ordinance to an MCS Provider. A) Unless exempted entirely from this ordinance, or exempted under one (1) or more provisions of this ordinance, or granted relief (by the Council/ franchising authority) from one (1) or more provisions and/or requirements of this ordinance, then this ordinance shall be applicable to an MCS provider, and this ordinance shall have full effect and be enforceable in its entirety. Moreover, a non-exempt MCS provider shall be expected to comply with this ordinance no later than nine (9) months after this ordinance becomes effective, except where a different compliance date is given or noted (including a different date noted in an applicable franchise agreement). Ordinance #1943 Page 15 B) Subsection A is not intended to repeal, and does not have the effect of repealing any current franchising ordinance that presently exist between the Council/ franchising authority and a franchised MCS provider. As a result of subsection B of this section, the provisions of this ordinance shall have no effect on an existing franchise ordinance until the expiration of said existing franchise, or until one of the following events occurs~ Prior to the expiration of the franchise, the Council/franchising authority and the affected MCS provider either execute an amended franchise or renewal franchise in which both parties agree to be bound by the terms of the ordinance or to the expiration of said existing franchise. Section 9~ Exemption from this Ordinance for Certain MCS Providers. A) B) Recognizing the inherent technological differences between various types of MCS providers, and taking into account a number of financial, operational, and maintenance considerations, the Council/franchising authority exempts certain MCS providers from complying with the provisions contained in this ordinance. MCS providers who are exempted from complying with the provisions of this ordinance are as follows~ 1) 2) an MCS provider who is exempted from this ordinance as a result of an applicable FCC ruling; or an MCS provider who is exempted from this ordinance as a result of an applicable judicial ruling. c) It is expressly understood that an exempted MCS provider remains exempted only as long as it meets one (1) or more of the specifications of this particular section. D) It also is expressly noted that the extent of the exemption for a qualified MCS provider is only for this ordinance. Consequently, such an exempted MCS provider is expected to abide by, and comply with, any other applicable City, State, or Federal laws and regulations, including any applicable federal, or State consumer protection, or customer service laws and regulations. Ordinance #1943 Page 16 Section 10~ Non-Exempt MCS Providers Seeking Relief this Ordinance. A) B) from Any MCS provider affected by this ordinance may file a written petition, at any time, with the Council/ franchising authority seeking relief from one (1) or more provisions of this ordinance. The relief requested may specifically include the delay in implementation (as to the petitioning MCS provider only) of one (1) or more provisions of this ordinance. In order to receive any relief from one (1) or more of the provisions of this ordinance, a non-exempt MCS provider must satisfactorily demonstrate to the Council/franchising authority that at least one (1) of the following facts exist~ the provision and/or requirement is expressly prohibited by Federal law, the FCC, or State law~ 1) 2) or where applicable, that the provision in question materially affects, and is in conflict with an expressed right that is specifically noted in an existing franchise agreement (but only for the term of the existing franchise)--(this provision covers situations where an MCS provider known as a cable operator seeks, and is granted, modification of an existing franchise agreement under Section 625 of the CCPA (codified at 47 USC 545))} or 3) that the imposition of such provisions and/or requirements will create such an undue economic hardship on an MCS provider so as to imperil or eliminate an MCS provider's ability to provide multi-channel service to a majority of current subscribers} or 4) that one (1) or mere time frames listed in this ordinance are either impossible to meet, or impractical to meet in light of the MCS provider's operational policyl or 5) that the MCS provider has its own construction, maintenance, operationv or customer service policy, which the Council/franchising authority deems comparable to, or exceeding, any provision and/or requirement from which the MCS provider seeks relief. c) The Council/franchising authority shall have the responsibility of determining whether an MCS provider's construction, maintenance, operation, or customer service policy, is comparable to, or exceeds, a similar provision in this ordinance. Note well, however, that the Council/franchising authority may delegate investigative and reporting functions to an authorized representative of the City. Ordinance #1943 Page 17 D) As an alternative to seeking an exemption, or requesting relief, an MCS provider may submit a written request or petition for clarification on the precise intent and effect that one (1) or more provisions or sections of this ordinance has on the petitioning MCS provider. E) In accordance with this ordinance, the Council/ franchising authority may charge the petitioning MCS provider with the actual costs for processing such a petition, including any costs incurred by outside consultants who are retained by the City to review an MCS provider's petition. F) In those instances where the Council/franchising authority grants an exemption or relief to a franchised MCS provider, or deems a franchised MCS provider's operational policy to be comparable to an ordinance provision, then the franchise agreement (initial, existing, or renewal) shall be amended within thirty (30) days to reflect the exact extent of such exemption and/or relief. It should be specifically noted that the benefit of such exemption, relief, clarification, or comparable policy extends only to the MCS provider granted such exemption, relief, clarification, or comparable policy. Section 11~ Failure of the Council/Franchising Authority to Enforce this Ordinance. A non-exempt MCS provider shall not be excused from complying with any of the requirements of this ordinance, or any subsequently adopted amendments to this ordinance, by any failure of the Council/franchising authority on any one (1) or more occasions to seek, or insist upon, compliance with such requirements or provisions. Section 12~ MCS Providers or their Assignees Subject to Present and Future Ordinances. A) Any non-exempt MCS provider, its assignee, or transferee shall be subject to, and expected to comply with, all ordinances now or hereafter adopted and in effect within the City, including this ordinance, to the extent that said MCS provider has not received an exemption or relief from said ordinance(s). B) Any non-exempt MCS provider, its assignee, or transferee shall be subject to, and expected to comply with, all Federal and State Laws, and with all rules issued by all applicable regulatory agencies now or hereafter in existence. Ordinance #1943 Page 18 c) D) Any non-exempt MCS provider, its assignee, or transferee shall be subject to all lawful exercise of the City's police power. with respect to future ordinances noted in this Section, nothing contained herein prevents an MCS provider from exercising any, and all, of its administrative, and legal rights as to challenging the constitutionality, applicability, and enforceability of said future ordinances. Section 13= Repeal of Prior Inconsistent Resolutions and Ordinances. To the extent that there is any prior resolution or ordinance which in part, or in whole, is directly inconsistent with this ordinance, such part, or such whole, of the prior resolution or ordinance shall be repealed to the extent of the inconsistency. Section 142 Resolution of Inconsistencies with Federal or State Rules, Regulations or Laws. A) In any case of an actual inconsistency between any provision or section of this ordinance, and any provision or section of a Federal or State rule, regulation, or law, then the Federal or State rule, regulation, or law shall not only supersede the effect of the ordinance, but also control in any local application. B) The above subsection specifically includes any situation wherein an applicable Federal or State judicial decision creates an actual inconsistency with any provision or section of this ordinance. In such a situation, the Federal or State judicial decision shall not only supersede the effect of the ordinance, but also control in any local application. Section 15~ Resolution of Conflicts Between this Ordinance and an Existing Franchise Agreement. A) Where there is a conflict (actual or apparent) between this ordinance granted after the date of enactment of this ordinance and an existing and applicable franchise agreement, the ordinance shall control, and prevail, unless administratively, or judicially determined invalid, unenforceable, or unconstitutional. In the case where a franchised MCS provider receives an exemption, relief, clarification from one (1) or more provisions or Section of this ordinance, or has one (1) or more of its policies deemed comparable to a provision contained in this ordinance, then the Ordinance #1943 Page 19 franchise agreement should specifically note such exemption, relief, clarification, or comparable policy, and to the extent that such an exemption, relief, clarification, or comparable policy is inconsistent with a provision contained in this ordinance, then the specifically noted exemption, relief, clarification, or comparable policy language contained in the franchise agreement shall control. Section 16~ Criminal Penalties. A) Any violation or failure to abide by, and comply with, any provision or requirement of this ordinance shall be a violation of City Ordinance, and shall be punished as a Class C Misdemeanor, subject to a fine up to $500.00 per occurrence, unless otherwise provided by State law. B) Each day upon which there exists a violation of this ordinance, or a failure to abide by, or comply with, any provision or requirement of this ordinance, shall constitute a separate occurrence, and may subject the MCS provider to separate criminal penalties. Section 17~ Civil Penalties. A) Civil penalties may be imposed for the violation of any provision of this ordinance, as follows~ 1) 2) up to two hundred dollars ($200.00) for each violation, and each day of a continuing violation may be considered, a new violation~ and/or if applicable, default and revocation of a franchise granted pursuant to this ordinance, subject however, to the procedural guidelines noted in this ordinance, and further subject to any limitations imposed by Federal or State law. B) Monetary civil penalties may be imposed in the manner prescribed by either local or State law. Section 18~ The Council/Franchising Authority's Retained Rights and Authorities. A) Subject to pre-emption by, or other approval authority of, the FCC or any other Federal or State governmental entity or agency, and to the extent permitted by any applicable law, the Council/franchising authority retains the authority to provide for~ l) 2) the regulation and control of any multi-channel system within the geographical limits of City~ the award and grant of an MCS franchise (where required) subsequent to review of an application or proposal by the Council/franchising authority~ Ordinance #1943 Page 20 4) the periodic review and/or amendment or repeal of all, or part, of this ordinance~ and if mutually agreed to with a franchised MCS provider, the periodic review and/or amendment of any existing franchise agreement. B) The Council/franchising authority, to the extent permitted by Section 623 of the CCPA (codified at 47 USC 543), retains the power to regulate or not to regulate rates or charges associated with the providing of multi-channel service classified as cable service by an MCS provider classified as a cable operator. c) Subject to pre-emption by, or other approval authority of, the FCC, or any other Federal or State governmental entity or agency, the Council/franchising authority retains the jurisdiction to enforce all laws and regulations relating to multi-channel customer service practices and consumer protection. D) If the FCC, Congress, or other governmental agency with authority over cable or any other MCS provider ever abrogates, deletes, removes, or otherwise disposes of rules or standards that are referenced in this ordinance, or relied upon by the Council/franchising authority for purposes of MCS provider compliance with this ordinance, then the Council/franchising authority may, to the extent not pre-empted by, or inconsistent with, later adopted law or regulations, re-instate such rules or standards. In such case, the re-instated rules will have the same weight (as allowed under prevailing law) as they had prior to their initial deletion. Section 19~ MCS Provider May Promulgate Rules. To the extent that they are consistent with the requirements and responsibilities detailed in this ordinance, an MCS provider is authorized to promulgate such rules and internal practices as shall be necessary to enable it to exercise its rights and perform its duties under this ordinance, the State, and the rules of any federal agency charged with the responsibility of regulating MCS providers. Section 20~ Notices. A) Both the Council/franchising authority and each non- exempt MCS provider shall provide the other party with the name and address of the contact person designated to receive notices, filings, reports, records, documents, and other correspondence. All notices shall be delivered to each party's contact person by certified mail, return receipt requested, personal service with a signed receipt of delivery, or overnight Ordinance #1943 Page 21 with receipt verification. Ail other filings, reports, records, documents, and other correspondence may be delivered by any permissible means including, but not limited to~ facsimile transmission ("faxing")~ personal via cable. The delivery of all notices, reports, records, and other correspondence shall be deemed to have occurred at the time of receipt (unless otherwise designated by State law). B) If the MCS provider is required to maintain a franchise, then the designation of such contact person for notice purposes, may be contained within a franchise agreement. Sections 21 -- 25. Reserved. Section 26~ Indemnity. A) To the extent permitted by law, a non-exempt MCS provider shall at all times defend, indemnify, protect, save harmless, and exempt the City, the Mayor, the City Manager, the Council/franchising authority, their officers, agents, servants, and employees from any, and all, penalty, damage, or charges arising out of claims, suits, demands, causes of action, or award of d~ges whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might be claimed now or in the future, which may arise out of, or be caused by workers' compensation, or by the construction, erection, location, products performance, operation, maintenance, repair, installation, replacement, removal or restoration of the multi- channel system within the City by a negligent act or omission of an MCS provider, its agents or employees, contractors, subcontractors, independent contractors, or implied or authorized representatives. With respect to the penalties, damages or charges referenced herein, attorneys' fees, consultants' fees, and expert witness fees are included as those costs which may be recovered by the Council/franchising authority. The City, Mayor, and the Council/franchising authority specifically reserve the right to retain counsel of their own choice, at their own expense. c) If an MCS provider obtains counsel for the City, the Mayor, or the Council/franchising authority, then any one of them shall have the right to approve counsel. D) Neither the City, the Mayor, nor the Council/ franchising authority shall unreasonably withhold its approval of counsel. Ordinance ~1943 Page 22 E) F) With respect to an MCS provider's own defense of such actions, noted in this Section, it is understood, that such.MCS ~rovider reserves the right to select and retain, without the Council/franchising authority's approval, counsel of the MCS provider's choice, at such provider's expense. Where arbitration is permitted in a franchise agreement, or agreed to in writing by the MCS provider and Council/franchising authority, the arbitration provisions shall specify to what extent costs are to be borne by either the Council/franchising authority, and the MCS provider. Section 27~ A) Liability Insurance. An MCS provider may by required to secure and maintain, for as long as it provides multi-channel service to subscribers, public liability, property damage insurance, and umbrella coverage in at least the following amounts~ 2) Public liabilityz $2,000,000.00 per person/per occurrence~ Property damagez $2,000,000.00 per any one (1) claim~ Umbrella liability~ $4,000,000.00 with up to a $50,000.00 deductible and/or base insurance. B) Note well, however, that insurance requirements should be consistent for MCS providers who offer multi-channel service to more than 10% of the residents within the City. Consequently, the Council/franchising authority may not impose more restrictive or burdensome insurance requirements on any other MCS providers who meet the above service thresholds. ¢) An MCS provider's public and personal liability and property damage insurance policy shall specifically include the City, the Mayor, the Council/franchising authority as additional insureds. D) The public and personal liability and property damage insurance policy shall be issued by an agent or representative of an insurance company licensed to do business in the State, and which has one (1) of the three highest or best ratings from the Alfred M. Best Company. E) Should the Council/franchising authority make a formal determination that due to the financial, operational, technical, or legal status (or lack thereof) or condition of the MCS provider, the above-referenced requirements for minimal insurance are inadequate, then Ordinance #1943 Page 23 the Council/franchising authority may require the MCS provider to obtain and maintain insurance for greater minimal amounts (up to, but not exceeding five million dollars ($5,000,000.00) for public liability, five million dollars ($5,000,000.00) for property damage, and ten million dollars ($10,000,000.00) for umbrella liability). F) The public liability and property damage insurance policy shall contain an endorsement obligating the insurance company to furnish the Council/franchising authority with at least thirty (30) days written notice in advance of the cancellation of the insurance. G) Renewal or replacement policies or certificates shall be delivered to the Council/franchising authority at least fifteen (15) days before the expiration of the insurance which such policies are to renew or replace. Before a multi-channel system provides multi-channel service to subscribers, the MCS provider shall deliver the policies or certificates representing the insurance to the Council/franchising authority, and each policy or certificate delivered shall be accompanied by evidence of payment of the premium thereon. I) If the State permits an MCS provider to self-insure, then the MCS provider may exercise its right to self- insure, so as long as the minimal amounts of insurance coverage outlined in this Section are met and maintained for the entire period of that the affected MCS provider is self-insured. However, for the reasons listed in subsection (D) of this Section, the Council/franchising authority may make a formal determination and require an increase in the minimal amounts of insurance coverage. Section 28~ Performance and Construction/Completion Bond. A) An MCS provider shall furnish to the Council/ franchising authority, in an amount totalling at least one hundred thousand dollars ($100,000.00), a performance bond or security bond executed by a surety licensed to do business in this State. The purpose of the performance bond is to ensure performance of any requirements imposed by this ordinance on an MCS provider. Further, the purpose is to guarantee that should the MCS provider not fulfill any obligations imposed by this ordinance (or where applicable a franchise agreement), then the surety will make whole (to the extent of the policy) any monetary losses incurred by the City. Ordinance #1943 Page 24 B) C) D) E) F) An MCS provider shall furnish to the Council/ franchising authority, a construction/completion bond prior to the time it commences a construction, upgrade, rebuild, or repair/maintenance project that has a capital construction cost or outlay exceeding fifty thousand dollars ($50,000.00) in value. The amount of the bond shall equal at least ninety percent (90%) of the projected capital construction cost or outlay. The construction/completion bond shall remain in force at all times, unless relief is granted or a reduction schedule is detailed in an agreement between the Council/franchising authority, and the MCS provider. The construction/completion bond or security bond shall specifically guarantee that an MCS provider will timely abide by its construction, upgrade, rebuild, or repair/maintenance schedule for the multi-channel system and/or any timetable for technical and service improvements or additions to the multi-channel system as may be committed to, or agreed upon, from time to time, by the Council/franchising authority and MCS provider. If the City draws on a performance or completion bond or cash deposit as a result of an MCS provider's failure to timely discharge its obligations, or failure to construct and activate the multi-channel system, or failure to complete a multi-channel system upgrade or rebuild or repair/maintenance, then the MCS provider shall be required, within thirty (30) days to replenish the completion and performance bond or security bond to the minimal level required by the Council/franchising authority. Should the Council/franchising authority make a formal determination that due to the MCS provider's past performance (such as a documented history of repeated or multiple franchise violations), or increased cost (greater than 50% of the original estimated cost), or documented untimeliness, or incompletion of projects listed in construction schedules, the Council/ franchising authority may raise the required amount of either the performance or the construction/completion bond. The performance bond or security bond, shall be in force at all times unless relief is granted or a reduction schedule is detailed in an agreement, between the MCS provider and the Council/franchising authority. Ordinance #1943 Page 25 G) In lieu of a performance bond, and construction/ completion bond, the Council/franchising authority may accept a written guarantee of an MCS provider pledging the full faith and credit of the affected MCS provider should there be a breach in a material franchise term, or failure to meet any construction schedule. Section 29z The Council/Franchising Authority's Policy With Respect to Reports and Records. A) The Council/franchising authority recognizes that advances in technology, and the adoption and application of multi-channel laws, rules, regulations, and court decisions may have a profound effect and impact on an MCS provider in any given year. B) Consequently, it is incumbent that the Council/ franchising authority take measures to reduce the risk that multi-channel service or the multi-channel system will be adversely affected in any given year. ¢) Therefore, the evaluation of legal, technical, financial, and character qualifications of an MCS provider is viewed as a constant undertaking on the part of the City. As a result, the Council/franchising authority requires that the operator maintain and retain all records and reports necessary for the Council/franchising authority to determ/ne compliance with the obligations imposed on an MCS provider, and to determine the MCS provider's (legal, technical, financial, and character) qualifications. Section 30z Furnishing of Reports. A) Within ninety (90) days after this ordinance becomes effective, and thereafter, at least once every twelve (12) months, an MCS provider shall subn~t a list to the Council/franchising authority, or designee, of files, reports, records, data, or other information that the MCS provider periodically files with the FCC, or another federal or State agency. If the MCS files a non-periodic or non-regular file with the FCC, or another federal or State agency, then the MCS shall (within sixty (60) days of that filing), notify the Council/franchising authority of such federal or State filing. As part of a performance evaluation, or for any legitimate matter related to the administration of an MCS provider (or if applicable the MCS provider's franchise), the Council/franchising authority may specifically request that it be provided with any, or all listed reports, records, data, or other Ordinance #1943 Page 26 information, that were originally filed with the FCC, or another Federal or State agency. However, unless specifically authorized by the State, an MCS provider shall not be required to provide to the Council/ franchising authority, any State or Federal tax returns, or any documents (inclusive of all above- referenced categories) exempted under federal privacy laws, including Section 631 of the CCPA (codified at 47 USC 551). B) In addition to the requirements noted in subsection (A) of this Section, an MCS provider shall timely submit those reports, statements, and logs required by this ordinance, including, but not limited to, the following= 1) 2) 3) a periodic gross revenue statement in the manner set forth in this ordinance~ a periodic certification that answering of phones is meeting the specifications listed in this ordinance~ preventive maintenance reports in the manner set forth in this ordinance and any other reports or information required by another Section of this ordinance, or by the Council/ franchising authority which are necessary to protect the health, safety, and welfare of the citizens of the City. Section 31~ Books and Records. An MCS provider shall keep complete and accurate books of accounts, and records of the business and operations under, and in connection with, the MCS system. B) The Council/franchising authority shall have the right to review (either by mail or at the MCS provider's local office) all records (needed for the administration enforcement of this ordinance or any franchise) on seven (7) days written notice, unless specifically exempted by the Council/franchising authority. Such review, unless mutually agreed upon, or judicially ordered, should occur within the MCS provider's regular office hours. c) The Council/franchising authority shall have the right to hire, at its own expense, an independent certified public accountant, or other business or financial expert, to review the books and records of an MCS provider. If after a financial audit it is determined that the MCS provider has under paid amounts owed to the City (in excess of two percent (2%)), then the City Ordinance ~1943 Page 27 may require the MCS provider to reimburse the City for the actual cost of the audit. Note well, however, that absence fraud, all audits shall be binding on the City. Further, the MCS provider shall only be required to maintain the financial records necessary to verify franchise fees. D) A false entry into the books and/or records of an MCS provider, made by an MCS provider, of a material and substantial fact shall constitute a material violation of this ordinance. However, an erroneous entry, made in good faith, shall not constitute a material violation of this ordinance. E) An MCS provider, at the local office shall keep complete and accurate books and records of the key aspects of the multi-channel system's operation for at least the preceding three (3) years in such a manner that all matters pertaining to the City, can be easily produced and/or verified at the City's request. Also, the MCS provider shall keep, at its local office and shall make available and provide upon request, any othe~ applicable records and information that may be required by any other Federal or State agency having jurisdiction over MCS providers. Sections 32 -- 37. Reserved. Section 38z Notification of Customers and MCS Providers' Rights and Responsibilities~ General Policy. A) The Council/franchising authority recognizes that it is critical that a customer of an MCS provider fully understands and realizes the rights and responsibilities of both the customer and MCS provider with respect to the provision, maintenance, and repair of multi-channel service. Further, the Council/franchising authority believes that if sufficient information is provided to a customer on certain customer service practices such as rates, billing periods, number and types of services provided, and rules concerning equipment use and return, then that customer will have the information necessary to make an informed decision on what, if any, multi-channel services to subscribe to, and receive. c) In order to provide customers with the variety of information needed to make an informed decision, and to ensure that customers are notified of their, and the Ordinance #1943 Page 28 MCS provider's rights and responsibilities with respect to the multi-channel system, an MCS provider must provide a customer with a written "Notice of a Customer's and MCS Provider's Rights and Responsibilities With Respect to the Provision of Multi-Channel Service." D) The "Notice of a Customer's and MCS Provider's Rights and Responsibilities With Respect to the Provision of Multi-Channel Service" shall be provided at the time of initial installation. Thereafter, a subscriber shall be provided with a written "Notice" at least once every twelve (12) months. If however, an MCS provider amends, repeals, adds, deletes, modifies, or makes other changes to any customer service practice that is required in this ordinance, then said MCS provider shall provide a subscriber with such written notification at least thirty (30) days prior to the effective date of such amendment, repeal, addition, deletion, modification, or other change. E) Unless expressly prohibited by the State, an MCS provider may comply with the "Notice" requirements by providing said "Notice" over the MCS system, on a channel clearly designated for the dissemination of such information--(such a channel need not be solely designated for dissemination of such infornmtion, and may, in fact, be used at other times for any lawful purpose). Section 39~ Notice of Customer's and MCS Provider's Rights and Responsibilities with Respect to the Provision of Multi- Channel Service~ Minimum Contents. A) At the time an MCS provider is required to furnish an initial or annual "Notice", such "Notice" shall contain, at a minimum, the followings l) 2) 3) an up-to-date listing of the specific multi- channel services provided--clearly indicating and isolating the basic, premium, and informational services offered, as well as the service tiers or service clusters offered~ notification of a subscriber's ability to purchase or lease, from the MCS provider, a lock box, parental control mechanism, or other device which will prohibit the viewing of a particular multi- channel service during a period selected by the subscriber~ pursuant to FCC regulations, a subscriber's ability of purchasing or using an A/B or input selector switch~ Ordinance #1943 Page 29 B) 4) a comprehensive listing and explanation of all rates and charges (including rates for standard or basic and premium channels/services, particular service tiers or service clusters, current discount or promotional fees, installation charges, and security deposits, if any); 5) if service clustering is available, then a description and explanation of any penalties, credits, restrictions, upcoming (within sixty (60) days of the "Notice") service clustering changes or differing alignments, or other pertinent information; 6) a comprehensive listing and explanation of all billing options available (such as monthly, quarterly, or yearly, and/or discounts for pre- payments); 7) the customer service office hours and telephone number(s) in a manner consistent with the specific policy set forth in this ordinance; 8) the billing practices of an MCS provider in a manner consistent with the specific policy set forth in this ordinance; 9) the specific customer complaint/inquiry resolution policy that is adopted and followed by an MCS provider and which is consistent with the parameters set forth in this ordinance; 10) if applicable, and permitted, the rules and regulations for using any facilities, including a studio or mobile van of an MCS provider; 11) the method of securing a voluntary disconnection in a manner consistent with the specific policy set forth in this ordinance; 12) rules relating to both connections, and involuntary disconnections; 13) the extent of the credit/refund policy in a manner consistent with the specific policy set forth in this ordinance; 14) the equipment use and return policy together with any required security deposits in a manner consistent with the specific policy set forth in this ordinance; and 15) the additional rights of blind, hearing-impaired or ambulatory-impaired customers in a manner consistent with the specific policy set forth in this ordinance. The "Notice" shall be written in plain, simple to understand English. The "Notice" shall contain no fine print, and any exclusions, limitations, or caveats shall be clearly indicated as such in the "Notice". Ordinance #1943 Page 30 C) The "Notice" may be delivered to a subscriber via an insert in the subscriber's ~eriodic invoice, or through a special mailing, or over an MCS channel clearly designated for the dissemination of such information. Section 405 Billing Practices. A) within the "Notice" that is required by this ordinance, subscribers shall be informed of at least the following billing practices of an MCS provider~ 1) billing procedures (including payments necessary to avoid discontinuance of service)~ 2) payment due and delinquent dates~ 3) amount or percentage of late charges, if any~ 4) advance billing options~ 5) resolution procedures for billing disputes, complaints, and inquiries~ 6) refund policy for service interruptions, substandard signal quality, or uncontracted service~ 7) current service rates in a detailed and understandable format~ 8) procedure and amount of charges for installation or relocation of an MCS provider's facilities and/or equipment~ 9) current schedule and explanation for any billed charges or other non-regularly occurring fees invoiced to subscribers~ and 10) any lower-income or fixed-income rates together with any qualifications to obtain such rates. B) Ail periodic service bills shall plainly state that service may be paid on an individual monthly basis, by the end of the month for which the service was delivered, with no late charge or penalty assessed. C) Existing subscribers shall be informed of the items listed in subsection (1) at least once every twelve (12) months. D) Whenever there is a change in an MCS provider's billing practices or payment requirements, all subscribers must be notified in writing at least thirty (30) days before such billing practices or payment requirements become effective. E) In any case where a subscriber requests a cancellation or reduction of service within thirty (30) days after the notification of a scheduled rate or charge adjustment, then the subscriber's liability for the newly implemented rate or charge shall cease from the moment that the rate or charge adjustment becomes effective. Ordinance #1943 Page 31 Section 412 Billing Credit for Servic? Outages, . Interruptions~ Substandard Signal or P~cture Quality or Unsolicited Service. A) An MCS provider shall provide a subscriber with a pro- rata credit for service outage exceeding eight (8) hours in duration. B) Where not expressly prohibited by the State, the Council/franchising authority may prescribe rules for giving credit to a subscriber in cases of substandard signal or picture quality. c) In the case of a charge for unsolicited service, an MCS provider shall provide a subscriber with an adjustment or billing credit on the next available billing statement. Moreover, in such a case, an MCS provider shall not consider a subscriber delinquent for failure to pay a charge for unsolicited service. Section 42~ Prohibition Against "Negative Option" Promotional Packages. A) The Council/franchising authority both recognizes and determines that as a matter of consumer protection, a subscriber should be charged only for those services that such subscriber has affirmatively requested. Therefore, an MCS provider may not bill or invoice any subscriber for any multi-channel service that is not affirmatively requested by the subscriber. B) For purposes of this Section, a subscriber's affirmative request need not be in writing, but an MCS provider relying on an oral request must keep an accurate, precise, and exact record of the date, and time on which--and the CSR, or service technician to whom--the request was made. c) For purposes of this Section, a subscriber shall be deemed to have affirmatively requested a multi-channel service if= 1) 2) the subscriber voluntarily makes payment for the multi-channel service after an initial free trial periodl and there was included, in the notice or advertising material describing the service, a statement clearly advising the subscriber that such subscriber has incurred no obligation to pay for such service, and that such subscriber need not take any action to avoid incurring any such obligation. Ordinance #1943 Page 32 D) Moreover, an MCS provider may not automatically enroll a subscriber into a different class or tier of multi- channel service without first informing (at least thirty days in advance) such subscriber of any, and all, costs associated with such a different class or tier of multi-channel service. Additionally, an MCS provider may not invoice a subscriber for disconnecting or downgrading from a "negatively promoted" or automatically enrolled class or tier of multi-channel service. F) Should a subscriber be charged for a multi-channel service in violation of this Section, then the MCS provider shall provide a subscriber with an adjustment or billing credit on the next available billing statement. Moreover, in such case, and MCS provider shall not consider a subscriber delinquent for failure to pay a charge for a non-affirmatively requested multi-channel service. Section 43= Special Rules Concerning Sales Solicitations. A) For MCS providers engaged in sales solicitations (via phone, cellular phone, interactive multi-channel system, PCN, or other type of personal, communications system) the following rules apply (unless pre-empted by federal or State law)~ 1) 2) 3) sales solicitors identify themselves at the outset of the communication~ sales solicitors must not engage in bait-and- switch tactics--that is they must not initially offer a lower-priced service only to inform the customer of its unavailability, or offer the lower-priced service in order to pressure sale a higher-priced servicel and sales solicitors must quote the full and complete cost for any service sold or subscribed to during the course of the communication. B) The restrictions outlined in subsection (A) of this Section shall not apply to sales solicitations which are done or occur in the following circumstances= 1) 2) 3) 4) in response to a customer's specific request; at a time mutually agreed upon by an authorized representative of the MCS provider and the customerl in connection with a charitable contribution or charitable purpose~ in connection with a home shopping or travel- related service~ and Ordinance #1943 Page 33 c) 5) where the sales solicitor has established (and can document) a previous, or on-going commercial relationship with the customer. This restrictions outlined in subsection (A) of this Section shall not apply to sales solicitations via printed material in that such printed solicitations or advertisements are deemed not as disruptive or intrusive as solicitations noted in subsection (A) of this Section. Section 44~ Special Rules for Menu-Driven Systems, Service Clusters, and Packaging of Service Tiers. A) The Council/franchising authority recognizes that the concept of.menu-driven program/service selection has both positive and negative aspects. On the one hand, menu-driven program/service selection allows the greatest flexibility for a subscriber in that it permits the subscriber to essentially create a program/ service package tailored to the subscriber's budget, viewing habits, and informational needs. On the other hand, menu-driven program/service selection is susceptible to unauthorized or unknowing purchases, and uninformed program choices if certain procedural and operational safeguards are not maintained. B) Should an MCS provider implement and/or offer menu- driven program/service selection for all, or the majority, of the MCS provider's multi-channel services, then the Council/franchising authority reserves the power to adopt additional rules and regulations (subject to the conditions listed in subsection (C) of this Section) concerning the following potential problem areas~ l) 2) 3) notification to the subscriber on a periodic (at least monthly) basis of the exact costs for each menu-driven program/service, including any installation or equipment rental charges; notification of what constitutes, or what is required for selection or subscription to a particular program/service; limitations on negative option marketing plans when done in connection with a menu-driven system unless the subscriber is initially is informed, consents (in writing), and periodically (at least semi-annually) renews the consent to be included on a list of potential subscribers; and Ordinance #1943 Page 34 c) D) 4) restricting access to menu-driven program/service selection by subscribers (through the use of individual, non-duplicative access codes or so~e other means), in order to limit unauthorized purchases, or purchases above a certain pre-set amount (without additional written approval). If, at the time an MCS provider implements and/or offer menu-driven program/service selection, such MCS provider also adopts an operational policy which protects subscribers from those potential problem areas listed in subsection (B) of this Section, then the Council/franchising authority shall not exercise its additional regulatory authority on this subject, unless there is documentation that the adopted policy of the MCS is not being enforced, or is ineffective in safeguarding subscribers from the potential abuses listed above. As for service clusters, and the packaging of service tiers, and to provide both a disincentive for "bait and switch tactics," and to promote cluster and tier stability, an MCS provider may not switch any particular multi-channel service from one tier or cluster to another without sixty (60) days notice~ provided however, that upon sixty (60) days prior notice, and MCS provider may re-arrange, re-tier, re- cluster, or otherwise offer its multi-channel service. Nothing contained in this Section shall be construed as mandating any particular programming choice being provided to a subscriber. Nor should this Section be construed as requiring any particular program, service, cluster, or tier. Rather, this Section is designed to promote cluster, and tier stability, so that a subscriber may choose a program, service, cluster, or tier that best suits the subscriber's individual programming and informational needs. Section 45~ Customer Service Hours~ Capabilities of Customer Service Office~ and Telephones. A) In order to facilitate the needs of the local customers, an MCS provider shall maintain a customer service office which is both within the City, and easily accessible to customers. The customer service office shall be open at least forty (40) hours per week (exclusive of holidays). ordinance #1943 Page 35 c) D) E) F) G) H) I) J) Within the forty (40) hours per week that a customer service office must be open, an MCS provider must provide office hours either on at least two (2) evenings (after 5 p.m.), or on Saturdays and/or Sundays (if not prohibited by State law). The customer service office should have an adequate and knowledgeable staff in order to handle the vast majority of customer service inquiries, specifically including, but not limited to~ billing inquiries, refunds, service outages, equipment service and repair, payment of bills and other charges. An MCS provider may install (at its customer service office) an after hours depository in order to collect invoice payments, and receive requests for service appointments (including connections, and disconnections) after scheduled office hours. An MCS provider may install an automated !audio, or video) customer assistance device or machine which can handle various types of customer inquiries. Neither the presence of an after hours depository or automated customer service device relieves an MCS provider from maintaining the minimal required number of office hours, or adequate CSR staff to handle the majority of service inquiries (unless the MCS provider can demonstrate to the Council/franchising authority's satisfaction that the efficiency of such devices reduces the need for customer service hours or CSR personnel). At l~ast annually, any non-exempt MCS provider shall certify to the Council/franchising authority that each customer service representative (CSR) has taken and passed an MCS provider-implemented course designed to train CSRs to handle their jobs an a courteous, efficient, and responsive manner. An MCS provider shall maintain at least one (1) toll- free and/or local telephone number to accommodate normal business inquiries. An MCS provider shall maintain a separate twenty-four (24) hour toll-free or local telephone number to facilitate calls concerning repair of equipment and extended interruption of service. During any hours that the customer service office is open, the MCS provider must have or make available in-house personnel to address a customer's inquiries. During other hours, a telephone may be manned by an automatic answering device, provided that the use of an answering device or answering service still results in an initial phone Ordinance #1943 Page 36 K) call by the MCS provider within sixty (60) minutes, in order to at least determine the extent of the outage. The MCS provider shall not be required to make in- person telephone contacts to subscribers at a rate which exceeds sixty (60) calls per hour, and shall not be required to make such calls between the hours of 10100 p.m. and 7~00 a.m.. A non-exempt MCS provider shall have adequate staff and/or extension lines (except during special merketing promotion periods, peak billing cycles, and service outages) in order to handle call to the general information number to the following specifications~ L) l) 2) Eighty-five percent (85%) of all customer calls received in a year shall be answered within three (3) minutes by a representative of the MCS provider, or by a device that is capable of complaint/inquiry resolution~ and The rate of abandoned calls shall be less than five percent (5%) over a year's period of time. "Abandoned calls" shall in no event be deemed to include calls in which the caller hangs up within forty-five (45) seconds of making the call. With respect to the specifications listed in subsection (K) of this Section, it shall be the MCS provider's responsibility to annually certify to the Council/franchising authority that the affected MCS provider is meeting the minimal specifications. Section 46 Reserved. Section 471 Preferential or Discriminatory Practices Prohibited. A) An MCS provider shall not, as to rules, regulations, rates, charges, provision of service, or use of a provider's facilities and equipment, make, allow, or grant any undue preference or advantage to any person, nor subject any person to prejudice or disadvantage on the basis of age, race, creed, color, sex, national origin, handicap, religious affiliation or location of residence. B) Consistent with Section 621 (a) (3) of the CCPA (codified at 47 USC 541 (a) (3)), MCS providers shall not deny cable service, or the extension of cable service, to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides. ordinance #1943 Page 37 c) D) E) F) G) .,-o-ion~AI of this Section, however, does ~; ~n'M~S orovider from offering a promotional or ~;.-~iscou~t rate or charge as long as the(~ or charge does not.exceed three hundred seventy. days in length. This subsection does not prohibit an MCS provider from offering special intently? ra%~,such as one (1) month basic service free, if twelve months of basic service are paid in one (1) payment, or within a certain time frame. Subsection (A) of this Section, also does not prohibit an MCS provider from denying service based on location of residence, if that residence is outside the parameters for line extension as detailed in a franchise agreement (if applicable). Section 48~ Use of Equipment, Deposits, and their Return. A) Return of Equipment, S,~-~tion ~AI of this Section, also does not prohibit ..... ~ ' · · - - -~er an M~S provider fro~ denying service uo a sun~cr~o who is more than t~lrty (30).days delinquent in the payment of any periodic service, or special serv%ce bill, so long as the requirements for disconnection (as outlined in this ordinance) have been satisfied. Subsection (A) of this Section also does not prohibit an MCS provider from implementing a carefully designed no-frills service tier or service cluster for "lower income", and/or fixed income individuals. Subsection (A) of this Section also does not prohibit an MCS provider from m eking agreements or entering into multi-channel service agreements with multiple dwelling unit owners (including hotel, motel, and mobile park owners) to provide multi-channel service under a bulk billing or other type of arrangement. Security If needed for proper operation, or requested by a customer, an MCS provider shall deliver to a customer, handwritten or typed instructions detailing the proper use of rented, loaned, or purchased equipment. Unless required by another Section of this ordinance, an MCS provider may comply with this Section by delivering the manufacturer's instructions to a customer. B) Prior to formally delivering any equipment, including auxiliary equipment (such as a converter, input selector switch, or video control recorder) to a customer, an MCS provider shall have tested a representative sample (at least one percent (1%)) of such equipment to make sure that it is in proper working order. Ordinance ~1943 Page 38 ¢) D) E) F) H) J) K) An MCS provider is not required to seek a security deposit from a customer for use or rental of the MCS provider's equipment. An MCS provider shall comply with any, and all, applicable State rules concerning the imposition, retention, and return of security deposits. If the State is silent on the security deposit for a particular piece o~ equipment, then the MCS.provider shall be prohibiteu from charging any security deposit for equipment which exceeds the replacement cost to the MCS provider. As a matter o~ consumer protection, an MCS provider . shall be.prohibited fr~m cha~ging any security deposit for multi-channel service which exceeds twice the basic monthly rate. An MCS provider may charge an appropriate security deposit (consistent with subsection (F) of this Section) in those instances where a customer is re- connected after an involuntary disconnection for non- payment or prior history of unsatisfactory payment. An MCS provider shall return a security deposit (together with.any interest earned) after.the eq~i.p~.nt is satisfactorily returned, or the subscrIber maintains a satisfactory payment history (which is determined as no payment delinquencies within the preceding twelve (12) month period). A customer shall maintain any equipment rented or leased from an MCS provider in good working order, and operate such equipment only in the manner specified by the MCS provider or manufacturer of the equipment. A customer shall totally and fully reimburse an MCS provider for any damage or loss to an MCS provider's equipment that is due to the customer's failure to properly maintain and operate such equipment. A customer shall be relieved from any responsibility for reimbursing an MCS provider for equipment which malfunctions or does not operate due to a hidden or latent defect in the equipment, or for equipment which fails to operate, or improperly operates due to natural occurrences conditioned by the normal wear and tear of such equipment, or for equipment damaged or destroyed by an act of nature, and which is not covered by a customer's home or apartment insurance policy. Ordinance #1943 Page 39 Section 49z A) Service Inquiry Logs. An MCS provider shall be required to keep and maintain service inquiry logs, subject to any limitations imposed by State or Federal law, including (for MCS providers classified as cable operators) any subscriber privacy limitations imposed by the CCPA. B) The purpose of the service inquiry logs is to assist the City in assessing (in the aggregate) the type, degree, and resolution of customer service requests, inquiries, and complaints. C) At a minimum, the service inquiry logs should contain the followingz 1) the time and date of initial receipt of any service request, inquiry, or complaint, together with the time and date of initial response to that service request, inquiry or complaint~ 2) the nature of the service request, inquiry, or complaint~ 3) the precise action taken by an MCS provider in order to resolve the service inquiry, request, or complaint~ 4) whether the service request, inquiry, or complaint was resolved by allowing a credit or refund of some sort~ and 5) the area, location, or quadrant of the City where the service request, inquiry, or request was generated. D) In addition to any other right of inspection that the Council/franchising authority may possess, it shall have the right to review and inspect a compilation of such logs. However, the Council/franchising authority shall not have the right of access, review, or inspection for any service inquiry logs or any information contained within service inquiry logs that are otherwise protected from access, review, or inspection by State or Federal law. This Section does not require MCS providers to maintain service inquiry logs on scheduled installations. Sections 50 -- 55. Reserved. Section 56~ Restoration of a Subscriber's Property. A) At any time an MCS provider (in furtherance of its right to construct, operate, and maintain a multi- channel system), disturbs the yard, residence, or other real or personal property of a subscriber, such MCS provider shall ensure that the subscriber's yard, Ordinance #1943 Page 40 B) ¢) D) residence, or other personal property is returned, replaced, and/or restored to a condition that is sufficiently comparable to the condition that existed prior to the commencement of the work. The costs associated with both the disturbance and the return, replacement, and/or restoration shall be borne by the MCS provider. This subsection also requires the MCS provider to reimburse a subscriber or private property owner, for any damage caused by the MCS provider, its subcontractor, or its independent contractor, in connection with the disturbance of a subscriber or private property owner's property. The types of acts specifically included in this Section are the followingz 1) 2) 3) removal of a subscriber's sod, lawn, plants, shrubbery, flowers, trees, driveway, or fence to install, trench, repair, replace, remove, or locate cable or other equipment of an MCS provider~ installation or removal of cable or other equipment of an MCS provider within a subscriber's residence which requires drilling, excavating, plastering, or the like on the part of the MCS provider~ temporarily relocating or moving a piece of personal property or a fixture of a subscriber (such as a motor vehicle, fence, air conditioning or heating unit, or the like), in order to perform some sort of construction, maintenance, or repair on the multi-channel system~ or permanently removing an MCS provider's cable or equipment due to either the revocation, termination, or non-renewal of a franchise (if applicable), or the abandonment, withdrawal, or cessation, of multi-channel service to any portion of the City. The requirements imposed upon the MCS provider extend to any subcontractor or independent contractor that the MCS provider might employ to perform the tasks outlined in this Section. In light of the foregoing, an MCS provider has the authority and responsibility to diligently trim trees of a private property owner (including a subscriber), but only to the extent necessary to prevent the branches of the trees from coming in contact with the MCS provider's wires and cables. Ordinance #1943 Page 41 Section 57= Service Inquiries, Requests, Complaints, and Response Times. A) Except in times of a natural or man-made emergency, or an aouointment scheduled with the mutual consent of a subscriber, an MCS provider shall respond to the service inquiries, requests, and complaints of subscribers, within such MCS provider's normal business or service hours, and within the time schedules detailed in subsections (B) through (G) of this Section. Moreover, except in emergency situations, an MCS provider shall inform the customer whether the service call is scheduled for the morning, afternoon, or evening hours. If the service call has to be cancelled or rearranged, then the MCS provider shall make every effort to notify the customer as soon as possible, and shall (unless the subscriber decides otherwise) re-schedule the service call for a time within twenty-four (24) hours of the cancellation. The term "service call" as used in this section does not refer to initial installation. In the case of a signal or service interruption, an MCS provider shall respond to, and make repairs as are necessary to resume the signal or service to the subscriber within twenty-four hours (24) from the time the MCS provider first received notification of the signal or service interruption. c) In the case of a "blank" or "no-picture" situation of any given level of billing or service (except for pay- per-view events), an MCS provider shall respond to, and make repairs as are necessary to return the multi- channel service within twenty-four (24) hours from the time the MCS provider first received notification of the "blank" or "no-picture" situation. D) In the case of a defective, improperly operating, or non-operating piece of eq~nent, an MCS provider shall respond to, and make repa as are necessary to correct the problem withi~ unirty-six (36) hours from the time the MCS provider 'irst received notification of the defective, improperly operating, or non- operating piece of equipment. E) In the case of repair to a piece of equipment in a subscriber's residence, or repair to the cable (coaxial, fiber or functional equivalent), the repair should be completed, and the situation resolved, at the conclusion of the first service visit. If the repair is not completed and resolved within three (3) visits, and if as a result of the insufficient repair, a situation Ordinance #1943 Page 42 remains wherein there is a visually or audibly detected degradation of a multi-channel signal, then the MCS provider must immediately, and completely either replace all drop cable (coaxial, fiber or its functional equivalent), or isolate and correct the source of signal degradation in order to rectify the situation. F) In no case shall a subscriber's service request or inquiry go unresponded or unattended to for more than one (1) work day from the time the MCS provider first received notification of the service inquiry or request. Moreover, except in emergency situations, all requests and inquiries shall be handled or corrected within thirty-six (36) hours from the time the MCS provider first received notification. If a cancellation of a service call occurs, then the MCS provider shall re-schedule the call in a manner consistent with the guidelines expressed in subsection (A) of this Section. In case of a dispute concerning the precise time that the MCS provider received notification, or the precise circumstances surrounding the MCS provider receiving the notification, or whether notification was received at all, the Council/franchising authority shall reserve the right and authority to settle such a dispute. a). Provided, however, that the MCS provider may rank service calls in order of severity. That is, total outages will take presidencies over area outages~ area outages take precedence over a single home and multi- channel problems take presidency over a single channel. Section 58~ MCS Providers Required to Maintain Sufficient Repair Parts and Sufficient Repair Personnel. A) Except in times of natural or man-made emergency, an MCS provider shall, at all times, have access to, and be able to secure, sufficient maintenance and repair parts and equipment for the MCS system, so that the MCS provider can respond to, and correct, all subscriber service interruptions within the time periods specified in this ordinance. B) Having access to, and being able to secure sufficient maintenance and repair parts and equipment, is necessary to promptly restore a subscriber's multi- channel service, and avoid delays caused by having to obtain needed parts and equipment. Ordinance ~1943 Page 43 ¢) Except in times of natural or man-made emergency, or a strike (whose duration has been less than seventy-two (72) hours), an MCS provider shall have sufficient maintenance and repair personnel, so that the MCS provider can respond to, and correct, subscriber service interruptions within the time periods specified in this ordinance. D) An MCS provider shall annually certify the Council/ franchising authority that each service technician has taken and passed an MCS provider-implemented course designed to train service technicians to handle their jobs in a courteous, efficient, and responsive manner. Also, the course should be designed to provide continuing education to service technicians in changes in technology, repair/maintenance procedures and related matters. E) Notwithstanding the other requirements and provisions contained in this Section, an MCS provider shall maintain at least one (1) service technician on call twenty-four (24) hours per day. Section 59~ New Installations~ Connections--Regular, Promotional, Seasonal, Short-Term, Pay-Per-View, and Menu- Driven~ Re-Connections. A) New installations, promotional, short-term, or seasonal connections, re-connections, and upgrades of multi- channel service by an MCS provider shall be performed and completed within seven (7) days of a customer requesting such. B) The provisions of subsection (A) of this Section shall not apply to pay-per-view or menu-driven connections. c) While an MCS provider may charge a customer for installing, connecting, or re-connecting multi-channel service, such charge must be understood, and approved by the customer prior to the installation, connection, or re-connection. D) In the case of a promotional, or seasonal connection, any limitations, or restrictions must be explained prior to the promotional, or seasonal connection. E) An MCS provider may charge an appropriate re-connection charge or require a security deposit, in those instances where a customer is re-connected after an involuntary disconnection for non-payment or a prior Ordinance #1943 Page 44 history of unsatisfactory payment. However, the re- connection charge or security deposit must be based on the prior unsatisfactory payment history, or involuntary disconnection or the customer, and not the location or address of the residence or structure. F) Downgrading a particular service level, or service cluster to a lower-priced or less comprehensive service or cluster level shall not be considered a connection to the lower-priced or less comprehensive level of service. An MCS provider shall comply with any, and all, rules concerning downgrading. Section 60~ Disconnection for Non-Payment. A) A subscriber shall not be considered delinquent in payment until at least forty-five (45) days after the posting of the bill to the subscriber, and payment has not been received by an MCS provider. Before disconnection of a subscriber's multi-channel service (either physically or electronically) takes place, the following must occurs 1) 2) 3) the subscriber must in fact be delinquent in payment of multi-channel service~ and at least five (5) days have elapsed after a separate written notice of impending disconnection has been personally served upon the subscriber~ or at least eight (8) days have elapsed after mailing a separate written notice of impending disconnection to the subscriber~ or at least five (5) days have elapsed after the subscriber has either signed for or, refused to accept, a separate written notice of impending disconnection. ¢) The written notice of disconnection must expressly and clearly state the amount that is owed by the subscriber to an MCS provider, the minimum amount required to be paid to avoid disconnection, and the date and place where such payment must be made. D) Disconnection of service must occur both on a normal service day, and within normal business hours of an MCS provider, unless the subscriber is given the opportunity to pay the full amount of the past due account. E) An MCS provider who physically retrieves its equipment (including converter, remote control unit, or digital audio tuner), from a subscriber, must do so within both a normal service day and normal service hours of an MCS provider. Ordinance #1943 Page 45 F) Receipt of a "bad check" from a subscriber, in response to a written notice of disconnection, does not constitute payment, and the affected MCS provider need not give the subscriber further notice prior to disconnecting multi-channel service. G) An MCS provider may add a reasonable collection charge to the subscriber's bill if the applicable provisions of this ordinance, and any applicable State regulations, are followed. H) Any refund due a subscriber after such a disconnection shall be made within sixty (60) days of the disconnection for non-payment. Section 61z Voluntary Disconnections and Downgrades. A) At any time, a subscriber who does not have a separate contract with the MCS provider may request that a particular service tier, service cluster, menu-driven program/service, pay channel, premium channel, informational service, or the entire multi-channel service be disconnected. B) Any contract for service must be a separate, individual document requiring the subscriber's signature and shall not merely be on the back of a workorder or other document. c) Where provided by an MCS provider, a subscriber may request a downgrade from a particular level of service to a less comprehensive level of service, or a less expensive level of service. D) From the date that such a subscriber makes such a request for either a disconnection or downgrade, then the MCS provider shall have seventy-two (72) hours or three (3) service days, whichever is longer, to disconnect or downgrade the service tier, pay channel, premium channel, informational service, or entire multi-channel service. In the event that an MCS provider does not disconnect or downgrade service within seventy-two (72) hours, a subscriber's obligation to pay for such service shall cease, or in the case of a downgrade, a subscriber's obligation to pay for the more comprehensive and/or higher priced service shall cease. Ordinance ~1943 Page 46 E) F) G) H) I) J) For a service tier, service cluster, menu-driven service, premium channel or informational service which is voluntarily disconnected, a subscriber shall pay a pro rata share of the monthly rate for such service tier, service cluster, menu-driven service, premium channel or informational service. Once a valid connection to a menu-driven program, or a pay-per-view event occurs, then the MCS provider may collect the full advertised or quoted rate, should the customer then attempt to disconnect the menu-driven program, or pay-per-view-event. No separate disconnect or downgrade charge may be passed onto a subscriber if it chooses to take advantage of a lower-priced service tier/cluster or an optional service tier/cluster, if the MCS provider does not have to make a trip to the subscriber location to preform a change to a lower level of service. However, to prevent subscriber abuse of this voluntary disconnection, or downgrade policy, a subscriber shall be charged a minimum one (1) months full rate for any one service tier/cluster which is disconnected and/or downgraded at least three (3) times within a span of one hundred eighty (180) days. If, however, an MCS provider's equipment is, or has been damaged by a subscriber, prior to such disconnection, then the MCS provider may charge the subscriber with the entire cost for such damage, provided that the MCS provider notify the subscriber within thirty (30) days of the disconnection. A subscriber shall not be required to pay for equipment failure, if the circumstances fall within the normal wear and tear guidelines established in this ordinance. Any refund due a subscriber after disconnection (both for non-payment and voluntary disconnections) shall be made within sixty (60) days after such disconnection. This subsection specifically includes the situation where a subscriber voluntarily disconnects service but is entitled to a refund as a result of a service outage that exceeds eight (8) hours in duration. In such case a subscriber will also receive any refund due as a result of the service outage within 60 days after the voluntarily disconnection. In no event will this Section be viewed as abridging the rights and remedies afforded by the subscriber complaint/inquiry resolution process outlined in this ordinance. Sections 62 -- 65. Reserved. Ordinance #1943 Page 47 Section 66~ Protection of Subscriber Privacy. A) An MCS provider shall abide by any, and all, privacy rules or regulations of the Federal, governments. subscriber or State For MCS providers classified as cable operators, such operators shall also abide by, and comply with, any subscriber privacy protection requirements and procedures listed in Section 631 of the CCPA (codified at 47 USC 551). Section 67~ Resolution of Complaints/Inquiries. A) An MCS provider is required to develop a comprehensive complaint/inquiry resolution policy that is consistent with the rules and regulations outlined in this ordinance. B) An MCS provider's complaint/inquiry resolution policy shall be reduced to writing, and such policy shall be available upon request, to any person. In any event, a subscriber shall receive notice of such policy in the manner that is prescribed by this ordinance. ¢) The Council/franchising authority shall establish a neutral, third-party appeal process, to handle complaints/inquiries that are not satisfactorily resolved at the MCS provider level. D) An MCS provider's complaint/inquiry resolution policy shall contain at least the following minimal standards~ 1) 2) 3) 4) 5) the initial response to a complaint/inquiry shall occur no later than twenty-four (24) hours after receipt of the complaint/inquiry~ every attempt will be made to resolve the complaint/inquiry within seventy-two (72) hours after receipt of the complaint/inquiry~ complaints/inquiries that fall into the category of service inquiries shall abide by the procedure set forth in this ordinance~ informing subscribers of the credit/refund policy which is consistent with this ordinance, and any applicable State regulations~ and informing subscribers of the billing disputes policy which is consistent with this ordinance, and any applicable State regulations. Ordinance #1943 Page 48 Section 681 Policy With Respect to Continuity of Multi- Channel Service Provisions. A) The Council/franchising authority declares that as part of its right to establish multi-channel customer service guidelines, it has the duty to ensure continuity of multi-channel service for all subscribers. In that light, the Council/franchising authority also determines that it may take appropriate measures in order to ensure that no portion of the City is threatened or faced with a disruption, interruption, or discontinuance of multi-channel service due to the actions of any MCS provider. B) In addition to the principles and ideals enumerated in subsection (A), the Council/franchising authority also expresses that its policy covers the followingl 1) 2) 3) 4) 5) 6) 7) to provide for continuity of multi-channel service in the event of acquisition by the City~ to provide for continuity of service in the event of a proposed abandonment, withdrawal, or cessation of multi-channel service by an MCS provider~ to provide for continuity of service in the event of revocation, termination, or non-renewal of a franchised MCS provider's franchisel to provide for continuity of service in the event that a transaction occurs that affects the ownership or control of the MOS provider, such as an assignment, sale, transfer, or mergerl to provide for continuity of service in the event of an expiration of a franchisel to prevent disruption of multi-channel service which would provide a hardship on those subscribers who rely on a multi-channel system as their primary or secondary source for information~ and to prevent the interruption or cessation of multi- channel service which would disrupt or elinLtnate the diversity of programming choices enjoyed by subscribers of a multi-channel system, and thereby restricting their ability to receive information. c) In any situation (including those mentioned above), which threatens the City and subscribers with the loss or interruption in the continuity of multi-channel service, then the MCS provider shall provide the Council/franchising authority with at least forty-five (45) days notice (except in extreme circumstances) Ordinance #1943 Page 49 D) E) F) G) H) prior to the effective date of any action which would cause a loss or interruption in the continuity of multi-channel service. The purpose of the notice is to apprise the Council/franchising authority of the possibility of such loss or interruption in the continuity of multi-channel service, so that it might explore its options and take appropriate measures. Whenever any situation occurs (including those mentioned above) which threatens the City and subscribers with the loss or interruption in the continuity of multi-channel service, then the Council/franchising authority may direct the MCS provider for a period of up to twenty-four (24) months to do everything in its power to ensure that all subscribers receive continuous, uninterrupted multi- channel service of the same quality, mix, and level(s) regardless of the circumstances. During the interim period, the Council/franchising authority shall work with the MCS provider in order to secure a new multi-channel system owner, or rectify the problem, so that the threat of loss of continuity is removed at the earliest possible instance. During any interim period in which the MCS provider continues to provide multi-channel service to subscribers, the MCS provider is entitled to all revenues collected, except any sums owed (including franchise fees, alternative user charges, and taxes) to the City or to other persons. In the event that the threat of loss of continuity is not resolved within twenty-four (24) months, then the Council/franchising authority may extend the interim period on a month-to-month basis until the situation is satisfactorily resolved. Also, in such a circumstance, the Council/franchising authority may adopt any emergency rules or procedures which will ensure that the subscribers will receive continuous, uninterrupted multi-channel service of the same quality, mix, and level(s). Nothing in this Section should be construed as requiring an MCS provider to operate a multi-channel system at a continued financial loss (due to bankruptcy or insolvency) for an extended period of time. In such case, while the Council/franchising authority may require continuity of service, it must lift such requirement as soon as the threat of loss of service is Ordinance #1943 Page 50 removed. Consequently, the Council/franchising authority must take appropriate steps to both ensure the continuity of service, and minimize the financial loss incurred by the MCS provider if the abandonment, cessation, or withdrawal is caused by bankruptcy, or insolvency. Section 69~ Continued use of Individual Antennas Protected. A) B) The Council/franchising authority does not intend to prohibit the erection or continued use of individual television antennas within the City so long as the individual television antennas conform to any and all applicable zoning and/or land use regulations. Consequently, no person shall be required to receive multi-channel service, or to physically connect to a multi-channel system. It is also noted that no person shall be penalized or fined (through either a home sales contract, deed of restrictive covenants, or other type of agreement) for failing or refusing to receive multi-channel service, or physically connecting to a multi-channel system. Sections 70 -- 75. Reserved. Section 76~ Construction Schedule and Construction-Related Requirements. In order to establish minimum uniform standards, the Council/franchising authority requires any MCS provider to adopt the following minimal construction schedule and construction-related requirements~ l) 2) 3) 4) 6) ?) s) construct, install, maintain, and repair the multi-channel system in accordance with the requirements noted in this ordinance~ use streets and public ways, as set forth in this ordinance~ where applicable, remove franchise property from public streets, as set forth in this ordinance~ adopt the construction standards, as set forth in this ordinance~ adopt the system expansion standards, as set forth in this ordinance~ adopt the construction schedule as referred to in this ordinance~ abide by, and act in strict accordance with, all current technical codes adopted by the City, or the State, or the United States, as noted in this ordinance~ and maintain all permits and licenses, as noted in this ordinance. Ordinance #1943 Page 51 Section 77~ Construction of Good Quality. During any phase of construction, installation, maintenance, and repair of the multi-channel system, the MCS provider shall use materials of good and durable quality and all such work shall be performed in a safe, thorough, and reliable manner. Section 78~ Conditions on Use of Streets and Public Ways. A) Ail wires, conduits, cable (coaxial, fiber, or functional equivalent), and other property and facilities of an MCS provider shall be so located, constructed installed, and maintained so as not to endanger or unnecessarily interfere with usual and customary use, traffic and travel upon the streets, rights-of-way, easements, and public ways of the City. B) In the event an MCS provider's system creates a hazardous or unsafe condition or an unreasonable interference with property, then at its own expense such MCS provider shall voluntarily, or upon the request of the Council/franchising authority, remove that part of the system that creates the hazardous condition from the subject property. ¢) An MCS provider shall not place equipment where it will interfere with the rights of property owners or with gas, electric or telephone fixtures, or with water hydrants or mains, or with wastewater lift stations, or any other service or facility that benefits the City's or its residents' health, safety, or welfare. D) An MCS provider, at either its own expense or that of a private contractor, shall protect, rights-of-way, easements, and support or temporarily disconnect or relocate in the same street or other public way, any property of such MCS provider when necessitated by reason of~ 1) 2) 3) 4) 5) 6) 7) traffic conditions; public safety; a street closing; street construction or re-surfacing; change or establishment of street grade; installation of sewers, drains, water pipes, storm drains, lift stations, force mains, power or signal lines; or an improvement, construction or repair related to the City's or its residents health safety, or welfare. Ordinance #1943 Page 52 E) It shall be the responsibility of an MCS provider (acting alone or in conjunction with another person) to locate and mark or otherwise visibly indicate and alert others to the location of its underground cable (coaxial, fiber or functional equivalent) before employees, agents, or independent contractors of any entity install cable in the marked-off area. F) An MCS provider shall, on the request of any person holding a building moving permit, temporarily remove, raise or lower the cable wires to allow the moving of the building. The expense of temporary removal shall be paid by the person requesting it, and such MCS provider may require payment in advance. The affected MCS provider shall be given not less than twenty-one (21) days notice of a contemplated move to arrange for temporary wire changes. G) For any new installations occurring after the effective date of this ordinance, and at the time that an MCS provider rebuilds or upgrades the multi-channel system, all trunk or feeder cable (coaxial, fiber, or functional equivalent) shall be placed underground, when and if utilities are placed underground. Further, where both power and utilities are presently underground, multi-channel system cable shall also be placed underground. H) It shall be the responsibility of any MCS provider to comply with the most current FCC technical standards. Section 79~ Franchised MCS Provider's Duty to Remove Franchised Properties from the Public Streets. A) This Section is applicable to any MCS provider required to maintain a franchise to operate within the City. B) Whenever the following occurs~ 1) 2) 3) 4) a franchised MCS provider ceases to operate all, or part, of the multi-channel system for a continuous period of six (6) months; a franchised MCS provider ceases and fails to construct the multi-channel system outlined in the application, or proposal for renewal, or renewal franchise agreement; the Council/franchising authority elects not to renew the franchise pursuant to the provisions set forth, in this ordinance; or the franchised MCS provider's franchise is revoked pursuant to the provisions set forth in this ordinance; Ordinance #1943 Page 53 Then--Unless the City or another MCS provider uses such multi-channel system, under the continuity provisions outlined in this ordinance, the affected franchised MCS provider shall promptly remove its multi-channel system property from the streets, public ways, and private property located within the City. c) If not removed voluntarily by a franchised MCS provider, then the Council/franchising authority may notify such franchised MCS provider that if removal of the property is not accommodated within two hundred seventy (270) days, or substantial progress towards removal is not made within two hundred ten (210) days, then the Council/franchising authority may direct officials or representatives of the City to remove such franchised MCS provider's system property at that franchised MCS provider's expense. The performance and/or construction bond, irrevocable letter of credit, cash deposit, or full faith and credit guarantee required as set forth in this ordinance shall be available to pay for such work. D) If officials or representatives of the City remove a franchised MCS provider's system property, and such franchised MCS provider does not claim the property within ninety (90) days of its removal, then the Council/franchising authority may take whatever steps are available under State law to declare the property surplus, and sell it, with the proceeds of such sale (if permitted by State law) going to the City. E) When such franchised MCS provider removes its multi- channel system property from the streets, public ways, and private property located within the City, the franchised MCS provider shall, at its own expense, and in a manner approved by the Council/franchising authority, replace and restore such public or private property in as good a condition as before the work causing the disturbance was done. Section 80~ Construction Standards. A) Methods of construction, installation, maintenance repair of any multi-channel system shall comply with the most current editions of the National Electrical Safety Code, and the National Electric Code, as affects the construction, installation, and maintenance of electrical supply and communication lines and attachments and supports. To the extent that these are inconsistent with other provisions of a franchise, or State, or local law, then the state or local law shall apply. Ordinance #1943 Page 54 B) Ail construction, installation, maintenance, and repair shall treat the aesthetics of the property as a priority, shall not substantially affect the appearance of the structure, and shall not be installed on the bias across the property or any side of a residence or other structure without the property owner's permission. c) All underground drops shall follow (to the greatest extent possible) property lines, and cross property only at right angles, unless otherwise permitted by the property owner, required due to the physical characteristics of the subsurface, or required under City, State, or Federal rules. D) For existing multi-channel system construction, installation, and repair, the provisions of subsections (C) and (D) of this Section shall apply only at the time a scheduled upgrade or rebuild of the MCS provider's multi-channel system is actually commenced. For newly served areas, then the provisions of subsections (C) and (D) of this Section shall apply at the time of initial construction and/or installation. Section 81~ System Construction Schedule For Franchised MCS Providers. A) This Section is applicable to any MCS provider required to maintain a franchise to operate with the City. B) A franchised MCS provider's construction schedule for the multi-channel system shall be detailed in the franchise agreement in a form and format determined by the Council/franchising authority. c) A franchised MCS provider who does not abide by the system construction schedule shall be handled in the manner allowed under either this ordinance, or where applicable, a franchise agreement. Section 821 System Expansion for MCS Providers. A) The Council/franchising authority recognizes that one of its primary purposes in the franchising process is to ensure that the widest diversity of programming sources be available to the greatest number of City residents. The Council/franchising authority is also cognizant that an MCS provider may have some constitutionally protected rights with respect to when and what areas of the City are provided service. Ordinance #1943 Page 55 R) In order to balance those interests, the Council/franchising authority sets the minimum guidelines for any system expansion on the part of a franchised MCS provider. c) A franchised MCS provider shall submit, within six (6) months of the effective date of this ordinance, a detailed plan for multi-channel system expansion to any area not presently served within the City. Such plan should not be construed as a requirement for universal service, but rather as a means for achieving the Council/franchising authority's goals, mentioned in Subsection (A). However, at a minimum, a franchised MCS provider shall extend multi-channel service to any area within the City that has a density of twenty (20) home or building passings per mile, or fractional equivalent thereof, as measured from the extremity of the system nearest the unserved area. Also, in such a case, a newly installed subscriber shall not be assessed or apportioned the cost for installation, except for the usual and normal connection fees paid by subscribers, so long as the system expansion is technically feasible. D) The detailed plan must include criteria for extending the provision of service to isolated subscribers. For purposes of this Section, "isolated subscribers'" means any potential customer of a franchised MCS provider who dwells in a house more than one-half (1/2) mile from the nearest franchised MCS provider connection. Section 83z Permits and Licenses. An MCS provider shall obtain, at its own expense, all permits and licenses required by law, rule, regulation, or ordinance, and maintain the same, in full force and effect, for as long as required. Sections 84 -- 89. Reserved. Section 90. Council/Franchising Authority's Policy With Respect to Safety Requirements. A) The Council/franchising authority requires that the MCS provider's construction, operation, and maintenance of the multi-channel systemmeet certain threshold safety levels which are designed to protect the public and lessen the likelihood of interruption of multi-channel service. Ordinance #1943 Page 56 B) Consequently, the Council/franchising authority requires any MCS provider to adopt the following safety requirements~ 1) 2) 3) 4) 5) 6) comply with, and abide by, any construction, or fire codes as noted in this ordinance. emergency alert override activation in the manner set forth in this ordinance~ minimum standby power as noted in this ordinance~ the provision of signal alert technology in the manner noted in this ordinance~ implementing a periodic preventative maintenance program as set forth in this ordinance~ follow all FCC rules and regulations concerning maximum cumulative leakage index (CLI) limits~ and safety Section 91~ Provisions to Alert Subscribers in the Event of an Emergency~ Standby Power. A) In order that subscribers may be alerted in the event of an impending, imminent or actual, natural or man- made emergency, then all MCS 9roviders shall ensure that the multi-channel system providing multi-channel service to all, or part, of the City is designed so as to permit an authorized official of the City to override the audio portion of all channels, by touch- tone phone (or functional equivalent) from any location. B) In addition to any other requirements listed in this Section, an MCS provider shall~ 2) 3) 4) 5) 6) designate a channel which will be used for emergency broadcasts of both audio and video (this channel need not be solely used for emergency broadcasts, and may in fact be used for any lawful purpose)~ inform subscribers of the designated emergency channel on a periodic basis (not less than twice a month)~ maintain all channel video blanking capability to facilitate the needs of hearing and sight-impaired customers~ test the emergency override system not less than once a month~ cooperate with the City on the use and operation of the emergency alert override system~ and develop a plan (with the City's concurrence) in order to provide continuity of multi-channel service, and response to service calls in the event of a natural or man-made emergency. Ordinance #1943 Page 57 c) As one method of providing continuity of multi-channel services in the event of a natural or man-made emergency, an MCS provider shall, unless exempted by the Council/franchising authority, have the capacity for (three) (3) hour automatically activated standby power on all trunk and feeder cable, and all headends, hubs, and receive sites associated with the distribution of cable service to, and throughout the City. Section 92~ Provisions Concerning Safety Alert Technology. A) The City may require an MCS provider, as a means of protecting the health, safety and welfare of the public and of communicating with the public, who utilizes a means of transmission that allows such, to provide a technology or service that~ l) 2) 3) 5) e) ?) 8) 9) provides effectively instantaneous access into potentially every home, regardless of whether or not one subscribes to Basic cable service~ does not require that the television be turned on, or the volume turned up to receive the message; does not require that the resident be home at the time of transmission to receive the message; covers the entire range of human hearing; stores the message in case no one is home at the time; has an emergency audio alert intended to awaken a sleeping individual; can notify any one, or combination of discreet segments of the population, without unnecessarily alarming the rest of the populace; provides a different alert notification for emergency and non-emergency situations. is tied directly into the local office of the National Weather Service's Site Selection weather warning service and standard weather radio service. B) In the event the City chooses not to require the provision of the technology or service the MCS provider shall, reserve the bandwidth necessary for the provision of the service for use by any third party designated or approved by the City/franchising authority. c) The City/franchising authority designates the necessary bandwidth as a form of Governmental Access and as such may require the provision of the necessary bandwidth at no charge. Ordinance #1943 Page 58 D) The City/franchising authority requires the MCS provider the necessary bandwidth to fully and completely cooperate with the City/franchising authority, and any third party provider of the service, in all matters related to the provision of the service, including but not limited to~ 1) 2) 3) 4) making the public aware of the availability of the service~ educating the public as to the benefits, value and use of the service~ the distribution and installation of any in-home device(s) needed for the reception and use of the service~ the provision of the service to the public. E) The City may allow the operator to propose an alternative technology or service that meets, extent possible, the capabilities setforth in Subsection (A). to the Section 93~ Implementation of a Preventive Maintenance Program. A) It shall be the duty of an MCS provider to devise and implement a periodic preventative maintenance program for the multi-channel system in order to ensure that there is no material degradation of the multi-channel system that would affect the citizens' health, safety, and welfare, or negatively affect the quality of multi- channel services being 9rovided. B) The Council/ franchising authority shall have the right of approval of any preventive maintenance program. Within forty-five (45) days after the completion of any preventive maintenance component test, the MCS provider shall prepare and submit a written report (except for daily or weekly components, and tests which may be submitted once a quarter) to the Council/franchising authority detailing the results of the tests conducted, and all items performed or addressed during the periodic preventive maintenance program. Although not exhaustive, the following areas should be included in a preventive maintenance program, and subsequent report: 1) 2) 3) 4) inspection and repair, if needed, of the headend~ inspection and repair, if needed, of the antenna tower~ requiring weather-proofing and protection of the antenna lead connectors, and on any other exposed fittings~ requiring the conducting of signal leakage tests that are in accord with FCC requirements~ Ordinance #1943 Page 59 5) 6) 8) 9) 10) 11) 12) removal of tree roots, limbs, and branches that interfere with, or come in contact with, the MCS provider's cablel requiring the periodic servicing, testing, and calibration of the MCS provider's equipment including service vehicles, and field test equipment~ employing a status monitoring system to identify problems or situations in which the multi-channel system electronics are operating outside pre- programmed parametersl testing of the emergency alert system to ensure that it will function properly during an emergency situation~ testing of the safety alert system or technology, if provided~ testing and recording of test data for all signals (audio and video) at the headend and all system extremity points~ testing as required or allowed by Federal law or regulation~ and meet all operating perimeters as may be set, or allowed, by the FCC, and as such may be changed or amended from time to time. Section 94~ Construction, Fire, and Safety Codes. A) An MCS provider shall construct, operate, maintain, repair, remove, replace, or restore the multi-channel system in strict compliance with all current technical codes adopted by the Council/franchising authority, the State, or the United States. B) The codes referred to specifically include, but are not limited to, construction, fire and safety, and zoning codes. Sections 95 -- 99. Reserved. Section 100z Alternative User Charge. A) This Section is applicable to any licensed, but otherwise authorized MCS provider, and to any MCS provider who has had its franchise ruled unconstitutional, unenforceable, or invalid. For all franchised MCS providers the provisions concerning franchise fees shall be applicable. Where not specifically prohibited by Federal or State law, and as an alternative to the imposition of a franchise fee as set forth in this ordinance, the Ordinance #1943 Page 60 Council/franchising authority may impose, extract, and collect, a charge from an affected MCS provider for the use by such provider of the streets, rights-of-way, easements, and public ways of the City. c) The alternative user charge shall be based on the following mathematical mode~ l) 2) 4) 5) 6) determine the present value of all public streets, rights-of-way, easements, and public ways of the City in which are located multi-channel system facilities and equipment of the affected MCS provider~ take the average percentage increase in land appraisals within the City (as determined by the Property Appraiser for the City, for the five preceding years~ take the average percentage increase for the five preceding years and use it to determine the dollar amount of property value increase for the remaining term of the franchise (if no franchise applicable, then use five years)~ add the present value to the dollar amount of property value increase for the remaining term of the franchise (if no franchise applicable then use five years)~ divide the adjusted value by the remaining number of years on the term of the franchise (if no franchise applicable then use five years)~ multiply that figure by five percent (5%) to arrive at the annual user charge that is to be collected from the affected MCS provider. For purposes of illustration only, the formula reads as follows~ present value, = (plus) dollar amount of property increase for remaining term of the franchise (based on average percentage increase of land appraisals for past years of franchise term, divide the adjusted value by the remaining years on the term of the franchise, multiply that figure by five percent (5%), = (equals) the annual alternative user charge. D) The Council/franchising authority adopts such an alternative user charge, in order to receive fair compensation for the affected MCS provider's use of the public streets and public ways if such compensation cannot be obtained by imposing a flat percentage fee on Ordinance ~1943 Page 61 such MCS provider's annual gross revenues. However, an affected MCS provider may agree to an alternative charge that is based on a flat percentage of gross revenues, as long as that charge does not exceed five percent (5%) of an affected MCS provider's annual gross revenues. Also, recognizing that an alternative user charge may affect a franchised MCS provider, please note, that the franchise agreement may contain express language which details a different method or manner to handle a situation in which franchise fees as historically calculated (as a percentage of gross revenues) are ruled unconstitutional, or unenforceable, in order to protect, and preserve the City's source of revenue and compensation for the use of the public rights-of-way. It is expressly understood that a franchise fee and an alternative user charge will not be imposed on the same MCS provider at the same time, for the same period. c) An affected MCS provider shall at no time be charged or obligated to pay an alternative user charge that exceeds five percent (5%) of such provider's gross revenues (as defined by this ordinance) for any particular reporting period. In the event that the alternative user charge does exceed five percent (5%) of gross revenues, then such alternative user charge shall be reduced to reflect an amount not greater than the five percent (5%) cap. H) An affected MCS provider shall pay twenty-five percent (25%) of the alternative user charge at the end of every three (3) months. Section 101= Franchise Required~ Exception. A) Except as provided in subsections (B) and (C), and (D) of this Section, no ~erson, or MCS provider shall be permitted to construct, operate or maintain a multi- channel system which requires the laying or positioning of cable (coaxial, fiber or functional equivalent) across the rights-of-way of the City, without having first obtained a franchise, and then entering into a franchise agreement with the City. B) Pursuant to the CCPA, a local government may own and operate a multi-channel system classified as a cable system. Consequently, should the Council/franchising authority directly, or indirectly, through any legal means available to the Council/franchising authority, decide to purchase, acquire, construct, lease, control, or otherwise own a cable system within the territorial limits of the City, then the Council/franchising Ordinance ~1943 Page 62 c) D) authority shall not be required to submit a proposal for, or receive, a franchise in order to construct, operate, and maintain a cable system within the geographical limits of the City. In the case of a person or MCS provider lawfully providing multi-channel service on July 1, 1984, then such person or MCS provider shall not be required to obtain a franchise, and enter into a franchise agreement unless the Council/franchising authority expressly requires the person or MCS provider to do so. If, as a result of annexation (either previous to, or subsequent to, the effective date of this ordinance), a previously unfranchised MCS provider comes under the jurisdiction of the City, then such MCS provider shall not be required to obtain a franchise, and enter into a franchise agreement unless the MCS provider wishes to expand its service area and Council/franchising authority expressly requires the operator to do so. E) Where a person or MCS provider is required by the Council/franchising authority to obtain a franchise, then the Council/franchising authority shall notify the person or MCS provider, in writing, within thirty (30) days of the Council/franchising authority's formal action. F) After receipt of notification, the affected person or MCS provider has ninety (90) days to submit an application or proposal in substantially the same form and format as required by the Council/franchising authority. Then, the affected person or MCS provider's application will be handled as set forth by either State or local law. G) It is the intent of the City/franchising authority that as a matter of policy all MCS provider franchises shall contain substantially similar minimum terms and conditions. However, this shall not apply to legitimate SMATV operators who may cross only one street or right-of-way. H) The City/franchising authority, to the extent permitted by law, shall always have the right to grant or deny a franchise as may be deemed in the public interest. Section 102~ Authority to Grant Non-Exclusive Franchises. A) Consistent with Section 621(a)(1) of the CCPA (codified at 47 USC 541), the Council/franchising authority may award one (1) or more non-exclusive multi-channel service franchises within its geographical limits. Ordinance #1943 Page 63 B) A franchised MCS provider shall be selected as part of a public proceeding and hearing which affords due process to both the City, and the applicant, and after which, if the applicant is selected as a franchised MOS provider, then such applicant will enter into a franchise agreement with the City, pursuant to the provisions of Federal, State and local laws and regulations. Section 103~ Franchise Agreement~ Minimel Requirements. A) If the Council/franchising authority awards an applicant a franchise to construct, operate, or maintain a multi-channel system in all, or part, of the City, or approves a proposal for a renewal of a franchise, then within one hundred eighty (180) days, an applicant or a renewal franchised MCS provider and the City shall enter into a franchise agreement which details the rights, duties, responsibilities, and liabilities of both parties. c) D) A newly franchised MOS provider may not lay any cable (coaxial, fiber, or functional equivalent) until the franchise agreement is executed by both the newly franchised MCS provider and the Council/franchising authority. A franchise agreement shall be in sufficient detail in order to clearly delineate the rights and duties of the franchised MCS provider, and the Council/franchising authority. At a minimum, a franchise agreement shall contain provisions for the followings 1) a detailed definition of "annual gross revenues" or "gross revenues" which specifically includes an explanation of what constitutes the revenue base for determining what revenues are subject to any franchise fee or alternative user charge~ 2) the term or duration of the franohise~ 3) indemnity and holds harmless clauses~ 4) insurance~ 5) performance and completion bonds or security deposits~ 6) construction, upgrade or rebuild schedule~ 7) franchise fees~ 8) continuity of multi- channel programming service~ 9) repeal of prior inconsistent franchise agreements~ 10) a severability clause~ and 11) any exemptions or relief from this ordinance granted, or any ordinance clarifications noted with respect to the MOS provider's operation of a franchised multi-channel system. Ordinance #1943 Page 64 E) Regardless of the need for a franchise (for any particular technology or provider) the City/franchising authority, to the extent allowed by State or Federal law, retains the right to impose certain minimum requirements as may be deemed in the public interest. Such minimum requirements shall specifically include matters related to customer service standards, consumer protection requirements as set forth in this Ordinance. Section 104~ Extent of Grant of Franchise. A) Upon an award of a franchise, and the subsequent execution of the franchise agreement, an MCS provider required to obtain and maintain a franchise may construct, erect, install, maintain, operate, repair, replace, remove, or restore a multi-channel system within the geographical limits set forth in the franchise agreement. B) The franchised multi-channel system mey be located in, upon, along, across, over, and under the streets, rights-of-way, easements, and public ways of the City. ¢) If necessary, the responsibility of obtaining easements for private property (including privately owned utility or street light poles) shall be that of a franchised MC$ provider. D) A franchised MCS provider, through a separate pole or utility easement agreement with an affected utility, may locate the multi-channel system on, or within, the property of such utility company. This provision specifically includes MCS providers classified as cable operators. Section 1052 Term of Franchise. A) The term of an initial or renewal franchise may be for a period not to exceed fifteen (15) years from the date that a franchise renewal agreement is approved by the Council/franchising authority. B) If an initial franchise or renewal franchise is for a period of six (6) years or less, then the franchise agreement shall detail the reasons for granting the shorter franchise term. c) The reasons for a franchise term of six (6) years or less, include, but are not limited to, the followings 1) 2) multiple or repeated violations of the prior franchise agreementl multiple or repeated violations of this ordinance, or any mandated provisions of the CCPAi Ordinance #1943 Page 65 3) 4) 5) 6) a continuing and documented pattern of substandard or non-responsive service; reckless disregard for the safety and welfare of the citizens of the City; failure to comply with any construction, rebuild, or upgrade schedule; and failure to timely pay in their entirety any franchise fees, or taxes, or other charges due to the City. D) The Council/franchising authority reserves the right to grant a franchised MCS provider a variable franchise term (wherein the initial or renewal term may be extended by up to three (3) years (not to exceed fifteen (15) years total) upon the franchised MCS provider attaining an excellent rating during the course of a periodic performance evaluation. E) Should the highest court of the nation, or State, invalidate, void as unenforceable or unconstitutional, the concept of a franchise or franchise duration, then the Council/franchising authority may adopt emergency rules and regulations in order to preserve and protect the rights and duties of both the Council/franchising authority and any franchised MCS provider. During the interim, the invalid franchise may be considered (unless prohibited by the State) and interpreted in the same manner and fashion as a business license. Upon the adoption of emergency rules, the Council/ franchising authority should enter into a new agreement which describes under which terms and conditions of the franchised MCS provider's system may be reviewed and examined, and under what circumstances may a franchised MCS provider forfeit its right to operate a multi- channel system within all, or part of, the City. Section 106z Application for Franchise; Application Fee. A) The Council/franchising authority may develop rules and regulations with respect to the submission and processing of applications for an initial franchise. Such rules and regulations shall primarily be aimed at determining the legal, financial, technical, and character qualifications of the applicant. B) Unless prohibited, an initial applicant shall pay an application fee which shall be equal to the administrative and consulting costs associated with processing an application for a franchise. The total application fee must be paid, unless waived, regardless Ordinance ~1943 Page 66 of whether the applicant receives, or does not receive a franchise. The total application fee must be paid (or waived) prior to the Council/franchising authority's formal action on the applicant's request for a franchise. Section 107~ Franchise Fees. A) Any franchised MCS provider (specifically including any MCS provider classified as a cable operator) awarded a franchise or renewal franchise after the date this ordinance becomes effective, shall pay to the City for the privilege and use of the streets, rights-of-way, easements, and public ways, and other facilities of the City in the operation of the multi-channel system, and for the City's supervision thereof during the term of the franchise, a sum of up to five percent (5%) of the annual gross revenues of such non-exempt franchised MCS provider. B) If the FCC, Congress or other governmental entity with authority over multi-channel service ever allows a governmental entity or Council/franchising authority to increase the franchise fee beyond five percent (5%), then the Council/franchising authority shall have the authority to increase the franchise fee to the maximum rate allowable. c) D) It is intended that the franchise fees will promote the health, safety, and welfare of the citizens of the City. Therefore, the five percent (5%) franchise fee shall be deposited into the general revenues of the City, unless specifically authorized elsewhere. A franchised MCS provider shall file with the Council/franchising authority, within ninety (90) days after the expiration of each of the franchised MCS provider's fiscal quarters, a detailed financial and revenue statement clearly showing the gross revenues received by such franchised MCS provider during the preceding quarter and certified by a certified public accountant or officer of a franchised MCS provider attesting to the accuracy, completeness, and veracity of the revenue figures. Such statement shall be in the form and format determined by the Council/franchising authority. Such statement shall include revenue from whatever source, directly or indirectly derived from, or allowed, or caused to be derived from, or applicable to the operation of the multi-channel system, or the provision of any multi-channel service by or to the multi-channel system, for those revenues and revenue Ordinance #1943 Page 67 E) F) G) H) sources applicable to or affecting the franchise fee or the computational base for the franchise fee. Revenue will be reported by service category, type, and level showing computations and using incremental billing rates for all sources, levels, tiers, and types of service and other revenue sources of all kinds and types. Payment of the quarterly portion of the franchise fee shall be rendered to the City at the time the financial and revenue statement is filed. In the event that payment is not made within forty-five (45) days after the date specified in this 8ection, then such franchised MCS provider may be declared in default of the franchise, and the franchise may be revoked, terminated, or cancelled in the manner prescribed by this ordinance. The Council/franchising authority reserves the right to audit a franchised MCS provider books, if the Council/ franchising authority deems it necessary. If such audit discovers an underpayment of franchise fees that exceeds two percent (2%) of the total fee paid for any reporting quarter, then the affected franchised MCS provider shall reimburse the City for the cost of such an audit. It is specifically understood, that the right of audit and re-computation of any, and all, amounts paid under a franchise fee, shall always be accorded to the Council/franchising authority. It is further understood that the Council/franchising authority shall be bound by the result of any audit it performs are causes to be performed, except for instances involving fraud. If an audit, or other research discovers that franchise fees have been either underpaid or not paid for a period exceeding six (6) months from the original due date, then the City may seek full recovery of the underpaid, or non-paid fees plus interest not to exceed fifteen percent (15%) or the maximum allowable under State law (whichever is lesser). All annual reports due and pertaining to the payment of franchise fees, will be certified by an officer of the franchised MCS provider, and such provider shall maintain records used in the preparation of said report, to be produced in their originality and totality upon request or demand by the Council/ franchising authority. Ordinance #1943 Page 68 J) K) M) O) No acceptance of any payment shall be construed as a release of, or an accord, or satisfaction of, any claim that the City might have for further or additional sums payable under the terms of this ordinance, or for any other performance or obligation of a franchised MCS provider hereunder. Payments of compensation made by a franchised MCS provider to the City, pursuant to the provisions of this ordinance, shall be considered in addition to, and exclusive of, any and all authorized taxes, business license fees, other fees, other levies or assessments presently in effect, or subsequently adopted. A franchise fee does not include any items excluded by Section 622 (g) (2) (D) of the CCPA (codified at 47 USC 542 (g) (2) (D)). Nothing in this Section shall be construed to limit the authority of the Council/franchising authority to impose a tax, fee or other assessment of any kind, on any person (other than a franchised MCS provider) with respect to multi-channel service or other programming or communications service provided by such person over a multi-channel system for which charges are assessed to subscribers, but not received by a franchised MCS provider. For purposes of illustration only, this subsection shall include the situation(s) where a premium service directly bills a subscriber, or the franchised MCS provider merely acts as collection agent for a premium service billing directly to a subscriber, or where a person leases a channel for commercial use and sells advertising or goods on that channel, and receives the money directly or through a third party. For any twelve (12) month period, the fees paid by any person subject to subsection (M) who provides any such multi-channel service shall not exceed five percent (5%) of such person's gross revenues derived in such period from the provision of such service over the multi-channel system, or the maximum allowed by law at any time. If at any time, the highest court of the nation, or the highest court of the State, invalidates, voids, or rules as unconstitutional the concept of franchise fees, then the Council/franchising authority may impose an alternative user charge on the franchised MCS provider, in the manner set forth in this ordinance. Ordinance ~1943 Page 69 P) In light of subsection (0) of this Section, and recognizing that an alternative user charge may affect a franchised MCS provider, please note that the franchise agreement may contain express language which details a different method or manner for collection of franchise fees should the way they historically have been calculated (as a percentage of gross revenues) be ruled unconstitutional or unenforceable, so that the City's source of revenue and compensation for the use of the public right-of-way may be protected. Section 108~ Assignment or Transfer of Franchise. A) B) Where required for operation, an MCS provider's franchise may not be assigned or transferred in whole, or in part, by the affected MCS provider, without the prior express written approval by the Council/ franchising authority. Any attempted assignment or transfer without such prior written consent shall constitute a default of such franchise. c) In the event of such a default, the Council/franchising authority shall proceed according to the procedure set forth in this ordinance, and any applicable State law. D) At least ninety (90) days before a proposed assignment or transfer of an MCS provider's franchise is scheduled to become effective, such franchised MCS provider shall petition in writing for the Council/franchising authority's written consent for such a proposed assignment or transfer. The Council/franchising authority will not unreasonably withhold its consent to such an assignment or transfer. However, in making such a determination, the Council/ franchising authority may consider the followings l) 2) 3) 4) 5) experience of proposed assignee or transferee (including conducting an investigation of proposed assignee or transferee's service record in other com~unities)~ qualifications of proposed assignee or transferee~ legal integrity of proposed assignee or transferee~ financial ability and stability of the proposed assignee or transferee~ if requested by the Council/franchising authority, submittals from the proposed assignee or transferee, on what, if any, changes it intends to make in the operation and maintenance of the present multi-channel system~ Ordinance ~1943 Page 70 7) s) the corporate connection, if any, between the franchised MCS provider, and proposed assignee or transferee~ the economic viability or non-viability of the multi-channel system in the future, based upon certain factors including the impact of the purchase price on the City and/or the proposed assignee or transferee~ and any other legitimate aspect of the proposed assignee's or transferee's background which could affect the health, safety, and welfare of the citizenry of City as it relates to the operation of the multi-channel system. F) A copy of the completed sales agreement, or a functionally equivalent instrument, between the franchised MCS provider and proposed assignee or transferee shall be provided to the Council/franchising authority, so that the Council/franchising authority may discover the assumption of obligations by the franchised MCS provider and proposed assignee or transferee with respect to the multi-channel system. In lieu of the sales agreement, the Council/franchising authority may accept an attested summary of obligations assumad by the above-referenced parties. G) H) Before an assignment or transfer is approved by the Council/franchising authority, the proposed assignee or transferee shall execute an affidavit, acknowledging that it has read, understood, and intends to abide by both this ordinance, and the applicable franchise agreement. In the event of any approved assignment or transfer, the assignee or transferee shall assume all obligations and liabilities of the former franchised MCS provider, except as noted in subsection (I). I) An assignment or transfer shall not relieve the former franchised MCS provider of its liabilities under the franchise agreement until the assignment actually takes place, or unless specifically relieved by Federal, or State law, or unless specifically relieved by the Council/franchising authority at the time an assignment or transfer is approved. Section 109z Default of Franchise~ Revocation, Termination or Cancellation of Franchise. A) When any event, act or omission (on the part of the franchised MCS provider) occurs which represents a violation of an integral provision of this ordinance, or compromises the corporate character, or legal, financial or technical integrity and/or stability of Ordinance #1943 Page 71 B) c) D) E) F) the multi-channel system or the franchised MCS provider to such a degree that the interests of the subscribers and users are negatively affected, then such event, act or omission may be considered a major breach of this ordinance. Under such circumstances, the Council/ franchising authority shall notify the affected MCS provider in writing, of the specific breach, and direct such franchised MCS provider to comply with all such provisions of its proposal, franchise agreement, or this ordinance. For illustrative purposes only, the events, acts and omissions include, but are not limited to~ bankruptcy, insolvency, failure to pay taxes or franchise fees (including the alternative user charge if applicable), failure to receive written Council/franchising authority approval for an assignment or transfer, or failure to abide by the integral terms and conditions of the franchise agreement, or integral provisions of this ordinance. For purgoses of this Section, "integral" means a provision which either 1) affects the ability of the customer to receive multi-channel service, or 2) affects the ability of the Council/franchising authority to receive compensation for the use of its right-of-ways, or 3) affects the ability of the Council/franchising authority to evaluate an MCS provider's performance in the technical, financial, and legal aspects of the multi- channel system. Where a franchised MCS provider satisfactorily corrects any of the enumerated conditions, within sixty (60) days, then in no event shall the enumerated condition be weighed against such franchised MCS provider in any subsequent review of franchise performance. A copy of such notice of material breach shall be mailed to the surety on the performance bond. Within seventy-five (75) days, after such written notice is mailed to a franchised MCS provider, the Council/franchising authority shall conduct a public hearing on the matter (unless State law requires a different procedure in which the State procedure would control). The Council/franchising authority shall provide written notice to a franchised MCS provider, and the surety, of the time and place of said public hearing in a manner consistent with either State law, or approved by the Council/franchising authority. Ordinance #1943 Paqe 72 H) I) J) K) At the time of the hearing, the affected franchised MCS provider or may present information on the current status of the alleged breach of the franchise agreement. If the situation has been resolved, or steps are being taken to resolve the situation, then the franchised MCS provider should present the information at the hearing. If the affected franchised MCS provider fails to attend the hearing, and has not requested a continuance of the hearing, then such franchised MCS provider shall be deemed to have waived its right to a further continuation of the matter, and may be declared in default of the franchise agreement. After the public hearing, the Council/franchising authority may determine the franchised MCS provider to be in compliance and dismiss the matter, or may determine that the MCS provider has cured any non- compliance and thereby dismiss the matter. However, the Council/franchising authority may determine that an ordinance violation exists and remains uncured. Consequently, upon a finding that the MCS provider violated an integral ordinance provision, or failed to cure an outstanding ordinance violation, the Council/ franchising authority may direct the affected franchised MCS provider to take corrective action within a specified period of time, or may declare such franchised MCS provider in default of the franchise agreement, and thereafter, may revoke, terminate, or cancel the franchise, unless the franchised MCS provider presents sufficient mitigating circumstances. If the Council/franchising authority directs corrective action to take place within a specified time or declares such franchised MCS provider in default of the franchise agreement, then that declaration shall be reduced to writing, and the notice of corrective action or default shall be mailed to such franchised MCS provider, and surety, within fifteen (15) days of the Council/franchising authority's action. If within forty-five (45) days, the affected franchised MCS provider, or surety does not take significant action to rectify the breach, or submit a plan detailing how the affected MCS provide will eliminate the breach, then the Council/franchising authority shall revoke such MCS provider's franchise, and shall notify the affected franchised MCS provider, and surety forthwith, unless there are mitigating circumstances. Ordinance #1943 Page 73 The Council/franchising authority reserves the right to assess any charges incurred (including costs for consultants, witnesses, and hearing preparation) in a default and/or revocation proceeding to the franchised MCS provider. Section 110~ Performance Evaluations. The Council/franchising authority is authorized to design a performance evaluation procedure which periodically monitors compliance of the franchised MCS provider with the terms and conditions of both the franchise and this ordinance. Moreover, the Council/franchising authority may periodically review, and examine whether a franchised MCS provider's financial, technical, legal, and character qualifications continue to meet required operational, maintenance, and performance levels in order to ensure that identify community needs are meet and the uninterrupted provision of multi-channel services. Such performance evaluations may be conducted every three (3) years during the franchise term, and may done as part of any required survey. Sections 111 -- 115. Reserved. Section 116~ Specific Additional Rules for MCS Providers Classified as Cable Operators. A) In addition to any requirements contained within this ordinance, all MCS providers that are classified as cable operators shall be expected to abide by, and comply with, all applicable provisions of the Cable Communications Policy Act of 1984. The specific provisions of the CCPA include, but are not limited to, the following~ 1) 2) 3) 5) 6) 7) cable channels for public, educational, or governmental use (Section 611 CCPA--codified at 47 USC 531)~ cable channels for commercial use (Section 612--47 USC 532)~ general franchise requirements (Section 621--47 USC 541)~ franchise fees (Section 622--47 USC 542)~ regulation of rates (Section 623--47 USC 543)~ regulation of services, facilities, and equipment (Section 624--47 USC 544)~ modification of franchise obligations (Section 625--47 USC 545)~ Ordinance #1943 Page 74 8) 9) 10) 11) franchise renewal (Section 626--47 USC 546)~ conditions of sale of a franchise (Section 627--47 USC 547)~ subscriber privacy (Section 631--47 USC 551)~ and equal employment opportunity (Section 634--47 USC SS4). c) Further, as an additional requirement, before the third anniversary of the effective date of this ordinance, any non-exempt MCS provider classified as a cable operator and providing cable service within the City shall have designed and activated a multi-channel system with a minimum capability of providing sixty (60) full time video services. D) Further, the Council/franchising authority is committed that the goal of the CCPA, as set forth in Section 601 (4) of the Act (codified at 47 USC 521 (4)), is met at all times. As a result, the Council/franchising authority expressly requires that upon the advent, implementation, and transmission of high definition television (HDTV), its functional equivalent, or any subsequently developed technological advancement affecting channel capacity or needed bandwidth for any video programming source or service, the cable operator shall not lessen, dilute, or decrease the mix, level, quality, or quantity of programming services carried on the cable system for reasons of lack of adequate channel capacity. Section 117= Specific Additional Public, Educational, and Governmental Rules for MCS Providers Classified as Cable Operators. A) The Council/franchising authority recognizes that under Section 611 of the CCPA (codified at 47 USC 531), the Council/franchising authority has certain power with respect to certain aspects for public, educational, or governmental (PEG) use that is provided by MCS providers classified as cable operators. B) To the extent permitted by law, and in order to fulfill the Council/franchising authority's desired goal of a public, educational, and governmental (PEG) access policy that will facilitate the long-range needs of the City, the Council/franchising authority adopts the following~ l) At the time of an initial application for an MCS franchise for a cable system, and contained within any renewal franchise agreement, an MCS provider classified as a cable operator shall pledge to include the following guarantees~ Ordinance #1943 Page 75 2) 3) a) b) c) d) An MCS provider classified as a cable operator shall provide, at its own expense, one (1) twelve (12) hour educational channel~ and An MCS provider classified as a cable operator shall provide, at its own expense, one (1) twelve hour (12) governmental channel that is available for providing coverage of Council meetings, and other related programming offered or designed by the City Manager, or designated official, including department heads~ and An MCS provider classified as a cable operator shall provide, at its own expense, one (1) twelve (12) hour public access channel that is available for use by various community groups and organizations such requirements may not require three separate channels--rather that, sufficient channel capacity exist at any time to accommodate the needs of the users of the PEG channels . Both the Council/franchising authority and the affected cable operator shall review use after every six (6) months, including the percentage of use of every PEG channel. At the end of each six (6) month period, the Council/franchising authority shall evaluate the response and actual use of such channels. If, after any six (6) month period, the percentage of use for any required PEG channel drops below twenty-five percent (25%) of the total time allocated, then the required number of hours shall be reduced to a n-mher that most closely approximates the average hours of use per day. If the Council/franchising authority determines the average hours of use per day for any required PEG channel is less than four (4) hours, then the requirement for that channel's availability shall cease, and an affected cable operator may use such channel for any lawful purpose. If, at any time, ninety percent (90%) of the total time allocated for any required PEG channel is consistently used five (5) days a week for a period of six (6) months, then the cable operator shall provide an additional PEG channel. A cable operator may be required to provide both mobile, portable, and stationary equipment to be used for PEG access, together with the aid of technical and production assistance provides by the cable operator. A cable operator may be Ordinance #1943 Page 76 required to provide equipment that can store programs for delayed cablecasting. There will be no cost for technical production assistance for PEG access use to any one user provided that such use does not exceed fifty (50) actual production man-hours. Moreover, the cost of maintenance of a PEG access studio, and equipment required to run the studio shall be borne by the cable operator. Section 118~ The Council/Franchising Authorit¥'s Objective as it Relates to the Provision of Broad Categories of Video Programming. A) The Council/franchising authority recognizes that under Section 624 of the CCPA (codified at 47 USC 544), the legal power of local government is severely restricted in requiring and/or demanding that particular video programming or other services be provided to subscribers over the multi-channel system. B) Nevertheless, the Council/franchising authority recognizes that it should strive to ensure that its citizens receive the widest, and most diverse selection of video programming possible. Consequently, for those MCS providers required to meintain a franchise, the Council/franchising authority states as its objective to such franchised MCS providers, that the provision of video programming to subscribers should include the following broad categories~ 2) 3) 4) 5) 6) ?) 8) 9) local broadcast stations~ two (2) distant carriage signals, or satellite-fed broadcast stations~ PEG programming on the lowest offered and/or available tier~ sports programming services (regional and/or national)~ news, information, or public affairs/interest programming services~ financial/consumer-oriented programming services~ scientific and/or cultural programming services~ children's programming services~ and ethnically sensitive programming services. Section 1192 The Council/Franchising Authority's Policy Regarding the Provision of Seamless or "See-through" Technology. A) The Council/franchising authority recognizes the fact that it is in the public's interest to be able to utilize the functions inherent in subscriber receiving equipment, without having to incur additional costs to obtain the same functions. Consequently, the Council/franchising authority may require that~ Ordinance ~1943 Page 77 1) unless a franchised MCS provider can demonstrate to the City that it is technically or economically unfeasible or commercially impracticable, then such MCS provider shall provide the ability to utilize the functions inherent in subscriber equipment in a seamless or "see-through" manner which allows~ a) b) the use of any built-in remote control capability of a subscriber's television for the control of any, and all, television channels provided by the franchised MCS provider without the use or necessity of additional equipment~ and the ability to record video progrsm~ing on any channel provided by the MCS provider, while watching programming on any different channel, without the use or necessity of any additional in-home equipment other than the television receiver/monitor and a recorder. Sections 120 -- 125. Reserved. Section 126~ Miscellaneous Provisions--Tampering and Unauthorized Reception of Certain Services. A) Consistent with Section 633 of the CCPA (codified at 47 USC 553), no person shall intercept or receive, or assist in intercepting or receiving any communications service offered over a multi-channel system, unless specifically authorized to do so by an MCS provider, or as may otherwise be specifically authorized by law. B) For the purpose of this Section, the term "assist in intercepting or receiving" shall include the manufacture or distribution of equipment intended by the manufacturer or distributor (as the case may be) for the unauthorized reception of multi-channel service as noted in subsection (A) of this Section. c) Without securing permission from an MCS provider, or making payment to an MCS provider, then no person shall be authorized to make any connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of an authorized or franchised multi-channel system for the purpose of receiving or intercepting, or assisting others to receive or intercept any cable service provided lawfully by the MCS provider. Ordinance #1943 Page 78 D) No person shall be authorized to willfully tamImr with, remove, or damage any cable, wires, equipment, or facilities used for the distribution of multi-channel services. Any, and all, MCS providers are encouraged to work with the Council/franchising authority in developing and implementing a plan designed to control and eliminate the unauthorized reception of certain cable services within the City. Section 9-1272 Effective Date. This ordinance shall take effect and be in full force from and after its passage approval, and publication as provided by law. PASSED AND APPROVED THIS THE 13th DAY OF February, 1992. City Secretary