114.03 Granting of Franchise
114.04 Compliance Required Generally
114.05 National Electric Safety Code
114.06 FCC Regulations
114.07 Modification of FCC Rules
114.09 Company Rules and Regulations
114.10 Franchise Term
114.11 Franchise Renewal
114.12 System Construction, Maintenance and Procedures
114.13 Line Extensions
114.14 Purchase of System by City
114.15 City Rights
114.16 Payments to City
114.17 Rates and Charges
114.18 Record Keeping
114.19 Service Procedures
114.20 Protection of Privacy
114.21 Program Content Restrictions
114.22 Discrimination Prohibited
114.23 Liability and Indemnification
114.24 Activities Prohibited
114.25 Violation; Penalty
The following words and phrases, when used herein, shall, for the purposes of this chapter, have the meanings ascribed to them in this section:
- “Company” means Complete Communication Services (CCS), an Iowa corporation maintaining its offices in Stratford, Iowa, the grantee of rights under the regulatory ordinance codified in this chapter. Any other firm granted a cable television franchise in the City would also be governed by this chapter.
- “Federal Communications Commission” or “FCC” means the Federal agency by that name as constituted by the Communications Act of 1934, as amended.
- “System” means the lines, fixtures, equipment, attachments and appurtenances thereto which are used in the construction, operation and maintenance of the community antenna television system authorized by this chapter.
The regulatory ordinance codified herein which grants to the company the nonexclusive right to construct, operate and maintain a cable television system in the City was passed and adopted by the Council after a full, open and public proceeding. The proceeding was held after public notice was given and afforded all interested parties the opportunity to comment upon the legal, character, financial, technical and other qualifications of the company. Having received at said proceeding all comments regarding the qualifications of the company, the City found that the company possesses the necessary legal, technical, character, financial and other qualifications and that the company’s construction arrangements are adequate and feasible. Therefore, the City grants to the company a nonexclusive franchise, right and privilege to construct, erect, operate, modify and maintain in, upon, among, across, above and over and under the highways, streets, alleys, sidewalks, public ways and public places now laid out or dedicated and all extensions thereof, and additions thereto in the City, poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the City of a cable television system for the purpose of distributing television and radio signals, and other electronic impulses in order to furnish television and radio programs, and various communications and other electronic services to the public. The right so granted includes the right to use and occupy said streets, alleys, public ways and public places and all manner of easements for the purposes set forth in this chapter.
114.04 COMPLIANCE REQUIRED GENERALLY.
The company shall, at all times during the life of the regulatory ordinance codified in this chapter, be subject to all lawful exercise of the police power by the City and to such reasonable regulations as the City shall hereafter by resolution or ordinance provide. The construction, operation and maintenance of the system by the company shall be in full compliance with such portions of the National Electrical Safety Code as may be applicable and as the same may be amended and revised from time to time, and in full compliance with all other applicable rules and regulations now in effect or hereafter adopted by the Federal Communications Commission, the City or any other agency of the State or the United States, which may hereafter acquire jurisdiction of the operations of the company authorized in this chapter. The company will provide a minimum of 5 satellite signals with an additional 4 off-air channels.
114.05 NATIONAL ELECTRIC SAFETY CODE.
All facilities and equipment of the company shall be constructed and maintained in accordance with the requirements of the National Electrical Safety Code, and such applicable ordinances and regulations set forth by the City and/or any local, State or Federal agencies.
114.06 FCC REGULATIONS.
The company shall, at all times, comply with the rules and regulations governing CATV operations promulgated by the FCC, specifically those set out in Section 76.31 of the FCC Rules and Regulations. This shall include adherence by the company to FCC rules regarding technical and engineering specifications involved in the construction of the CATV system and signal carriage therein.
114.07 MODIFICATION OF FCC RULES.
Consistent with the requirements of Rule 76.31 (a)(6) of the FCC, any modification of Rule 76.31 resulting from amendment thereto by the FCC shall be incorporated in this chapter by specific amendment thereto by lawful action of the Council within one year from the effective date of the FCC’s amendment or at the time of renewal of the ordinance codified in this chapter, whichever occurs first.
The company shall not sell or transfer its system to another, or transfer any rights under this chapter to another without written notice and approval by the City; provided, that such approval shall not be unreasonably withheld if the vendee, assignee or lessee has filed with the appropriate official of the City an instrument duly executed, reciting the fact of such sale, assignment or lease, accepting the terms of this chapter and agreeing to perform all conditions thereof.
114.09 COMPANY RULES AND REGULATIONS.
The company shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the company to exercise its rights and perform its obligations under this chapter and to assure uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or of federal and State law.
114.10 FRANCHISE TERM.
The franchise granted under this chapter shall terminate fifteen (15) years from the date of grant, subject to renewal for period of reasonable duration on the same terms and conditions as contained in this chapter, or on such different or additional terms and conditions as may be lawfully specified by the Council and as are consistent with the requirements of Rule 76.31 of the FCC. This franchise shall not be exclusive and shall neither restrict the Council in the exercise of its regulatory power, nor prevent it from granting any other cable television system franchise.
114.11 FRANCHISE RENEWAL.
No renewal of the ordinance codified in this chapter shall be effective except pursuant to a public proceeding affording due process. The company shall be a party to any such proceedings and any other proceedings in which its rights, privileges or interests would be affected and shall be fully entitled to such due process rights as may be available under applicable laws, ordinances, rules and regulations.
114.12 SYSTEM CONSTRUCTION, MAINTENANCE AND PROCEDURES.
- In furtherance of the company’s execution of contracts with public utility companies or any other owner or lessee of any poles located within or without the City to whatever extent such contract or contracts may be expedient and of advantage to the company for use of poles and posts necessary for proper installation of the system, the company may obtain right-of-way permits from appropriate State, County and Federal officials necessary to cross highways or roads under their respective jurisdictions, to supply main trunk lines from the company’s receiving antennas, obtain permission from the Federal Aviation Authority to erect and maintain antennas suitable to the needs of the system and its subscribers and obtain whatever other permits a City, County, State or Federal agency may require. The company shall construct its cable system using material of good and durable quality and all work involved in the construction, installation, maintenance and repair of the cable system shall be performed in a safe, thorough and reliable manner. Any municipal property damaged or destroyed shall be promptly repaired or replaced by the company and restored to serviceable condition.
- The company’s system, poles, wires and appurtenances shall be located, erected and maintained so that none of its facilities shall endanger or interfere with the lives of persons or interfere with any improvements the City may deem proper to make or unnecessarily hinder or obstruct the free use of the streets, alleys, bridges, easements or public property.
- In the event that the City annexes further territory as authorized by the law, the company shall extend energized trunk cable to the remaining portions of the City so annexed within an acceptable time thereafter, unless additional time is granted by the Council upon request of the company for good cause shown. Extension of service shall not be one of the requirements as set forth in this section.
- All transmission and distribution structures, lines and equipment erected by the company within the City shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights of reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places. In the event the electrical and phone lines are buried to the subscriber’s residence, the company shall be required to bury the cable also.
- In case of any disturbance of pavement, sidewalk, driveway, grass or other surfacing, the company shall, at its own cost and expense and in a manner approved by the City, replace and restore all paving, sidewalk, driveway, grass, shrubs, trees, fences or surface of any street or alley or other public or private property in as good condition as before said work was commenced.
- In the event that at any time during the period of the franchise the City lawfully elects to alter or change the grade of any street, alley or other public way, the company, upon reasonable notice by the City, shall remove, relay or relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.
- The company shall not place poles or other fixtures where the same will interfere with any gas, electric or telephone fixtures, water hydrants or mains and all such poles or other fixtures placed in any street shall be placed at the outer edge of the sidewalk and inside the curb line, and those placed in alleys shall be placed close to the line of the lot abutting on said alley, and then in such manner as not to interfere with the usual travel on said streets, alleys and public ways.
- The company shall, on the request of any person holding a building moving permit issued by the City temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same and the company shall have the authority to require such payment in advance. The company shall be given no less than forty-eight (48) hours advance notice to arrange for such temporary wire changes.
- The company shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables. All tree trimming is to be done under the direction of the City and at the expense of the company.
- The company shall provide, upon request and without charge, service to any municipal buildings owned and operated by the City and to any public or parochial elementary or secondary school. This shall mean only an energized cable to such building. The cost of any internal wiring shall be borne by the institution.
It shall be the obligation of the company to serve all residents of the City except to the extent that density of homes, adverse terrain or other factors render providing service impracticable, technically infeasible or economically noncompensatory. For purposes of determining compliance with the provisions of this section, the company shall extend service to new subscribers at the normal installation charge and monthly rate for customers of that classification where there is an average of fifty-five (55) homes per each linear mile of new cable construction. In the event that the requirements of this section are not met, extensions of service shall be required only on a basis which is reasonable and compensatory.
114.14 PURCHASE OF SYSTEM BY CITY.
If the City determines not to reissue the franchise for reasons other than a material breach of the franchise or reasons unrelated to the performance of the franchise holder or upon receipt of an application for assignment of the franchise, or upon change of de facto control, the company shall first offer the cable television system for sale to the City at a fair and just market value, which value shall include the fair market value of the system as a going concern including the franchise itself and the rights and privileges granted by the City. When a franchise is revoked pursuant to this section or expires and is not renewed because of a material breach of the franchise, the company shall first offer the cable television system for sale to the City at a fair and just market value, which value shall not include any value for the franchise itself or for any of the rights and privileges granted by the City. In the event the determination of fair market value cannot be negotiated or determined, said value shall be determined by an impartial arbitration procedure pursuant to State law, wherein the company and the City shall each choose an arbitrator and the arbitrators chosen shall choose the third and the valuation determined by said arbitrators shall be considered the fair market value at which the system will be offered to the City. The determination of the value of the system shall be decreased by the amount of any damages sustained by the City in connection with revocation or expiration, including without limitation, payment made by the City to another person or entity to operate the cable television system for a temporary period after revocation. The cost of the arbitration procedures shall be shared equally by the City and the company. The City shall have ninety (90) days to exercise the right of first refusal to purchase the network, said ninety (90) days commencing on the day the fair market value of the system is determined either through negotiation or the arbitration procedure. If the City does not exercise its option to purchase, and the system is not sold to another operator who has obtained a franchise from the City in a reasonable period of time, the company, upon request by the City, shall promptly remove all its plant, structures, and equipment; provided, however, that in the event the City determines not to exercise its right of first refusal, it shall not unreasonably refuse to renew or grant a cable television franchise during a reasonable interim period. While transfer of the system and franchise are being negotiated, arranged or ordered, the company may be required to continue service to the public unless for reasons beyond the control of the company said operation will be economically unfeasible to the company.
114.15 CITY RIGHTS.
- City Rules. The right is reserved by the City to adopt, in addition to the provisions contained in this chapter and existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of its police power; provided, that such regulations, by ordinance or otherwise, shall be reasonable and not in conflict with the rights granted in this chapter, and shall not be in conflict with the applicable laws of the State or the United States.
- Use of System by City. The City shall have the right, during the life of the franchise, of maintaining upon the poles or in the underground conduits of the company within the City limits wire and fixtures necessary for a traffic control system and/or a police and fire alarm system. Such wires and fixtures shall be installed and maintained at the sole expense of the City and shall at all times comply with all reasonable rules and regulations of the company so that there may be a minimum danger of contact or conflict between the wires and fixtures of the company and the wires and fixtures used by the City.
- Emergency or Disaster. In the case of any emergency or disaster, the company shall, upon request of the City, make available its facilities to the City for emergency use during the emergency or disaster period.
- Liability. The City shall not be liable for any damage occurring to the property of the company caused by employees of the City in the performance of their duties, except for damage caused to the company’s facilities by the negligence of the City’s employees. The City shall not be liable for the interruption of service by actions of City employees in the performance of their duties, nor shall the City be liable for the failure of the company to be able to perform normal services due to acts of God or other factors beyond the control of the City.
- No Property Right. Nothing in this chapter shall grant to the company any right of property in the City-owned property, nor shall the City be compelled to maintain any of its property any longer than or in any fashion other than in the City’s judgment, its own business or needs may require.
- Construction Approval by City. Except for individual service drops, the company shall not erect any pole, install any underground lines or conduits, run any line, make any attachment, nor shall any construction of any kind be commenced without the prior approval of the director of engineering or appropriate department of the City, which approval shall not be unreasonably withheld, and the City shall have and maintain the right to inspect the construction, operation and maintenance of the system by the company to insure the proper performance of the terms of this chapter.
- Correction of Defects. In the event the company should violate any of the terms of this chapter, or any of the rules and regulations as may be from time to time lawfully adopted, the City shall immediately give to the company thirty (30) days written notice to correct such violation and in the event the company does not make such correction within thirty (30) days after the receipt of such written notice, the City may make such correction itself and charge the cost of same to the company, and the company shall pay such charges within thirty (30) days after the receipt of a statement for such charge from the City.
The company shall, commencing one (1) year from the date of the first service and then quarterly during each year of operation under the franchise, pay to the City three percent (3%) of the annual gross subscriber revenues received by the company for basic monthly cable television services as a result of operating in the City. Gross subscriber revenues do not include revenues received as installation charges and fees for reconnections, special repairs or modifications of any installments. At the time of this annual payment, the company shall furnish the City with an operating report showing the company’s annual gross subscriber revenues during the preceding year and such other information as the City shall reasonably require with respect to properties and expenses related to the company’s services within the City for such period. All payments as required by the company to the City shall be made quarterly, with the exception of the first year, and shall be due forty-five (45) days after the close of the three (3) month period.
114.17 RATES AND CHARGES.
In consideration for services rendered to subscribers, the company shall have the right to charge and collect reasonable and just compensation which shall reflect, among other things, the company’s need to attract new capital and provide a reasonable return on invested capital.
114.18 RECORD KEEPING.
The company shall keep full, true, accurate and current books of account, which books and records and all other pertinent books, records, maps, plans, financial statements and other like materials, shall be made available for inspection and copying by the City upon reasonable notice and during normal business hours.
114.19 SERVICE PROCEDURES.
During the term of the franchise, and any renewal thereof, the company shall maintain a 24-hour, toll-free telephone number and provide the Clerk’s office with the name, address and telephone number of a person who will act as the company’s agent to receive complaints regarding quality of service, equipment malfunctions and similar matters. Any complaints from subscribers shall be investigated and acted upon as soon as possible, but at least within four (4) business days of their receipt. The company shall keep a maintenance service log which will indicate the nature of each service complaint, the date and time it was received, the disposition of said complaint and the time and date thereof. This log shall be made available for periodic inspection by the City. The company shall by appropriate means, such as a card or brochure, as subscribers are connected or reconnected to the system, furnish information concerning the procedures for making inquiries and/or complaints, including the name, address and telephone numbers of the employee or employees or agent to whom such inquiries or complaints are to be addressed.
114.20 PROTECTION OF PRIVACY.
The company shall not permit the transmission of any signal, aural, visual or digital, including “polling” the cannel selection, from any subscriber’s premises without first obtaining written permission of the subscriber. This provision is not intended to prohibit the use of transmission signals useful only for the control or measurement of system performance. The company shall not permit the installation of any special terminal equipment in any subscriber’s premises that will permit transmission from subscriber’s premises of two-way services utilizing aural, visual or digital signals without first obtaining written permission of the subscriber. It is unlawful for any person to attach or affix or cause to be attached or affixed any equipment or device which allows access or use of the cable television service without payment to the company for same. Such action shall be a simple misdemeanor.
114.21 PROGRAM CONTENT RESTRICTIONS.
In addition to providing basic cable television service consisting of broadcast and automated signals, the company may offer subscribers optional services on a per-program or per-channel basis. However, the company shall not display X-rated motion pictures either as part of its basic cable or pay cable services.
114.22 DISCRIMINATION PROHIBITED.
The company shall not refuse to hire or discriminate against any person regarding compensation, terms, conditions or privileges of employment because of sex, age, race, color, creed or national origin. The company shall take affirmative action to insure that employees are treated, during employment, without regard to their sex, age, race, color, creed or national origin.
114.23 LIABILITY AND INDEMNIFICATION.
The company shall indemnify the City and hold it harmless from all liability, damage, cost or expense arising from claims of injury to persons or damage to property occasioned by reason of any conduct of the company undertaken pursuant to this chapter. The City shall notify the company’s representative within fifteen (15) days after the presentation of any claim or demand to the City, either by suit, or otherwise, made against the City on account of any negligence or contract as aforesaid on the part of the company. The company agrees as follows:
- The company shall carry Worker’s Compensation insurance with statutory limits and Employers’ Liability insurance with limits of not less than one hundred thousand dollars ($100,000.00) which shall cover all operations to be performed by the company as a result of this chapter.
- The amounts of insurance to be carried for liability due to property damage shall be one million dollars ($1,000,000.00) as to any one occurrence and against liability due to injury or death of persons, one million dollars ($1,00,000.00) as to any one person and one million dollars ($1,000,000.00) as to any one occurrence. The City shall reserve the right during the term of the franchise to increase or decrease the amount of insurance coverage required, provided that notice in writing is made to the company of all increases or decreases in said insurance coverage requirements. The company shall, within sixty (60) days of receipt of that written notice, obtain such insurance coverage as is specified in said notice.
- Company’s Worker’s Compensation, Comprehensive General Liability and Comprehensive Automobile Liability insurance shall be written by an insurance company with a capital and/or surplus of not less than three million dollars ($3,000,000.00) and company agrees to furnish the City with certified copies or certificates of insurance of said policies, which shall provide that insurance shall not be canceled unless thirty (30) days’ prior written notice first be given to the City.
- The company shall, within thirty (30) days subsequent to the effective date of the ordinance codified by this chapter, post a performance bond with the City, written by an approved corporate surety in the amount of twenty-five thousand dollars ($25,000.00) and in a form satisfactory to the City guaranteeing the company’s continued operation of the cable television system within the City and company shall well and truly observe, fulfill and perform each term and condition of the bond. All damages which may be directly occasioned by the failure of the company to perform under the chapter, up to the principal amount of the bond, shall be recoverable from the principals and sureties of said bond by the City.
- If the company should commit a minor breach of this chapter and not remedy such breach within thirty (30) days after having received written notice from the City to do so, then the City, at its discretion, may declare a portion of the bond equivalent to the amount of damages sustained by the City which are directly attributable to such breach forfeited and company shall thereupon be required:
- To remedy the breach within reasonable dispatch; and
- Within thirty (30) days of such forfeiture replace the forfeited portion of the bond. Notwithstanding the foregoing, nothing contained in this subsection shall serve to absolve the company of any of its obligations under this chapter or the rules and regulations of the Federal Communications Commission.
- The company shall pay all premiums chargeable for the bond and shall keep the same in full force and effect at all times throughout the term of the ordinance codified by this chapter and during removal of all poles, wires, cables, underground conduit, manholes and other conductors, converters, equipment and fixtures subsequent to the termination of the ordinance codified in this chapter. The bond shall contain a provision that it shall not be terminated or otherwise allowed to expire prior to sixty (60) days after written notice to that effect is given to the Clerk or similar official of the City.
- All insurance policies and bonds as are required of the company in the regulatory ordinance codified in this chapter shall be written by a company or companies authorized and qualified to do business in the State. Certificates of all coverage required shall be promptly filed by the company with the City.
- Within sixty (60) days after the effective date of the ordinance codified by this chapter, the company shall file with the Federal Communications Commission such request, petition or other application as is then proper to secure from said Federal Communications Commission and all necessary permits, licenses, waivers or the like as may be necessary to be secured from said Federal Communications Commission to fully comply with the terms of this chapter. The company shall thereafter diligently pursue such application with the Federal Communications Commission and shall do all reasonable things necessary and proper to secure any such permit, license, waiver, approval or the like from it. The company shall keep the City advised, from time to time, of the progress of such application.
- The company, any and all of its officers, agents and employees, are specifically prohibited from engaging in the sale, service, rental or leasing of television receivers or television or radio receiver related parts and accessories with any person anywhere in the City, whether for a fee or charge or not. The company shall prohibit any of its officers, agents and employees from violating the terms of this section at all times, whether in the performance of duties of the company or otherwise.
- The company shall not allow its cable or other operations to interfere with television reception of persons not served by the company, nor shall the system interfere with, obstruct or hinder, in any manner, the operation of the various utilities serving the residents of the City.
- The company shall not, as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any person, nor subject any person to any prejudice or disadvantage, provided that nothing in this chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled.
Should the company, its successors or assigns violate any of the provisions of this chapter or any reasonable rules and regulations established by the City pursuant hereto and should such violation continue for more than thirty (30) days after the City has given the company written notice of such violation, failure or default, the same shall be cause for the forfeiture or revocation of the franchise and the termination of all rights hereunder; provided, however, any delay in correcting such violation which is caused by factors beyond the control of the company shall not be included in computing the length of the continuance of such violation. In the event of the bankruptcy or receivership of the company, all rights herein given to the company shall, at the option of the City, be forfeited and terminated.