HomeMy WebLinkAboutOrdinance - 8809-1985 - Ordinance Amending Certain Provisions Of Ordinance #8554 - 08/08/1985.. r
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First Reading
August 8, 1985
Agenda Item #31
Second Reading
August 22, 1985
Agenda Item #11
ORDINANCE NO. 8809
AN ORDINANCE OF THE CITY OF LUBBOCK AMENDING CERTAIN PROVISIONS OF
ORDINANCE NO. 8554, RELATING TO PROCEDURES FOR GRANTING OF FRANCHISES FOR
CABLE COMMUNICATION SYSTEMS AND THE REGULATION OF SUCH SYSTEMS; AMENDING
THE LUBBOCK CODE OF ORDINANCES; PROVIDING A SAVINGS CLAUSE; AND PROVIDING
FOR PUBLICATION.
WHEREAS, the Cable Communication Policy Act of 1984 recent FCC rulings
and U.S. Supreme Court cases have somewhat altered Federal law and policy
since the enactment of Ordinance No. 8554 relating to cable communications
franchises; and
WHEREAS, the City Council of the City of lubbock deems it to be in the
best interest of the citizens of the City of lubbock to amend Ordinance No.
8554 to reflect said changes in law; NOW THEREFORE:
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
SECTION 1. THAT the following Section of Ordinance No. 8554 BE and
is hereby repealed:
SECTION 31 -NEW DEVELOPMENT
SECTION 2. THAT the following portions of Ordinance No. 8554 BE
and are hereby amended to., read as follows:
1. Section 3 is hereby amended to read as follows:
SECTION 3 -APPLICATIONS FOR FRANCHISE
A. Content. Each application for a franchise to construct,
operate or maintain any cable communications 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) the name, address, and telephone number of the ap-
plicant;
(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) the names, residence and business addresses of all
officers and directors of the applicant,
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(b) the names, residence and business addresses of all
officers, persons and entities having any share of the
ownership of the applicant and the respective ownership
share of each such person or entity,
(c) the names and addresses of any parent or sub-
sidiary of the applicant, a statement describing the
nature of any such parent or subsidiary business
entity, including but not limited to cable communi-
cations 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 television system
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 opera-
tion of the applicant which shall include, but not be
limited to, the following:
(a) a detailed map indicating all 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 classi-
fications of rates and charges to be made against
subscribers for basic service and all rates and charges
as to each of said classifications, including instal-
lation charges and service charges,
(d) a statement describing the actual equipment and
operational standards proposed by the applicant and
that such standards of operations are in compliance
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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 of the 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 Texas Public Utilities Commission pro-
viding 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 ref-
erences pertinent to the subject matter of such application
which shall be required or requested by the Council, or by
any other provision of law.
2. Paragraph 4A is hereby amended to read as follows:
A. Amount. Each applicant must furnish with its proposal a
non-refundable filing fee in the amount of Six Thousand Dollars
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.
3. Paragraph 48 is hereby amended to read as follows:
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
franchise pursuant to this Ordinance.
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4. Section 5 is hereby amended to read as follows:
SECTION 5 -SELECTION or 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
adjournment 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.
D. Additional Information. The City Manager or the City
Council may at any time demand that applicants provide supple-
mentary, additional or other information which is deemed reason-
ably necessary to determine whether the requested franchise
should be granted.
5. Section 6 is hereby amended to read as follows:
SECTION 6 -GRANT or AUTHORITY
A. Successful applicants chosen by the City Council will be
granted the 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
communications system, to be used for the sale and distribution
of cable services to the residents of the City.
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Provided, however, the Company shall utilize to the extent
practical the communication 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 Company have the
right or privilege to erect poles in the corporate limits of the
City of lubbock without prior express consent of the City
Council. Any poles erected by a Company 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 Company 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 msy hereafter be granted to it under the
Constitution of the State of Texas, the Home Rule Statutes, and
its Charter.
City assumes no responsibility for securing any franchises,
rights-of-way, permits or easements which the City does not
already own; but Company assumes 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 respon-
sible for the construction, operation, maintenance, performance,
or any other activity of a Company or its system or any part
thereof.
A Company must agree to take any necessary precautions, by
the installation of protective equipment or otherwise, to protect
all persons and property against injury or damage that may result
from Company's installations or operations. If, in the City's
opinion, a Company has not taken such necessary precautions,
within a reasonable time after City has so notified Company, City
shall have the right by written notice to Company to terminate
the franchise as hereafter provided in Section 26. However, City
shall not be considered in any way responsible for the adequacy
or inadequacy of such precautions of a Company.
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6. Section 8 is hereby amended to read as follows:
SECTION 8 -FRANCHISE TERRITORY
A. The territory for the Company is the present area designated
on the service area map filed with the City Secretary on the
effective date of the franchise and any additional area within
the present territorial limits of the City of lubbock and for any
area henceforth annexed during the franchise term for which said
Company has continuous cable plant from the headend existing at
the time of the annexation.
B. Construction of new cable plant site areas not presently
served or designated on said service map are subject to the
provisions as specified in Section 10 of the franchise agree-
ment.
7. Section 10, paragraph (3) is hereby amended to read as follows:
(3) Commencement of Construction
Construction in accordance with the plan submitted by
Company shall commence as soon after the approval of the City
Council as is reasonably possible. Failure to proceed expedi-
tiously, shall be grounds for renovation of a franchise. Failure
to proceed expeditiously shall be presumed in the event con-
struction is not commenced within twelve (12) months of the grant
and acceptance of the construction plan.
8. Section 10, paragraph 5, is hereby amended to read as follows:
(5) line Extension Policy
The Cable System shall be one that, upon request for
service, is capable of serving every residence now or in the
future located within the serviceable areas defined on the map
referenced in Section 3A(3)(a)(b) and Section 10A(1)(a)(b),
within the reasonable time after said requests are received by
the Company. Service shall be made available, without an
additional charge for plan extensions (other than the customer
drop charges hereinafter described) to all residences now or
hereafter located within the above described areas.
The Cable System shall be one that, upon request for service
by residents within such an area, is capable of serving the
residence in all areas hereafter desiring service or annexed to
the City where the number of residences passed by the cable plant
necessary to serve such residences (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
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necessary to serve such area will pass fewer than forty (40)
occupied residences per mile of the cable plant, the Company
shall construct and install such cable plant, within a reasonable
time after the requests for service are received by the Company,
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 Company's share will equal thirty-fortieths or
three-fourths of the construction costa and the residents
requesting service shall share equally ten-fortieths or one-
fourth of the construction cost. The Company may require the
deposit of the subscriber's share before commencement of con-
struction or offer to subscriber a time payment contract through
which payments can be made on regular bill for cable service. For
a period of two (2) years after the completion of construction
of any such extension, each new cable subscriber along such
extension shall pay an adjusted proportionate share of the
construction cost, and all cable subscribers who have previously
paid a share and the Company shall receive prorated refunds from
the amount received from a new cable subscriber. Calculation of
an adjusted proportionate share and prorated refund is illus-
trated by the following example: If, for example, ten (10)
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 Company and one-fortieth to
each of the original subscribers. The Company, 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 Company shall be responsible for maintaining
appropriate records and administering all refunds authorized in
this section.
9. Paragraph 118 is hereby amended to read as follows:
B. Additional Specifications
Construction, installation and maintenance of the cable com-
munications system shall be performed in an orderly and workman-
like 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 for engineering con-
siderations. Underground installation shall be in conformance
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with applicable codes. The grantee's cables, wires and ap-
pliances, 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. 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 locat-
ed.
10. Section 13 is hereby amended to read as follows:
SECTION 13 -SUBSCRIBER SERVICES RATES
Section 13 of Ordinance No. 8554 shall continue in full
force and effect as to cable companies holding existing fran-
chises at the time of passage of this amendment. However, this
section shall read as follows effective December 30, 1986, for
existing companies and immediately for any newly franchised
companies.
A. The Company shall file a schedule of initial rates for its
services in the application for a franchise.
B. The Company must file a copy of any rate change thirty (30)
days prior to any change in rate schedules as filed.
11. Paragraph 14A is hereby amended to read as follows:
A. For the reason that the streets to be used by the Company 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 to the Company
to the said streets is a valuable property right without which
the Company 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, the City may make available a
portion of the franchise fee to further the development of public
and community uses of cable TV, the Company shall pay to the City
a franchise fee of three percent (3%) of its gross revenues as
that term is defined in Ordinance No. 8554, from its cable
television business within the corporate limits of the City of
Lubbock and that such franchise fee may be increased to five
percent (5%) at such time as the City of lubbock may determine.
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12. Section 15 is hereby amended to read as follows:
SECTION 15 -REQUIRED SERVICES AND FACILITIES
A. The Company shall include a description of the system design
and a description of programming and services being offered,
including optional premium services.
B. The Company shall provide the programming services specified
in the "Schedule of Programming Services" attached hereto as
Exhibit A and incorporated herein by reference for all purposes.
C. The Company shall provide equipment and/or facilities
specified in the "Schedule of Equipment/Facilities" attached
hereto as Exhibit B and incorporated herein by reference for all
purposes.
D. In the event a program originator ceases providing a
service, or in the event the Company determines that other
programming or cable services may be more attractive to sub-
scribers, or other users, the Company may, in accordance with the
following procedures, substitute services. The system, after the
incorporation of such substitute services, shall maintain a
diversity of public service and entertainment programs and other
cable services, and an overall quality level of programming that
is equal or higher than the programming level before the sub-
stitution. The City Council shall have the right to review any
substitution of service that the Company has made and may require
a change therein if it so determines, after due hearing on
notice, that the above standards have not been met. Nothing in a
franchise or contract shall be construed as obligating the
Company itself to produce substitute programming to replace
programming deleted because the originator or supplier has ceased
producing the service where an alternative comparable service is
not available on a comparable basis from a different third
party.
13. Section 18 is hereby amended to read as follows:
A. A security fund may be required depending upon a request for
expansion of existing services, service area, construction or
reconstruction activities. Within thirty (30) days after the
notification by the City of Lubbock for the need of a security
fund, the Company shall file with the City a security fund in the
form of a performance bond or letter of credit from a financial
institution in the amount to be specified by the City of Lubbock
depending upon the proposed expansion, construction or recon-
struction activities. The form and content of such security fund
shall be approved by the City Attorney. The security fund shall
be used to insure the faithful performance by a Company of all
provisions of Ordinance No. 8554, this franchise agreement and
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compliance with all orders, permits and directions of any agency,
commission, board, department, division or office of the City
having jurisdiction over its acts or defaults under a franchise
and the payment by the Company of any penalties, liquidated
damages, claims, liens and taxes due the City which arise by
reason of the construction, operations or maintenance of the
system.
B. The provisions of the security funds shall be specified at
the time of notification.
14. Section 19 is hereby amended to read as follows:
SECTION 19 -CONSTRUCTION BOND
A. A construction bond will be required for any proposed
construction activities. Within thirty (30) days after the
notification of a need for a construction bond, the Company 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 Attorney, in the amount to be specified to guarantee the
timely construction and/or reconstruction and full activation of
the CATV system and the safeguarding of damage to private
property and restoration of damages incurred with utilities.
B. The provisions of the construction bond shall be established
upon the notification to the Company of the need to secure such
bond.
15. Paragraph 22B is hereby amended to read as follows:
B. The Company shall maintain a central office, which shall be
open during all usual business hours, and have a publicly listed
telephone and be so operated with adequate line capability that
complaints and request for repairs or service adjustments may be
received between the hours of 7:00a.m. until 11:00 p.m., Monday
through Friday and 9:00 a.m. until 9:00 p.m. on Saturday.
Sufficient responsibility must be delegated locally to permit the
local system manager to make timely decisions. Companies having
more than 1,000 customers must maintain a central office in the
City of Lubbock with the capability of handling complaints and
requests for service adjustments on a 24-hour per day basis,
seven days per week.
16. Paragraph 22C is hereby amended to read as follows:
C. Subject to constraints imposed by acts of God, or events
over which the company has no control, the Company shall maintain
a repair and maintenance crew capable of responding to subscriber
complaints or requests for service within forty-eight (48) hours
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made to the subscriber for this service unless such maintenance
or repair is required as a result of damage caused by subscriber.
The Company may charge for service calls to the subscribers' home
that are not the result of cable failure upon approval of a rate
and equitable procedure by the City. Companies having more than
1,000 customers must have sufficient repair and maintenance
personnel to respond to complaints or requests for service within
twenty-four (24) hours after receipt of the complaint or re-
quest.
17. Section 25 is hereby amended to read as follows:
SECTION 25 -FISCAL REPORTS
The Company shall file annually with the Office of the City
Secretary, no later than one hundred twenty (120) days after the
end of the Company's fiscal year, a copy of a financial report
applicable to the CATV 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 CATV system operations.
These reports shall be certified as correct by an authorized
officer of Company and there shall be submitted along with them
such other reasonable information as the Council shall request.
18. Paragraph 30A is hereby amended to read as follows:
SECTION 30 -PERFORMANCE EVALUATION SESSIONS
A. The City may request to hold scheduled performance evalu-
ation sessions within thirty (30) days of the first, second,
third, sixth, ninth, and twelfth anniversary dates of a Company's
award of the franchise and as may be required by federal and
state law. Should the City determine a need to hold a perfor-
mance evaluation session, the Company shall be notified in
writing thirty (30) days prior to the date of the evaluation.
19. Section 33 is hereby amended to read as follows:
SECTION 33 -ACCEPTANCE AND EffECTIVE DATE Of FRANCHISE
A. No franchise agreement 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.
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B. Within thirty (30) days after the effective date of an
ordinance awarding a franchise or within such extended period of
time as the City Council in its discretion may authorize, a
Company shall file with the City Secretary its written ac-
ceptance, in a form satisfactory to the City Attorney, of the
. franchise agreement, together with 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 Company by the
provisions of this ordinance and the franchise agreement. Such
acceptance and agreement shall be acknowledged by the Company
before a notary public and shall in form and content be satis-
factory to and approved by the City Attorney.
20. Section 35 is hereby amended to read as follows:
SECTION 35 -INCORPORATION Of APPLICATION BY REfERENCE
Upon award of a franchise pursuant to this ordinance, a
Company shall agree to be bound by all the terms and conditions
contained herein.
A Company also agrees to provide all services specifically
set forth in its application, to provide cable television service
within the confines of the City of Lubbock and by its acceptance
of a franchise, the Company specifically grants and agrees that
is application is thereby incorporated by reference and made a
part of the franchise agreement. In the event of a conflict
between such application and the provisions of Ordinance No.
8554, and the franchise agreement, that provision which provides
the greatest benefit to the City, in the opinion of the Council,
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 con-
flicting provisions. failure to provide services as promised in
Company's application shall be deemed a breach of this agreement
to which the provisions of Section 26 of this ordinance shall
apply.
SECTION 3. THAT if any section, sentence, clause, phrase or word of
this ordinance is held unconstitutional or otherwise invalid, such in-
firmity shall not affect the validity of this ordinance, and any portions
in conflict are hereby repealed. Provided, however, that in the event that
the state or federal government laws or regulations renders any section
invalid, then such section or sections may be renegotiated by the City and
a company.
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SECTION 4. THAT the City Secretary is hereby authorized to cause
publication of the descriptive caption of this ordinance as an alternative
means of publication provided by law.
AND IT IS SO ORDERED.
Passed by City Council on first reading the Sth day of August , 1985.
Passed by City Council on second reading the 22nd day of--"~~~-' 1985.
AL
ATTEST:
APPROVED AS TO CONTENT:
Rita Harmon, Assistant City Manager
APPROVED AS TO FORM:
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THE STATE OF TEXAS
COUNTY OF LUBBOCK H-2315
Before me Do rotbJ' RUlli II a Notary Public in and for Lubboc.k County. Texas on this day
personally appeared Tv II a A aft II • Account Manel!e r of the Southwestern Newspa-
pers Corporation. publishers of the Lubbock Avalanche-Journal Morning. Evening and Sunday, who
being by me duly sworn did depose and say that said newspaper has been published continuously for more
than fifty-two weeks prior to the first insertion of this Lel!el IAot t Cl
-------------No. 6TJ861 at Lubbock County, Texas and the attached print-
ed copy of the Lrr•l Not tee is a true copy of the original and was printed in the Lubbock
Avalanche-Journal on the following dates: AtJf!VI. 24, 3lt 881 1985 lTO -ordl -TOt Ptr word g IZS9.00
Account Mana«er
LUBBOCK AVALANCHE-JOURNAL
Southwestern Newspapers Corporation
Subscribed and sworn to before me this -'1.h. day of Scpttmbt r
:··AM QR~i:fWcdl~
I• ANO ~· . PTiNG A !11!100.ETET FOR I. VaAR , •• h AP.
:U~~etl"la:fu .. C: FORM58·10
19-'l_
OOROTHY RUSSEll
Notary Public. In And For lhe State Of Texas
My Commi~'ion Expims Nov. 9, 1988 I
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; . ·ORDINANCE NO. 1107 ~ AH ORDINANCE AMENDING
!CHAPTER 13 OF THe CODE OF
tORDINANCES OF THE CITY .Of LUBBOCK, TEXAS. SY AMEN£>. •. lNG •THE LANGUAGE OF IEC· '-it:!'~~~ PEJtTAINING TO
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FEES CHARGED IN CONIUiC.
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