HomeMy WebLinkAboutCHAPTER 91CCHAPTER 91C. CABLE TELEVISION
Updated 2016 91C-1
91C. CABLE TELEVISION
STATEMENT OF INTENT AND PURPOSE
The City intends, by the adoption of this Franchise, to bring about the renewal of
a Cable System, and the continued operation of it. Such a renewal can contribute
significantly to the communications needs and desires of the residents and citizens of the
City and the public generally. Further, City may achieve better utilization and
improvement of public services and enhanced economic development with the renewal
and operation of a Cable System.
FINDINGS
In the review of the request for renewal by Grantee and negotiations related
thereto, and as a result of a public hearing, the City Council makes the following findings:
1. The Franchise granted to Grantee by the City complies with the existing
applicable Minnesota Statutes, federal laws and regulations; and
2. The Franchise granted to Grantee is nonexclusive.
SECTION 1 SHORT TITLE AND DEFINITIONS
1. Short Title. This Franchise shall be known and cited as the Cable Television
Franchise Ordinance.
2. Definitions. For purposes of this Franchise, the following terms, phrases, words
and their derivations shall have the meaning given herein. Words used in the
present tense include the future, in the plural number include the singular number,
and words in the singular number include the plural number. All capitalized terms
used in the definition of any other term shall have their meaning as otherwise
defined in this section. The words “shall and “will” are mandatory and “may” is
permissive. Words not defined shall be given their common and ordinary meaning.
(a) “Access Channels” means any channel or portion of a Channel utilized for
public, educational or governmental programming.
(b) “Affiliate” shall mean any Person controlling, controlled by or under common
control of Grantee.
(c) “Applicable Laws” means any and all local, state or federal law, statute,
charter, ordinance, regulation, code, franchise, permit, judgment or decree.
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(d) “Basic Cable Service” means any service tier which includes the lawful
retransmission of local television broadcast signals. Basic Cable Service shall be
the definition set forth in 47 U.S.C. § 522(3).
(e) “Cable Act” means the Cable Communications Act of 1984 as amended, 47
U.S.C. §521 et. seq.
(f) “Cable Service” or “Service” means:
(1) The one-way transmission to Subscribers of (i) Video Programming,
or (ii) Other Programming Service, and
(2) Subscriber interaction, if any, which is required for the selection or
use of such Video Programming or Other Programming Service.
Cable Service as defined herein shall be the definition set forth in 47 U.S.C.
§ 522(6).
(g) “Cable System” or “System” means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control
equipment that is designed to provide Cable Service which includes Video
Programming and which is provided to multiple Subscribers within a community,
but such term does not include:
(1) a facility that serves only to retransmit the television signals of one
(1) or more television broadcast stations;
(2) a facility that serves Subscribers without using any public right-of-
way;
(3) a facility of common carrier which is subject, in whole or in part, to
the provisions of 47 U.S.C. § 201 et seq., except that such facility shall be
considered a Cable System (other than for purposes of 47 U.S.C. § 541(c))
to the extent such facility is used in the transmission of Video Programming
directly to Subscribers; unless the extent of such use is solely to provide
interactive on-demand services;
(4) an open video system that complies with 47 U.S.C. § 573; or
(5) any facilities of any electric utility used solely for operating its electric
utility system.
Cable System as defined herein shall be the definition set forth in 47 U.S.C.
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§ 522(7).
(h) “Channel” means a portion of the electromagnetic frequency spectrum
which is used in a Cable System and which is capable of delivering a television
Channel as defined by the FCC. Channel as defined herein shall be the definition
set forth in 47 U.S.C. § 522(4). Grantee represents that as of the Effective Date
Grantee offers an all-digital Cable System and does not allocate six (6) MHz per
Channel.
(i) “City” means the City of Rochester, a municipal corporation, in the State of
Minnesota.
(j) “City Code” means the Municipal Code of Rochester, Minnesota.
(k) “City Council” means the City Council of Rochester, Minnesota.
(l) “Class IV Cable Communications Channel” means a signaling path
provided by a Cable System to transmit signals of any type from a Subscriber
terminal to another point in the System.
(m) “Converter” means an electronic device which converts signals to a
frequency acceptable to a television receiver of a Subscriber.
(n) “Day” unless otherwise specified shall mean a calendar Day.
(o) “Drop” means the cable that connects the ground block on the Subscriber’s
residence to the nearest terminal on the distribution cable of the System.
(p) “Effective Date” shall mean February1, 2016.
(q) “FCC” means the Federal Communications Commission and any legally
appointed, designated or elected agent or successor.
(r) “Franchise” shall mean the right granted by this Ordinance and the
regulatory and contractual relationship established thereby.
(s) “Franchise Area” means the entire geographic area within the City as it is
now constituted or may in the future be constituted.
(t) “Franchise Fee” shall be the definition set forth in 47 U.S.C. §542(g).
(u) “GAAP” means generally accepted accounting principles as promulgated
and defined by the Financial Accounting Standards Board (“FASB”), Emerging
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Issues Task Force (“EITF”) and/or the U.S. Securities and Exchange Commission
(“SEC”).
(v) “Grantee” is CC VIII Operating, LLC, a Delaware limited liability company,
its lawful successors, transferees or assignees.
(w) “Gross Revenues” means any and all revenues derived by the Grantee from
the operation of the Cable System to provide Cable Services in the City. G ross
Revenues shall not include any tax, fee or assessment of general applicability. A
Franchise Fee is not such a tax, fee or assessment. Gross Revenues shall not
include: PEG Fees; tower rent; bad debt written off by Grantee in the normal
course of its business, provided, however, that bad debt recoveries shall be
included in Gross Revenue upon collection; or Subscriber deposits. The City
acknowledges and accepts that Grantee shall maintain its books and records in
accordance with GAAP.
Where Grantee bundles, integrates, ties, or combines Cable Service with other
services in a bundled package for which Subscribers pay a single fee, Gross
Revenues for such bundled, integrated, or tied combination of services shall be
determined based on a pro rata allocation among the services offered unless such
allocation methodology is directly in conflict with GAAP, in which case Grantee
shall allocate bundled revenues in accordance with GAAP. Grantee shall not use
bundled package offerings as a means of evading the payment of Franchise Fees
or PEG Fees.
(x) “Installation” means the connection of the System from distribution cable to
the point of connection, including Standard Installations and custom Installations.
(y) “Minnesota Cable Communications Act” means the provisions of Minnesota
law governing the requirements for a cable television franchise as set forth in Minn.
Stat. § 238, et. seq., as amended.
(z) “Normal Business Hours” means those hours during which most similar
businesses in City are open to serve customers. In all cases, “Normal Business
Hours” must include some evening hours, at least one (1) night per week and/or
some weekend hours. Normal Business Hours as defined herein shall be the
definition set forth in 47 C.F.R. §76.309(d).
(aa) “Normal Operating Conditions” means those service conditions which are
within the control of the Grantee. Those conditions which are not within the control
of the Grantee include, but are not limited to, natural disasters, civil disturbances,
power outages, telephone network outages, and severe or unusual weather
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conditions. Those conditions which are ordinarily within the control of the Grantee
include, but are not limited to, special promotions, pay-per-view events, rate
increases, regular peak or seasonal demand periods, and maint enance or upgrade
of the Cable System. Normal Operating Conditions as defined herein shall be the
definition set forth in 47 C.F.R. §76.309(d).
(bb) “Other Programming Service” means information that a cable operator
makes available to all Subscribers generally. Other Programming Services as
defined herein shall be the definition set forth in 47 U.S.C. § 522(14).
(cc) “PEG” means public, educational and governmental.
(dd) “Person” means any person, firm, partnership, limited liability entity or
partnership, association, corporation, company, or other legal entity.
(ee) “Service Interruption” means the loss of picture or sound on one (1) or more
Channels. Service Interruption as defined herein shall be the definition set forth in
47 C.F.R. §76.309(d).
(ff) “Standard Installation” means any residential Installation which can be
completed using a Drop of one hundred twenty-five (125) feet.
(gg) “State” means the State of Minnesota.
(hh) “Street” means any public way, highway, street, avenue, boulevard, alley,
or other public thoroughfare dedicated or commonly used for utility purposes,
including general or utility easements in which the City has the right and authority
to authorize, regulate or permit the location of facilities other than those of the City.
“Street” shall not include any real or personal City property that is not specifically
described in the previous sentence and shall not include City buildings, fixtures,
and other structures or improvements, regardless of whether they are situated in
the public right-of-way.
(ii) “Subscriber” means a member of the general public who receives broadcast
programming distributed by a cable television system and does not further
distribute it. Subscriber as defined herein shall be the definition set forth in 47
C.F.R. § 76.5 (ee).
(jj) “Video Programming” means programming provided by, or generally
considered comparable to programming provided by, a television broadcast
station. Video Programming as defined herein shall be the definition set forth in
47 U.S.C. § 522(20).
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(kk) “Wireline MVPD” means a multichannel video programming distributor that
utilizes the Streets to install cable or fiber and is engaged in the business of making
available for purchase, by Subscribers, multiple channels of Video Programming
in the City.
SECTION 2 GRANT OF AUTHORITY AND GENERAL PROVISIONS
1. Franchise Required. The City shall, to the extent permitted by Applicable Law,
require a franchise for any Person to offer Cable Service in the City.
2. Grant of Franchise. This Franchise is granted pursuant to the terms and conditions
contained herein.
3. Grant of Nonexclusive Authority. This grant is non-exclusive and, subject to the
provisions of Minnesota Statutes, Section 238.08, Subdivision 1(b), the City
reserves the right to grant a similar use of said Streets to any other qualified Person
at any time during the period of this Franchise, provided, however, that any
additional cable franchise granted shall comply with Minnesota Statutes, Section
238.08 and any other applicable state and federal level playing field requirements.
(a) The City specifically reserves the right to grant, at any time, such additional
franchises for a Cable System as it deems appropriate provided, however, such
additional grants shall not operate to materially modify, revoke, or terminate any
rights previously granted to Grantee other than as described herein.
(b) If any other Wireline MVPD enters into any agreement with the City to
provide multichannel video programming or its equivalent to residents in the City,
the City, upon written request of the Grantee, shall permit the Grantee to construct
and/or operate its Cable System and provide multichannel video programming or
its equivalent to Subscribers in the City under the substantially similar material
terms and conditions, as determined in City’s reasonable discretion, as applicable
to the new Wireline MVPD. Within ninety (90) Days after the Grantee submits a
written request to the City, the Grantee and the City shall enter into an agreement
or other appropriate authorization (if necessary) containing substantially similar
material terms and conditions, as determined in City’s reasonable discretion, as
are applicable to the new Wireline MVPD.
(c) The City shall comply with Minn. Stat. Chapter 238 and all Applicable laws
related to the City’s provision of Cable Services over a Cable System.
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(d) The City hereby authorizes Grantee to occupy or use the Streets subject to:
1) the provisions of this Franchise to provide Cable Services within the City; and
2) all lawful and nondiscriminatory provisions of the City Code, as may be
amended periodically. Nothing in this Franchise shall be construed to prohibit the
Grantee from providing services other than Cable Services as permitted by
Applicable Law. The City hereby reserves all of its rights to regulate such other
services to the extent not prohibited by Applicable Law and no provision herein
shall be construed to limit or give up any regulatory right of the City. The Cable
System constructed and maintained by Grantee or its agents shall not interfere
with other uses of Streets.
(e) This Franchise is a contract and the terms of this Franchise shall define the
contractual rights and obligations of Grantee with respect to the provision of Cable
Service and operation of the Cable System in City. In the event of a conflict
between the City Code and this Franchise, the express provisions of this Franchise
shall govern.
(f) Notwithstanding anything in Section 2.3(b) herein to the contrary, the
material terms and conditions contained in this Franchise may not be unilaterally
altered by the City through subsequent amendments to the City Code, ordinances
or any regulation of City, except in the lawful exercise of City’s police power.
Grantee reserves all rights it may have to challenge any modifications to the City
Code whether arising in contract or at law. The City reserves all of its rights and
defenses to such challenges whether arising in contract or at law.
(g) Nothing in this Franchise shall (A) abrogate the right of the City to perform
any public works or public improvements of any description, (B) be cons trued as a
waiver of any codes or ordinances promulgated by the City, or (C) be construed
as a waiver or release of the rights of the City in and to the Streets.
(h) This Franchise complies with the Minnesota franchise standards set forth in
Minnesota Statutes, Section 238.084.
4. Franchise Term. The term of this Franchise shall be for a period of five (5) years
from the date of acceptance by Grantee, unless renewed, revoked or terminated
sooner as herein provided (“Term”). Nothing herein shall serve to waive Grantee’s
right to renewal of the Franchise under Applicable Law.
5. Previous Franchises. Upon acceptance of this Franchise by Grantee as required
in Section 13.2 herein, this Franchise shall supersede and replace any previous
Franchise and Regulatory Ordinance granting a franchise to Grantee to own,
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operate and maintain a Cable System within the City. Franchise Ordinance No.
is hereby repealed.
6. Rules of Grantee. The Grantee 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 said Grantee to exercise its rights and perform its
obligation under this Franchise and to assure uninterrupted service to each and all
of its Subscribers; provided that such rules, regulations, terms and conditions shall
not be in conflict with provisions hereto, the City Code or Applicable Law.
7. Territorial Area Involved and Line Extension . This Franchise is granted for the
Franchise Area. The Grantee shall make Cable Service distributed over the Cable
System available to every residence within the Franchise Area where there is a
minimum density of at least thirty (30) residences per linear strand mile of cable as
measured from Grantee’s closest trunk line or distribution cable that is actively
delivering Cable Service as of the date of such request for service. If such
residence is located within one hundred twenty-five (125) feet of Grantee’s feeder
cable, the Cable Service will be provided at Grantee’s published rate for Standard
Installations. Notwithstanding the foregoing, the Grantee shall have the right, but
not the obligation, to extend the Cable System into any portion of the Franchise
Area where another operator is providing Cable Service. Cable Service offered to
Subscribers pursuant to this Franchise shall be conditioned upon Grantee having
legal access to any such Subscriber’s dwelling unit or other units wherein such
Cable Service is provided. Nothing herein shall be construed to limit the Grantee’s
ability to offer or provide bulk rate discounts or promotions.
8. Written Notice. All notices, reports, or demands required to be given in writing
under this Franchise shall be deemed to be given when delivered personally to any
officer of Grantee or City’s Administrator of this Franchise or forty-eight (48) hours
after it is deposited in the United States mail in a sealed envelope, with registered
or certified mail postage prepaid thereon, addressed to the party to whom notice is
being given, as follows:
If to City: City of Rochester
201 4th Street SE, Room 266
Rochester, MN 55904
ATTN: City Administrator
If to Grantee: CC VIII Operating, LLC
c/o Charter Communications
ATTN: Vice President of Legal Operations
12405 Powerscourt Drive
St. Louis, MO 63131
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Such addresses may be changed by either party upon notice to the other party given as
provided in this section.
SECTION 3 OPERATION IN STREETS AND RIGHTS-OF-WAY
1. Use of Streets. Grantee may, subject to the terms of this Franchise, erect, install,
construct, repair, replace, reconstruct and retain in, on, over, under, upon, across
and along the Streets within the City such lines, cables, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and
other property and equipment as are necessary and appurtenant to the operation
of a Cable System to provide Cable Services within the City. Without limiting the
foregoing, Grantee expressly agrees that it will construct, operate and maintain its
Cable System in compliance with, and subject to, the requirements of the City
Code, including by way of example and not limitation, those requirements
governing the placement of Grantee’s Cable System; and with other applicable
City Codes, and will obtain and maintain all permits and bonds required by the City
Code in addition to those required in this Franchise. Grantee shall not perform any
work in the Streets, including the opening or disturbance of any Street, or private
or public property within City, unless Grantee has sec ured the necessary permits
from City or other governmental authority as required in the City Code or
Applicable Law.
2. Non-Interference. Grantee shall exert its best efforts to construct and maintain a
Cable System so as not to interfere with other use of Streets. Grantee shall, where
commercially reasonable in the case of above ground lines, make use of existing
poles and other facilities available to Grantee. When residents receiving
underground service or who will be receiving underground service will be affected
by proposed construction or alteration, Grantee shall provide such notice as set
forth in the permit or in City Code of the same to such affected residents.
3. Consistency with Designated Use. Notwithstanding the above grant to use
Streets, no Street shall be used by Grantee if the City, in its sole opinion,
determines that such use is inconsistent with the terms, conditions or provisions
by which such Street was created or dedicated, or presently used under Applicable
Laws.
4. Work on Private Property. All work perform on private property shall comply with
Applicable Law.
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SECTION 4 CONSTRUCTION STANDARDS
1. Grantee’s Facilities and Equipment-Undergrounding. In those areas of the City
where transmission or distribution facilities of all the utilities providing telephone
and electric power service are underground, the Grantee likewise shall construct,
operate and maintain its transmission and distribution facilities therein
underground in accordance with the requirements of the City Code.
(a) Grantee shall be granted access to any easements granted to a utility,
municipal utility or utility district within the Franchise Area.
(b) In those areas of the City where Grantee’s cables are located on above -
ground transmission or distribution facilities of the utility providing te lephone or
electric power service, and in the event that the facilities of both such utilities
subsequently are placed underground, then the Grantee likewise shall construct,
operate and maintain its transmission and distribution facilities underground.
(c) Grantee’s equipment, such as pedestals, amplifiers and power supplies
shall be placed as permitted under the requirements of the City Code. Certain of
Grantee’s equipment, such as pedestals, amplifiers and power supplies, which
normally are placed above ground, may continue to remain in above -ground
closures to the extent permitted by the City Code if existing technology reasonably
requires, but shall be of such size and design and shall be so located as not to be
unsightly or unsafe.
2. Annexation. Upon the annexation of any additional land area by the City, the
annexed area shall become part of the Franchise Area. Upon the annexation of
any additional land area by the City, the annexed area shall be subject to all the
terms of this Franchise upon sixty (60) Days of written notification by the City to
Grantee. Such notice shall include a list of addresses if available to the City. In
the event another cable operator is already serving the annexed area, Grantee
shall have the option but not the obligation to extend its Cable System to the newly
annexed area. A cable operator whose Cable System passes homes in an
annexed area shall not extend its Cable System beyond those homes which it
passes at the time the annexation occurs unless it otherwise obtains a fra nchise
from the City.
3. Conditions on Street Use.
(a) Nothing in this Franchise shall be construed to prevent City from
constructing, maintaining, repairing or relocating sewers; grading, paving,
maintaining, repairing, relocating and/or altering any Street; constructing, laying
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down, repairing, maintaining or relocating any water mains; or constructing,
maintaining, relocating, or repairing any sidewalk or other public work.
(b) All System transmission and distribution structures, lines and equipment
erected by the Grantee within City shall be located consistent with
nondiscriminatory City Code provisions.
(c) Relocation for the City. The Grantee shall, upon receipt of reasonable
advance written notice, to be not less than ten (10) Days, protect, support,
temporarily disconnect, relocate, or remove any property of Grantee when lawfully
required by the City pursuant to its police powers. Grantee shall be responsible
for any costs associated with these obligations to the same extent other users of
the City Streets are responsible for the costs related to the relocation of their
facilities.
(d) Relocation for a Third Party. The Grantee shall, on the request of any
Person holding a lawful permit issued by the City, protect, support, raise, lower,
temporarily disconnect, relocate in or remove from the Street as necessary any
property of the Grantee, provided that the expense of such is paid by any such
Person benefiting from the relocation and the Grantee is give reasonable advance
written notice to prepare for such changes. The Grantee may require such
payment in advance. For purposes of this subsection, “reasonable advance
written notice” shall be no less than ten (10) business days in the event of a
temporary relocation and no less than one hundred twenty (120) Days for a
permanent relocation.
(e) If state or federal law requires the City to provide reimbursement of funds
to Grantee for mandatory relocation, the City shall comply with all Applicable Laws.
(f) Grantee shall at all times maintain strand maps on file with the City and
comply with the mapping requirements of Chapter 25 of the City Code.
(g) Upon written request, the City shall also have the additional right to review,
subject to the confidentiality protections provided in Section 8.4 herein, Grantee’s
entire system maps at a mutually agreed upon location within the City.
(h) Tree Trimming. Grantee shall have the authority to trim trees, in
accordance with the City Code.
4. Safety Requirement. The Grantee shall install and maintain its System wires,
cables, fixtures and other equipment in accordance with the applicable
requirements of the National Electric Safety Code and all Applicable Laws.
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5. Multiple Dwelling Unit (“MDU”) Installations. Grantee shall comply with Applicable
Law in installing and maintaining equipment and wiring serving residents of MDUs.
SECTION 5 DESIGN PROVISIONS
1. System Design.
(a) Grantee and City hereby acknowledge that the System currently utilizes 750
MHz equipment which is capable of delivering at least eighty (80) Channels of
programming.
(b) Grantee shall comply with federal law regarding notice to City and
Subscribers prior to any Channel additions, deletions, or realignments.
2. Notice of Planned System-wide Service Interruptions. The Grantee shall notify the
City prior to any planned Service Interruptions for maintenance, con struction
upgrades or other purposes that are planned to last longer than twenty -four (24)
hours. Such Service Interruption, to the extent reasonable, shall occur during
periods of minimum use of the System.
3. Technical Standards. The technical standards used in the operation of the Cable
System shall comply, at minimum, with the technical standards promulgated by the
FCC relating to Cable Systems pursuant to Title 47, Section 76, Subpart K of the
Code of Federal Regulations, as may be amended or modified f rom time to time,
which regulations are expressly incorporated herein by reference.
4. Special Testing. City may require special testing of a location or locations within
the System if there is a particular matter of controversy or unresolved complaints
pertaining to such location(s). Demand for such special tests may be made on the
basis of complaints received or other evidence indicating an unresolved
controversy or noncompliance. Such tests shall be limited to the particular matter
in controversy or unresolved complaints. The City shall endeavor to so arrange its
request for such special testing so as to minimize hardship or inconvenience to
Grantee or to the Subscribers caused by such testing. Before ordering such tests,
Grantee shall be afforded thirty (30) Days to correct problems or complaints upon
which tests were ordered. The City shall meet with Grantee prior to requiring
special tests to discuss the need for such and, if possible, visually inspect those
locations which are the focus of concern. If, after such meetings and inspections,
City wishes to commence special tests and the thirty (30) Days have elapsed
without correction of the matter in controversy or unresolved complaints, the tests
shall be conducted by a qualified engineer mutually se lected by City and Grantee
based on a mutually agreed upon scope of work. If the unresolved complaint is
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found to have been caused by Grantee’s failure to comply with FCC technical
specifications or the National Electric Safety Code, the Grantee shall reimburse the
City for the documented out of pocket costs of such testing up to a maximum of
maximum of Ten Thousand and No/100 Dollars ($10,000.00). Nothing in this
Section 5.4 shall waive the City’s right to enforce Grantee’s compliance with the
requirements of the City Code.
5. FCC Reports. The results of tests required to be filed by Grantee with the FCC
shall also be copied to City within ten (10) Days of the conduct of the date of the
test.
6. EAS/Emergency Use by City.
(a) At all times during the term of this Franchise, the Grantee shall provide and
maintain an Emergency Alert System (EAS) consistent with Applicable Law and
regulation including 47 C.F.R., Part 11 and the Minnesota Emergency Alert System
Statewide Plan.
(b) City shall have authority to test the EAS, consistent with Applicable Law, no
more frequently than once per month and during a time between 12:00 a.m. and
5:00 a.m. and if the EAS fails to perform Grantee shall immediately make all
repairs, at Grantee’s sole cost, and shall retest the EAS to demonstrate
compliance. City shall provide notice to the Grantee at least ten (10) Days prior to
any such testing.
7. Parental Control Lock. Grantee shall provide for sale or lease to Subscribers, upon
request, a parental control locking device or digital code that permits inhibiting the
video and audio portions of any Channels offered by Grantee.
SECTION 6 SERVICES PROVISIONS
1. Rate Regulation. The City reserves the right to regulate rates for Basic Cable
Service and any other services offered over the Cable System, to the e xtent
permitted Applicable Laws.
(a) In exercising its jurisdiction to regulate any such rates, City will adhere to
regulations adopted by the FCC at 47 C.F.R. § 76.900 et seq. as amended from
time to time.
(b) A list of Grantee’s current Subscriber rates and charges shall be maintained
on file with City and shall be available for public inspection. Grantee shall give City
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and Subscribers written notice of any change in a rate or charge no less than thirty
(30) Days prior to the date of the change.
2. Leased Channel Service. Grantee shall offer leased channel service on
reasonable terms and conditions and in accordance with Applicable Laws.
3. Service to Public Buildings.
(a) The Grantee shall provide Basic Cable Service to a single Drop, with one
(1) Converter (if necessary) to one (1) outlet, free of charge, at each elementary
and secondary school building and public library building that currently receives
complimentary Cable Service as of the Effective Date of this Franchise listed in
Exhibit A-1 attached hereto, on the school’s or library’s request on a voluntary
basis for as long as Grantee participates in the industry supported Cable in the
Classroom program. Grantee shall provide sixty (60) Days advance written notice
to the City, schools and library prior to discontinuing the provision of complimentary
service under this Section 6.3.
(b) As of the Effective Date, Grantee shall continue to provide, free of charge,
Basic Cable Service, excluding Converters, to one (1) Drop, to all of the sites listed
on Exhibit A-2 attached hereto. In the event Grantee implements charges for Basic
Cable Service in Apple Valley and Duluth, Minnesota, only then shall Grantee,
following ninety (90) Days advance written notice to City, initiate charges to the
City for Basic Cable Service.
4. Sales Procedures. Grantee shall comply with Minnesota Statutes, Section
325D.43-48 prohibiting deceptive sales procedures when marketing its Cable
Services within City. Grantee shall have the right to market its Cable Services
door-to-door during reasonable hours consistent with local ordinances and
regulation.
5. Grantee Identification. Grantee shall provide all customer service technicians and
all other Grantee employees, subcontractors and agents entering private property
with appropriate picture identification so that Grantee employees may be easily
identified by the property owners and Subscribers.
6. Customer Service Provisions.
(a) Customer Service Standards. The Grantee shall comply with the standards
and requirements for customer service set forth in Exhibit B throughout the term of
this Franchise.
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(b) Subscriber Contracts. Grantee shall, written upon request, provide the City
with any standard form residential Subscriber contract utilized by Grantee. If no
such written contract exists, Grantee shall file with the City a document completely
and concisely stating the length and terms of the Subscriber contract offered to
customers. The length and terms of any standard form Subscriber contract(s) shall
be available for public inspection during Normal Business Hours. A list of
Grantee’s current Subscriber rates and charges for Cable Service, specifically
including Basic Cable Service, shall be maintained on file with City and shall be
available for public inspection. For purposes of this section, the availability of this
information on Grantee’s web site shall constitute compliance.
(c) Refund Policy. In the event a Subscriber establishes or terminates service
and receives less than a full month’s service, Grantee shall prorate the monthly
rate on the basis of the num ber of days in the period for which service was
rendered to the number of days in the billing. If a Subscriber’s Cable Service is
interrupted or discontinued, without cause, for twenty-four (24) or more
consecutive hours, the Grantee shall, upon request b y the Subscriber, credit such
Subscriber pro rata for such interruption. For this purpose, every month will be
assumed to have thirty (30) Days.
(d) Late Fees. Grantee shall comply with all Applicable Laws with respect to
any assessment, charge, cost, fee or sum, however characterized, that the
Grantee imposes upon a Subscriber for late payment of a bill. The City reserves
the right to enforce Grantee’s compliance with all Applicable Laws to the maximum
extent legally permissible.
7. Disputes. All Subscribers and members of the general public may direct
complaints, regarding Grantee’s Service or performance to the City Administrator
of the City or the City Administrator’s designee, which may be a board or
commission of the City.
8. Subscriber Privacy. To the extent required by Minnesota Statutes,
Section238.084, Subdivision 1(s) Grantee shall comply with the following:
(a) No signals including signals of a Class IV Channel may be transmitted from
a Subscriber terminal for purposes of monitoring individual viewing patt erns or
practices without the express written permission of the Subscriber. The request
for permission must be contained in a separate document with a prominent
statement that the Subscriber is authorizing the permission in full knowledge of its
provisions. Such written permission shall be for a limited period of time not to
exceed one (1) year which may be renewed at the option of the Subscriber. No
penalty shall be invoked for a Subscriber’s failure to provide or renew such
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permission. The permission shall be revocable at any time by the Subscriber
without penalty of any kind whatsoever.
(b) No information or data obtained by monitoring transmission of a signal from
a Subscriber terminal, including but not limited to lists of the names and addresses
of Subscribers or any lists that identify the viewing habits of Subscribers shall be
sold or otherwise made available to any party other than to Grantee or its agents
for Grantee’s business use, and also to the Subscriber subject of that information,
unless Grantee has received specific written permission from the Subscriber to
make such data available.
(c) Written permission from the Subscriber shall not be required for the
conducting of system wide or individually addressed electronic sweeps for the
purpose of verifying System integrity or monitoring for the purpose of billing.
Confidentiality of such information shall be subject to the provision set forth in
subparagraph (b) of this section.
SECTION 7 PUBLIC ACCESS PROVISIONS
1. Public, Educational and Government Access.
(a) City or its designee is hereby designated to operate, administer, promote,
and manage the PEG programming to the Cable System established pursuant to
this Section 7.
(b) Grantee shall continue to dedicate five (5) Channels for PEG access use.
Use of the PEG Channels shall be determined in City’s sole discretion and Grantee
shall have no responsibility for the content, operations or use of the PEG Channels
other than as specified herein.
(c) City may not request additional Channel capacity beyond the five (5 )
Channels for PEG use except in accordance with Applicable Laws.
(d) The Grantee and the City shall cooperate to ensure that the quality of the
PEG Channels meets FCC technical standards including those applicable to the
carriage of PEG Channels; provided however, that the Grantee is not responsible
for the production quality of PEG programming.
(e) In accordance with Section 611 (d) of the Cable Act, the City shall prescribe
(1) rules and procedures under which the Grantee is permitted to use the five (5)
PEG Channels for the provision of other services if such channel capacity is not
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being used for the purposes designated, and (2) rules and procedures under which
such permitted use shall cease.
(f) Grantee shall continue to provide, free of charge, the existing fiber paths in
place as of the Effective Date from the City’s Government Center located at 201
Fourth Street S.E. (“City Government Center”) and from Rochester Community
and Technical College to Grantee’s head end facility to facilitate PEG
origination/return capacity in the City. If Grantee commences charging for the
transport of PEG programming in Apple Valley and Duluth, Minnesota, Grantee
shall provide ninety (90) Days prior written notice to City and shall meet with City
in good faith to work toward mutual agreement regarding the terms and conditions
of any on-going PEG transport.
(g) City may at any time elect to originate the public Access Channel from the
City Government Center and will be responsible for any equipment on City’s side
of the demarcation point (the demarcation point to be mutually determined by the
parties) required to transmit the public Access Channel to Grantee’s headend;
Grantee represents that the existing fiber path from the City Government Center
to Grantee’s headend will accommodate the transmission of the public Access
Channel free of charge. In the event the Grantee is required to relocate the
connection point from Rochester Community and Technical College (“Relocation”),
Grantee shall provide a written estimate to the City of the cost of such Relocation
and, if approved in writing by the City, Grantee shall complete the Relocation at
the expense of the City. The City may use the proceeds of the PEG Fee to pay for
the Relocation. The City shall also have the option to construct such connection
point and avoid any required payment to Grantee.
2. Digital and HD PEG Carriage Requirements.
(a) Grantee shall provide, free of charge, the PEG Access Channels in a
standard digital (“SD”) format on the Basic Cable Service tier or the lowest tier of
service offered by Grantee. For so long as applicable under Minnesota Statutes,
Section 238.084, Subdivision 1(bb), the VHF spectrum must be used for at least
one (1) of the PEG Channels required in this Section 7.2. Nothing herein precludes
the Grantee from charging for any equipment needed for Basic Cable Service.
(b) On or after January 1, 2017 the City may provide a written request to
Grantee that one (1) SD PEG Channel be converted to a high definition (“HD”)
Channel. Grantee shall have ninety (90) Days from the date of receipt of the City’s
request to implement the HD PEG Access Channel. The City shall send notice of
such request on or before September 30, 2016 to trigger the activation of the HD
Channel effective January 1, 2017.
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(c) The HD PEG Access Channel provided under this section will replace one
(1) PEG Access Channel described in Section 7.2(b) of this Franchise, and will not
be deemed as a requirement to carry an additional PEG Access Channel. The
City shall only be responsible for the production costs associated with the provision
of an HD Channel, any and all costs associated with any modification of the PEG
Access Channels or signals, after the PEG Access Channels/signals leave the
City’s currently designated playback facility shall be provided free of charge by
Grantee. However, the Grantee shall have the right to offset from the PEG Fee its
reasonable actual costs for capital equipment which Grantee is required to
purchase to facilitate the distribution of the PEG Access Channe ls upstream to
Grantee’s headend.
(d) The City acknowledges that receipt of an HD format Channel may require
Subscribers to buy or lease special equipment, or pay additional HD charges
applicable to all HD services provided by Grantee. A Subscriber to the Basic Cable
Service tier only who has Grantee’s HD capable set-top box will be able to receive
the HD PEG Access Channel on that outlet without any additional cost.
(e) At such time as the Grantee provides ninety percent (90%) or more of its
programming on the Cable System in an HD format, the City and Grantee shall
establish mutually acceptable terms and conditions for providing one (1) additional
PEG Access Channel in only HD format and as such the City will no longer provide
that PEG Access Channel in a standard definition (SD) format. The City shall only
be responsible for the production costs associated with the provisions of an HD
Channel, any and all costs associated with any modification of the PEG Access
Channels or signals, after the PEG Access Channels/signals leave the City’s
currently designated playback facility shall be provided free of charge by Grantee.
However, the Grantee shall have the right to offset from the PEG Fee its
reasonable actual costs for capital equipment which Grantee is required t o
purchase to facilitate the distribution of the PEG Access Channels upstream to
Grantee’s headend.
3. Access Channel Locations.
(a) Grantee shall make reasonable efforts to coordinate the cablecasting of
PEG programming on the Cable System on the same Channe l designations as
such programming is currently cablecast (Channels 180, 181, 187, 188, and 189);
and to locate the PEG Access Channels in the Channel neighborhood within
reasonable proximity to a CSPAN channel offered by Grantee in the City in
Grantee’s reasonable discretion. In no event shall any PEG Access Channel
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reallocations be made prior to sixty (60) Days written notice to the City by Grantee,
except for circumstances beyond Grantee’s reasonable control.
(b) Grantee represents and agrees that the PEG Access Channels shall be
encrypted in compliance with FCC’s encryption order In the Matter of Basic Tier
Encryption MB Docket No. 11-169, Report and Order adopted October 10, 2012.
(c) Grantee shall provide City and all Subscribers with at least sixty (60) Days
prior written notice of any relocation of any public or educational Access Channel
to a different Channel number. In the event any PEG Access Channel(s) is
relocated, Grantee shall, in advance of the relocation, inform Subscribers of the
new Channel location through bill messages and/or bill inserts, and shall list the
new location on the on-air program guide. The parties acknowledge that Grantee
contracts with a third party or parties to provide on -screen and on-line program
listings. It shall be the responsibility of the City, or its designee, to provide such
detailed program information to the third -party entity or entities that produce such
listings for Grantee in accordance with each such entity’s normal format and
scheduling requirements and at the City’s cost.
4. PEG Technical Quality.
(a) The placement of PEG Access Channels on the System shall not subject
the PEG Access Channels to more interference or ingress than the primary signals
of local broadcast stations that are delivered using similar transmission technology
in City.
(b) The Grantee will provide all SD PEG Access Channels to Subscribers at
reasonably equivalent visual and audio quality to that in which the Grantee delivers
the SD CSPAN channel, or its future equivalent. The Grantee will pr ovide all HD
PEG Access Channels, if any, to Subscribers at reasonably equivalent visual and
audio quality to that in which the Grantee delivers the HD CSPAN channel, or its
future equivalent.
(c) There shall be no significant deterioration in a PEG Access Channel’s signal
caused by Grantee from the point of origination upstream to the point of reception
downstream on the Cable System; provided, however, this subsection shall not
apply to the conversion of PEG Access Channel signals to a different technical
format, such as when City delivers a PEG signal in HD and Grantee converts such
signal to SD for cablecasting, unless Grantee has agreed to carry the PEG Access
Channel(s) in HD pursuant to Section 7.2 herein.
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(d) Upon request, throughout the term of the Franchise, Grantee shall provide
updated contact information for a local technical representative with local
knowledge of the City’s PEG operations, who shall be available to the City for
consultation on technical matters as the need may arise. This technical
representative shall be accessed through a direct telephone number available to
the City (as opposed to a general public number). The Grantee shall not impose
any fees or charges to the City for this technical consultation. If such consultation
is insufficient to diagnose the matter in question, within twenty-four (24) hours of a
written request from City to the Grantee identifying a technical problem with a PEG
Access Channel signal and requesting assistance, Grantee will provide, free of
charge to City, diagnostic services to determine whether or not a problem with a
PEG signal is the result of matters for which Grantee is responsible) and if so,
Grantee will take prompt corrective action, free of charge to City, subject to the
limitations on Grantee’s responsibilities outlined in Section 7.1 herein. If the
problem persists and there is a reasonable dispute about the cause, then the
parties shall meet with engineering representation from Grantee and the City in
order to mutually determine the course of a ction to remedy the problem. Nothing
herein shall be construed to obligate Grantee to correct problems or take any other
action caused by City’s signal, City’s network or internal wiring, City’s equipment,
PEG access program content or other issues within City’s reasonable control.
(e) Grantee shall comply with Applicable Law regarding the carriage of PEG
Access Channels.
5. Promotion of PEG Access Channels. To the extent permitted by Grantee’s billing
process and solely for the purpose of promoting the PEG Acce ss Channels,
Grantee shall allow the City to place bill stuffers in Grantee’s Subscriber
statements at a cost to the City not to exceed Grantee’s cost, no more frequently
than once per year upon the written request of the City and at such times that the
placement of such materials would not materially and adversely affect Grantee’s
cost for the production and mailing of such statements.
6. Access Rules. City shall implement rules for use of the government and
educational Access Channels. The access rules and any amendments thereto
shall be maintained on file with City and made available for public inspection
during Normal Business Hours.
7. PEG Fee.
(a) Commencing within ninety (90) Days after the Effective Date of this
Franchise through the end of the Term, Grante e shall collect on behalf of the City
and remit to the City a per Subscriber per month fee of thirty seven cents ($0.37)
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solely to fund PEG access expenditures as permitted by Applicable Law
(hereinafter “PEG Fee”). Upon written request, City will provide Grantee with
documentation evidencing the expenditures made with the PEG Fee pursuant to
Applicable Law, including but not limited to the Minnesota Government Data
Practices Act, Minn. Stat. §13.01 et. seq.
(b) Pursuant to Section 7.7(a) of this Franchise, Grantee has agreed to collect
and remit to the City a per Subscriber per month PEG Fee. Solely for the purpose
of calculating the PEG Fee, in the case of multiple dwelling units (“MDU”) receiving
Cable Service on a bulk basis, “Subscriber” shall be determined on an equivalent
basic unit (“EBU”) basis. EBU shall be calculated as follows: MDU revenue
received from bulk billed units divided by the retail residential rate (billed on non -
bulk per subscriber basis) to other customers for the applicable Cable Se rvices.
(c) The City may, at any time, reduce the PEG Fee upon ninety (90) Days
written notice to Grantee.
(d) Grantee shall pay the PEG Fee to the City quarterly, at the same time as
the payment of Franchise Fees under Section 8.1 of this Franchise.
(e) Any PEG Fee amounts owing pursuant to this Franchise which remain
unpaid more than forty-five (45) Days after the date the payment is due shall be
past due and subject to a late fee of not more than three -quarter percent (.75 %)
per month or the maximum amount permitted by law.
SECTION 8 OPERATION AND ADMINISTRATION PROVISIONS
1. Franchise Fee/Audit.
(a) For as long as this Franchise remains in place, Grantee shall pay to City a
Franchise Fee in an amount equal to five percent (5%) of its annual Gross
Revenues.
(b) The payment of Franchise Fees shall be made on a quarterly basis and
shall be due forty-five (45) Days after the close of each calendar quarter.
(c) Any Franchise Fees owing pursuant to this Franchise which remain unpaid
more than forty-five (45) Days after the dates specified herein shall be past due
and subject to a late fee of not more than three quarter percent (.75 %) per month
or the maximum amount permitted by law.
(d) Each Franchise Fee payment shall be accompanied by a report prepared
by a representative of the Grantee showing the basis for the computation of the
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Franchise Fees paid during that period in a form and substance substantially
equivalent to Exhibit C attached hereto. Nothing in Exhibit C will modify the Gross
Revenues definition of this Franchise.
(e) No acceptance of any payment by the City shall be construed as a release
or as an accord and satisfaction of any claim the City may have for further
additional sums payable as a Franchise Fee under this Franchise or for the
performance of any other obligation of the Grantee.
2. Not Franchise Fees. Taxes.
(a) Grantee acknowledges and agrees that the Franchise Fees payable by
Grantee to City pursuant to this section shall take precedence over all other
material provisions of the Franchise and shall not be deemed to be in the nature
of a tax. The Franchise Fees payable by Grantee to City pursuant to this section
shall be defined consistent with 47 U.S.C. § 542 (g).
(b) Upon thirty (30) Days prior written notice, City shall have the right to conduct
an independent review/audit of Grantee’s records solely for the purpose of
assessing Grantee’s compliance with the Franchise Fee obligations herein.
3. Access to Records. Subject to the privacy provisions of the Cable Act, throughout
the term of this Franchise, the Grantee agrees that the City, upon reasonable prior
written notice of thirty (30) Days to the Grantee, shall have the right to review such
of the Grantee’s books and records regarding the operation of the Cable System
and the provision of Cable Service in the Franchise Area which are reasonably
necessary to monitor and enforce Grantee’s compliance with the provisions of this
Franchise (“Records”). Such notice shall specifically reference those sections of
the Franchise that are under review so that the Grantee may organize the
necessary Records for easy access by the City. Grantee shall make available for
review such Records at Grantee’s sole cost and expense, free of charge to the
City. Records shall be retained by the Grantee for a period of six (6) years,
pursuant to Minnesota Statutes, Section 541.05. The Grantee shall not deny the
City access to Records on the basis that the Records are under the control of any
parent corporation, Affiliate or a third party. The City may request in writing copies
of any such Records and the Grantee shall provide such copies within thirty (30)
Days of the receipt of such request subject to the provisions of this section
regarding confidential information. Grantee shall provide all Records requested by
the City or City’s agent in the following manner: 1) at a conference room in City
Hall; or 2) at Grantee’s office located in the City or no further than five (5) miles
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from the City limits; or 3) via mail or electronic communication acceptable to the
City and Grantee.
4. Confidential Information.
(a) Subject to Applicable Law, Grantee may choose to provide any confidential
or proprietary Records that it is obligated to make available to the City pursuant to
this Franchise, by allowing the City, or its designated representative(s), to view the
Records at a conference room in City Hall or at Grantee’s office located in the City,
without City obtaining its own copies of such Records. Grantee may also choose
to provide any confidential or proprietary Records pursuant to a mutually
acceptable non-disclosure agreement with a City designated agent. The intent of
the parties is to work cooperatively to insure that those Records reasonably
necessary for City’s monitoring and enforcement of Franchise obligations are
provided to City. To the extent that Grantee does provide Records directly to the
City, City agrees to keep said Records confidential and proprietary to the fullest
extent permitted by Applicable Law. Grantee shall be responsible for clearly and
conspicuously identifying the Records confidential or proprietary. Grantee
acknowledges that the Minnesota Data Practices Act (“MDPA”) places limitations
on the ability of the City to protect certain information unless such information
meets the statutory requirements set forth in the MDPA.
(b) If the City believes it must release any such confidential or proprietary
Records in the course of enforcing this Franchise, or for any other reason including
compliance with the MDPA, it shall advise Grantee in advance so that Grantee
may take appropriate steps to protect its interests . The City agrees that, to the
extent permitted by the MDPA and Applicable Law, it shall deny access to any of
Grantee’s Records marked confidential, as set forth above, to any Person and that
it shall furnish only that portion of the Grantee’s Records required under the MDPA
and Applicable Law.
5. Reports to be Filed with City.
(a) All reports and Records required under this Franchise shall be furnished at
the sole expense of Grantee.
(b) Grantee shall at all times maintain the following records and information
relating specifically to the Cable System serving the City as identified by the FCC
Community Unit Identifier (“CUID”) as opposed to a regional Cable System or other
operating unit of Grantee and shall provide such information to City upon no less
than thirty (30) Days advance written request:
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(1) A written or computer-stored record of all truck rolls undertaken by
the Grantee for the preceding two (2) years.
(2) a complaint record for Cable Service which shall contain a semi -
annual (January 1 through June 30 and July 1 through December 31)
breakdown indicating the total number of escalated complaints received for
the preceding reporting period, and shall indicate the classifications of all
other complaints in general categories such as construction, billing,
customer relations/service and miscellaneous. Escalated complaints shall
mean those complaints that are received by the City, or received in writing
by Grantee’s area management.
(3) At the City’s written request, Grantee shall provide the City with
information which shall describe in detail Grantee’s compliance with Exhibit
B hereto.
(4) Grantee shall provide City with an annual statement, within ninety
(90) Days of the close of each calendar year end reflecting the total amounts
of Gross Revenues and all payments and computations of the Franchise
Fee for the previous calendar year.
(5) Grantee shall submit a written end of the year report to the City
utilizing the format attached hereto as Exhibit D.
(c) Upon request of the City and only to the extent mutually upon by Grantee
in no event later than thirty (30) Days from the date of receipt of such request,
Grantee shall, upon mutually acceptable terms and conditions, prepare and furnish
to the City such additional reports with respect to its operation, affairs, transactions
or property, as may be reasonably necessary to ensure compliance with the terms
of this Franchise. Neither City nor Grantee shall unreasonably demand or withhold
information requested pursuant with the terms of this Franchise. The City agrees
to request access to only those books and records, in exercising its rights under
this section, which it deems reasonably necessary for the enforcement and
administration of this Franchise.
SECTION 9 GENERAL FINANCIAL AND INSURANCE PROVISIONS
1. Letter of Credit.
(a) Upon the Effective Date, Grantee shall deliver to City a cash deposit or an
irrevocable and unconditional letter of credit, in form and substance acceptable to
City, from a national or state bank approved by City, in the amount of Forty
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Thousand and No/100 Dollars ($40,000.00). Interest on the deposit shall accrue
to the Grantee. Upon request of the City, Grantee shall provide a copy of the letter
of credit. City may, in its sole discretion, reduce the amount of the letter of credit.
(b) Nothing herein shall be deemed a waiver of the normal permit and bonding
requirements made of all contractors working within the City’s rights-of-way.
(c) The letter of credit shall provide that funds will be paid to City, upon written
demand of City, and in an amount as outlined in the section in payme nt for
penalties charged pursuant to this section, in payment for any monies owed by
Grantee to City pursuant to its obligations under this Franchise, or in payment for
any damage incurred by City as a result of any acts or omissions by Grantee
pursuant to this Franchise.
(d) In addition to recovery of any monies owed by Grantee to City or damages
to City as a result of any acts or omissions by Grantee pursuant to the Franchise,
City in compliance with this section may charge to and collect from the letter of
credit the following liquidated damages:
(1) For failure to provide data, documents, reports or information or to
cooperate with City during an application process or system review or as
otherwise provided herein, the liquidated damages shall be Two Hundred
Fifty and No/100 Dollars ($250.00) per Day for each Day, or part thereof,
such failure occurs or continues up to a maximum of Ten Thousand and
No/100 Dollars ($10,000.00).
(2) For failure to comply with construction, operation or maintenance
standards, the liquidated damages shall be Three Hundred Fifty and No/100
Dollars ($350.00) per Day for each Day, or part thereof, such failure occurs
or continues up to a maximum of Ten Thousand and No/100 Dollars
($10,000.00).
(3) For failure to meet the PEG access requirements set forth in Section
7, of this Franchise, the liquidated damages shall be Two Hundred and
No/100 Dollars ($200.00) per Day for each Day, or part thereof, such failure
occurs or continues up to a maximum of Ten Thousand and No/100 Dollars
($10,000.00).
(4) For failure to comply with any of the provisions of this Franchise, or
other City ordinance related to Franchise operations for which liquidated
damages are not otherwise specifically provided pursuant to this
subparagraph (c), the liquidated damages shall be Two Hundred Fifty and
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No/100 Dollars ($250.00) per Day for each Day, or part thereof, such failure
occurs or continues up to a maximum of Ten Thousand and No/100 Dollars
($10,000.00).
(e) Each violation of any provision of this Franchise shall be considered a
separate violation for which a separate penalty can be imposed.
(f) Whenever City finds that Grantee has violated one (1) or more terms,
conditions or provisions of this Franchise, or for any other violation contemplated
in subparagraph (c), above, a written notice shall be given to Grantee informing it
of such violation. At any time after thirty (30) Days (or such longer reasonable time
which, in the sole determination of City, is necessary to cure the alleged violation)
following local receipt of notice, provided Grantee remains in violation of one (1) or
more terms, conditions or provisions of this Franchise, in the sole opinion of City,
City may draw from the letter of credit all liquidated damages and other monies
due City from the date of the local receipt of notice.
(g) Upon receipt of the violation notice from the City, the Grantee may within
thirty (30) Days of such receipt notify City in writing that there is a dispute as to
whether a violation or failure has in fact occurred. Such written notice by Grantee
to City shall specify with particularity the matters disputed by Grantee. Such notice
by Grantee shall toll the timeframes herein and the accrual of all liquidated
damages from the security fund until the City issues a decision following the
required hearing in Section 9.1(g)(1) herein. If Grantee does not dispute the
alleged violation set forth in the violation notice, Grantee shall have thirty (30) Days
from the receipt of the violation notice to cure the alleged default before the City
may impose liquidated damages as set forth Section 9.1(d) herein.
(1) City shall hear Grantee’s dispute within sixty (60) Days and render a
final decision within sixty (60) Days thereafter.
(2) Upon the determination of City that no violation has taken place, City
shall refund to Grantee, without interest, all monies drawn from the letter of
credit by reason of the alleged violation.
(h) If said letter of credit or any subsequent letter of credit delivered pursuant
thereto expires during the term of this Franchise, it shall be ren ewed or replaced
during the term of this Franchise. The renewed or replaced letter of credit shall be
of the same form and with a bank authorized herein and for the full amount stated
in subparagraph (a) of this section.
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(i) If City draws upon the letter of credit or any subsequent letter of credit
delivered pursuant hereto, in whole or in part, Grantee shall replace or replenish
to its full amount up the maximum provided by this Section 9.3(h) the same within
ten (10) Days and shall deliver to City a like replacement letter of credit or
certification of replenishment for the full amount stated in Section 9.1(a) as a
substitution of the previous letter of credit. This shall be a continuing obligation for
any draws upon the letter of credit up to an aggregate t otal of Seventy-Five
Thousand and No/100 Dollars ($75,000.00) over the Franchise term.
(j) The failure to replace or replenish any letter of credit as required by Section
9.3 (h) may also, at the option of the City, be deemed a default by Grantee under
this Franchise. The drawing on the letter of credit by City, and use of the money
so obtained for payment or performance of the obligations, duties and
responsibilities of Grantee which are in default, shall not be a waiver or release of
such default.
(k) The collection by City of any liquidated damages or monies from the letter
of credit shall not affect any other right or remedy available to City, nor shall any
act, or failure to act, by City pursuant to the letter of credit, be deemed a waiver of
any right of City pursuant to this Franchise or otherwise.
2. Procedures for Revocation, Termination or Cancellation.
(a) City shall provide Grantee with written notice of a cause for revocation,
termination, or cancellation and the intent to revoke, terminate or cancel and shall
allow Grantee thirty (30) Days subsequent to receipt of the notice in which to
correct the violation or to provide adequate assurance of performance in
compliance with the Franchise. In the notice required therein, City shall provide
Grantee with the basis of the revocation, termination or cancellation.
(b) Grantee shall be provided the right to a public hearing affording due process
before the City Council prior to the Effective Date of revocation, termination, or
cancellation, which public hearing shall follow the thirty (30) Day notice provided
in subparagraph (a) above. City shall provide Grantee with written notice of its
decision together with written findings of fact supplementing said decision.
(c) Only after the public hearing and upon written notice of the determination
by City to revoke, terminate or cancel the Franchise may Grantee appeal said
decision with an appropriate state or federal court or agency.
(d) During the appeal period, the Franchise shall remain in full force and
effect unless the term thereof sooner expires or unless continuation of the
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Franchise would endanger the health, safety and welfare of any Person or the
public.
3. Indemnification of City.
(a) Grantee shall indemnify, defend and hold the City, and their officers, boards,
commissions, agents and employees (collectively the “Indemnified Parties”)
harmless from and against any and all lawsuits, claims, causes of action, actions,
liability, demands, damages, judgments, settlements, disability, losses, expenses
(including attorneys’ fees and disbursements of counsel) and costs of any nature
that any of the Indemnified Parties may at any time, suffer, sustain or incur arising
out of, based upon or in any way connected with the grant of this Franchise, the
operation construction, maintenance, or repair of Grantee’s System, the breach by
Grantee of its obligations under this Franchise and/or the activities of Grantee, its
subcontractor, employees and agents hereunder. Grantee shall be solely
responsible for and shall indemnify, defend and hold the Indemnified Parties
harmless from and against any and all matters relative to payment of Grantee’s
employees, including compliance with Social Security and withholdings.
(b) The indemnification obligations of Grantee set forth in this Franchise are not
limited in any way by the amount or type of damages or compensation payable by
or for Grantee under Workers’ Compensation, disability or other employee benefit
acts, acceptance of insurance certificates required under this Franchise, or the
terms, applicability or limitations of any insurance held by Grantee.
(c) City does not, and shall not, waive any rights against Grantee which it may
have by reason of the indemnification provided for in this Franchise, because of
the acceptance by City, or the deposit with City by Grantee, of any of the insurance
policies described in this Franchise.
(d) The indemnification of City by Grantee provided for in this Franchise shall
apply to all damages and claims for damages of any kind suffered by reason of
any of the Grantee’s operations referred to in this Franchise, regardless of whether
or not such insurance policies shall have been determined to be applicable to any
such damages or claims for damages.
(e) Grantee shall not be required to indemnify City for claims arising from
intentional acts or omissions or negligence on the part of City or its officials, boards,
commissions, agents, or employees or for any claims or damages arising in any
way from the PEG Access Channels.
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(f) In order for City to assert its rights to be indemnified, defended, and held
harmless, City must, with respect to each claim:
(1) Promptly notify Grantee within ten (10) business days in writing of
any claim or legal proceeding which gives rise to such right;
(2) Afford Grantee the opportunity to participate in and fully control any
compromise, settlement or other resolution or disposition of any claim or
proceeding; and
(3) Cooperate with reasonable requests of Grantee, at Grantee’s
expense, in its participation in, and control, compromise, settlement or
resolution or other disposition of such claim or proceeding subject to
subparagraph (2) above.
4. Insurance.
(a) As a part of the indemnification provided in Section 9.3, but without limiting
the foregoing, Grantee shall file with its acceptance of this Franchise, and at all
times thereafter maintain in full force and effect at its sole expense, a certificate of
insurance evidencing an occurrence-based comprehensive general liability
insurance policy, including contractual liability coverage, in protection of City in its
capacity as such, its officers, elected officials, boards, commissions, agents and
employees. The policy or policies shall name as additional insured City and in
their capacity as such, the City’s officials, boards, commissions, agents, or
employees. The policies of insurance shall be in the sum of not less than Three
Million and No/100 Dollars ($3,000,000.00) for personal injury and property
damage or One Million and No/100 Dollars ($1,000,000.00) together with a
minimum of Two Million and No/100 Dollars ($2,000,000.00) exc ess liability
coverage.
(b) The policy or policies of insurance shall be maintained by Grantee in full
force and effect during the entire term of the Franchise and shall be issued by
company licensed to do business in the State of Minnesota with a rating by A.M.
Best & Co. of not less than “A-” upon the Effective Date of this Franchise or at the
time a sale or transfer of ownership is approved by City. Each policy of insurance
shall contain a statement on its face that the insurer will not cancel the policy or
fail to renew the policy, whether for nonpayment of premium, or otherwise, and
whether at the request of Grantee or for other reasons, except after thirty (30) Days
advance written or electronic notice have been provided to City by the insurer.
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(c) Grantee shall obtain and maintain Workers’ Compensation Insurance for all
of Grantee’s employees, and in case any work is sublet, Grantee shall require any
subcontractor similarly to provide Workers’ Compensation Insurance for all of their
employees, all in compliance with state laws, and to fully indemnify the City from
and against any and all worker’s compensation claims arising out of occurrences
on the work. Grantee hereby indemnifies City for any and all costs, expenses
(including attorneys’ fees and disbursements of counsel), damages and liabilities
incurred by City as a result of any failure of either Grantee or any subcontractor to
take out and maintain such insurance. Grantee shall provide the City with a
certificate of insurance indicating Workers’ Compensation coverage on the
Effective Date.
SECTION 10 . SALE, ABANDONMENT, TRANSFER AND REVOCATION OF FRANCHISE
1. Abandonment of Service. Grantee may not abandon the System or any portion
thereof without having first given three (3) months written notice to City. Grantee
may not abandon the System or any portion thereof without compensating City for
damages resulting from the abandonment. Grantee shall comply with the City
Code (specifically Section 25.29 of the City Code) and Applicable Law and in the
event of Grantee’s abandonment of all or a portion of the Cable System. City shall
have the right to require Grantee to conform to the state right -of-way rules and
Minnesota Rules, Chapter 7819.3300 with respect any abandoned facilities in the
City provided, however, that the Grantee reserves its rights under Applicable Law
to assert that Grantee is providing services other than Cable Services pursuant to
Minnesota Statutes, Section 237.01 et seq., and therefore not subject to this
section.
2. Removal After Termination or Forfeiture.
(a) In the event of termination or forfeiture of the Franchise, City shall have the
right to require Grantee to remove all or any portion of the System from all Streets
and public property within City associated solely with the provision of Cable
Service; provided, however, that if Grantee is providing services other than Cable
Services or pursuant to Minnesota Statutes, Section 237.01 et seq., City shall not
require the removal of the System. Nothing in this section shall be deemed either
to grant or to preclude the provision of services other than Cable Services.
(b) If Grantee has failed to commence removal of System, or such part thereof
as was designated by City, within one hundred twenty (120) Days after written
notice of City’s demand for removal is given, or if Grantee has failed to complete
such removal within twelve (12) months after written notice of City’s demand for
removal is given, City shall have the right to declare all right, title, and interest to
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the System to be in City with all rights of ownership including, but not limited to,
the right to operate the System or transfer the System to another for operation by
it pursuant to the provisions of 47 U.S.C. § 547 (1989).
3. Sale or Transfer of Franchise.
(a) No sale, transfer, assignment or “fundamental corporate change”, as
defined in Minnesota Statutes, Section 238.083, of this Franchise shall take place
until the parties to the sale, transfer, or fundamental corporate change files a
written request with City for its approval, provided, however, that s aid approval
shall not be required where Grantee grants a security interest in its Franchise and
assets to secure an indebtedness.
(b) City shall have thirty (30) Days from the time of the request to reply in writing
and indicate approval of the request or its determination that a public hearing is
necessary due to potential adverse effect on Grantee’s Subscribers resulting from
the sale or transfer. Such approval or determination shall be expressed in writing
within thirty (30) Days of receipt of said request, or the request shall be deemed
approved as a matter of law.
(c) If a public hearing is deemed necessary pursuant to subparagraph (b)
above, such hearing shall be commenced within thirty (30) Days of such
determination and notice of any such hearing shall be given in accordance with
local law or fourteen (14) Days prior to the hearing by publishing notice thereof
once in a newspaper of general circulation in City. The notice shall contain the
date, time and place of the hearing and shall briefly state the sub stance of the
action to be considered by City.
(d) Within thirty (30) Days after the closing of the public hearing, City shall
approve or deny in writing the sale or transfer request. City shall set forth in writing
with particularity its reason(s) for denying approval. City shall not unreasonably
withhold its approval.
(e) The parties to the sale or transfer of the Franchise only, without the inclusion
of the System in which substantial construction has commenced, shall establish
that the sale or transfer of only the Franchise will be in the public interest.
(f) Any sale or transfer of stock in Grantee so as to create a new controlling
interest in the System shall be subject to the requirements of this Section 10.3.
The term “controlling interest” as used herein is not limited to majority stock
ownership, but includes actual working control in whatever manner exercised.
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(g) In no event shall a transfer or assignment of ownership or control be
approved without the transferee becoming a signatory to this Franchise and
assuming all rights and obligations there under, and assuming all other rights and
obligations of the transferor to the City.
(h) In the event of any proposed sale or assignment pursuant to subparagraph
(a) of this section City shall have the right of first refusa l of any bona fide offer to
purchase the System. Bona fide offer, as used in this section, means an offer
received by the Grantee which it intends to accept subject to City’s rights under
this section. This written offer must be conveyed to City along with the Grantee’s
written acceptance of the offer contingent upon the rights of City provided for in
this section. City shall be deemed to have waived its rights under this section in
the following circumstances:
(1) If it does not indicate to Grantee in writing, within sixty (60) Days of
notice of a proposed sale or assignment, its intention to exercise its right of
purchase; or
(2) It approves the assignment or sale of the Franchise as provided
within this section.
4. Extended Operation and Continuity of Services . Upon termination or forfeiture of
this Franchise, Grantee shall remove its cable, wires, and appliances from the
Streets, alleys, or other public places within the Franchise Area if the City so
requests. Failure by the Grantee to remove its cable, wires, and appliances as
referenced herein shall be subject to this Franchise.
5. Receivership and Foreclosure.City and Grantee shall comply with Applicable Law
in the event of an appointment of a receiver or receivers, or trustee or trustees, to
take over and conduct the business of Grantee, whether in a receivership,
reorganization, bankruptcy, foreclosure or other action or proceeding. Nothing in
this Section 10.5 constitutes a waiver by the City of any rights it may have pursuant
to Applicable Law and this Franchise.
SECTION 11 PROTECTION OF INDIVIDUAL RIGHTS
1. Discriminatory Practices Prohibited. Grantee shall comply at all times with all
Applicable Laws relating to nondiscrimination. Access to Cable Service shall not
be denied to any group of potential Subscribers because of the income of the
residents of the local area. Nothing contained herein shall prohibit the Grantee
from offering bulk discounts, promotional discounts, package discounts, or other
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such pricing strategies as part of its business practice to the extent p ermitted under
Applicable Law.
SECTION 12 MISCELLANEOUS PROVISIONS
1. Franchise Renewal. Any renewal of this Franchise shall be in accordance with
Applicable Laws.
2. Work of Contractors and Subcontractors. All provisions of this Franchise shall
apply to any subcontractor or others performing any work or services on Grantee’s
behalf pursuant to the provisions of this Franchise. Grantee shall be responsible
for ensuring that the work of contractors and subcontractors is performed
consistent with the Franchise and Applicable Laws and shall indemnify the City
pursuant to Section 9.3
3. Amendment of Franchise. Grantee and City may agree, from time to time, to
amend this Franchise. Such written amendments may be made at any time if City
and Grantee agree that such an amendment will be in the public interest or if such
an amendment is required due to changes in federal, state or local laws.
4. Compliance with Federal, State and Local Laws.
(a) If any federal or state law or regulation shall require or permit City or
Grantee to perform any service or act or shall prohibit City or Grantee from
performing any service or act which may be in conflict with the terms of this
Franchise, then as soon as possible following knowledge thereof, either party shall
notify the other of the point in conf lict believed to exist between such law or
regulation. Grantee and City shall conform to state laws and rules regarding cable
communications not later than one (1) year after they become effective, unless
otherwise stated, and shall conform to federal laws and regulations regarding cable
as they become effective.
(b) If any term, condition or provision of this Franchise or the application thereof
to any Person or circumstance shall, to any extent, be held to be invalid or
unenforceable, the remainder hereof and the application of such term, condition or
provision to Persons or circumstances other than those as to whom it shall be held
invalid or unenforceable shall not be affected thereby, and this Franchise and all
the terms, provisions and conditions hereof shall, in all other respects, continue to
be effective and complied with provided the loss of the invalid or unenforceable
clause does not substantially alter the agreement between the parties. In the event
such law, rule or regulation is subsequently repe aled, rescinded, amended or
otherwise changed so that the provision which had been held invalid or modified
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is no longer in conflict with the law, rules and regulations then in effect, said
provision shall thereupon return to full force and effect and shal l thereafter be
binding on Grantee and City.
5. Nonenforcement by City. Grantee shall not be relieved of its obligations to comply
with any of the provisions of this Franchise by reason of any failure or delay of City
to enforce prompt compliance. Any waiver by City of a breach or violation of any
provision of this Franchise shall not operate as or be construed to be a waiver of
any subsequent breach or violation.
6. Administration of Franchise. The City Administrator shall have continuing
regulatory jurisdiction and supervision over the System and the Grantee’s
operation under the Franchise. The City Administrator shall have authority to issue
notice of franchise violations to Grantee under Section 9 of this Franchise;
provided, however, the Council shall have sole authority to conduct any required
hearings regarding such alleged violations and issue any decisions regarding
enforcement the Franchise.
7. Periodic Evaluation. The field of cable communications is rapidly changing and
may see many regulatory, technical, financial, marketing and legal changes during
the term of this Franchise. Therefore, in order to provide for a maximum degree
of flexibility in this Franchise, and to help achieve a continued advanced and
modern System, the following evaluation provisions shall apply:
(a) The City may require evaluation sessions at any time during the term of this
Franchise, upon thirty (30) Days written notice to Grantee, provided, however,
there shall not be more than two (2) review sessions during the term of this
Franchise.
(b) Topics which may be discussed at any evaluation session may include, but
are not limited to, new technologies, System performance, programming offered,
PEG Access Channels, facilities and support, municipal uses of cable, customer
complaints, judicial rulings, FCC rulings, line extension policies and any other
topics City and Grantee deem relevant.
(c) As a result of a periodic review or evaluation session, City and Grantee may,
upon mutual agreement, develop such changes and modifications to the terms a nd
conditions of the Franchise and which are both economically and technically
feasible.
8. Rights Cumulative. All rights and remedies given to City by this Franchise shall be
in addition to and cumulative with any and all other rights and remedies, existing
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or implied, now or hereafter available to City, at law or in equity, and such rights
and remedies shall not be exclusive, but each and every right and remedy
specifically given by this Franchise or otherwise existing or given may be exercised
from time to time and as often and in such order as may be deemed expedient by
City and the exercise of one (1) or more rights or remedies shall not be deemed a
waiver of the right to exercise at the same time or thereafter any other right or
remedy.
9. Grantee Acknowledgment of Validity of Franchise. Grantee acknowledges that it
has had an opportunity to review the terms and conditions of this Franchise and
has the right to enter into, execute and perform its obligations under this Franchise
and that Grantee believes that said terms and conditions are not unreasonable
and are valid and binding obligations. Subject to the foregoing, nothing in this
Franchise shall be construed as a waiver of any rights of the City or Grantee.
10. Severability. If any section, subsection, sentence, clause, phrase, or other portion
of this Franchise is, for any reason, declared invalid, in whole or in part, by any
court, agency, commission, legislative body, or other authority of competent
jurisdiction, such portion shall be deemed a separate, distinct, and independent
portion. Such declaration shall not affect the validity of the remaining portions
hereof, which other portions shall continue in full force and effect.
11. Force Majeure. In the event Grantee’s performance of any of the terms,
conditions, obligations or requirements of this Franchise is prevented or impaired
due to any cause beyond its reasonable control, such inability to perform shall be
deemed to be excused for the period of such inability and no penalties or sanctions
shall be imposed as a result thereof, provided Grantee has notified City in writing
within a reasonable time of its discovery of the occurrence of such an event then
the Grantee shall have a commercially reasonable time under the circumstances
to perform such obligation under this Franchise, or to procure a substitute for such
obligation to the reasonable satisfaction of the City. Such causes beyond
Grantee’s reasonable control shall include, but shall not be limited to, acts of God,
civil emergencies and labor unrest or strikes, untimely delivery of equipment,
inability of Grantee to obtain access to an individual’s property and inability of
Grantee to secure all necessary permits to utilize utility poles and conduit so long
as Grantee utilizes due diligence to timely obtain said permits.
12. Governing Law. This Franchise shall be deemed to be executed in the State of
Minnesota, and shall be governed in all respects, including validity, interpretation
and effect, and construed in accordance with the laws of the State of Minnesota.
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SECTION 13 : PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
1. Publication; Effective Date. This Franchise shall be published in accordance with
Applicable Law. The Effective Date of this Franchise shall be the date specified in
Section 1.2 (“Definitions”).
2. Acceptance.
(a) Grantee shall accept this Franchise within thirty (30) Days of its enactment
by the City Council, unless the time for acceptance is extended by City. Such
acceptance by the Grantee shall be deemed the grant of this Franchise for all
purposes. In the event acceptance does not take place, this Franchise and any
and all rights previously granted to Grantee shall be null and void.
(b) Upon acceptance of this Franchise, Grantee shall be bound by all the terms
and conditions contained herein.
(c) Grantee shall accept this Franchise in the following manner:
(1) This Franchise will be properly executed and acknowledged by
Grantee and delivered to City.
(2) With its acceptance, Grantee shall also deliver any grant payments,
letter of credit and insurance certificates required herein that have not
previously been delivered.
(4235, 3/14/16)