HomeMy WebLinkAboutOrdinance - 10134-1999 - Establishment Of A Procedure For Granting Of Franchises For Cable Systems - 01/14/1999First Reading
Item No. 37
January 14~ 1999
Second Reading
Item No. 13
January 28~ 1999
ORDfNANCE NO. 10134
AN ORDINANCE OF THE CITY OF LUBBOCK RELATING, TO THE
ESTABLISHJvfENT OF A PROCEDURE FOR GRANTING OF FRANCHISES FOR
CABLE SYSTEMS AND THE REGULATION OF SUCH SYSTEMS AND
AMENDING THE LUBBOCK CODE OF ORDINANCES; PROVIDING A REPEAL
PROVISION; PROVIDING A SAVINGS CLAUSE; PROVIDING A PENALTY; AND
PROVIDING FOR PUBLICATION.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
SECTION 1-PURPOSE
The City Council has determined it is in the best interest of and consistent with
the convenience and necessity of the City of Lubbock to grant franchises to companies
desiring to provide Cable Services within the confines ofthe City of Lubbock and on the
terms and conditions hereinafter set forth, and as may be further described in each
franchise agreement.
The City Council has identified the purpose of this Ordinance to be as follows:
A. To provide a procedure for the granting of nonexclusive franchises for
providing Cable Services in the City of Lubbock.
B. To regulate the erection, construction, reconstruction, installation,
operation, maintenance, dismantling, testing, repair and use of Cable Systems in, upon,
along, across, above, over or under or in any manner connected with the streets, public
ways or public property within the jurisdiction of the City of Lubbock as it now or in the
future may exist.
C. To provide for the payment of certain franchise fees and other valuable
considerations to the City in exchange for the use of streets, alleys and other public
property held by the City in trust for the citizens of Lubbock.
D. To provide for regulation of the construction, operation, use and
development of such privately owned but publicly vital Systems within the City for the
benefit of the citizens.
E. To provide conditions under which such franchised System or Systems
will serve present and future needs of govenunent, public institutions, commercial
enterprises, public and private organizations, and the citizens and general public of the
City; and
F. To provide remedies and prescribe penalties and liquidated damages for
any violation of this Ordinance and the terms and conditions of franchises granted
pursuant thereto.
SECTION 2 -DEFINITIONS
For the purpose of this Ordinance the following terms, phrases, words and their
derivations shall have the meaning given herein. When not inconsistent with the context,
words used in the present tense include the future. words in the plural number include the
singular number, and words in the singular number include the plural number, and the use
of any gender shall be applicable to all genders whenever the sense requires. The words
11Shall11 and "will" are mandatory and the word "may11 is permissive. Words not defined
shall be given their common and ordinary meaning.
A. "Access Channel" shall mean a single channel designated in whole or in
part by a Grantee solely for non-commercial educational or governmental programming.
B. "Affiliate" shall mean any Person or entity which directly or indirectly
owns or controls Grantee, any Person or entity which Grantee directly or indirectly owns
or which it controls, or any Person or entity under common ownership or control with
Grantee.
C. "Basic Cable Service" or "Basic Service" shall mean any Service tier
which includes the retransmission of local television broadcast signals;
D. "Cable Act" shalf mean the Cable Communications Policy Act of 1984,
Public Law No 98-549, as amended by the Cable System Consumer Protection and
Competition Act of 1992, Public Law No. 102-385, and the Telecommunications Act of
1996, Public Law No. 104-104, as the same may be amended from time to time.
E. "Cable System" or "System" shall mean 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 the City, subject to all applicable
laws and regulations. Such term does not include:
( 1) A facility that serves only to retransmit the television signals of
one (I) or more television broadcast stations;
(2) A facility that serves Subscribers without using any public right-of-
way;
(3) A facility of a common carrier which is subject, in whole or in part.
to the provisions of 47 U.S.C. §§ 201-226. except that such facility shall be
considered a Cable System (other than for purposes of 47 U.S.C. § 541) to the
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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 Section 653 of the Cable
Act; or
(5) Any facilities of any electric utility used solely for operating its
electric utility System.
F. "Cable Service" or "Service" shall mean:
(1) the one-way transmission to Subscribers of:
(a) video programming, or
(b) other progran1ming Services, and
(2) Subscriber interaction, if any, which is required for the selection or use
of such video programming or other programming Service.
G. "City" shall mean the City of Lubbock, Texas, in its present configuration
or as it may be changed by annexation.
H. "Construction" and the terms "completion of construction," "complete
System construction," "satisfactorily complete and fully activate" shall mean that strand
has been put up and all necessary cable (including trunk and feeder cable or fiber) has
been lashed or, for underground construction, that all cable bas been laid and trenches
refilled, all road services restored and, except as prevented by weather conditions or
delayed because of seasons, landscaping restored: that all amplifier housings and modules
have been installed (including modules for return path signals if included in Grantee's
technical proposal); that power supplies have been installed and all bonding and
grounding has been completed; that all necessary connectors, splitters and taps have been
installed; that construction of the headends or hubs have been completed and all
necessary processing equipment has been installed; and that any and all other
construction necessary for the System to be ready to deliver Cable Service to Subscribers
has been completed. Proof of performance tests shall have been conducted on each
otherwise completed segment of the Cable System before direct marketing of that
segment begins. It is expected that segments of less than the entire System will be
activated and proofed when completed. Construction of any segment or of the entire
system will not be considered complete until proof of performance tests have been
conducted on such segment (or in the case of the entire System, on all segments of the
Cable System) and any problems found during testing have been corrected. The term
"completion of construction" does not include marketing and installation of Subscriber
Service.
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I. "Council'' shall mean the governing body of the City of Lubbock.
J. "Designated" shall mean to make available channel space or equipment for
exclusive use of the designated user.
K. "FCC" shall mean the Federal Communications Commission, its designee,
or any successor thereto.
L. "Grantee" or ''Company11 shall mean the person or other legal entity to
whom a franchise under this Ordinance is granted by the Council, and their or its lawful
successors and assigns.
M. "Gross Revenues" shall mean all cash, credits, property of any kind or
nature, or other consideration received directly or indirectly by a Grantee, its affiliates,
subsidiaries, parent and any person in which Grantee has a financial interest, or from any
source whatsoever, arising from or attributable to the sale or exchange of Cable Service
provided using public rights of way by Grantee within the City or in any way derived
from the operation of its System in the public rights of way, including, but not limited to,
Basic Service, monthly fees, optional Service or pay cable fees, installation and
reconnection fees, leased channel fees, converter rentals or sales, studio rental, and
advertising revenues. These gross revenues shall not be reduced for any pwposes other
than provided herein, and shall be the basis for computing the fee imposed pursuant to
Section 14. These gross revenues shall not include any taxes on Services furnished by
Grantee imposed upon any Subscriber or User by the state, city or any other
governmental unit, franchise fees collected on behalf of the City, converter deposits,
consideration received by Grantee pursuant to Section 16E of this Ordinance, bad debt or
refunds to Subscribers by the Grantee.
N. "Initial activation of Service," or "initially providing Cable Service" shall
mean with respect to a particular segment, group of segments or the entire Cable System,
as the case may be, that all proposed Services and System capabilities as stated in the
Proposal are available and/or in place, construction has been completed (see definition of
construction) and the completed segment or segments in question or the entire Cable
System, as the case may be, has been activated.
0. "Local Origination Programming" shall mean programming locally
produced by the Grantee.
P. "Person" shall mean any Person, firm, partnership, association, company,
corporation or organization of any kind.
Q. ''Proposal" or "Application" shall mean a formal proposal by a qualified
cable company to provide Cable Services to residents, businesses, industries, and
institutions in the City ofLubbock.
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R. "Subscriber'' shall mean a lawful recipient of Cable Services.
S. "User" shall mean a party utilizing a Cable System charmel for purposes of
production or transmission of material to Subscribers, as contrasted with receipt in a
Subscriber capacity.
T. The terms "will be available," "will be equipped." "will use," "be
designed," ''will perform," "will be utilized," ''will permit," "will allow," "will be
activated," "will be initially connected," "will be capable," "will provide," "will include,"
"will employ," "will be established," "will be able," "will be implemented," "will be
delivered," "will utilize," and other similar uses ofterrns in a company's Proposal
denoting the activation of Cable Service or the delivery of equipment, facilities, or
Services, shall be interpreted to mean delivery or accomplishment at a date no later than
the initial activation of Service (see definition) unless otherwise expressly and clearly
stated or qualified in the company's Proposal to mean a more specific or different time.
SECTION 3 -APPLICATIONS FOR FRANCHISE
A. Content. Each Application for a franchise to construct, operate or
maintain any Cable System in this City shall be filed with the City Secretary and shall be
on forms prescribed by the City. Said forms will require, but not be limited to, the
following information:
(1) name, address, and telephone number of the applicant;
(2) a detailed statement of the corporate or business entity organization
of the applicant, including but not limited to, the following and to whatever extent
required by the City:
(a) names, residence and business addresses of all officers and
directors of the applicant,
(b) names, residence and business addresses of all officers.
persons and entities having any share ofthe ownership of the applicant and
the respective ownership share of each such person or entity,
(c) names and addresses of any parent or subsidiary of the
applicant, a statement describing the nature of any such parent or
subsidiary business entity, including but not limited to Cable Systems
owned or controlled by the applicant, its parent and subsidiary and the
areas served thereby,
(d) a detailed description of all previous experience of the
applicant in providing Cable Service and in related or similar fields,
(e) a detailed and complete financial statement of the applicant,
or a statement from an independent certified public accountant, certifying
that the applicant has available sufficient free, net and uncommitted cash
resources to construct and operate the proposed System in this City, and
(f) a detailed financial plan (pro forma) describing for each
year of the franchise, projected number of Subscribers, rates, all revenues,
operating expenses, and capital expenditures. All information is to be
presented in the format required by the City.
(3) A detailed description of the proposed plan of operation of the
applicant which shall include, but not be limited to, the following:
(a) a detailed map indicating any areas currently served,
(b) a detailed map indicating all areas proposed to be served
during the franchise period and a proposed time schedule for installation
of equipment necessary to provide such Service,
(c) a statement or schedule setting forth classifications of rates
and charges to be made against Subscribers for Basic Service and all rates
and charges as to each of said classifications, including installation
charges and Service charges,
(d) a statement describing the actual equipment and operational
standards proposed by the applicant and that such standards of operation
are in compliance with or exceed those contained in Title 47, Subpart K
(Section 76.601 et. seq.), of the Rules and Regulations of the Federal
Communications Commission, and
(e) a copy ofthe form of any agreement, undertaking, or other
instrument proposed to be entered into between the applicant and any
Subscriber.
( 4) A copy of any agreement existing between the applicant and any
municipal utility or public utility subject to regulation by the Public Utility
Commission of Texas providing for the use of any facilities of the public utility,
including but not limited to poles, lines, or conduits.
(5) Any other details, statements, information or references pertinent
to the subject matter of such application which shall be required or requested by
the Council, or required by any other provision of law.
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SECTION 4 -APPLICATION FEES
A. Amount. Each applicant must furnish with its Proposal a non-refundable
filing fee in the amount of Five Thousand Dollars ($5 ,000.00) by certified or cashier's
check made payable to the City of Lubbock. In the event an applicant has been brought
into the City of Lubbock through annexation, the filing fee shall be as follows:
Less than 100 customers ................. $ 100.00
100 to 500 customers .................... $1 ,000.00
More than 500 customers .............. $2,000.00
No Application for a franchise shall be considered without receipt of said check.
B. Deposit and Use. All checks received will be deposited to an account of
the City and will serve to recover all expenses incurred by the City in the preparation and
granting of a franchise, the execution of a franchise and regulation of the Grantee
pursuant to this Ordinance and its franchise.
SECTION 5 -SELECTION OF GRANTEE
A. Referral to City Manager. Upon receipt of any Application for franchise,
the City Secretary shall refer the same to the City Manager who shall prepare or cause to
be prepared a report~ including recommendations respecting such Application, and cause
the same to be completed and filed with the City Council.
B. Public Comment. If the Council shall determine to further consider an
Application, it shall set a public hearing for the consideration of such application, setting
forth a day, hour and place certain when and where any persons having any interest or
objections to such proposed franchise may file written comments and/or appear and be
heard.
C. Determination. At the time of the public hearing, or any continuance
thereof, the Council shall receive comments and objections. Thereafter the Council shall
make one of the following determinations:
(1) that such Application be denied, which determination shall be final
and conclusive; or
(2) that such Application be granted and establish the terms and
conditions of said franchise.
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D. Additional Information. The City Manager or the City Council may at any
time require applicants to provide supplementary, additional or other information which
is deemed reasonably necessary to determine whether the requested franchise should be
granted.
SECTION 6 -GRANT OF AUTHORITY
A. Successful applicants chosen by the City Council will be granted the non-
exclusive right and privilege to construct, erect, operate and maintain, in, upon, along,
across, above, over and under the streets, highways, alleys, public ways and public places
now laid out or dedicated and all extensions thereof, and additions thereto, in the City,
poles, wires, cables, underground conduits, manholes, and other cable conductors and
fixtures necessary for the maintenance and operation in the City of Lubbock of a Cable
System, to be used for the sale and distribution of Cable Services to the residents of the
City.
B. Provided, however, the Grantee shall utilize to the extent practical the
corrununication zones of the existing utility pole installations through agreement with the
City of Lubbock and other utility companies, provided a reasonable and practical
agreement can be reached. In no event shall a Grantee have the right or privilege to erect
poles in the corporate limits of the City of Lubbock without prior express consent of the
City. Any poles erected by a Grantee shall be of sound material, reasonably straight, and
shall be so set that they will not interfere with the flow of water in any gutter or drain and
so that they will not interfere with ordinary travel upon any street, alley, highway, bridge,
public way or other public place. The location and route of all poles. studs, guys, anchors,
conduits, cables or other electronic signal equipment to be placed or constructed by the
Grantee in the City of Lubbock shall be approved in writing, in advance, by an engineer
of the City and shall conform to the local codes and standards. The City hereby retains all
of its power and control for regulation of its streets, highways, alleys, bridges, public
ways and other public places granted or which may hereafter be granted to it under the
Constitution of the State of Texas, the Home Rule Statutes, and its Charter.
C. City assumes no responsibility for securing any franchises, rights-of-way,
permits or easements which the City does not already own on behalf of Grantees; but
Grantees assume the duty and responsibility of securing the same. The permission
granted herein is likewise subject to laws, ordinances and regulations now in force or
which may hereafter be enacted or promulgated by any governmental body or agency
having jurisdiction. City shall in no way be responsible for the construction, operation.
maintenance, performance, or any other activity of a Grantee or its System or any part
thereof.
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I D. A Grantee must agree to take any necessary precautions, by the installation
ll of protective equipment or otherwise, to protect all persons and property against injury or
damage that may result from Grantee's installations or operations. If, in the City's
I ! opinion, a Grantee has not taken such necessary precautions, within a reasonable time
after City has so notified Grantee, City shall have the right by written notice to Grantee to
jl terminate the franchise as hereafter provided in Section 26. However, City shall not be
j considered in any way responsible for the adequacy or inadequacy of such precautions of
l a Grantee.
II SECTION 7 -DURATION OF FRANCHISE; RENEWAL
A. The duration of the rights, privileges and authorizations granted in a
franchise shall be fifteen ( 15) years from the date a franchise is awarded. A franchise may
be renewed by the City upon application of the Grantee pursuant to the procedure
established in Subsection B of this section and in accordance with the then applicable
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B. Renewal.
( 1) Upon receipt of Grantee's notice of intent to renew the franchise,
the City shall give public notice and proceed to determine whether the Grantee
has complied with the conditions of, and perfonned its obligations under the
franchise agreement to the satisfaction of the City and its Subscribers. In making
this determination, the City shall consider technical developments and
performance of the System, programming. other services offered, cost of service.
and any other particular requirements set forth in the franchise; also, the City shall
consider the Grantee's Proposal and its annual reports made to the City and the
FCC; industry performance and current state-of-the-art of broadband
communications on a national basis shall also be considered. Provision shall be
made for public comment. Grantee shall pay any reasonable costs up to $5,000
incurred by the City in analyzing and evaluating Grantee's performance and its
Proposal for renewal of the franchise.
(2) If, based upon Grantee's performance during its franchise term, the
Grantee's new Proposal, and report thereon and the public hearings, Council finds
a renewal ofthe franchise with Grantee is in the public interest, Council may enter
into a renewal ofthe franchise with Grantee for an additional franchise period
under such terms and conditions as the City may determine.
(3) In the event the Grantee is reasonably detennined by the City to
have perfonned unsatisfactorily, or Grantee's Proposal for renewal is not
satisfactory or in keeping with the state-of-the-att, new applicants may be sought
and evaluated and new franchise awards may be made by the City, subject to
procedures contained in Section 546 ofthe Cable Act.
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SECTION 8-FRANCHISE TERRITORY
A franchise is for the present territorial limits of the City of Lubbock and for any
area thereafter annexed into the City of Lubbock during the franchise term.
SECTION 9-SERVICE AVAILABILITY AND RECORD REQUEST
The Grantee shall provide Cable Services throughout the entire franchise area
pursuant to the provisions of this Ordinance and its franchise. Grantees shall keep a
current file of all complaints received by the Grantee for at least the most recent three (3)
years during the entire life of the franchise. Said file shall be available for public
inspection at the local office of the Grantee during regular office hours.
SECTION 1 0 -CABLE SYSTEM CONSTRUCTION
A. Construction Map and Schedule
(1) Map and Plan
Grantee shall submit a construction plan or reconstruction plan,
which shall be incorporated by reference and made a part of the franchise
agreement, including a map clearly indicating the following:
(a) Areas within the franchise area where the Cable System
will be initially available to Subscribers including a schedule of
construction for each year of construction, or reconstruction.
(b) Areas within the franchise area where extension ofthe
Cable System cannot reasonably be done due to lack of present or planned
development or other similar reasons, with the areas and the reasons for
not serving them clearly identified on the map.
(2) Early Construction and Extension
Nothing in this section shall prevent the Grantee from constructing
or reconstructing the System earlier than planned. However, any delay in
the system construction or reconstruction beyond the times specified in the
plan report timetable shall require application to and consent by the
Council.
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(3) Delay in Construction Timetable
Any delay beyond the terms of the construction or reconstruction
timetable, unless approved by the Council, will be considered a violation
of this Ordinance for which the provisions of either Sections 26 or 27 shall
apply, as determined by the Council.
( 4) Commencement of Construction
Construction in accordance with the plan submitted by Grantee
shall commence as soon after the approval of the City Council as is
reasonably possible. Failure to proceed expeditiously shall be grounds for
revocation of a franchise. Failure to proceed expeditiously shall be
presumed in the event constmction is not commenced within twelve (12)
months of the grant and acceptance of the construction plan.
(5) Underground and Overhead Construction
In all sections of the City where all the cables, wires, or other like
facilities of public utilities are placed underground, the Grantee shall place
its cables, wires or other like facilities underground to the maximwn
extent that the existing technology reasonably permits the Grantee to do
so. If at any time the City determines that existing wires, cable or other
like facilities of public utilities anywhere in the City shall be changed from
an overhead to an underground installation, the Grantee shall also, at
Grantee's sole expense, convert its System to an underground installation.
In areas of the City where electrical or telephone systems are
installed on poles above ground, the Grantee shall have the option of
installing the System in like manner above or underground.
(6) Line Extension Policy
The Cable System shall meet all requests for service originating
now or in the future within the serviceable areas defined on the map
referenced in Section 3A(3)(a) and (b) and Section lOA(l)(a) and (b),
within a reasonable time after said requests are received by the Grantee.
Service shall be made available, without an additional charge for plant
extensions (other than the customer drop charges hereinafter described) to
all Subscribers now or hereafter located within the above described areas,
as measured from existing tmnk lines or lines technically capable of
extension.
The Cable System shall be one that, upon request for Service by
residents within said areas, is capable of serving the Subscribers where the
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number of residences passed by the cable plant necessary to serve such
Subscribers (i.e. the density) is at least forty (40) occupied residences per
mile of cable plant. In addition, if residents of an area hereafter desiring
Service request the Services of the Cable System and the cable plant
necessary to serve such area will pass fewer than forty ( 40) occupied
residences per mile of the cable plant, the Grantee shall construct and
install such cable plant, within a reasonable time after the requests for
Service are received by the Grantee, but may, as a condition of doing so,
require that the residents requesting such Services pay a proportionate
share of the construction cost.
Calculation of a proportionate share is illustrated by the following
example: If the requested extension will pass thirty (30) occupied
residences per mile of cable plant, the Grantee's share will equal thirty-
fortieths or three-fourths of the construction costs and the residents
requesting Service shall share equally ten-fortieths or one-fourth of the
construction cost. The Grantee may require the deposit of the Subscriber's
share before commencement of construction or offer to Subscriber a time
payment contract through which payments can be made on the regular bill
for Cable Service. For a period of two (2) years after the completion of
construction of any such extension, each new Subscriber along such
extension shall pay an adjusted proportionate share of the construction
cost, and all Subscribers who have previously paid a share and the Grantee
shall receive prorated refunds from the amount received from a new cable
Subscriber.
Calculation of an adjusted proportionate share and prorated refund
is illustrated by the following example: If, for example, ten (1 0) residents
along the extension initially obtained Service and shared equally a one-
fourth portion of the construction costs, and at a later date, an additional
resident along such extension requested Service, he would be required to
pay one-eleventh of the construction cost in order to receive Service and
his payment would be divided three-fourths to the Grantee and one-fortieth
to each of the original Subscribers. The Grantee, at its sole option, may
waive collection of adjusted proportionate shares from new Subscribers
but, if it does so, it shall, nevertheless, reimburse Subscribers who have
previously paid a proportionate share of adjusted proportionate share of
construction costs an amount equal to the prorated refund they otherwise
would have received. The Grantee shall be responsible for maintaining
appropriate records and administering all refunds authorized in this
section.
(7) Aerial Drops Exceeding 100 Feet
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All areas required to be aerial construction shall require all aerial
drop installation of not more than 100 feet at the cost of Grantee.
Connections in excess of 1 00 feet shall be at the expense of a Subscriber at
Grantee's cost plus mark-up as permitted by FCC rules.
(8) Underground Drops Exceeding 100 Feet
All areas required to be underground construction shall require all
underground drop installation of not more than 100 feet at the cost of
Grantee. Connections in excess of 1 00 feet shall be the expense of a
Subscriber at Grantee's allowable cost.
B. Cable Systems Annexed into City
Cable Systems brought into the City by annexation, and which do not expand
beyond the annexed area, shall not be required to serve all areas of the City unless they
make a written request to do so, in which case all requirements of this Ordinance shall
apply.
SECTION 11 -CONSTRUCTION AND TECHNICAL STANDARDS
A. Compliance with Construction and Technical Standards
Grantee shall construct, install, operate and maintain its System in a manner
consistent with all laws, ordinances, construction standards, governmental requirements.
FCC technical standards, and detailed standards submitted by the Grantee as part of its
application, which detailed standards shall be incorporated by reference as Grantee's
"Technical System Description" in any approved franchise agreement. In addition,
Grantee shall provide the City, upon request, a written report ofthe results of Grantee's
annual proof of performance tests conducted pursuant to FCC standards and
requirements. If City, in its opinion, has determined Grantee has not met the technical
standards, it may schedule a public hearing to review the results of Grantee's performance
tests; said public hearing to be conducted after the City has provided 14 days written
notice ofthe same to Grantee and published notice of said public hearing in a local
newspaper at least once. Grantee shall pay the costs incurred by the City for any technical
assistance deemed necessary by the City for obtaining independent verification of
technical compliance with all standards if such verification indicates that such technical
standards have not been substantially met.
B. Additional Specifications
Construction, installation and maintenance of the Cable System shall be
performed in an orderly and workmanlike manner. All cables and wires shall be installed,
where possible, parallel with and in the same manner as electric and telephone lines.
Multiple cable configurations shall be arranged in parallel and bundled with due respect
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for engineering considerations. Underground installation shall be in conformance with
applicable codes. The Grantee1s cables, wires and appliances, in each and every location,
shall be maintained in accordance with the requirements and specifications of the City,
and in compliance with any rules or ordinances of the City now or hereafter placed in
effect by the City or other authority having jurisdiction and which are enacted pursuant to
the City's or other authority's lawful authority. In any event, the system shall not
endanger or interfere with the safety of persons or property in the franchise area or other
areas where the Grantee may have equipment located.
SECTION 12-TRANSFERS AND ASSIGNMENTS
A. A franchise shall not be assigned or transferred, either in whole or in part,
or leased, sublet, or mortgaged in any manner, nor shall title thereto, either legal or
equitable or any right, interest or property therein. pass to or vest in any person without
the prior written consent of the City. The proposed assignee must show technical ability,
financial capability, legal qualifications and general character qualifications as
determined by the City and must agree to comply with all provisions of the franchise. A
proposed assignee shall be deemed to have demonstrated its technical ability if the
Council determines the assignee possesses that technical ability. City shall be deemed to
have consented to a proposed transfer or assignment in the event its refusal to consent is
not communicated in writing to Grantee within one hundred twenty (120) days following
receipt of written notice of the proposed transfer or assignment. Notwithstanding any
other provision contained in Section 12, a Grantee may transfer its franchise to any
Affiliate upon thirty (30) days prior written notice to the City if (i) such Affiliate accepts
the franchise under its then current terms and conditions and (ii) the original franchise
holder provides a written guarantee of such a Affiliate's performance in a form
reasonably acceptable to the City.
B. Grantee shall promptly notify the City of any actual or proposed change
in, or transfer of, or acquisition by any other party of, control of the Grantee. The word
11Control" as used herein is not limited to major stockholders but includes actual working
control in whatever manner exercised. Every change, transfer, or acquisition of control of
the Grantee shall make the franchise subject to cancellation unless and until the City shall
have consented thereto, which consent will not be unreasonably withheld. For the purpose
of determining whether it shall consent to such change, transfer or acquisition of control,
the City may inquire into the technical, legal and financial qualifications of the
prospective controlling party and the Grantee shall assist the City in any such inquiry.
C. A rebuttable presumption that a transfer of control has occurred shall arise
upon the acquisition or accumulation by any person or group of persons of 50 percent of
the voting interest of the Grantee.
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' D. The consent or approval of the City Council to any transfer ofthe
franchise shall not constitute a waiver or release of the rights ofthe City in and to the
streets and public rights-of-way, and any transfer shall by its terms, be expressly
!1 subordinate to the terms and conditions of a franchise granted by the City.
E. In the absence of extraordinary circumstances, the City will not approve
any transfer or assignment of a franchise prior to substantial completion of construction
of proposed System.
F. The City Council reserves the right of "first refusal'' to purchase a Cable
System at the fair market value price if the Council terminates the franchise for cause or
formally decides to not renew the franchise under the formal procedures specified in
Section 546 of the Cable Act.
G. In no event shall a transfer of ownership or control be approved without
the successor in interest becoming bound by and accepting the franchise agreement by
written instrument.
SECTION 13 -SUBSCRIBER SERVICES RATES
A. Applicants shall file a scbedule of initial rates for its Services in the
application for a franchise.
B. Grantees must file an initial copy of their cun-ent rates with the City
Secretary of the City of Lubbock upon acceptance of a franchise and any rate change
shall be filed with the City Secretary thirty (30) days prior to any change in rate schedules
on file.
SECTION 14 -PAYMENT OF FRANCHISE FEE
A. For the reason that the streets and other right of way to be used by the
Grantee in the operation of its System within the boundaries of the City are valuable
public properties acquired and maintained by the City at great expense to its taxpayers,
and that the grant of a franchise is a valuable property right without which the Grantee
would be required to invest substantial capital in the right-of-way costs and acquisitions,
and because the City will incur costs in regulating and administering the franchise, and at
the option of the Council, tbe City may make available a portion ofthe franchise fee to
further the development of public and community uses of Cable Services, the Grantee
shall pay to the City a franchise fee of five percent (5%) of its Gross Revenues as that
term is defined in this Ordinance.
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B. The franchise fee and any other cost or penalties assessed shall be payable
to the Office of the City Treasurer as specified by a franchise agreement issued pursuant
to this Ordinance. The Grantee shall file with each payment a complete and accurate
verified statement of all collected Gross Revenues within the City during the time period
for which such payment is made.
C. The City shall have the right to inspect the Grantee's income records and
the right to audit and to recompute any amounts determined to be payable under this
Ordinance; provided, however, that such audit shall commence within thirty-six (36)
months following the close of each of the Grantee's fiscal years. Adjustments requiring
additional payments by the Grantee or refunds due the Grantee shall be limited to such
years as may be audited during the thirty-six month period described above. Any
additional amount due to the City as a result of such audits shall be paid within thirty (3 0)
days following written notice to the Grantee by the City, which notice shall include a
copy of the audit report. However, the Grantee shall have the right to dispute such audit
findings to the Council. Any such payments shall include interest at a rate of eight (8)
percent on the additional amounts owed to the City.
SECTION 15-REQUIRED SERVICES AND FACILITIES
A. Applicants shall include a description of its System design ("Schedule of
Equipment/Facilities") and a description of programming and Services to be offered,
including optional premium Services, ("Schedule of Services") as exhibits to its
application for a franchise, which exhibits shall be incorporated into its franchise by
reference for all purposes.
B. Grantees shall be required to perform at least the Services included in the
"Schedule ofProgramming Services" and to provide at least the equipment and/or
facilities specified in the "Schedule of Equipment/Facilities" stated in such exhibits.
C. In the event a program originator ceases providing a Service, or in the
event the Grantee determines that other programming or Cable Services may be more
attractive to Subscribers, or other Users, the Grantee may substitute Services.
D. Grantees shall provide an emergency alert system in accordance with
federal regulations which is capable of interrupting all non-local broadcast signals at the
sole expense of the Grantee. This system shall enable the City or its designee to provide
immediate, current information to all Subscribers from an origination point designated by
the City Manager or his designee. The system shall be maintained in a working condition
by the Grantee and shall be available at all times and located in a facility approved by the
City Manager or his designee.
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SECTION 16-USE OF STREETS
A. All transmission and distribution structures, lines, and equipment erected
by the Grantee within the City shall be so located as to cause minimum interference with
the rights and reasonable convenience of property owners who adjoin any of the said
streets.
B. In case of disturbance of any street easement or paved area of other
property, the Grantee shall, at its own cost and expense and in a manner approved by the
City, replace and restore such street easement or paved area or other property in as good a
condition as before the work involving such disturbance was done.
C. If at any time during the period of a franchise the City shall lawfully elect
to alter or change the grade of any street, the Grantee, upon reasonable notice by the City,
shall remove, relay, and relocate its poles, wires, cables, w1derground conduits, manholes,
and other fixtures at its own expense.
D. Any poles or other fixtures placed in or adjacent to any street by the
Grantee shall be placed in such manner as to comply with all requirements of the City.
E. Grantee shall, at the request of any person holding a valid moving permit
issued by the City, temporarily raise or lower its wires to permit the moving of building.
The expense of such temporary removal or raising or lowering of wires shall be paid by
the person requesting the same, and the Grantee shall have the authority to require such
payment in advance. The Grantee shall be given not less than five (5) business days
notice to arrange for such temporary wire changes.
F. The Grantee shall have the authority to trim trees upon and overhanging
streets of the City so as to prevent the branches of such trees from coming in contact with
the wires and cables of the Grantee, except that at the option ofthe City, such trinuning
may be done by it or under the supervision and direction of the Grantee. Grantee shall
bear the expense of such trimming.
G. At the expiration of the term for which a franchise is granted or upon its
termination and cancellation, as provided for herein, City shall have the right to require
Grantee to remove at its own expense all aerial plant and all visible facilities attached to
underground plant from all portions of the Cable System located in all streets, alleys and
easements within the City.
SECTION 17 -INDEMNIFICATION AND INSURANCE
A. It shall be expressly understood and agreed by and between the City and
any Grantee that the Grantee shall save the City and its agents and employees harmless
from and against all claims, damages, losses, and expenses, including reasonable
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attorney's fees, sustained by the City on account of any lawsuit, judgment, execution of
judgment, claim or demand by any person or entity whatsoever arising out of the
implementation or terms of this Ordinance, the award of any franchise, the installation,
operation or maintenance of a Cable System, copyright or patent infringement, or any
activities of a Grantee taken pursuant to its franchise, whether or not any act or omission
complained of is authorized, allowed or prohibited by this Ordinance and/or any franchise
agreement granted by the City.
B. The Grantee shall maintain and by its acceptance of a franchise
specifically agrees that it will maintain throughout the term of a franchise the following
types of liability insurance insuring the City and the Grantee, with at least the minimum
coverage amounts set forth in the application for a franchise or stated in a franchise
agreement, whichever is applicable:
(I) Worker's Compensation.
(2) Comprehensive General Liability, including bodily injury,
property, damage and aggregate.
(3) Comprehensive Automobile liability, including nonownership and
hired car coverage as well as owned vehicles.
(4) Umbrella Liability Policy.
Each insurance policy shall name the City as an additional insured, and shall
ensure performance of the indemnity provisions set forth in this ordinance.
C. The insurance policy obtained by the Grantee in compliance with this
section must be approved by the City and a certificate of insurance in a form acceptable
to the City, along with written evidence of payment of required premiums, shall be filed
and maintained with the Office of the City Secretary during the term of a franchise and
may be changed from time to time to reflect changing liability limits. A Grantee shall
immediately advise the City of any litigation that may develop that would affect the
insurance.
D. Neither the provisions of this section nor any damages recovered by the
City pursuant thereto, shall be construed to or shall limit the liability of a Grantee for
damages to a third party.
E. All insurance policies maintained pursuant to a franchise shall contain the
following endorsement:
It is hereby understood and agreed that any insurance policies may not be
canceled by the surety nor the intention not to renew be stated by the surety until thirty
(30) days after receipt by the City, by registered mail, of written notice of such intention
to cancel or not to renew.
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SECTION 18 -CONSTRUCTION BOND
A. A construction bond may be required by the City for any proposed
construction activities within the City. Within thirty (30) days after the notification of a
need for a construction bond, the Grantee shall obtain and maintain at its cost and
expense, and file with the City Secretary, a corporate surety bond in a company
authorized to do business in the State of Texas, and found acceptable by the City, in a
reasonable amount to be specified by the City. The bond shall guarantee the timely
construction and/or reconstruction and full activation of the Cable System and safeguard
against damage to private property and/or restoration of damages done to other utilities or
the City.
B. The provisions of the construction bond shall be established upon the
notification to the Grantee of the need to secure such bond.
C. The construction bond shall be maintained in the amount specified by the
City, but may be reduced as a ratio of unconstructed (or reconstructed) miles to total
miles to be built (or rebuilt) within City and shall be terminated only after the City finds
that a Grantee has satisfactorily completed construction and activation of the Cable
System pursuant to the terms and conditions of this Ordinance and the franchise
agreement, including the payment of any outstanding claims resulting from such activity.
D. The rights reserved to the City with respect to the construction bond are in
addition to all other rights of the City, whether reserved by this Ordinance or authorized
by law, and no action, proceeding or exercise of a right with respect to such construction
bond shall affect any other rights the City may have.
E. The construction bond shall contain the following endorsement.
It is hereby understood and agreed that this bond may not be canceled by the
surety nor the intention not to renew be stated by the surety until sixty (60) days after
receipt by the City, by registered mail, of written notice of such intent to cancel or not to
renew.
SECTION 19-SERVICE STANDARDS
A. A Grantee shalJ put, keep, and maintain all parts of the System in good
condition throughout the entire franchise period.
B. Upon tennination of Service to any Subscriber, a Grantee shall promptly
remove all its facilities and equipment from the premises of such Subscriber upon
Subscriber's request.
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C. Grantees shall render efficient Service, make repairs promptly, and
interrupt Service only for good cause and for the shortest time possible. Such
interruptions, insofar as possible, shall be preceded by notice and shall occur during
periods of minimum System use.
D. Grantees shall not allow its cable or other operations to interfere with
television reception of persons not served by Grantee, nor shall the System interfere with,
obstruct or hinder in any manner, the operation of the various utilities serving the
residents ofthe City.
E. A Grantee shall continue, through the term of the franchise, to maintain
the technical, operational, and maintenance standards and quality of Service set forth in
this ordinance and franchise agreement. Should the City find, by public hearing process,
that a Grantee has failed to maintain these standards and quality of Service, and should it
specifically enumerate improvements to be made, a Grantee shall make such
improvements as identified by the City CounciL Failure to make such improvements
within three (3) months will constitute a breach of condition for which the remedy of
Section 27 is applicable.
SECTION 20-CONTINUITY OF SERVICE MANDATORY
A. It shall be the right of all Subscribers to continue receiving Service so long
as their financial and other obligations to a Grantee are honored. In the event that a
Grantee elects to overbuild, rebuild, modify, or sell the System, or the City gives notice
of intent to terminate or fails to renew a franchise. the Grantee shall act so as to ensure
that all Subscribers receive continuous, uninterrupted Service regardless of the
circumstances.
B. In the event of a change of Grantee, or in the event a new operator
acquires the System, a Grantee shall cooperate with the City, new Grantee or operator in
maintaining continuity of Service to all Subscribers. During such period, Grantee shall be
entitled to the revenues for any period during which it operates the System, and shall be
entitled to reasonable costs for its Services when it no longer operates the System.
C. In the event a Grantee fails to operate the System for four ( 4) consecutive
days without prior approval of the City or without just cause, the City may, at its option,
operate the System or designate an operator until such time as Grantee restores Service
under conditions acceptable to the City or a permanent operator is selected. If the City is
required to fulfill this obligation for a Grantee, the Grantee shall reimburse the City for all
reasonable costs or damages in excess of revenues from the System received by the City
that are the result of the Grantee1s failure to perform.
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SECTION 21 -COMPLAINT PROCEDURE
A. The City Manager or the City Manager's designee shall have primary
responsibility for the continuing administration of a franchise and implementation of
complaint procedures.
B. A Grantee shall maintain a central office in the City, which shall be open
during all usual business hours, and have a publicly listed telephone number and be so
operated with adequate line capability that complaints and requests for repairs or Service
may be received on a 24whour per day basis, seven (7) days per week. Sufficient
responsibility must be delegated locally to permit the local system manager to make
timely decisions.
C. Subject to constraints imposed by acts of God, or events over which
Grantees have no control, Grantees shaH maintain a repair and maintenance crew capable
of responding to Subscriber complaints or requests for Service within forty-eight ( 48)
hours after receipt of the complaint or request. No charge shall be made to the Subscriber
for this Service unless such maintenance or repair is required as a result of damage caused
by Subscriber. Grantees may charge for Service calls to the Subscribers' home that are not
the result of cable failure.
D. A Grantee shall establish procedures for receiving, acting upon, and
resolving Subscriber complaints to the satisfaction of the City Manager's Office. A
Grantee shall furnish a notice of such procedures to each Subscriber at the time of initial
subscription to the System. Upon request by a Subscriber, the Grantee shall credit a
Subscriber's account on a pro rata basis for any loss of Service lasting for more than
forty-eight (48) hours.
E. A Grantee shall keep a maintenance service log which will indicate the
nature of each Service complaint, the date and time it was received, the disposition of
said complaint and the time and date thereof. This log shall be made available for
periodic inspection by representatives of the City. All Service complaint entries shall be
retained on file for a period consisting of at least three (3) years.
F. When there have been similar complaints made or when there exists other
evidence, which, in the judgment of the City Manager casts doubt on the reliability or
quality of Cable Service, the City Manager shall have the right and authority to compel a
Grantee, at its expense, to test, analyze, and report on the performance of the System.
Such report shall be delivered to the City Manager no later than fourteen (14) days after
the City Manager formally notifies the Grantee and shall include the following
information: the nature ofthe complaints which precipitated the special tests; what
System component was tested, the equipmeut used, and, procedures employed in said
testing; the results of such tests; and the method in which said complaints were resolved.
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G. The City Manager may require that tests and analyses shall be supervised
by a professional engineer not on the permanent staff of a Grantee. The aforesaid
engineer should sign all records of the special tests and forward to the City Manager such
records with a report interpreting the results of the tests and recommending actions to be
taken by a Grantee and the City. Grantees shall pay for such tests only if the test results
determine a material non-compliance with the technical standards required by this
Ordinance.
H. The City Manager's right under this section shall be limited to requiring
tests, analyses, and reports covering specific subjects and characteristics based on said
complaints or other evidence when and under such circumstances as the City has
reasonable grounds to believe that the complaints or other evidence requires that tests be
performed to protect the public against substandard Cable Service.
SECTION 22-AVAILABILITY OF BOOKS AND RECORDS
A Grantee shall fully cooperate in making available at reasonable times, and the
City Manager or his designee shall have the right to inspect such books, records, maps,
plans and other like materials of the Grantee applicable to the Cable System and
necessary to determine compliance with this Ordinance, at any time during normal
business hours and after reasonable prior notice to Grantee, provided where volume and
convenience necessitate, Grantee may require inspection to take place on Grantee's
premises. If records are maintained outside the City of Lubbock, the Grantee is obligated
to reimburse the City government any expenses incurred in making inspection of the
books and records.
SECTION 23 -OTHER PETITIONS AND APPLICATIONS
Copies of all petitions, applications, communications and reports submitted by a
Grantee to the Federal Communications Commission, Securities and Exchange
Commission, or any other federal or state regulatory commission or agency having
jurisdiction in respect to any matters affecting Cable System operations authorized
pursuant to the franchise, shall be provided simultaneously to the City Manager.
SECTION 24 -FISCAL REPORTS
Grantees shall file annually with the Office ofthe City Secretary, no later than one
hundred twenty (120) days after the end of the Grantee's fiscal year, a copy of a financial
report applicable to the Cable System serving the City of Lubbock, including an income
statement applicable to its operations during the preceding twelve ( 12) month period, a
balance sheet and a statement of its properties devoted to Cable System operations. These
reports shall be certified as correct by an authorized officer of Grantee and there shall be
submitted along with them such other reasonable information as the City shall request.
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SECTION 25 -TERMINA TIQN
A In addition to all other rights and powers retained by the City under this
Ordinance or otherwise, the City reserves the right to tenninate a franchise and all rights
and privileges of a Grantee in the event of an uncured material breach of its tenns and
conditions. A material breach by Grantee shall include, but shall not be limited to the
following:
(1) Violation of any material provision of this Ordinance or the
franchise or violation of any material rule, order, regulation or determination of
the City made pursuant to the franchise;
(2) Attempt to evade any material provision of this Ordinance or the
franchise or the perpetration of any fraud or deceit upon the City or its Subscribers
or customers;
(3) Failure to begin or complete System construction or reconstruction
or System extension as provided under this Ordinance or the franchise;
( 4) Failure to provide the types of Services promised;
(5) Failure to restore Service after ninety-six (96) consecutive hours of
interrupted Service, except when approval of such interruption is obtained from
the City; or
(6) Material misrepresentation of fact in the application for or
negotiation or renegotiation of the franchise.
B. The foregoing shall not constitute a material breach if the violation occurs
but it is without fault of a Grantee or occurs as a result of circumstances beyond its
control. Grantee shall not be excused by economic hardship nor by misfeasance or
malfeasance of its shareholders, directors, officers, or employees.
C. The City shall make a written demand that a Grantee comply with any
such provision, rule, order, or detennination under or pursuant to this Ordinance and the
franchise agreement. If the violation by the Grantee continues for a period of thirty (30)
days following such written demand or for such longer period as the City may reasonably
grant, without written proof that the corrective action has been taken or is being actively
and expeditiously pursued, the City may place the issue oftennination of the Grantee's
franchise before the City Council. The City shall cause to be served upon Grantee, at least
twenty (20) days prior to the date of such Council meeting, a written notice of intent to
request such tennination and the time and place of the meeting. Public notice shall be
given of the meeting and issues relating to the Grantee's franchise to be considered by the
Council.
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D. The City Council shall hear and consider the issues and shall hear any
person interested therein, and shall determine whether any uncured material violation by
the Grantee has occurred.
E. If the City CoW1cil shall determine the violation by a Grantee was
material, the fault of Grantee, within its control, and was not timely cured, the Council
may declare that the franchise of the Grantee shall be terminated unless there is
compliance by the Grantee within such period as the City CoW1cil may fix, which period
shall not be less than sixty (60) days. However, no opportunity for compliance need be
granted for fraud or gross or willful misrepresentation.
F. The issue of termination of the franchise shall automatically be placed
upon the Council agenda at the expiration of the time set by it for compliance. The
Council then may continue the franchise; terminate the franchise immediately upon
finding that Grantee has failed to achieve compliance; or may further extend the
compliance period, in its discretion.
SECTION 26 -LIOUIDA TED DAMAGES
By acceptance of the franchise granted by the City, a Grantee understands and
agrees that failure to comply with any time and performance requirements as stipulated in
this Ordinance and its franchise agreement will result in damage to the City, and that it is
and will be impracticable to determine the actual amount of such damage in the event of
delay or non-performance; and a Grantee therefore agrees that, provided that it has been
provided with a written notice of the alleged violation and given a reasonable opportunity
of not less than sixty (60) days to cure said violation, it will pay to the City following
amounts which will be chargeable to the security fund:
A. For failure to complete System construction or reconstruction in
accordance with Section 1 0, Wlless the Council specifically approves the delay by
minuted action or resolution due to the occurrence of conditions beyond Grantee's
control, a Grantee shall pay up to Five Hundred Dollars ($500.00) per day for each day,
or part thereof, the deficiency continues.
B. For failure to provide upon written request, data, documents, reports,
information or to cooperate with City during an application process or Cable System
review, a Grantee shall pay up to Fifty Dollars ($50.00) per day, or part thereof, that each
violation occurs or continues.
C. For failure to test, analyze and report on the performance of the System
following a written request pursuant to this Ordinance, a Grantee shall pay to City up to
Two Hundred Dollars ($200.00) per day for each day, or part thereof, that such non-
compliance continues.
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E. In accordance with Section 19{E), if it has been determined that there has
been a failure of Grantee to comply with material operational, maintenance or technical
standards, Grantee shall pay to the City up to Five Hundred Dollars ($500.00) for each
day, or part thereof, that such non-compliance continues beyond the three months period
provided in Section 19(E).
SECTION 27 -RIGHTS OF INDIVIDUALS
A. A Grantee shall not deny Service, deny access, or otherwise discriminate
against Subscribers, channel users, or general citizens on the basis of race, color, religion,
national origin, handicap or sex. A Grantee shall comply at all times with all other
applicable federal, state and local laws and regulations, and all executive and
administrative orders relating to nondiscrimination which are hereby incorporated and
made part of this Ordinance by reference.
B. A Grantee shall strictly adhere to the equal employment opportunity
requirements of federal, state and local regulations.
C. No signals shall be transmitted from a Subscriber terminal for purposes of
monitoring individual viewing patterns or practices without the express written
permission of the Subscriber. The request for such permission shall be contained in a
separate document with a prominent statement that the Subscriber is authorizing the
monitoring with full knowledge of its purpose. The authorization shall be revocable at
any time by the Subscriber without penalty of any kind whatsoever. Such authorization is
required for each type or classification of two-way cable communications activity
planned, provided, however, that a Grantee shall be entitled to conduct System wide or
individually addressed "sweeps" for the purpose of verifying System integrity, controlling
return-path transmission, billing for pay Services, or detecting unauthorized cable
television reception.
D. A Grantee, or any of its agents or employees, shall not, without the
specific written authorization of the Subscriber involved, sell, or otherwise make
available to any party any list which identifies the individual viewing habits of
Subscribers.
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SECTION 28 -FORECLOSURE. JUDICIAL SALE OR RECEIVERSHIP
A. Upon the foreclosure or other judicial sale of all or a substantial part ofthe
System, or upon the termination of any lease covering all or a substantial part of the
System:
( 1) A Grantee shall notify the City of such fact, and such notification
shall be treated as a notification that a change in control of the Grantee has taken
place, and the provisions of this Ordinance governing the consent of the City to
such change in control of a Grantee shall apply; or
(2) In such an instance, the City may serve notice of termination upon
a Grantee and if applicable, the successful bidder at such sale. In such event, the
franchise shall cease and be terminated thirty (30) days after service of such notice
unless:
(a) The City shall have approved the transfer of a franchise to a
prospective Grantee as provided by this Ordinance provided; and
(b) The successful bidder shall have agreed with the City in
writing to assume and be bound by all the terms and conditions of the
franchise.
B. The City shall have the right to terminate a franchise 120 days after the
appointment of a receiver, or trustee to take over and conduct the business of a Grantee,
whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless
such receivership or trusteeship shall have been vacated prior to the expiration of said 120
days, or unless:
(1) Within 120 days after the election or appointment, such receiver or
trustee shall have fully complied with all the provisions of this Ordinance and
remedied all defaults thereunder; and
(2) Such receiver or trustee, within said 120 days, shall have executed
an agreement, duly approved by the court having jurisdiction in the premises,
whereby such receiver or trustee assumes and agrees to be bound by each and
every provision of the Ordinance and franchise agreement and of the franchise
granted to a Grantee.
SECTION 29 -PERFORMANCE EVALUATION SESSIONS
A. The City may request performance evaluation sessions within thirty (30)
days of the third, ninth, and twelfth anniversary dates of a Grantee's award of the
franchise and at such other times as may be required by federal or state law. Should the
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City determine a need to hold a performance evaluation session, the Grantee shall be
notified in writing thirty (30) days prior to the date of the evaluation.
B. Special evaluation sessions may be held at any time during the term of a
franchise at the request of the City or the Grantee.
C. All evaluation sessions shall be open to the public and announced in a
newspaper of general circulation in the City of Lubbock. Grantee shall notify its
Subscribers of all evaluation sessions by announcement on at least two (2) channels of its
System between the hours of7:00 p.m. and 9:00p.m., for five (5) consecutive days
preceding each session.
D. Topics which may be discussed at any scheduled or special evaluation
session may include, but not be limited to, Service rate structures; franchise fee;
liquidated damages; free or discounted Services; application of new teclmologies; System
performance; Services provided; programming offered; customer complaints; privacy;
amendments to this Ordinance; judicial and FCC rulings; line extension policies; and
Grantee or City rules.
SECTION 30 -AREA WIDE INTERCONNECTION OF CABLE SYSTEMS
A. Interconnection Required
A Grantee shall interconnect Access Channels of the Cable System with
any or all other Cable Systems in adjacent areas, upon the directive of the City for
the sole purpose of exchanging non-commercial educational and governmental
programming. Interconnection of Systems may be done by direct cable
connection, microwave link, satellite, or other appropriate method.
B. Interconnection Procedure
Upon receiving the directive of the City to interconnect, a Grantee shall
immediately initiate negotiations with the other affected System or Systems in
order that all costs may be shared equally among cable companies for
construction, programming and operation of the interconnection linJc
C. Relief
A Grantee may be granted reasonable extensions of time to interconnect or
the City may rescind its order to interconnect upon petition by the Grantee to the
City. The City shall grant said request if it finds that a Grantee has negotiated in
good faith and has failed to obtain an approval from the System or Systems ofthe
proposed interconnection, or that the cost of the interconnection would cause an
unreasonable or unacceptable increase in Subscriber rates.
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D. Cooperation Required
A Grantee shall cooperate with any interconnection corporation, regional
interconnection authority or city, county, state and federal regulatory agency
which may be hereafter established for the purpose of regulating, financing, or
otherwise providing for the interconnection of Cable Systems beyond the
boundaries ofthe City.
SECTION 31 -ACCEPTANCE AND EFFECTIVE DATE OF FRANCHISE
A. No franchise granted pursuant to the provisions of this Ordinance shall
become effective unless and until all things required in this section are done and
completed. all of such things being hereby declared to be conditions precedent to the
effectiveness of any such franchise granted hereunder. In the event any of such things are
not done and completed in the time and manner required, the Council may declare a
franchise null and void.
B. Within thirty (30) days after the effective date of an ordinance granting a
franchise or within such extended period of time as the City Council in its discretion may
authorize, a Grantee shall file with the City Secretary its written acceptance, in a form
satisfactory to the City, of the franchise, together with evidence of the insurance policies
required by Section 17, and its agreement to be bound by and to comply with and to do
all things required of the Grantee by the provisions of this Ordinance and the franchise.
Such acceptance and agreement shall be acknowledged by the Grantee before a notary
public.
SECTION 32-VIOLATIONS
A. From and after the effective date of this Ordinance, it shall be unlawful for
any person to construct, install or maintain within any public street in the City, or within
any other public property of the City, or within any privately-owned area within the City
which has not yet become a public street but is designated or delineated as a proposed
public street on any tentative subdivision map approved by the City, any equipment or
facilities for the purpose of operating a Cable System unless a franchise authorizing such
use of such street or property or area has first been obtained pursuant to the provisions of
this Ordinance, and unless such franchise is in full force and effect.
B. No Grantee nor any representative of a Grantee shall engage in the
business of selling, repairing or installing television receivers, radio receivers, or
accessories directly added to or necessary for the operation of such television, radio or
other receivers within the City of Lubbock during the term of a franchise.
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SECTION 33 -INCORPORATION OF PROPOSAL BY REFERENCE
A. Upon award of a franchise pursuant to this Ordinance, a Grantee shall
agree to be bound by all the terms and conditions contained herein.
B. A Grantee also agrees to provide all Services specifically set forth in its
application and any attachments thereto; to provide Cable Service within the confines of
the City of Lubbock; and by its acceptance of a franchise, the Grantee specifically grants
and agrees that its application is thereby incorporated by reference and made a part of its
franchise agreement. In the event of a conflict between such application and the
provisions of this Ordinance, and/or the franchise, that provision which provides the
greatest benefit to the City, in the opinion of the City, shall prevail; provided that, the
City, having chosen or accepted one of the conflicting provisions, may not thereafter elect
to require compliance with a different alternative of the conflicting provisions. Failure to
provide services as promised in Grantee's application shall be deemed a breach of this
Ordinance to which the provisions of Section 26 of this Ordinance shall apply.
SECTION 34 -TIME IS OF THE ESSENCE
Whenever a franchise or contract shall set forth any time for an act to be
performed by or on behalf of the Grantee, such time shall be deemed of the essence and
any failure ofthe Grantee to perform within time allotted shall always be sufficient
ground for the City to invoke liquidated damages or revocation of a franchise.
SECTION 35 - F AlLURE OF CITY TO ENFORCE A FRANCHISE, NO WAIVER OF
THE TERMS THEREOF
A Grantee shall not be excused from complying with any of the terms and
conditions of a franchise agreement or this Ordinance by any failure of the City upon any
one or more occasions to insist upon or to seek compliance with any such terms or
conditions of this Ordinance or a franchise.
SECTION 36 -REPEAL OF PRlOR INCONSISTENT ORDINANCES
This Ordinance shall supersede and replace Ordinances No. 8554 and 8809 of the
City of Lubbock, which Ordinances shall be of no further force and effect upon the
effective date of this Ordinance. In addition, to the extent that any other ordinance of the
City of Lubbock shall conflict with the provisions of this Ordinance, this Ordinance shall
prevail.
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SECTION 37 ~ SAVINGS CLAUSE
II If any section, sentence, clause or phrase of this Ordinance is held
II
unconstitutional or otherwise invalid for any reason, such infirmity shall not affect the
validity of the remainder of the Ordinance. Provided, however, that in the event that state
or federal government laws or regulations render any section invalid. then such section or
sections may be renegotiated by the City and a Grantee.
SECTION 38-PENALTY
That violation of this Ordinance shall be deemed a misdemeanor punishable as
provided in Section 1-4 ofthe Code of Ordinances ofthe City ofLubbock.
SECTION 39 -PUBLICATION
The City Secretary is hereby authorized to cause publication of the descriptive
caption of this Ordinance as an alternative method of publication provided by law.
AND IT IS SO ORDERED.
Passed by City Council on first reading the 14th day of January ,U'JOBl 1999.
Passed by City Council on second reading the 28t:h day of Januarv .~ 1999.
~&~
WINDY SIT , MAYOR
AI7EST:
II f' jc 1
Kayth1. Darnell, City Secretary
Richard Burdine, Assistant City Manager
Ddordlcablercg
September I, 199&
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APPROVED AS TO FORM:
l-1---¥---!:..__~---t:.~~~~~ i ~I 1D ald G. Vandiver, First A
City Attorney