HomeMy WebLinkAbout06/16/2009 06 Periodic Public Review of City of Yakima Cable Television Franchise Ordinance - Public Hearing BUSINESS OF THE CITY COUNCIL
® YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 6
For Meeting Of June 16, 2009
ITEM TITLE: A Public Hearing regarding a Periodic Public Review of City of Yakima Cable
Television Franchise Ordinance No. 93 -115 (as amended) and consideration of an ordinance
extending, by one year, the term of the franchise granted under Ordinance No. 93 -115 (as
amended).
SUBMITTED BY: Randy Beehler, Community Relations Manager
CONTACT PERSON /TELEPHONE: Randy Beehler, Community Relations Manager,
575 -6092
SUMMARY EXPLANATION: City of Yakima Cable Television Franchise Ordinance No.
93 -11 as amended by Ordinances 97 -40, 98 -30, 99 -09, 99 -31, 2000 -24, 2003 -41, and 2007 -29,
(the "Ordinance ") provides for Periodic Public Reviews of the Ordinance, the franchise granted
under the Ordinance to Charter Communications Holding Company, LLC (the "Franchise
• grantee ") to construct, operate and maintain a cable communications system along City rights -of-
way (the "Franchise "), and the overall performance of the Franchise grantee in meeting the terms
® and conditions of the Franchise. Beginning in January 2009 and concluding in May 2009, the
City's Community Relations Manager conducted such a review by examining pertinent
documents, soliciting input from other City divisions and departments, and reviewing each
section of the Franchise for compliance by the Franchise grantee.
Said review indicated that the Franchise grantee has wholly or satisfactorily complied with the
Franchise since 2006 when the last Periodic Public Review was completed, and that the
Franchise continues to effectively serve the public. Based on the generally favorable findings of
the review (see attached Review Findings Document), the Community Relations Manager
recommends the term of the Franchise be extended by one year, as provided for in the
Ordinance. The effective date of Ordinance No. 93 -115 was January 21, 1994. Therefore,
should the City Council pass the proposed Franchise extension ordinance, the term of the
Franchise would be extended until January 21, 2014.
Resolution Ordinance _ X Other (specify) Public Hearing
Contract Mail to (name & address)
Phone:
Funding Source ,
APPROVAL FOR SUBMITTAL: )` � y ., City Manager
STAFF RECOMMENDATION: Pass ordinance.
BOARD /COMMISSION RECOMMENDATION: N/A
COUNCIL ACTION:
ORDINANCE NO. 2009 -
AN ORDINANCE relating to franchises; amending Subsection 2.2 of
Ordinance No. 93 -115, as amended by Ordinances No.
97 -40, No. 98 -30, No. 99 -09, No. 99 -31, No. 2000 -24, No.
2003 -41, and No. 2007 -29; and extending the term of the
non - exclusive franchise with Charter Communications
Holding Company, LLC by one (1) year, from nineteen
(19) years to twenty (20) years, from the effective date
(January 21, 1994) of Ordinance No. 93 -115.
WHEREAS, Section 2.6 of City of Yakima Cable Communications System
Franchise Ordinance No. 93 -115, as amended by Ordinances No. 97 -40, No. 98-
30, No. 99 - 09, No. 99 -31, No. 2000 -24, No. 2003 -41, and 2007 -29 (hereafter referred
to as the "Ordinance "), provides for periodic public reviews of compliance with
the Franchise by the Franchise grantee, Charter Communications Holding
Company, LLC ("Charter"). The Ordinance further ( ) c urther provides that after
completion of such reviews, if the City is satisfied that the public interest will be
served by extending the term of the Franchise, it may, with the consent of the
Franchise grantee, extend the term of the Franchise, set forth in Section 2.2 of the
Ordinance, by one (1) additional year; and
WHEREAS, such a periodic public review was conducted by the City's
Community Relations Manager between January 2009 and May 2009; and
WHEREAS, based on the generally favorable findings of the periodic
public review, which indicated Charter has wholly or satisfactorily complied
with all terms and conditions of the Franchise, the City's Community Relations
Manager has recommended that the Yakima City Council extend the term of the
Franchise by one (1) year; and
WHEREAS, the Yakima City Council is satisfied that the public interest
will be served by extending the term of the Franchise by one (1) additional year;
now, therefore,
BE IT ORDAINED BY THE CITY OF YAKIMA:
SECTION 1. Subsection 2.2 of Ordinance No. 93 -115, as amended by Ordinances
No. 97 -40, No. 98 -30, No. 99 -09, No. 99 -31, No. 2000 -24, No. 2003 -41, and No.
2007 -29, is amended to read as follows:
2.2 Franchise Term. The term of the Franchise shall be
nineteen (19) twenty (20) years from the effective date of
Ordinance No. 93 -115, unless further extended in accordance with
the provisions in Sections 2.6 or 2.11 or terminated in accordance
with this Ordinance.
SECTION 2. This ordinance shall be in full force and effect thirty (30) days after 0
its passage, approval and publication as provided by law and by the City
Charter.
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-2-
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PASSED BY THE CITY COUNCIL, signed and approved this day of
, 2009.
CITY OF YAKIMA CHARTER
COMMUNICATIONS
HOLDING COMPANY, L.L.C.
By:
Dave Edler, Mayor Its:
Attest:
0
City Clerk
Publication Date:
Effective Date:
-3-
O
State of )
) ss.
County of )
I hereby certify that I know or have satisfactory evidence that
is the person who appeared before me, and
said person acknowledged that he /she signed this instrument, and on oath
stated that he /she was authorized to execute the instrument on behalf of Charter
Communications Holding Company, L.L.C., and acknowledged it as the
of Charter Communications Holding
Company, L.L.C., to be the free and voluntary act of such party for the uses and
purposes mentioned in this instrument.
Dated this day of , 2009.
0
Print Name:
NOTARY PUBLIC in and for the State of
residing at
My commission expires:
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CITY OF YAKIMA
2009 PERIODIC PUBLIC REVIEW
•
OF .
CABLE TELEVISION
S ON
FRANCHISE ORDINANCE
No. 93 -115
(as amended)
Rev Findings Document
Prepared by
City of Yakima
Community Relations Division
• May 2009
Table of Contents
SECTION 1 REVIEW PURPOSE AND PROCEDURE, (�
SUMMARY OF FINDINGS AND
FRANCHISE EXTENSION RECOMMENDATION
1.1 Purpose of Periodic Review page 1
1.1.2 Review Procedure page 2
1.2 Summary of Findings page 2
13 Franchise Extension Recommendation page 3
REVIEW FINDINGS
SECTION 2 FRANCHISE
2.1 Grant of Franchise page 3
2.2 Franchise Term page 3 -.
2.3 Franchise Area page 4
2.4 Franchise Non - exclusive page 4
2.5 Franchise Renewal or New Franchise page 4
2.6 Periodic Public Review of Franchise page 4
2.7 Transfer of Ownership page 4
2.8 Change in Control page 5
2.9 Revocation page 5
2.10 Receivership page 5
2.11 Expiration page 5
2.12 Right to Purchase the System page 6
2.13 Right to Require Removal of Property page 6 0
2.14 Continuity of Service Mandatory page 6
2.15 Other Codes or Ordinances page 6
2.16 Survival of Terms page 6
SECTION 3 OPERATION IN STREETS AND RIGHTS OF WAY
3.1 Use of Streets page .7
3.2 Construction or Alteration page 7
3.3 Non- Interference page 7
3.4 Consistency with Designated Use page 7
3.5 Undergrounding page 8
3.6 Restoration page 8
3.7 Access through Private Property page 8
3.8 Relocation page 9
3.9 Movement of Buildings page 9
SECTION 4 SYSTEM DESIGN AND CAPACITY
4.1 Availability of Signals and Equipment page 9
4.2 Equal and Uniform Service page 10
43 System Upgrade and Construction Schedule
4.3.1 System Upgrade Required page 10
4.3.2 Construction Schedule page 10
4.3.3 Remedies page 10
4.3.4 Hearing Process page 10
4.3.5 Right of Inspection of Construction page 11
4.3.6 Emergency Alert Capability page 11
4.3.7 Standby Power page 11
110
4.3.8 Provision of Bi- Directional Capability page 11
4.3.9 Interactive Services page 11
Page I
4.4 Technical Standards page 11
4.5 Performance Testing page 12
• SECTION 5 PROGRAMMING AND SERVICES
5.1 Categories of Programming Services page 12
5.2 Changes in Video Programming Services page 12
5.3 Basis for Programming Decisions page 13
5.4 Cable Advisory Committee page 13
5.5 Obscenity page 13
SECTION 6 PUBLIC, EDUCATIONAL AND GOVERNMENT ACCESS
6.1 Access Channels page 13
6.2 Access Facilities
6.2.1 Lease Subsidy for Public /Government
Access Facilities page 14
6.2.2 Return Feed from Facilities page 14
6.3 Capital Grant for Access Equipment and Facilities page 14
SECTION 7 REGULATORY PROVISIONS
7.1 Intent page 14
7.2 Delegation of Authority to Regulate page 15
7.3 Areas of Administrative Authority page 15
7.4 Regulation of Rates and Charges
7.4.1 Right to Regulate page 15
7.4.2 Notice of Change in Rates and Charges page 15
7.4.3 Rate Discrimination Prohibited page 16
7.5 Remedies for Franchise Violations page 16
7.6 Procedure for Remedying Franchise Violations
7.6.1 Notice of Violation page 16
7.6.2 The Franchise Grantee's Right to
Cure or Respond page 16
7.6.3 Public Hearing page 17
7.7 Enforcement page 17
7.8 Failure to Enforce page 17
7.9 Acts of Nature page 17
7.10 Alternative Remedies page 17
7.11 Compliance with the Laws page 18
SECTION 8 REPORTING REQUIREMENTS
8.1 Monthly Reports page 18
8.2 Annual Report page 18
8.3 Monitoring and Compliance Reports page 18
8.4 Additional Reports page 19
8.5 Communications with Regulatory Agencies page 19
8.6 Preservation of Confidential Information page 19
SECTION 9 CUSTOMER SERVICE POLICIES
9.1 Response to Customers and Cooperation with City page 19
9.2 Definition of "Complaint" page 20
9.3 Customer Service Agreement and Manual page 20
9.4 City Right to Set Specific Customer
Service Standards page 20
SECTION 10 LINE EXTENSION POLICY
10.1 Standard Installation page 21
10.2 Isolated Areas page 21
Page II
SECTION 11 COMPENSATION AND FINANCIAL PROVISIONS
11.1 Franchise Fees page 21
11.2 Auditing and Financial Records page 22
11.3 Letter of Credit page 22 0
11.4 Indemnification by the Franchise Grantee page 22
11.5 Franchise Grantee Insurance page 22
SECTION 12 MISCELLANEOUS PROVISIONS
12.1 Posting and Publication page 23
12.2 Guarantee of Performance page 23
12.3 Governing Law and Venue page 23
12.4 Separability page 23
12.5 Consent page 24
12.6 Ordinances Terminated page 24
12.7 No Third Party Beneficiaries page 24
12.8 Franchise Ordinance Acceptance page 24
12.9 Effective Date page 24
SECTION 13 DEFINITIONS
13.1 "Access Channel" or "Public, Educational or
Government (PEG) Access Channel" page 25
13.2 "Access Services" or "Community Access Services" page 25
13.3 "Addressability" page 25
13.4 "Basic Service" or "Basic Cable Service" page 25
13.5 "Cable Act" page 25
13.6 "Cable Communications System" or "Cable System"
or "System" page 25
13.7 "Cable Service" page 25
13.8 "Channel" page 25
13.9 "Charter" page 25 ID
13.10 "City" page 25
13.11 "Community Access Channel" page 26
13.12 "Downstream Channel" or "Downstream
Video Channel" page 26
13.13 "Expanded Basic Service" page 26
13.14 "Franchise" page 26
13.15 "Franchise Fee" page 26
13.16 "Government Channel" or "Government
Access Channel" page 26
13.17 "Gross Revenues" page 26
13.18 "Interactive Services" page 27
13.19 "Leased Access" page 27
13.20 "Ordinance" page 27
13.21 "Pay Service" or "Premium Service" page 27
13.22 "Person" page 27
13.23 "Review" page 27
13.24 "School" page 27
13.25 "Subscriber" page 27
13.26 "Street" page 27
13.27 "Telecommunications Act" page 27
13.28 "Upstream Channel" page 27
■
Page III
Cable Television Franchise Review
May 2009
Page l
r SECTION 1 REVIEW PURPOSE AND PROCEDURE,
SUMMARY OF FINDINGS, AND
FRANCHISE EXTENSION RECOMMENDATION
1.1 - PURPOSE OF REVIEW
Section 2.6 of City of Yakima Cable Television Franchise Ordinance
No. 93 -115 (the "Franchise ") provides for periodic public reviews of the Franchise at 3-
year intervals. As stated in Section 2.6 of the Franchise, "The purpose of the review shall
be to ensure, with the benefit of full opportunity for public comment, that the Franchise
continues to effectively serve the public in light of new developments in cable law and
regulation, cable technology, cable company performance, local regulatory environment,
community needs and interests and other such factors." Further, the purpose of periodic
reviews is to accurately assess the Franchise grantee's compliance with all provisions of
the Franchise and to develop measures to mitigate any violations identified through the
review. Following the periodic review, a determination is made as to whether the
granting of a one -year extension of the Franchise is or is not justified, as provided for in
Sections 2.2, 2.6 and 2.11 of the Franchise.
The City's Community Relations Division is responsible for conducting this and other
periodic franchise compliance reviews as part of its administrative and management
• duties regarding cable communications and telecommunications franchises.
The Franchise took effect in 1994. In 1997, the City conducted its first periodic review
of the Franchise. The Franchise grantee was, at the time, TCI Cablevision of Yakima,
Inc. Following a successful review, the City Council granted a one -year extension of the
Franchise, making the Franchise expiration date January 21, 2010.
In 2000, the City conducted its second periodic review of the Franchise. The Franchise
grantee was, at the time, Charter Communications, Inc. Following a successful review,
the City Council granted a one -year e xtension.of the Franchise, making the Franchise
expiration date January 21, 2011.
In 2003, the City conducted its third periodic review of the Franchise. The Franchise
grantee was, at the time, Charter Communications, Inc. Following a successful review,
the City Council granted a one -year extension of the Franchise, making the Franchise
expiration date January 21, 2012.
In 2006, the City conducted its fourth periodic review of the Franchise. The Franchise
grantee was, at the time, Charter Communications, Inc. Following a successful review,
the City Council granted a one -year extension of the Franchise, making the Franchise
expiration date January 21, 2013.
•
Since the first periodic review was completed in 1997, 3 entities have served as Franchise
• grantee. From 1997 to August 1998, TCI CableVision of Yakima, Inc. ( "TCI ") was the
grantee of the Franchise. In September 1998, Falcon Holding Group, L.P. ( "Falcon ") and
TCI formed a partnership, with Falcon maintaining a majority interest in the partnership.
Due to its majority ownership interest, Falcon became the grantee of the Franchise.
Cable Television Franchise Review
May 2009
Page 2
In February 1999, AT &T Corp. ( "AT &T) purchased TCI and, therefore, TCI's interest in
the Falcon/TCI partnership. However, Falcon maintained its majority ownership interest
in the Falcon/AT &T partnership and, therefore, remained the grantee of the Franchise. In
August 1999, Charter Communications, Inc. ( "Charter ") purchased Falcon, and AT &T's
interest in the Falcon/AT &T partnership, thereby becoming the grantee of the Franchise.
As of the time of this review, Charter remained the grantee of the Franchise.
Section 1.2 of this review findings document contains a summary narrative of the
findings of the review. Section 1.3 contains a 'recommendation to the City Council from
•
the Community Relations Manager on the granting of a Franchise extension of one year.
Sections 2 through 12 of this review findings document contain narratives detailing
review findings for each Section of the Franchise. The headings of each review narrative
Section correspond with the Section headings found in the Franchise document. Section
13 of this review findings document contains definitions of some terminology used in the
narratives.
1.1.2 - REVIEW PROCEDURE
This periodic review of the Franchise was conducted by the City's Community Relations
Manager with assistance from staff of other City divisions and departments. The review
began in January 2009 and was concluded in May 2009. As part of the review process,
information was requested from City staff concerning compliance by the Franchise
grantee with various provisions of the Franchise. City staff also reviewed pertinent
documents in the City's possession to determine the Franchise grantee's compliance with
the Franchise.
Once all pertinent documents and information had been gathered, the Community
Relations Manager reviewed the information to determine the Franchise grantee's
compliance with all provisions of the Franchise. Preliminary findings were completed in
April 2009. Any corrections and changes to the draft review findings document were
made by the Community Relations Manager and the final review findings document,
including a recommendation from the Community Relations Manager on a one -year
extension of the Franchise, was completed in May 2009.
A public hearing on the review findings document and one -year Franchise extension
recommendation will take place during a Yakima City Council regular agenda meeting
on June 16, 2009.
1.2 - SUMMARY OF FINDINGS
This review indicated generally favorable compliance with all material provisions of the
Franchise by the Franchise grantee since the last periodic review was conducted in 2006.
Through this review, the City determined that Charter has wholly or satisfactorily
complied with all provisions of the Franchise and has wholly or satisfactorily met its
obligations under the terms of the Franchise. 0
Cable Television Franchise Review
May 2009
Page 3
110 Through this review, the City determined that the Franchise continues to effectively serve
the public in light of such factors as changes in cable law and regulation, developments in
cable technology, cable company performance, and the community's needs and interests.
The intent of the Franchise Ordinance, and the Franchise it authorized, was to assure that
the Franchise grantee act responsibly in its use of public rights -of -way and in the
provision of a valuable service to consumers. While the cable /telecommunications
regulatory and competitive environments have changed dramatically since the Franchise
was originally enacted, this review indicated that the Franchise remains a proactive tool
in ensuring the interests of the community are protected. The Franchise continues to
allow the City to exercise the fullest authority permitted by applicable state and federal
law.
The Community Relations Manager believes this review process was beneficial in both
determining the Franchise grantee's compliance with provisions of the Franchise and in
identifying the need for potential modifications of the Franchise. Given the on -going
evolution of cable /telecommunications law at the federal and state level, the City must
remain diligent in ensuring the Franchise continues to serve the community to its greatest
ability. The City is committed to meeting this goal.
1.3 - FRANCHISE EXTENSION RECOMMENDATION
Based on the enerall favorable y fa orable findings of this review and the City's determination of
the Franchise grantee's compliance with all material provisions of the Franchise, and
based on the City's determination that the Franchise continues to effectively serve the
public, the City's Community Relations Manager recommends the City Council grant a
one -year extension to the Franchise granted to Charter Communications, Inc. by City of
Yakima Cable Television Franchise Ordinance No -93 -115 (as amended). Should the
City Council grant a one -year extension to the Franchise, unless it is terminated for
failure or default by Charter, amended by ordinance, amended by mutual agreement of
Charter and the City, or further extended as provided for in Sections 2.2, 2.6 and 2.11 of
the Franchise Ordinance, the Franchise will be in effect until January 21, 2014.
SECTION 2 FRANCHISE
2.1 - GRANT OF FRANCHISE
Section 2.1 of the Franchise grants a non - exclusive franchise to Charter to construct,
alter, maintain, and operate a cable system within the city limits of Yakima. No
compliance provisions are contained in Section 2.1.
2.2 - FRANCHISE TERM
Section 2.2 of the Franchise sets the term of the original Franchise at 15 years, unless
• extended or terminated. As referenced in Section 1.1 of this review findings document,
following a successful periodic review of the Franchise in 1997, the City Council
extended the Franchise by one year making its effective term 16 years. Following a
successful periodic review of the Franchise in 2000, the City Council extended the
Cable Television Franchise Review
May 2009
Page 4 411
Franchise by one year making its effective term 17 years. Following a successful
periodic review of the Franchise in 2003, the City Council extended the Franchise by one
year making its effective term 18 years. Following a successful periodic review of the
Franchise in 2006, the City Council extended the Franchise by one year making its
effective term 19 years. No compliance provisions are contained in Section 2.2.
2.3 - FRANCHISE AREA
Section 2.3 of the Franchise requires the Franchise grantee to provide cable service to all
homes and businesses within the corporate limits of the City who request such service.
During the course of the review, the City confirmed that all areas annexed to the City
since 2006, when the last review occurred, had been included in Charter's subscriber
counts. The City determines Charter complies with all provisions of Section 2.3.
2.4 - FRANCHISE NON - EXCLUSIVE
Section 2.4 of the Franchise specifies the right of the City to grant additional franchises
for cable systems. The City granted such a franchise to Central Telecommunications
East, Inc. in 2002. Due to Central Telecom East, Inc. having ceased operations, that
franchise is no longer in effect. No compliance provisions are contained in Section 2.4.
2.5 - FRANCHISE RENEWAL OR NEW FRANCHISE O
Section 2.5 of the Franchise allows the City to establish appropriate requirements for new
franchises or the renewal of the Franchise granted to Charter. No compliance provisions
are contained in Section 2.5.
2.6 - PERIODIC PUBLIC REVIEW OF FRANCHISE
Section 2.6 of the Franchise provides for periodic public reviews of the Franchise at
3 -year intervals throughout the term of the Franchise. As mentioned before in this review
findings document, the first review occurred in 1997, the second review occurred in
2000, the third review occurred in 2003, and the fourth review occurred in 2006. The
Franchise grantee is required by Section 2.6 to "...make a full and good faith effort to
participate in the review..." For all such reviews which have occurred during Charter's
tenure as the Franchise grantee, Charter has demonstrated cooperation in meeting the
goals of the review. The City determines Charter complies with all provisions of Section
2.6.
2.7 - TRANSFER OF OWNERSHIP
Section 2.7 of the Franchise requires the Franchise grantee to obtain the consent of the
City before transferring ownership of the Franchise to another party. Since 2006, no such
request for consent has been made. For the purposes of this review, no compliance
provisions of Section 2.7 are at issue.
•
Cable Television Franchise Review
April 2006
Page 5
• 2.8 - CHANGE IN CONTROL
Section 2.8 of the Franchise requires the Franchise grantee to obtain the consent of the
City for any change in, transfer of, or acquisition by any other party of control of the
Franchise grantee. Since 2006, no such requests for consent have been made. For the
purposes of this review, no compliance provisions of Section 2.8 are at issue.
2.9 - REVOCATION
Section 2.9 of the Franchise grants the City the right to revoke the Franchise or declare a
forfeiture in the event the Franchise grantee: (a) is found to be in violation of a material
provision of the Franchise and fails to correct the violation as required in Section 7.6 of
the Franchise; (b) the Franchise grantee fails to complete the system upgrade required by
the Franchise within 18 months of the completion date approved by the City; (c) the
Franchise grantee becomes insolvent, is unable or unwilling to pay its debts or is
adjudged a bankrupt; (d) the Franchise grantee is found to have engaged in any actual or
attempted fraud or deceit upon the City, persons or subscribers; (e) the Franchise grantee
fails to obtain or maintain appropriate construction, maintenance and operating permits,
or; (f) the Franchise grantee fails to provide a Letter of Credit as required by Section
11.3 of the Franchise. In March 2009, Charter voluntarily began a Chapter 11
reorganization process. Charter sought and received permission from the Bankruptcy
Court to continue paying franchise fees and other amounts due under its franchise
agreements. This review found that, although Charter is currently engaged in a
restructuring process, it has continued to meet all franchise fee and other financial
obligations to the City. Therefore, the City has not sought to revoke the Franchise or
declare forfeiture. For the purposes of this review, no compliance provisions of Section
2.9 are at issue.
2.10 - RECEIVERSHIP
Section 2.10 of the Franchise gives the City the right to revoke the Franchise or declare a
forfeiture in the event a receiver or trustee is appointed to take over the business of the
Franchise grantee due to receivership, reorganization, bankruptcy, or other proceeding
unless certain conditions, as specified in Section 2.10 of the Franchise, are met. This
review indicated no receiver or trustee has been appointed to take over the business of the
Franchise grantee since 2006. Therefore, for the purposes of this review, no compliance
provisions of Section 2.10 are at issue.
• 2.11 - EXPIRATION
Section 2.11 of the Franchise grants the City the right, upon expiration of the Franchise
to: (a) extend the Franchise up to a total of 20 years; (b) renew the Franchise, in
accordance with applicable law; (c) invite additional franchise applications or proposals;
• (d) terminate the Franchise without further action, and; (e) take such other action as the
City deems appropriate. No compliance provisions are contained in Section 2.11.
•
Cable Television Franchise Review
May 2009
Page 6
2.12 - RIGHT TO PURCHASE THE SYSTEM
Section 2.12 of the Franchise provides the City the right to purchase the cable system
should the Franchise be revoked or a forfeiture be declared under terms set forth in
Section 2.12 of the Franchise. This review indicated no such revocation or forfeiture has
been declared since 2006. For the purposes of this review, no compliance provisions
contained in Section 2.12 are at issue.
2.13 - RIGHT TO REQUIRE REMOVAL OF PROPERTY
Section 2.13 of the Franchise provides the City the right to require the Franchise grantee
to remove all or any part of the cable system from all streets and public ways within the
Franchise Area upon the expiration (provided no renewal is granted), forfeiture, or
revocation of the Franchise under terms set forth in Section 2.13 of the Franchise. This
review indicated no such revocation or forfeiture has been declared since 2006. For the
purposes of this review, no compliance provisions of Section 2.13 are at issue.
2.14 - CONTINUITY OF SERVICE MANDATORY
Section 2.14 of the Franchise requires the Franchise grantee to make its best effort to
provide continuous, uninterrupted service to all subscribers under normal circumstances
and in the case of revocation or non - renewal of the Franchise. Section 2.14 also requires 0
the Franchise grantee to provide continuous service in the event other circumstances
regarding ownership of the cable system occur. The City determines Charter complies
with all provisions of Section 2.14. (Service to subscribers is also addressed in Section 9
of this review findings document)
2.15 - OTHER CODES OR ORDINANCES
Section 2.15 of the Franchise states "Nothing in this Ordinance shall be deemed to waive
the requirements of the other lawful codes and ordinances of the City regarding permits,
fees to be paid or manner of construction." No compliance provisions are contained in
Section 2.15. (Permits, fees, and compliance with other City codes and ordinances are
also addressed in other sections of this review findings document)
2.16 - SURVIVAL OF TERMS
Section 2.16 of the Franchise states, "Sections 2.12, 2.13, 2.14, 11 and 12 of this
Ordinance shall continue in effect as to (the Franchise grantee) notwithstanding any
expiration, forfeiture, or revocation of the Franchise." No compliance provisions are
contained in Section 2.16.
Cable Television Franchise Review
May 2009
Page 7
• SECTION 3 OPERATION IN STREETS AND RIGHTS -OF -WAY
3.1 - USE OF STREETS
Section 3.1 of the Franchise allows the Franchise grantee to construct, operate, maintain
and modify its cable system within the City's streets as defined in Section 3.1'of the
Franchise. No compliance provisions are contained in Section 3.1.
3.2 - CONSTRUCTION OR ALTERATION
Section 3.2 of the Franchise requires the Franchise grantee to comply with all lawful City
ordinances and regulations regarding the acquisition of permits and such other items as
may be reasonably required in order to construct, alter, or maintain the cable system.
Additionally, Section 3.2 requires the Franchise grantee to provide information, when
requested to do so by the City, regarding progress in altering or completing the cable
system. As part of this review, the Community Relations Manager determined that, to
the best of the City's knowledge, Charter had complied with all City ordinances and
regulations in acquiring permits to alter the cable system and had provided the City with
all requested information regarding alteration or completion of the cable system since
2006. The City determines Charter complies with all provisions of Section 3.2.
3.3 - NON - INTERFERENCE
Section 3.3 of the Franchise requires the Franchise grantee to exert its best effort to
construct and maintain its cable system so as not to interfere with other uses of streets.
Additionally, Section 3.3 of the Franchise requires the Franchise grantee to, where
possible, regarding above - ground lines, make use of existing poles and other facilities _
already available to the Franchise grantee. Further, Section 3.3 of the Franchise requires
the Franchise grantee to notify, when reasonably possible, all residents affected by
construction prior to the start of such construction. As part of this review, the
Community Relations Manager determined that, to the best of the City's knowledge,
Charter had exerted its best efforts to not interfere with other uses of streets, had made
use of existing poles and other available facilities, and had made reasonable efforts to
notify residents affected by any construction since 2006. The City determines Charter
complies with all provisions of Section 3.3.
3.4 - CONSISTENCY WITH DESIGNATED USE
Section 3.4 of the Franchise allows the City to deny use of a street by the Franchise
grantee if, in the City's sole opinion, such use would be inconsistent with the terms,
conditions or provisions by which such street was created or dedicated or presently used
under State and local laws. As part of this review the Community Relations Manager
determined that, to the best of the City's knowledge, no such denial has been issued by
the City since 2006. No compliance provisions are contained in Section 3.4.
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3.5 - UNDERGROUNDING
Section 3.5 of the Franchise requires the Franchise grantee to place all of its transmission
lines, which are to be located above or within the streets of the City, underground in the
following cases: (a) all existing utilities are placed underground; (b) statute, ordinance,
policy or other regulation of the City requires utilities to be placed underground; (c)
overhead utility lines are placed underground; (d) the Franchise grantee is unable to get
pole clearance; (e) underground easements are obtained from developers of new
residential areas, or; (f) utilities are overhead but residents prefer they be placed
underground. As part of this review the Community Relations Manager determined that,
to the best of the City's knowledge, Charter had placed all transmission lines
underground since 2006 as required by Section 3.5 of the Franchise. The City determines
Charter complies with all provisions of Section 3.5.
3.6 - RESTORATION
Section 3.6 of the Franchise requires the Franchise grantee to restore any street, public
way, paved area, or public improvement disturbed by work performed by the Franchise
grantee, at the Franchise grantee's own cost and expense and in accordance with the
requirements of local law, to substantially the same condition as existed before such work
was performed. The requirements of Section 3.6 also apply to private easements and
other private property. Section 3.6 also requires the Franchise grantee to complete
restoration of said property promptly. Further, if the Franchise grantee fails, neglects, or
refuses to make restorations as required by Section 3.6 of the Franchise, the City may
make such restorations and be reimbursed the cost of such restorations by the Franchise
grantee. Additionally, Section 3.6 of the Franchise requires the Franchise grantee to pay
the owner of any private property damaged by the Franchise grantee in the process of its
restoring facilities. Lastly, if any dispute arises over adequacy of restoration required by
Section 3.6, the City's Public Works Department is granted sole discretion to determine
adequacy of said restoration. As part of this review, the Community Relations Manager
determined that Charter has restored all public and private property disturbed by work
performed by Charter since 2006 and found no evidence of failure, neglect, or refusal by
Charter to perform such restoration. Further, the Community Relations Manager found
no evidence, since 2006, of any dispute over adequacy of any restoration performed by
Charter. The City determines Charter complies with all provisions of Section 3.6.
3.7 - ACCESS THROUGH PRIVATE PROPERTY
Section 3.7 of the Franchise grants the Franchise grantee the authority to, with 24 hours
notice to the property owner, trim trees to prevent them from coming in contact with the
wires and cable of the Franchise grantee. During this review, the Community Relations
Manager determined that Charter has, since 2006, provided proper notification to
property owners when trimming trees. The City determines Charter complies with all
provisions of Section 3.7.
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• 3.8 - RELOCATION
Section 3.8 of the Franchise requires the Franchise grantee remove or relocate
its facilities used in the cable system in the event the City, any government entity,
franchised utility provider, or designated third party elects or requires work to be
done within a public right of way which necessitates such removal or relocation.
Section 3.8 of the Franchise also requires the Franchise grantee bear the costs
of said removal or relocation unless otherwise agreed to by the Franchise grantee and the
party requiring removal or relocation of the Franchise grantee's facilities. In no case,
however, is the City to bear the cost of such removal or relocation. Section 3.8 of the
Franchise also provides remedies for the Franchise grantee's neglect or failure to remove
or relocate its facilities as directed by the City, any government entity, a franchised utility
provider, or other designated party. As part of this review, the Community Relations
Manager determined that, since 2006, when Charter has removed or relocated facilities, it
has borne the cost of such removal or relocation as required by the Franchise. The City
determines Charter complies with all provisions of Section 3.8.
3.9 - MOVEMENT OF BUILDINGS
Section 3.9 of the Franchise requires all persons who have rightfully obtained all
• necessary permits from the City to move a building(s) to request the Franchise grantee
temporarily remove, raise, or lower its wire to permit said movement of a building(s).
The expense for the temporary removal, raising, or lowering of the Franchise grantee's
wire is to be paid by the person(s) requesting same and may be required to be paid in
advance. Further, Section 3.9 requires the City to require all building movers provide not
less than 3 business days notice to the Franchise grantee in order to facilitate temporary
wire changes. No compliance provisions are contained in Section 3.9.
SECTION 4 SYSTEM DESIGN AND CAPACITY
4.1 - AVAILABILITY OF SIGNALS AND EQUIPMENT
Section 4.1 of the Franchise requires the Franchise grantee: (a) make available all signals
required by the FCC or federal law to all subscribers; (b) distribute all television signals
in color; (c) make available a minimum of 75 activated channels on the system upon
completion of the upgrade (the required system upgrade is described in greater detail in
Section 4.3 of this review findings document); (d) make available parental control or
"lock-out" devices to subscribers at a reasonable charge; (e) make available an RF switch
(A/B switch) permitting conversion from cable to antenna reception, and; (f) provide
cable outlets and service to public buildings and schools as identified by the City at no
charge. The City determines Charter complies with all provisions of Section 4.1. As an
aside, compliance with Section 4.1(c) was largely achieved via Charter's "rebuild" of its
cable system (see Section 4.3.1). That "rebuild" was completed in early 2001.
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4.2 - EQUAL AND UNIFORM SERVICE
Section 4.2 of the Franchise states, "(The Franchise grantee) shall provide access to equal
and uniform cable television service throughout the Franchise Area." For the purposes of
this review, the City interpreted Section 4.2 of the Franchise to mean all cable services
provided by Charter must be available to all subscribers within the City requesting such
services. The City determines Charter complies with all provisions of Section 4.2.
4.3.1 - SYSTEM UPGRADE REQUIRED
Section 4.3.1 of the Franchise states, "(The Franchise grantee) shall rebuild or modify its
cable system to upgrade the system to a minimum practical capacity of 75 downstream
standard video channels within 48 months of the effective date of this Ordinance." The
Franchise took effect January 21, 1994. In August 1998, the City Council extended the
deadline for completion of the cable system upgrade (by Ordinance No. 98 -30, Section 1,
B) until February, 2001. As indicated in Section 4.1 of this review, Charter completed
the "rebuild" or "upgrade" of its cable system by February 2001. The City determines
Charter complies with all provisions of Section 4.3.1.
4.3.2 - CONSTRUCTION SCHEDULE
Section 4.3.2 of the Franchise requires the Franchise grantee to submit a detailed
construction schedule for the upgrade to the City no later than 45 days prior to
commencement of construction of the cable system upgrade. As mentioned previously in
this review, the "upgrade" of Charter's cable system was completed in 2001. Therefore,
for the purposes of this review, no compliance provisions of Section 4.3.2 are at issue.
4.3.3 - REMEDIES
Section 4.3.3 of the Franchise provides the City remedies in the event the Franchise
grantee defaults on the approved upgrade schedule including: (a) to draw upon the Letter
of Credit required by the Franchise in order to recover damages for a delay in completion
of the upgrade more than 365 days beyond the February 8, 2001 cable system upgrade
completion deadline. Should the cable system upgrade not be completed, damages may
be collected in the amount of $2000 per day for each day which is more than 365 days
after February 8, 2001, and; (b) to terminate the Franchise if the upgrade is not
completed within 18 months of February 8th, 2001. As mentioned previously in this
review, the "upgrade" of Charter's system was completed prior to February 8, 2001.
Therefore, for the purposes of this review, no compliance provisions of Section 4.3.3 are
at issue.
4.3.4 - HEARING PROCESS
Section 4.3.4 of the Franchise establishes the process by which the City would notify the
Franchise grantee of the City's intent to draw upon the Letter of Credit required by the 0
Franchise in the event the Franchise grantee fails to complete the upgrade within 365
days of February 8, 2001. Section 4.3.4 of the Franchise also details a hearing process by
which the Franchise grantee could appeal any damage assessments before the City
Council. As mentioned previously in this review, the "upgrade" of Charter's cable
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Page 11
system was completed prior to February 8, 2001. Therefore, the purposes of this
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review, no compliance provisions of Section 4.3.4 are at issue.
4.3.5 - RIGHT OF INSPECTION OF CONSTRUCTION
Section 4.3.5 of the Franchise grants the City the right to inspect all construction and
installation work and to perform any tests it finds necessary with regard to the upgrade.
No compliance provisions are contained in Section 4.3.5.
4.3.6 - EMERGENCY ALERT CAPABILITY
Section 4.3.6 of the Franchise requires the Franchise grantee to provide the ability for the
City to transmit an emergency alert signal to all subscribers. Section 4.3.6 also requires
the Franchise grantee to provide an emergency audio and video override capability which
would permit the City to interrupt programming and transmit audio and video messages
on all channels of the system simultaneously in the event of a public emergency or
disaster. Section 4.3.6 requires the Franchise grantee to provide such emergency alert
capability and emergency override capability to the City upon completion of the cable
system upgrade. The City determines Charter complies with all provisions of Section
4.3.6.
4.3.7 - STANDBY POWER
Section 4.3.7 of the Franchise requires the Franchise grantee to provide standby power
generating capacity at system control center and at all hubs. The standby power
system supplies must be rated at least at 2 hours duration. A plan to provide such standby
power generating capacity is required by Section 4.3.7 as part of the upgrade construction
schedule. The City determines Charter complies with all provisions of Section 4.3.7.
4.3.8 - PROVISION OF BI- DIRECTIONAL CAPABILITY
Section 4.3.8 of the Franchise requires the Franchise grantee to construct the upgraded
cable system so as to provide bi- directional capability. The City determines Charter
complies with all provisions of Section 4.3.8.
4.3.9 - INTERACTIVE SERVICES
Section 4.3.9 of the Franchise requires the Franchise grantee to construct its upgraded
cable system to include the possibility of providing interactive residential services when
technically and economically feasible. Charter's "upgrade" design included the potential
for interactive residential service. The City determines Charter complies with all
provisions of Section 4.3.9.
• 4.4 - TECHNICAL STANDARDS
Section 4.4 of the Franchise requires the Franchise grantee to comply with FCC Rules
and Regulations, Part 76, Subpart K (Technical Standards) and any technical standards
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May 2009
Page 12
developed by the City, permitted by the FCC or if the FCC standards are repealed. The
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City determines Charter complies with all provisions of Section 4.4.
4.5 - PERFORMANCE TESTING
Section 4.5 of the Franchise requires the Franchise grantee to perform tests of its cable
system at intervals required by the FCC or at the request of the City. Section 4.5 of the
Franchise also requires the Franchise grantee to maintain all system test results for 3
years. The City determines Charter complies with all provisions of Section 4.5.
SECTION 5 PROGRAMMING AND SERVICES
5.1 - CATEGORIES OF PROGRAMMING SERVICE
Section 5.1 of the Franchise requires the Franchise grantee to provide "...broad categories
of video programming substantially equal to or an improvement upon what is
provided...." at the time the Franchise took effect and until the cable system upgrade is
completed. Section 5.1 of the Franchise also requires the Franchise grantee to provide
programming in several broad categories as defined in Section 5.1 of the Franchise upon
completion of the cable system upgrade. Since the Franchise took effect, local franchise
authority jurisdiction regarding programming decisions of the Franchise grantee has been
reduced due to federal legislation and rules making of the FCC. While the City now has
limited authority regarding the Franchise grantee's programming decisions and limited
ability to remedy a violation of the provisions of Section 5.1 of the Franchise, the
Franchise grantee at the time the Franchise took effect and its successors agreed to abide
by the provisions of Section 5.1 of the Franchise. Therefore, the City did review
Charter's current channel lineup as part of this review. The City determines Charter
complies with all provisions of Section 5.1 as they apply to current programming.
5.2 - CHANGES IN VIDEO PROGRAMMING SERVICES
Section 5.2 of the Franchise requires the Franchise grantee to gain the approval of the
City and to notify subscribers of any proposed deletions, additions or rearrangements of
individual programming services both before and after completion of the cable system
upgrade. As part of this review, the City reviewed the 1992 Federal Cable Act, which
limited the authority given to entities such as the City to approve or disapprove
programming service changes. The City's review of federal statute determined authority
to approve or disapprove programming service changes rests solely with the FCC.
Therefore, the Franchise grantee is required to comply with any and all FCC regulations
regarding programming service changes. Furthermore, the City's review of Federal
legislation since 1992 found no prohibition to the requiring of the Franchise grantee to
notify the City and subscribers of programming service changes, as provided for in
Section 5.2 of the Franchise. As part of this review, the City examined the Franchise
grantee's compliance with current FCC regulations regarding programming service
changes, and examined notification of the City and subscribers of such changes since
2006. The City determines Charter complies with all provisions of Section 5.2.
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110 5.3 - BASIS FOR PROGRAMMING DECISIONS
Section 5.3 of the Franchise requires the Franchise grantee to provide, upon
request by the City, all documentation regarding "...the basis for programming
decisions... ". As part of this review, the City examined changes in federal law since the
Franchise took effect. Changes in federal law since the Franchise took effect have
severely limited an entity such as the City to regulate "...the basis for programming
decisions..." made by a cable operator. Based on current federal law, the City has
determined that it has no authority to require the Franchise grantee to provide such
programming decisions documentation. Because the compliance provisions of Section
5.3 of the Franchise have been preempted by current federal law, for the purposes of this
review, no provisions of Section 5.3 are at issue.
5.4 - CABLE ADVISORY COMMITTEE
- Section 5.4 of the Franchise - allows the City to establish a -10- member Cable Advisory
Committee, appointed by the City Council, to advise the Council on issues related to the
operation of the cable system and granting the Committee other powers and functions as
defined in Section 5.4 of the Franchise. No compliance provisions are contained in
Section 5.4.
5.5 - OBSCENITY
Section 5.5 of the Franchise prohibits the Franchise grantee from transmitting on the
cable system any programming which is obscene, as defined by current federal law or
otherwise unprotected by the Constitution of the United States, with the exception of
programming over which the Franchise grantee has no editorial control, including Public,
Educational, and Government Access programming. While Section 5.5 of the Franchise
gives no authority to the City to regulate programming, obscene or otherwise, as part of
this review the City did examine the Franchise grantee's compliance with federal law
regarding such programming. The City determines Charter complies with all provisions
of Section 5.5.
SECTION 6 PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
6.1 - ACCESS CHANNELS
Section 6.1 of the Franchise requires the Franchise grantee to: (a) until completion of the
upgrade, provide 3 standard video channels on the system for Public, Educational, and
Governmental Access purposes; (b) upon completion of the upgrade, provide an
additional channel (for a total of four Access channels) on the system to be devoted to
Governmental Access programming; (c) provide additional channels for Access
programming when certain conditions, as defined in Section 6.1 of the Franchise, are
met; (d) cablecast Access programming at current channel designations unless doing so
becomes unreasonable. If Access channel designations must be changed, the Franchise
grantee must provide written notice to the City 6 months prior to any such changes, and;
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May 2
Page 14
(e) provide all Access channels as part of the Basic Service tier. The City determines
Charter complies with all provisions of Section 6.1.
6.2.1 - LEASE SUBSIDY FOR PUBLIC /GOVERNMENT ACCESS FACILITIES
Section 6.2.1 of the Franchise requires the Franchise grantee to share with the City, at not
less than 50 %, the lease costs of Public and Government Access facilities. Such facilities
are to be for the exclusive use of the City - designated Public and Government Access
provider. As part of this review, the Community Relations Manager verified that Charter
has provided such lease subsidy payments on time and in the correct amount since 2006.
The City determines Charter complies with all provisions of Section 6.2.1.
6.2.2 - RETURN FEED FROM FACILITIES
Section 6.2.2 of the Franchise requires the Franchise grantee to provide all necessary
equipment and support to provide a high- quality return feed of cable signals from the
PEG Access facility as well as from other designated access points throughout the
system, to the system headend. Charter has demonstrated an outstanding willingness to
assist the City in the installation and maintenance of said return feeds. Section 6.2.2 of
the Franchise also requires the Franchise grantee to provide a minimum of 20 return feed
access points upon completion of the upgrade. Upon completion of the upgrade in 2001, 0
20 access points were installed at various locations within the City. Additional access
points will be activated at a number mutually on by the City and the Franchise
grantee at the time such activation proves necessary. The City determines Charter
complies with all provisions of Section 6.2.2.
6.3 - CAPITAL GRANT FOR ACCESS EQUIPMENT AND FACILITIES
Section 6.3 of the Franchise requires the Franchise grantee to provide a grant to the City
to be used for Public /Government Access equipment and facilities in the amount of
$591,600. The first installment of the grant was to be paid to the City within 90 days of
the effective date of the Franchise. Each additional installment was to be paid at 3 year
intervals. As part of this review, the Community Relations Manager verified receipt of
the first installment of the capital grant in March 1994, receipt of the second installment
of the capital grant in February 1997, receipt of the third installment of the capital grant
in January 2000, receipt of the fourth installment of the capital grant in February 2003,
and receipt of the fifth installment of the capital grant in February of 2006. The City
determines Charter complies with all provisions of Section 6.3.
SECTION 7 REGULATORY PROVISIONS
7.1 - INTENT
Section 7.1 of the Franchise grants the City the right to administer and regulate activities 4114
under the Franchise up to the full extent permitted by applicable law. No compliance
provisions are contained in Section .7.1.
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7.2 - DELEGATION OF AUTHORITY TO REGULATE
Section 7.2 of the Franchise grants the City the right to delegate its regulatory authority
wholly or in part to the federal government and/or to agents of the City or to an agency
which may be formed to regulate several City franchises. No compliance provisions are
contained in Section 7.2.
7.3 - AREAS OF ADMINISTRATIVE AUTHORITY
Section 7.3 of the Franchise grants the City the right, in addition to the right to exercise
regulatory authority concerning the Franchise, to exercise administrative authority in
areas including, but not limited to: (a) administering and enforcing the provisions of the
Franchise including the adoption of administrative rules and regulations to carry out that
responsibility; (b) coordinate the operation of Public, Educational and Government
Access channels; (c) coordinate the Franchise grantee's technical, programming and
operational assistance and support to public agency users of the cable system; (d)
establish procedures and standards for making use of the Franchise grantee's support of
public institutional operations and services, provision of dedicated channels, assistance to
public facilities, support for community access and the interconnection of the cable
system with other area systems; (e) participate in planning for expansion and growth of
• public cable services; (f) formulate and recommend long-range cable communications
policy for the Franchise Area; (g). disburse and utilize Franchise revenues paid to the
City, and; (h) administer the regulation of rates, to the extent permitted by law. Section
7.3 of the Franchise further requires the Franchise grantee to cooperate fully in
facilitating the City's discharge of its administrative authority. No compliance provisions
are contained in Section 7.3.
7.4.1 - RIGHT TO REGULATE
Section 7.4.1 of the Franchise grants the City the right to regulate the Franchise grantee's
rates and charges in accordance with applicable law as such law may provide during the
term of the Franchise. The City's ability to regulate the Franchise grantee's rates and
charges was curtailed to a significant degree by the 1996 Federal Telecommunications
Act. The City's ability to regulate rates was already limited, but the 1996 Federal
Telecommunications Act deregulated cable rates for many cable providers. The issue of
regulating cable rates remains a point of discussion at the federal level and possibly will
become an issue at the state level. However, the City has not, since 1994, acted on
whatever ability it did have to regulate rates. For the purposes of this review, no
compliance provisions of Section 7.4.1 are at issue.
7.4.2 - NOTICE OF CHANGE IN RATES AND CHARGES
Section 7.4.2 of the Franchise requires the Franchise grantee to provide the City and all
subscribers at least 30 days notice of any intended modifications or additions to
subscriber rates or charges. For the purposes of this review, the City examined
notification letters sent to the City since 2006 by Charter regarding rate changes. The
City also reviewed notifications provided to subscribers regarding any rate changes since
2006. Said reviews indicated the City and all subscribers have been notified of any and
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May 2009
Page 16
all rate changes since 2006 under the requirements of the Franchise. The City determines
Charter complies with all provisions of Section 7.4.2.
7.4.3 - RATE DISCRIMINATION PROHIBITED
Section 7.4.3 of Franchise prohibits the Franchise grantee from establishing rates or
charges for certain subscribers based on consideration of race, color, creed, sex, marital
or economic status, national origin, sexual preference or neighborhood of residence with
the exception of establishing discounted rates or charges for low- income handicapped or
low - income elderly subscribers. The City determines Charter complies with all
provisions of Section 7.4.3.
7.5 - REMEDIES FOR FRANCHISE VIOLATIONS
Section 7.5 of the Franchise grants the City the right to assert remedies, in addition to
those specified in Section 4.3.3 of the Franchise, in the event the Franchise grantee
violates any provision of the Franchise. The remedies for a violation by the Franchise
grantee are: (a) drawing upon or foreclosing all or any part of any security provided
under the Franchise, including the Letter of Credit, as provided for in Section 11.3 of the
Franchise, and requiring the Franchise grantee to be responsible for all direct and actual
costs related to such action, including, but not limited to, legal and administrative costs;
(b) commence an action at law for monetary damages or seek other equitable relief; (c)
in the case of a substantial default of a material provision of the Franchise, declare the
Franchise to be revoked; (d) deny a request for any proposed rate increase, if authorized
by law, until the Franchise grantee corrects the violation, and; (e) seek specific
performance of any provision as an alternative to damages. Since 2006, the City has not
found Charter to have violated any material provision of the Franchise, therefore, none of
the specified remedies have been sought. For the purposes of this review, no compliance
provisions of Section 7.5 are at issue.
7.6.1 - NOTICE OF VIOLATION
Section 7.6.1 of the Franchise requires the City to notify the Franchise grantee of the
exact nature of any alleged noncompliance with the Franchise in the event the City
believes such noncompliance has occurred. Since 2006, the City has not alleged
noncompliance with any material provision of the Franchise. No compliance provisions
are contained in Section 7.6.1.
7.6.2 - THE FRANCHISE GRANTEE'S RIGHT TO CURE OR RESPOND
Section 7.6.2 of the Franchise provides the Franchise grantee 30 days from the receipt of
notice from the City of an alleged violation of the Franchise to: (a) respond to the City
contesting the assertion of noncompliance, or; (b) to cure such default or, if such default
cannot be cured in the 30 days provided, initiate reasonable steps to remedy such default
and notify the City of steps being taken and the projected completion date. Since 2006,
the City has not alleged noncompliance with any material provision of the Franchise. For
the purposes of this review, no compliance provisions of Section 7.6.2 are at issue.
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• 7.6.3 - PUBLIC HEARING
Section 7.6.3 of the Franchise provides that the City hold a public hearing to investigate
alleged noncompliance of the Franchise by the Franchise grantee in the event the
Franchise grantee fails to respond to the City's notice of noncompliance or fails to cure
the violation within 30 days of said notice. This Section requires the City to notify the
Franchise grantee 20 days prior to such public hearing and allow the Franchise grantee
the opportunity to be heard at such public hearing. Since 2006, the City has not alleged
noncompliance with any material provision of the Franchise. No compliance provisions
are contained in Section 7.6.3.
7.7 - ENFORCEMENT
Section 7.7 of the Franchise provides the City the ability to impose any of the remedies
set out in Section 7.5 of the Franchise for default by the Franchise grantee of any
provisions of the Franchise if, after the public hearing provided for in Section 7.6.3 is
held, the City determines the Franchise grantee is in default. No compliance provisions
are contained in Section 7.7.
7.8 - FAILURE TO ENFORCE
Section 7.8 of the Franchise requires the Franchise grantee to comply promptly with any
provision of the Franchise even if the City fails to enforce such prompt compliance. The
City's failure to enforce compliance with provisions of the Franchise does not, under
Section 7.8, constitute a wavier of the City's rights or acquiescence in the Franchise
grantee's conduct. The City determines Charter complies with all provisions of Section
7.8.
7.9 - ACTS OF NATURE
Section 7.9 of the Franchise states the Franchise grantee will not be found to be in
noncompliance with any provisions of the Franchise, or suffer any enforcement or
penalty relating to noncompliance, in the event noncompliance or alleged defaults are
caused by acts of nature, power outages or other events reasonably beyond its ability to
control. However, Section 7.9 requires the Franchise grantee to take all reasonable steps
necessary to provide cable service despite such occurrences. The City determines
Charter complies with all provisions of Section 7.9.
7.10 - ALTERNATIVE REMEDIES
Section 7.10 of the Franchise grants the City the right to seek or obtain judicial relief
from violation of any provision of the Franchise or any rule, regulation, requirement or
directive promulgated thereunder. Section 7.10 of the Franchise also states " Neither the
existence of other remedies identified in this (Franchise) nor the exercise thereof shall be
deemed to bar or otherwise limit the right of the City to recover monetary damages for
such violation by (the Franchise grantee), or to seek and obtain judicial enforcement of
(the Franchise grantee's) obligations by means of specific performance, injunctive relief
Cable Television Franchise Review
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Page 18
or mandate or any judicial remedy at law or in equity." No compliance provisions are
contained in Section 7.10.
7.11 - COMPLIANCE WITH THE LAWS
Section 7.11 requires the Franchise grantee to comply with all federal and state laws and
regulations, and all general ordinances, resolutions, rules and regulations of the City
adopted before or after the Franchise took effect. The City determines Charter complies
with all provisions of Section 7.11.
SECTION 8 REPORTING REQUIREMENTS
8.1 - MONTHLY REPORTS
Section 8.1 of the Franchise requires the Franchise grantee to submit to the City, within
25 days after the end of the previous month, a report detailing revenues and subscriber
counts for the previous month. Section 8.1 also requires the Franchise grantee to submit
a monthly report showing the number of service calls by type, the percentage of service
calls compared to subscriber base, the number of outages, the number of planned outages
and the approximate duration of such outages. As part of this review, the Community
Relations Manager verified Charter has regularly provided monthly financial reports in
an accurate and timely manner since 2006. Such reports are on file at the City's Finance
Department and are available for public review. Reports regarding service calls and
outages have not been regularly submitted. However, it has been the choice of the City to
require the Franchise grantee to submit such reports only when requested. When
requested, Charter has provided such reports in an accurate and timely manner. The City
determines Charter complies with all provisions of Section 8.1.
8.2 - ANNUAL REPORT
Section 8.2 of the Franchise requires the Franchise grantee to submit a report to the City,
no later than 60 days following the end of the Franchise grantee's fiscal year, including:
(a) full financial statements for the previous year including data as defined in the section;
(b) a summary of the previous year's activities for the Franchise Area including data as
defined in the section; (c) a summary of complaints received by the Franchise grantee
and a summary of the resolution of such complaints, and; (d) plans for the future. As part
of this review, the Community Relations Manager verified the provision of such reports
by Charter since 2006. Such reports are on file at the City's Community Relations
Division office and are available for public review. The City determines Charter
complies with all provisions of Section 8.2.
8.3 - MONITORING AND COMPLIANCE REPORTS
Section 8.3 of the Franchise requires the Franchise grantee to provide, upon request by
the City, but no more than once a year, a report of any and all FCC technical performance
tests for the residential network required in FCC Rules and regulations. In addition,
Section 8.3 of the Franchise requires the Franchise grantee to provide reports of semi-
Cable Television Franchise Review
May 2009
Page 19
• annual tests and compliance procedures required by the Franchise. The City determines
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Charter complies with all provisions of Section 8.3.
8.4 - ADDITIONAL REPORTS
Section 8.4 of the Franchise requires the Franchise grantee to provide any other reports to
the City or any other entity with lawful regulatory authority in connection with the
Franchise as may be reasonably necessary to the performance of any rights, functions or
duties of the City or such other regulatory entity in connection with the Franchise. Since
2006, the City has not requested additional information from Charter not specifically
required by the Franchise. The City determines Charter complies with all provisions of
Section 8.4.
8.5 - COMMUNICATIONS WITH REGULATORY AGENCIES
Section 8.5 of the Franchise requires the Franchise grantee to provide the City, upon
request, a summary of or copies of actual petitions, applications, communications and
reports submitted by the Franchise grantee or any affiliate to the FCC or any other federal
or state regulatory commission or agency having jurisdiction with respect to any matter
affecting construction or operation of the cable system or services provided on such
system. Responses from such agencies are also to be provided to the City on request.
Additionally, Section 8.5 requires the Franchise grantee to provide the City copies of any
communication to or from any judicial or regulatory agency regarding any alleged or
actual violation of a law, regulation or other requirement relating to the system, whether
requested by the City or not. A review of the documentation filed by Charter with the
FCC since 2006 indicated all such documentation had also been provided to the City.
The City determines Charter complies with all provisions of Section 8.5.
8.6 - PRESERVATION OF CONFIDENTIAL INFORMATION
Section 8.6 of the Franchise requires the City to protect information designated as
confidential by the Franchise grantee to the maximum extent permissible under RCW
chapter 42.17. No compliance provisions are contained in Section 8.6.
SECTION 9 CUSTOMER SERVICE POLICIES
9.1. - RESPONSE TO CUSTOMERS AND COOPERATION WITH CITY
Section 9.1 of the Franchise requires the Franchise grantee to promptly respond to all
requests for service, repair, installation and information from subscribers. Section 9.1
also includes the Franchise grantee's acknowledgment of the City's interest in the prompt
resolution of all cable complaints and requires the Franchise grantee to work with the
• City to resolve such complaints. The Community Relations Division office received, on
average, 6 cable customer complaints each year since 2006. The majority of complaints
received by the City concern programming and/or service rates; both areas of limited
jurisdiction for the City. Generally, customers calling the City with complaints are
referred back to the Franchise grantee after having been provided additional information.
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Page 20
In no case since 2006, has the City received a customer complaint regarding an alleged
violation of the Franchise. While some subscribers continue to experience difficulty with
the Franchise grantee's response to complaints, the City is generally satisfied with the
effort Charter has demonstrated in resolving complaints. The City encourages Charter to
further refine its procedure for responding to subscriber complaints and to evaluate its
progress on a regular basis. The City determines Charter complies with all provisions of
Section 9.1.
. 9.2 - DEFINITION OF "COMPLAINT"
Section 9.2 of the Franchise defines a "complaint" to be communication to the City from
a subscriber expressing dissatisfaction with service or other performance or lack thereof
by the Franchise grantee under the obligations of the Franchise. Further, such
communication is defined as a "complaint" only if the subscriber has already expressed
such dissatisfaction to the Franchise grantee and the Franchise grantee has not remedied
the cause of the dissatisfaction in a reasonable period of time and in a manner consistent
with the requirements of the Franchise. No compliance provisions are contained in
Section 9.2.
. - 9.3 - CUSTOMER SERVICE AGREEMENT AND MANUAL
Section 9.3 of the Franchise requires the Franchise grantee to provide each subscriber, at 0
the time of initial and any re- connection hookup, and thereafter no more than 30 days
following an update, a comprehensive service agreement and customer manual including,
at a minimum: (a) the Franchise grantee's procedure for investigating and resolving
subscriber complaints; (b) services to be provided and rates for such services; (c) billing
procedures; (d) service termination procedures; (e) change in service notifications; (f)
liability specifications; (g) converter/ subscriber terminal equipment policy; (h) Breach
of Agreement specification; (i) information on how complaints are handled, and; (j) the
name, address and phone number of the person identified by the City as responsible for
handling cable questions and complaints for the City. The City determines Charter
complies with all provisions of Section 9.3.
9.4 - CITY RIGHT TO SET SPECIFIC CUSTOMER SERVICE STANDARDS
Section 9.4 of the Franchise grants the City the right to enforce customer service and
consumer protection standards at any time such standards are established by state or
federal law or regulation as applicable to cable system operations. Additionally, Section
9.4 grants the City the right to establish additional customer service and consumer
protection standards, by separate ordinance, as allowed by federal law or FCC regulation.
Such action to establish separate such standards will be taken by the City only if the
Franchise grantee and the City cannot reach a mutual agreement as to how to resolve a
specific complaint issue. No such action has been taken by the City since 2006. Further,
Section 9.4 requires the Franchise grantee to print the telephone number and address on
its billing statements of the office designated by the City for handling unresolved
complaints about cable service. The City determines Charter complies with all
provisions of this Section 9.4.
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Page 21
SECTION 10 LINE EXTENSION POLICY
10.1 - STANDARD INSTALLATION
Section 10.1 of the Franchise requires the Franchise grantee to make cable service
available, within 60 days and at standard installation rates and standard service rates, for
every potential subscriber under conditions set out in Section 10.1. The practices
required by Section 10.1 are standard in the cable industry and are adhered to not only in
Yakima but in markets across the county. The City determines Charter complies with all
provisions of Section 10.1.
10.2 - ISOLATED AREAS
Section 10.2 of the Franchise requires the Franchise grantee to provide potential
subscribers requesting service, but requiring service extended beyond the standard
installation and service provisions under Section 10.1 of the Franchise, the first 200 feet
of cable at the prevailing installation rate. Additionally, Section 10.2 requires the
Franchise grantee to provide cable and service required beyond the initial 200 feet
according to terms set out in Section 10.2 of the Franchise. During this review, the
• Community Relations Manager determined such requests are rare within the Franchise
Area given the fact that the provision of cable service to most addresses in the Franchise
Area is provided for under the terms of Section 10.1 of the Franchise. No record of such
requests since 2006 was discovered by the City during this review. The City is satisfied
the Franchise grantee would comply with the provisions of Section 10.2 in the event such
a request was made. The City determines Charter complies with all provisions of Section
10.2.
SECTION 11 COMPENSATION AND FINANCIAL PROVISIONS
11.1 - FRANCHISE FEES
Section 11.1 of the Franchise requires the Franchise grantee to pay to the City an amount
equal to 5 percent of its annual gross revenues as a Franchise Fee. The definition of gross
revenues is found in Section 1.16 of the Franchise. Section 11.1 further allows the City
to request negotiations with the Franchise grantee to review provisions of Section 11.1 in
the event the 5% franchise fee ceiling enacted by the Cable Act is altered by any law,
regulation or valid rule. No such alteration has occurred since 2006. Section 11.1 of the
Franchise requires the Franchise grantee to: (a) transmit Franchise Fees monthly by
electronic funds transfer to a designated City of Yakima bank account not later than the
25th of each month for the preceding calendar month. A monthly financial report, as
described in Section 8.1 of the Franchise, is also required; (b) not subtract current nor
4110 previously paid Franchise Fee from the gross revenue amount upon which Franchise Fees
are calculated and due for any period, nor subtract copyright fees or other license fees
paid by the Franchise grantee from gross revenues for the purpose of calculating
Franchise Fees, and; (c) pay 12 percent accrued interest per annum or 2 percent above
the prime lending rate as quoted by major Seattle banks, whichever is greater, for any
•
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May 2009
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• Franchise Fees remainin g unpaid for more than 10 days. As part of this review, the
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Community Relations Manager verified that since 2006 Charter has provided the required
Franchise Fees, under terms set out in the Franchise, in an accurate and timely manner.
The City determines Charter complies with all provisions of Section 11.1.
11.2 - AUDITING AND FINANCIAL RECORDS
Section 11.2 of the Franchise requires the Franchise grantee to manage all of its
operations in accordance with a policy of keeping books and records open and accessible
to the City. Under Section 11.2, the City is granted the right to inspect all such books and
records relating to the Franchise grantee's activities for the purposes of effectively
administering and enforcing the Franchise. Further, Section 11.2 gives the City the right,
at the expense of the City, to audit the revenues of the Franchise grantee. Since 2006, the
City has not deemed it necessary to formally conduct a review of any books or records
and has not conducted any audit of the Franchise grantee's revenues. The City
determines Charter complies with all provisions of Section 11.2.
11.3 - LETTER OF CREDIT
Section 11.3 of the Franchise requires the Franchise grantee to furnish an irrevocable
Letter of Credit in the amount of not less than $100,000 under which the City is the sole
beneficiary. Under Section 11.3, the City is allowed to draw on the Letter of Credit in
order to collect damages in the event it determines a violation, default or other failure of
the Franchise grantee to meet any provision of the Franchise has occurred. The
procedure for notification of the Franchise grantee of a violation of the Franchise and the
instigation of a draw on the Letter of Credit is detailed in Sections 4.3.3, 4.3.4, 7.5, 7.6
and 7.7 of the Franchise. Such Letter of Credit is on file in the City's Community
Relations Division office and is available for public review. The City determines Charter
complies with all provisions of Section 11.3.
11.4 - INDEMNIFICATION BY THE FRANCHISE GRANTEE
Section 11.4 of the Franchise requires the Franchise grantee to indemnify the City and
those associated with the City (as defined in Section 11.4) from legal actions and
judgments as defined Section 11.4. The City determines Charter complies with all
provisions of Section 11.4.
11.5 - FRANCHISE GRANTEE INSURANCE
Section 11.5 of the Franchise requires the Franchise grantee to maintain liability
insurance insuring the Franchise grantee, its officers, employees and agents, with regard
to all claims and damages specified in this section in the minimum amounts of: (a)
$3,000,000 for personal injury or death to any one person; (b) $3,000,000 for personal
injury or death resulting from any one accident, $3,000,000 for property damage resulting
from any one accident, and; (c) $1,000,000 for all other types of liability. Section 11.5
also requires the Franchise grantee to name as additionally insured the City of Yakima
and those associated with the City as defined in Section 11.5. Section 11.5 also requires
the Franchise grantee to provide copies of all certificates of insurance to the City.
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May 2009
Page 23
Further, said coverage may not be changed or canceled without approval of the City and
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the City is provided the opportunity to review said coverage and require reasonable
additional insurance be provided if deemed necessary. As part of this review, the
Community Relations Manager verified that the City has such certificates of insurance in
its possession. Said certificates of insurance are on file in the City's Community
Relations Division office and are available for public review. The City determines
Charter complies with all provisions of Section 11.5.
SECTION 12 MISCELLANEOUS PROVISIONS
12.1 - POSTING AND PUBLICATION
Section 12.1 of the Franchise requires the Franchise grantee to assume the cost of posting
and publication of the Franchise as such posting and publication is required by law. The
City determines Charter complies with all provisions of Section 12.1.
12.2 - GUARANTEE OF PERFORMANCE
Section 12.2 of the Franchise establishes the Franchise grantee's agreement to enter into
the Franchise voluntarily in order to secure the grant of a fifteen -year franchise to operate
a cable system within the City of Yakima. Under Section 12.2, the Franchise grantee
guarantees performance pursuant to the terms and conditions of the Franchise. The City
determines Charter complies with all provisions of Section 12.2.
12.3 - GOVERNING LAW AND VENUE
Section 12.3 of the Franchise states, " The Franchise shall be governed by and construed
in accordance with the laws of the State of Washington and (the Franchise grantee)
consents to jurisdiction and venue in the state and federal courts of the State of
Washington. In any action or suit to enforce any right or remedy under the Franchise or
this Ordinance, the prevailing party shall be entitled to recover its costs, including
without limitation, reasonable attorneys' fees." Since 2006, no such action has been
initiated by neither the City nor the Franchise grantee in any of the said courts of
jurisdiction. For the purposes of this review, no compliance provisions of Section 12.3
are at issue.
12.4 - SEPARABILITY
Section 12.4 of the Franchise requires the Franchise grantee to negotiate in good faith
with the City, and vice - versa, to modify the Franchise or the Franchise Ordinance if any
portion of the Franchise or the Franchise Ordinance is declared to be void or
unenforceable by a court of competent jurisdiction. Since 2006, no such declaration has
been made regarding the Franchise or the Franchise Ordinance. For the purposes of this
review, no compliance provisions of Section 12.4 are at issue.
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Page 24
12.5 - CONSENT
Section 12.5 of the Franchise states, "Wherever the consent or approval of either (the
Franchise grantee) or the City is specifically required in this Ordinance, such consent or
approval shall not be unreasonable withheld." Since 2006, such consent or approval has
not been unreasonably withheld by the Franchise grantee nor the City. The City
determines Charter complies with all provisions of Section 12.5.
12.6 - ORDINANCES TERMINATED
Section 12.6 of the Franchise simply allowed termination of the cable television franchise
granted by the City under Ordinance No. 2209, as amended by Resolution No. D -5436
and Ordinance No. 93 -100 upon the effective date of Ordinance No. 93 -115, the current
Cable Television Franchise Ordinance. The effective date of Ordinance No. 93 -115 was
January 21, 1994. No compliance provisions are contained in Section 12.6.
12.7 - NO THIRD PARTY BENEFICIARIES
Section 12.7 of the Franchise states, "There shall be no third party beneficiaries of this
Ordinance." No compliance provisions are contained in Section 12.7.
12.8 - FRANCHISE ORDINANCE ACCEPTANCE
Section 12.8 of the Franchise sets out the terms and conditions under which the original
Franchise grantee (TCI) finalized its acceptance of the Ordinance at the time it was
signed by TCI and the City. The Ordinance did not take effect until TCI had complied
with the provisions of Section 12.8. For the purposes of this review, no compliance
provisions of Section 12.8 are at issue.
12.9 - EFFECTIVE DATE
Section 12.9 of the Franchise sets the effective date as 30 days after its adoption by the
City Council, given the original Franchise grantee (TCI) had complied with the
provisions of Section 12.8 of the Franchise. The City Council adopted the Franchise
Ordinance and the Franchise it granted on December 21, 1993. The Franchise took effect
January 21, 1994. For the purposes of this review, no compliance provisions of Section
12.9 are at issue.
Cable Television Franchise Review
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Page 25
• SECTION 13 DEFINITIONS
13.1 "Access Channel" or "Public, Educational or Government (PEG) Access
Channel" means any channel or portion of a channel utilized for programming, whether
by the cable operator or in cooperation with, by or through the City, where any member
of the general public or any non - commercial organization may be a programmer, either
without charge or in a non - profit manner, on a non - discriminatory basis.
13.2 "Access Services" or "Community Access Services" means
programming provided on any Public, Educational or Government (PEG)
Access channel, and the provision of any facilities, equipment, channels or
other services for the purpose of facilitating such programming.
13.3 "Addressability" means the capability of the cable communications
system to provide programming to specific subscribers on a per - program, per -
event, and per - program- package basis.
13.4 "Basic Service" or "Basic Cable Service" means any tier of service
regularly provided to all subscribers. It includes, but is not specifically limited
to, the retransmission of local broadcast television signals and the cablecasting
of Public, Educational or Government Access channels. Nothing in this
definition shall be deemed to limit the rights of (the Franchise grantee) or the
City with respect to the regulation of rates and charges as permitted by
applicable law.
13.5 "Cable Act" means the Cable Communications Policy Act of 1984
(Public Law No. 98 -549, 47 USC 521 (Supp.) as it may be amended or
superseded.
13.6 "Cable Communications System" or "Cable System" or "System" shall have .
the meaning specified for "Cable Communications System" in the 1984 Cable Act.
Unless otherwise specified it shall, in this review document, refer to the cable
communications system constructed and operated in the City under the Ordinance.
13.7 "Cable Service" shall have the same meaning specified for "cable service" in the
Cable Act as amended.
13.8 "Channel" means a radio frequency band or its technical equivalent on the cable
system, which is capable of carrying either one standard television signal, or a number of
audio, digital or other non -video signals, or some combination of such signals. "Standard
Television Channel" or "Standard Video Channel" means a six Megahertz (MHz)
frequency band or its technical equivalent, prior to any signal compression.
110 13.9 "Charter" shall mean Charter Communications, Inc., a Delaware corporation, its
agents, successors and assignees.
13.10 "City" shall mean City of Yakima of the State of Washington and all the
incorporated territory within its present and future boundaries. "City" shall also refer to
any division or department of the municipal government of the City of Yakima.
Cable Television Franchise Review
May 2009
Page 26
13.11 "Community Access Channel" me ans any channel designated or dedicated for 411
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use by the general public or non - commercial organizations which is made available
without charge on a first -come, first- served, non - discriminatory basis. Such channels are
identical to "Public Access channels" as defined in the Cable Act.
13.12 "Downstream Channel" shall mean a channel capable of carrying a transmission
from the headend to remote points on the system.
13.13 "Expanded Basic Service" shall mean optional services not included in the
Basic Service and excluding premium or pay - per -view services.
13.14 "Franchise" shall mean the right granted by the Ordinance and conditioned as set
forth in the Ordinance by which the City authorizes (the Franchise grantee) to erect,
construct, reconstruct, operate, dismantle, test, use and maintain a cable communications
system in the City. The Franchise granted in the Ordinance shall be a non - exclusive
franchise.
13.15 "Franchise Fee" shall mean the fee assessed by the City to (the Franchise
grantee), in consideration of (the Franchise grantee's) right to operate the cable system
within the City's streets and rights of way, determined in amount as a percentage of (the
Franchise grantee's) gross revenues and limited to the maximum percentage allowed for
such assessment by federal law. The term Franchise Fee does not include any tax, fee or
assessment of general applicability, nor any payments by (the Franchise grantee) called
for in the Franchise as reimbursement of the City's costs or support of Community
Access or Government Access services.
13.16 "Government Channel" or "Government Access Channel" means any
channel specifically designated or dedicated for government use or the provision of
Government Access services.
13.17 "Gross Revenues" means any and all compensation in whatever form, from any
source, directly earned by (the Franchise grantee) or any affiliate of (the Franchise
grantee) or any other person who would constitute a cable operator of the cable system
under the Cable Act, derived from the provision of the cable service, as defined by the
Cable Act, insofar as such provision in any manner requires use of the public streets and
rights of way in the Franchise Area. Amounts identified by the City as franchise,
copyright or other license fees, shall not be excluded from gross revenues. Gross
revenues shall include, but not be limited to, basic and pay service revenues, revenues
from installation and equipment rental and sales, the applicable percentage of local and
regional advertising revenues, any leased access revenues and revenues from any tiered
or packaged services. Gross revenues shall not include any taxes on services
furnished by (the Franchise grantee), which taxes are imposed directly on a subscriber or
user by a city, state or other governmental unit, and collected by (the Franchise grantee)
for such entity. Gross revenues shall not include amounts which cannot be collected by
(the Franchise grantee) as bad debt; provided that if amounts previously representing bad
debt are collected, then those amounts shall be included in gross revenues for the period
in which they are collected. Amounts included in gross revenues shall not be counted
more than once, therefore, amounts included once in (the Franchise grantee's) gross
revenues shall not be added to gross revenues again if they are received by an affiliate of
Cable Television Franchise Review
May 2009
Page 27
• (the Franchise antee in payment for programming or other goods or services supplied
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to (the Franchise grantee).
13.18 "Interactive Services" are those services provided to subscribers whereby the
subscriber has the ability to both receive information consisting of either television or
other signals and transmits signals generated by the subscriber or equipment under her/his
control for the purpose of selecting what information shall be transmitted to the
subscriber.
13.19 "Leased Access" shall mean the use on a fee - for - service basis of the cable
television system by business enterprises (whether profit, non - profit or governmental) to
render services to the citizens of the City and shall include without limitation all use
pursuant to Section 612 of the Cable Act.
13.20 "Ordinance" means City Cable Television Franchise Ordinance No. 93 -115
adopted by the City Council December 21, 1993 and in effect January 21, 1994.
13.21 "Pay Service" or "Premium Service" means programming (such as non-
advertiser- supported movie channels or pay - per -view programs) offered individually to
subscribers on a per - channel, per - program or per -event basis.
• 13.22 "Person" means any individual, corporation, partnership, association, joint
venture or organization of any kind and the lawful trustee, successor, assignee, transferee
or personal representative thereof.
13.23 "Review" means the Periodic Public Review of the City's Cable Television
Franchise Ordinance No. 93 -115 (as amended) as provided for in Section 2.6 of the
Ordinance as defined and for the purposes provided therein.
13.24 "School" means any public, private or non - profit educational institution.
including primary and secondary schools, colleges and universities.
13.25 "Subscriber" means any person who legally receives any one or more of the
services provided by the cable communications system.
13.26 "Street" shall mean the surface of and the space above and below the right -of-
way of any public street, road, highway, freeway, easement, lane, path, alley, court,
sidewalk, parkway or driveway now or hereafter existing as such within all incorporated
areas of the City.
13.27 "Telecommunications Act" means The Telecommunications Act of 1996, Pub.
LA. No. 104 -104, 110 Stat. 56 (1996), also known as the Federal Telecommunications
Act of 1996, as it may be amended or superseded.
13.28 "Upstream Channel" shall mean a channel capable of carrying transmissions to
the headend from remote points on the system or to the interconnect points on the system.