CITY OF COON RAPIDS, MINNESOTA
CHAPTER 4-100
CABLE TELEVISION FRANCHISE
4-101 Statement of Intent and Purpose. The City intends,
by the adoption of this Franchise, to bring about the further development of
a Cable System and the continued operation of it. Such development can
contribute significantly to the communication needs and interests of the
residents and citizens of the City and the public generally. Further, the
City may achieve better utilization and improvement of public services and
enhanced economic growth with the development and operation of a Cable
System. Adoption of this Franchise is, in the judgment of the Council, in
the best interests of the City and its residents.
4-102 Findings. In the review of the request and proposal
for renewal by Grantee and negotiations related thereto, and as a result of
a public hearing, the City Council makes the following findings:
(1) The Grantee’s technical
ability, financial condition, legal qualifications and character were
considered and approved in a full public proceeding after due notice and a
reasonable opportunity to be heard;
(2) Grantee’s plans for constructing, upgrading and operating the System
were considered and found adequate and feasible in a full public proceeding
after due notice and a reasonable opportunity to be heard;
(3) The Franchise granted to Grantee by the City complies with the existing
applicable Minnesota Statutes, federal laws and regulations; and
(4) The Franchise granted to Grantee is nonexclusive.
4-103 Short Title and Definitions.
(1) Short Title. This Franchise
Ordinance shall be known and cited as the Cable Franchise Ordinance.
(2) Definitions. For purposes of this Franchise, the following terms,
phrases, words, abbreviations and their derivations shall have the meaning
given herein. When not inconsistent with the context, words used in the
present tense include the future tense; words in the plural number include
the singular number; words in the singular number include the plural; and
the masculine gender includes the feminine gender. Unless otherwise
expressly stated, words not defined herein or in the City Code shall be
given the meaning set forth in applicable law and, if not defined therein,
the words shall be given their common and ordinary meaning. The word “shall”
is always mandatory and not merely directory. The word “may” is directory
and discretionary and not mandatory.
(3) “Actual Cost” means the incremental cost to the Grantee of materials,
capitalized labor and borrowing necessary to install and construct
fiber-optic lines, coaxial cable and/or equipment.
(4) “Affiliate” means any Person who owns or controls, is owned or
controlled by, or is under common ownership or control with the Grantee.
(5) “Basic Cable Service” means any service tier which includes the lawful
retransmission of local television broadcast signals and any public,
educational and governmental access programming required by the Franchise to
be carried on the basic tier. Basic Cable Service as defined herein shall
not be inconsistent with 47 U.S.C. § 543(b)(7).
(6) “Cable Modem” means an electronic device, commonly referred to as such,
at a minimum, containing a modulator and demodulator, tuner, interface,
media access control mechanism and CPU, which acts as an interface between a
Subscriber's customer premises equipment and the System and is capable of
converting analog signals to digital signals and digital signals to analog
signals, thereby allowing data communications to be carried over System
facilities.
(7) “Cable Service” or “Service” means (1) the one-way transmission to
Subscribers of video programming or other programming services; and (2)
Subscriber interaction, if any, which is required for the selection or use
of such video programming or other programming services. For purposes of
this Franchise, “Cable Service” includes, but is not limited to, the
provision of Internet service over the System, Institutional Network
services and any other services or capabilities, but only to the extent
consistent with the definition of “Cable Service” pursuant to federal or
State law or applicable regulations.
(8) “Cable System” or “System"” means the facility of the Grantee 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, but such term does not include: (1) a facility
that only serves to retransmit the television signals of one or more
television broadcast stations; (2) a facility that serves Subscribers
without using any Rights-of-Way; (3) a facility of a common carrier which is
subject, in whole or in part, to the provisions of Title II of the
Communications Act, except that such facility shall be considered a System
if such facility is used in the transmission of video programming directly
to Subscribers, unless the extent of such use is solely to provide
interactive on-demand services; (4) an open video system that complies with
47 U.S.C. § 573; (5) any facilities of any electric utility used solely for
operating its electric utility system; or (6) a translator system which
receives and re-broadcasts over-the-air signals. A reference to the System
in this Franchise refers to any part of such System including, without
limitation, Converters. The foregoing definition of “System” shall not be
deemed to circumscribe or limit the valid authority of the City to regulate
or franchise the activities of any other communications system or provider
of communications service to the full extent permitted by law. “Cable
System” or “System” as defined herein shall not be inconsistent with the
definitions set forth in applicable law. Any reference to “Cable System” or
“System” herein, which system is owned or operated by a Person other than
the Grantee, shall be defined the same as this subsection (8).
(9) “City” means City of Coon Rapids, Minnesota, a municipal corporation, in
the State of Minnesota, acting by and through its City Council, or its
lawfully appointed designee.
(10) “City Code” means the Coon Rapids City Code, as amended from time to
time.
(11) “City Council” means the governing body of the City.
(12) “Class IV Cable Channel” means the signaling path provided by a Cable
System to transmit signals of any type from a Subscriber terminal to another
point in the System.
(13) “Converter” means an electronic device (sometimes referred to as a
receiver) which may serve as an interface between a System and a
Subscriber’s television monitor, and which may convert signals to a
frequency acceptable to a television monitor of a Subscriber, and may by an
appropriate selector, permit a Subscriber to view all signals of a
particular service.
(14) “Coon Rapids System” means the Cable System operated pursuant to this
Franchise and located in the City.
(15) “CPI” means the annual average of the Consumer Price Index for all
Urban Consumers (CPI-U) for the Minneapolis-St. Paul CMSA, as published by
the Bureau of Labor Statistics.
(16) “Drop” means the cable that connects the ground block on the
Subscriber's residence or institution to the nearest feeder cable of the
System.
(17) “Educational Access Channel” or “Educational Channel” means any 6 MHz
channel on a System set aside by the Grantee, and/or the City for
Noncommercial educational use by educational institutions, as contemplated
by applicable law.
(18) “FCC” means the Federal Communications Commission, its designee, and
any legally appointed, designated or elected agent or successor.
(19) “Franchise” or “Cable Franchise” means this ordinance, as may be
amended from time to time, any exhibits attached hereto and made a part
hereof, and the regulatory and contractual relationship established hereby.
(20) “Governmental Access Channel” or “Governmental Channel” means any 6 MHz
channel on the System set aside by the Grantee, and/or the City for
Noncommercial use by the City or its delegatee.
(21) “Grantee” is MediaOne North Central Communications Corp., Inc., and its
lawful successors, transferees or assignees.
(22) “Gross Revenues” means any and all revenues arising from or
attributable to, or in any way derived directly or indirectly by the Grantee
or its Affiliates, subsidiaries, or parent, or by any other entity that is a
cable operator of the System, from the operation of the Grantee's System to
provide Cable Services (including cash, credits, property or other
consideration of any kind or nature). Gross Revenues include, by way of
illustration and not limitation, monthly fees charged to Subscribers for any
basic, optional, premium, per-channel, or per-program service, or other
Cable Service including, without limitation, Internet access and Cable Modem
service fees charged to Subscribers, to the extent such services are offered
as a Cable Service under applicable law; Installation, disconnection,
reconnection, and change-in-service fees; Lockout Device fees; Leased Access
Channel fees; late fees and administrative fees; fees, payments or other
consideration received from programmers for carriage of programming on the
System and accounted for as revenue under GAAP; revenues from rentals or
sales of Converters or other equipment; fees related to commercial and
institutional usage of the System or the I-Net; advertising revenues;
interest; barter; revenues from program guides; franchise fees; and revenues
to the System from home shopping, bank-at-home channels and other revenue
sharing arrangements. Gross Revenues shall include revenues received by an
entity other than the Grantee, an Affiliate or another entity that operates
the System where necessary to prevent evasion or avoidance of the Grantee’s
obligation under this Franchise to pay the franchise fee. Gross Revenues
shall not include: (i) to the extent consistent with generally accepted
accounting principles, actual bad debt write-offs, provided, however, that
all or part of any such actual bad debt that is written off but subsequently
collected shall be included in Gross Revenues in the period collected; (ii)
any taxes on services furnished by the Grantee imposed by any municipality,
state or other governmental unit, provided that franchise fees shall not be
regarded as such a tax; (iii) FCC regulatory fees; (iv) Subscriber credits,
adjustments or refunds; or (v) refundable Subscriber deposits.
(23) “Installation” means the connection of the System from feeder cable to
the point of connection with the Subscriber Converter or other terminal
equipment.
(24) “Institutional Network” or “I-Net” means the discrete bidirectional
communications network and services related to such network provided by the
Grantee to identified institutions as required by this Franchise, and as
further described in Section 4-130 herein.
(25) “Leased Access Channel” means channels on the System which are
designated or dedicated for use by a Person unaffiliated with the Grantee
pursuant to 47 U.S.C. § 532.
(26) “Lockout Device” means an optional mechanical or electrical accessory
to a Subscriber's terminal which inhibits the viewing of a certain program,
certain channel, or certain channels provided by way of the Cable System.
(27) “Node” means the transition point between optical light transmission
(fiber-optic cable) and the RF transmission (coaxial cable) of video and
data signals being delivered to and received from the Subscriber’s home, and
all necessary equipment related to such transition point.
(28) “Noncommercial” means, in the context of PEG channels, that particular
products and services are not promoted or sold. This term shall not be
interpreted to prohibit a PEG channel operator or programmer from soliciting
and receiving financial support to produce and transmit video programming on
a PEG channel, or from acknowledging a contribution.
(29) “Normal Operating Conditions” means those service conditions that are
within the control of the Grantee. Conditions that are ordinarily within the
control of the Grantee include, but are not limited to, special promotions,
pay-per-view events, rate increases, regular peak or seasonal demand
periods, maintenance, or upgrade of the System, and the development,
operation or maintenance of the Grantee’s telephone system. Conditions that
are not within the control of the Grantee include, but are not limited to,
natural disasters, civil disturbances, power outages, telephone network
outages, and severe or unusual weather conditions.
(30) “PEG” means public, educational, and governmental.
(31) “Person” means any individual, partnership, association, joint stock
company, joint venture, domestic or foreign corporation, stock or non-stock
corporation, limited liability company, professional limited liability
corporation, or other organization of any kind, or any lawful successor or
transferee thereof, but such term does not include the City.
(32) “Public Access Channel(s)” means any 6 MHz channels on the System set
aside by the Grantee, and/or the City for Noncommercial use by the general
public, as contemplated by applicable law.
(33) “Right-of-Way” or “Rights-of-Way” means the surface, air space above
the surface and the area below the surface of any public street, highway,
lane, path, alley, sidewalk, avenue, boulevard, drive, court, concourse,
bridge, tunnel, park, parkway, skyway, waterway, dock, bulkhead, wharf,
pier, easement or similar property or waters within the City owned by or
under control of the City, or dedicated for general public use by the City,
including, but not limited to, any riparian right, which, consistent with
the purposes for which it was created, obtained or dedicated, may be used
for the purpose of installing, operating and maintaining a System. No
reference herein to a “Right-of-Way” shall be deemed to be a representation
or guarantee by the City that its interest or other right to control or use
such property is sufficient to permit its use for the purpose of installing,
operating and maintaining the System.
(34) “Right-of-Way Ordinance” means any ordinance of the City codifying
requirements regarding regulation, management and use of Rights-of-Way in
the City, including registration, fees, and permitting requirements.
(35) “Standard Installation” means any residential Installation which can be
completed using a Drop of 150 feet or less.
(36) “State” means the State of Minnesota, its agencies and departments.
(37) “Subscriber” means any Person who lawfully receives service via the
System. In the case of multiple office buildings or multiple dwelling units,
the term “Subscriber” means the lessee, tenant or occupant.
(38) “System Upgrade” means the improvement or enhancement in the technology
or service capabilities made by the Grantee to the System as more fully
described in Section 4-106.
4-104 Grant of Authority and General Provisions
(1) Grant of Franchise. This
Franchise is granted pursuant to the terms and conditions contained herein
and in applicable law. The Grantee shall comply with all provisions of this
Franchise and applicable laws, regulations and codes. Failure of the Grantee
to construct, operate and maintain a System as described in this Franchise,
or to meet obligations and comply with all provisions herein, may be deemed
a violation of this Franchise.
(2) Grant of Nonexclusive Authority.
(a) Subject to the terms of this
Franchise, the City hereby grants the Grantee the right to own, construct,
operate and maintain a System along the Rights-of-Way. The grant of
authority set forth in this Franchise applies only to the Grantee’s
provision of Cable Service; provided, however, that nothing herein shall
limit the Grantee’s ability to use the System for other purposes not
inconsistent with applicable law or with the provision of Cable Service; and
provided further, that any local, State and federal authorizations necessary
for the Grantee’s use of the System for other purposes are obtained by the
Grantee. This Franchise does not confer any rights other than as expressly
provided herein, or as provided by federal, State or local law. No privilege
or power of eminent domain is bestowed by this Franchise or grant. The
System constructed and maintained by Grantee or its agents pursuant to this
Franchise shall not interfere with other uses of the Rights-of-Way. The
Grantee shall make use of existing poles and other aerial and underground
facilities available to the Grantee to the extent it is technically and
economically feasible to do so.
(b) Notwithstanding the above grant to use Rights-of-Way, no Right-of-Way
shall be used by the Grantee if the City determines that such use is
inconsistent with the terms, conditions, or provisions by which such
Right-of-Way was created or dedicated, or with the present use of the
Right-of-Way.
(c) This Franchise and the right it grants to use and occupy the
Rights-of-Way shall not be exclusive and this Franchise does not, explicitly
or implicitly, preclude the issuance of other franchises or similar
authorizations to operate Cable Systems within the City. Provided, however,
that the City shall not authorize or permit another Person to construct,
operate or maintain a Cable System on material terms and conditions which
are, taken as a whole, more favorable or less burdensome than those applied
to the Grantee.
(d) This Franchise authorizes only the use of Rights-of-Way. Therefore, the
grant of this Franchise and the payment of franchise fees hereunder shall
not exempt the Grantee from the obligation to pay compensation or fees for
the use of City property, both real and personal, other than the
Rights-of-Way; provided, however, that such compensation or fees are
required by City ordinance, regulation or policy and are nondiscriminatory.
(e) Should any other multichannel video programming distributor (“MVPD”)
over which the City has regulatory jurisdiction provide Cable Service in the
current cable service area, the City shall not grant more favorable terms,
taken as a whole, to such MVPD than are granted to the Grantee. In the event
that another Person operates a Cable System authorized by the City on terms
and conditions that are, taken as a whole, more favorable or less burdensome
than the terms and conditions applicable to the Grantee under this
Franchise, the City shall adjust any such terms and conditions in any other
Person’s authorization or this Franchise so that the terms and conditions
under which such Person operates, taken as a whole, are not more favorable
or less burdensome than those that are applied to the Grantee.
(3) Lease or Assignment
Prohibited. No Person may lease Grantee's System for the purpose of
providing Cable Service until and unless such Person shall have first
obtained and shall currently hold a valid Franchise or other lawful
authorization containing substantially similar burdens and obligations to
this Franchise, including, without limitation, a requirement on such Person
to pay franchise fees on such Person’s use of the System to provide Cable
Services, to the extent there would be such a requirement under this
Franchise if the Grantee itself were to use the System to provide such Cable
Service. Any assignment of rights under this Franchise shall be subject to
and in accordance with the requirements of Section 4-144.
(4) Franchise Term. This Franchise shall be in effect for a period of
fifteen (15) years, such term commencing on the Effective Date specified in
Section 4-104(10), unless sooner renewed, extended, revoked or terminated as
herein provided.
(5) Previous Franchises. As of the Effective Date, this Franchise shall
supercede and replace any previous Ordinance, as amended, of the City
granting a Franchise to Grantee, including any agreement(s) of the parties
related thereto, except the Grantee shall continue to be bound by any
previously accrued but unfulfilled obligations under Ordinance No. 898 (the
“Prior Franchise”) for which the Grantee had notice. The Grantee shall
remain liable for payments of all franchise fees and other amounts owed, and
for all unfulfilled actions that the Grantee was notified of and required to
take under the Prior Franchise up to the Effective Date of this Franchise.
The grant of this Franchise shall have no effect on the Grantee's duty under
the Prior Franchise to indemnify or insure the City against acts and
omissions occurring during the period that the Prior Franchise was in
effect. This Franchise incorporates, amends and replaces that Memorandum of
Understanding dated January 29, 1996.
(6) Compliance with Applicable Laws, Resolutions and Ordinances.
(a) The terms of this Franchise
shall define the contractual rights and obligations of the Grantee with
respect to the provision of Cable Service and operation of the System in the
City. However, the Grantee shall at all times during the term of this
Franchise be subject to the lawful exercise of the police powers of the
City, the City’s right to adopt and enforce additional generally applicable
ordinances and regulations, and lawful and applicable zoning, building,
permitting and safety ordinances and regulations. The grant of this
Franchise does not relieve the Grantee of its obligations to obtain any
generally applicable licenses, permits or other authority as may be required
by the City Code, as it may be amended, for the privilege of operating a
business within the City or for performing work on City property or within
the Rights-of-Way, to the extent not inconsistent with this Franchise.
Except as provided below, any modification or amendment to this Franchise,
or the rights or obligations contained herein, must be within the lawful
exercise of the City’s police powers, as enumerated above, in which case the
provision(s) modified or amended herein shall be specifically referenced in
an ordinance of the City authorizing such amendment or modification. This
Franchise may also be modified or amended with the written consent of the
Grantee as provided in Section 4-147(3) herein.
(b) The Grantee shall comply with
the terms of any City ordinance or regulation of general applicability which
addresses usage of the Rights-of-Way within the City which may have the
effect of superseding, modifying or amending the terms of Section 4-105
and/or Section 4-137(5) herein; except that the Grantee shall not, through
application of such City ordinance or regulation of Rights-of-Way, be
subject to additional burdens with respect to usage of Rights-of-Way that
exceed burdens on similarly situated Right-of-Way users.
(c) In the event of any conflict between Section 4-105 and/or Section
4-137(5) of this Franchise and any lawfully applicable City ordinance or
regulation which addresses usage of the Rights-of-Way, the conflicting terms
in Section 4-105 and/or Section 4-137(5) of this Franchise shall be
superseded by such City ordinance or regulation; except that the Grantee
shall not, through application of such City ordinance or regulation of
Rights-of-Way, be subject to additional burdens with respect to usage of
Public Rights-of-Way that exceed burdens on similarly situated Right-of-Way
users.
(d) In the event any lawfully applicable City ordinance or regulation which
addresses usage of the Rights-of-Way adds to, modifies, amends, or otherwise
differently addresses issues addressed in Section 4-105 and/or Section
4-137(5) of this Franchise, the Grantee shall comply with such ordinance or
regulation of general applicability, regardless of which requirement was
first adopted; except that the Grantee shall not, through application of
such City ordinance or regulation of Rights-of-Way, be subject to additional
burdens with respect to usage of Rights-of-Way that exceed burdens on
similarly situated Rights-of-Way users.
(e) In the event the Grantee cannot determine how to comply with any
Right-of-Way requirement of the City, whether pursuant to this Franchise or
other requirement, the Grantee shall immediately provide written notice of
such question, including the Grantee’s proposed interpretation, to the City.
The City shall provide a written response within ten (10) business days of
receipt indicating how the requirements cited by the Grantee apply. The
Grantee may proceed in accordance with its proposed interpretation in the
event a written response is not received within thirteen (13) business days
of mailing or delivering such written question.
(7) Rules of Grantee. The Grantee
shall have the authority to promulgate such rules, regulations, terms and
conditions governing the conduct of its business as shall be reasonably
necessary to enable said Grantee to exercise its rights and perform its
obligations under this Franchise and applicable law, and to assure
uninterrupted service to each and all of its Subscribers; provided that such
rules, regulations, terms and conditions shall not be in conflict with
provisions hereto, the rules of the FCC, the laws of the State of Minnesota,
the City, or any other body having lawful jurisdiction.
(8) Territorial Area Involved. This Franchise is granted for the corporate
boundaries of the City, as they exist from time to time; provided, however,
that the Grantee shall not be required to extend service beyond its present
System boundaries except pursuant to the line extension requirement set
forth in Section 4-110 of this Franchise.
(9) Written Notice. All notices, reports or demands required to be given in
writing under this Franchise shall be deemed to be given when delivered
personally to any officer of the Grantee or the City’s designated Franchise
administrator, or forty-eight (48) hours after it is deposited in the United
States mail in a sealed envelope, with registered or certified mail postage
prepaid thereon, addressed to the party to whom notice is being given, as
follows:
If to City: Attention: City
Manager
City of Coon Rapids
11155 Robinson Drive
Coon Rapids, Minnesota 55433
With copies to: Thomas D.
Creighton, Esq.
Creighton, Bradley & Guzzetta, LLC
5402 Parkdale Drive, Suite 102
Minneapolis, Minnesota 55416
If to Grantee: General Manager
MediaOne
10 River Park Plaza
St. Paul, Minnesota 55107
With copies to: John F. Gibbs,
Esq.
Robins, Kaplan, Miller & Ciresi, LLP
2800 LaSalle Plaza
800 LaSalle Avenue South
Minneapolis, Minnesota 55402
Such addresses may be changed by either party upon notice
to the other party given as provided in this Section.
(10) Effective Date. This
Franchise shall become effective after: (i) all conditions precedent to its
effectiveness as an ordinance of the City have occurred; (ii) all conditions
precedent to its execution are satisfied; (iii) it has been approved by the
City Council in accordance with applicable law; and (iv) it has been
accepted and signed by the Grantee and the City (the “Effective Date”).
4-105 Construction Standards.
(1) Registration, Permits and Construction Codes.
(a) The Grantee shall strictly
adhere to all State and local laws, regulations and policies adopted by the
City Council applicable to the location, construction, installation,
operation or maintenance of the System in the City. The City has the right
to supervise all construction or installation work performed in the
Rights-of-Way as it shall find necessary to ensure compliance with the terms
of this Franchise and other applicable provisions of law and regulations.
(b) Failure to obtain permits or to comply with permit requirements shall be
grounds for revocation of this Franchise, or any lesser sanctions provided
herein or in any other applicable law, code or regulation.
(2) Restoration of Rights-of-Way
and Property. Any Rights-of-Way, or any sewer, gas or water main or pipe,
drainage facility, electric, fire alarm, police communication or traffic
control facility of the City, or any other public or private property, which
is disturbed, damaged or destroyed during the construction, repair,
replacement, relocation, operation, maintenance, expansion, extension or
reconstruction of the System shall be promptly and fully restored, replaced,
reconstructed or repaired by the Grantee, at its expense, to the same
condition as that prevailing prior to the Grantee's work, to the extent
consistent with applicable statutes and rules. It is agreed that in the
normal course, with respect to fire and police department facilities and
equipment, and water and sewer facilities, and other essential utilities and
services, as determined by the City, such restoration, reconstruction,
replacement or repairs shall be commenced immediately after the damage,
disturbance or destruction is incurred, and the Grantee shall take diligent
steps to complete the same, unless an extension of time is obtained from the
appropriate City agency or department. In all other cases, reconstruction,
replacement, restoration or repairs shall be commenced within no more than
three (3) days after the damage, disturbance or destruction is incurred, and
shall be completed as soon as reasonably possible thereafter. If the Grantee
shall fail to perform the repairs, replacement, reconstruction or
restoration required herein, the City shall have the right to put the
Rights-of-Way, public or private property back into good condition. In the
event City determines that the Grantee is responsible for such disturbance
or damage, the Grantee shall be obligated to fully reimburse the City for
required repairs, reconstruction and restoration.
(3) Conditions on Right-of-Way Use.
(a) Nothing in this Franchise
shall be construed to prevent the City from constructing, maintaining,
repairing or relocating sewers; grading, paving, maintaining, repairing,
relocating and/or altering any Right-of-Way; constructing, laying down,
repairing, maintaining or relocating any water mains; or constructing,
maintaining, relocating or repairing any sidewalk or other public work.
(b) All System transmission and distribution structures, lines and equipment
erected by the Grantee within the City shall be located so as not to
obstruct or interfere with the use of Rights-of-Way except for normal and
reasonable obstruction and interference which might occur during
construction and to cause minimum interference with the rights of property
owners who abut any of said Rights-of-Way and not to interfere with existing
public utility installations.
(c) The Grantee shall, at its sole expense, by a reasonable time specified
by the City, protect, support, temporarily disconnect, relocate or remove
any of its property when required by the City by reason of traffic
conditions; public safety; Rights-of-Way construction; street maintenance or
repair (including resurfacing or widening); change in Right-of-Way grade;
construction, installation or repair of sewers, drains, water pipes, power
lines, signal lines, tracks or any other type of government-owned
communications or traffic control system, public work or improvement of
government-owned utility; Right-of-Way vacation; or for any other purpose
where the convenience of the City would be served thereby. If the Grantee
fails, neglects or refuses to comply with the City's request, the City may
protect, support, temporarily disconnect, relocate or remove the appropriate
portions of the System at the Grantee’s expense for any of the City’s
incremental costs incurred as a result of the Grantee’s failure to comply.
Except for the City’s gross negligence, the City shall not be liable to the
Grantee for damages resulting from the City’s protection, support,
disconnection, relocation or removal, as contemplated in the preceding
sentence.
(d) The Grantee shall not place poles, conduits or other fixtures of the
System above or below ground where the same will interfere with any gas,
electric, telephone, water or other utility fixtures and all such poles,
conduits or other fixtures placed in any Right-of-Way shall be so placed as
to comply with all lawful requirements of the City.
(e) The Grantee shall, upon request of any Person holding a moving permit
issued by the City, temporarily move its wires or fixtures to permit the
moving of buildings with the expense of such temporary removal to be paid by
the Person requesting the same (except in the case where the requesting
Person is the City for the purpose of moving a City-owned building, in which
case no payment shall be required). The Grantee shall be given not less than
ten (10) days advance written notice to arrange for such temporary wire
changes.
(f) To the extent consistent with generally applicable City Code provisions,
rules and regulations, the Grantee shall have the right to remove, cut, trim
and keep clear of its System trees or other vegetation in and along or
overhanging the Rights-of-Way. However, in the exercise of this right, the
Grantee agrees not to cut or otherwise injure said trees to any greater
extent than is reasonably necessary. This Franchise does not give the
Grantee any authority to remove trees on private property in the City. All
trimming shall be performed at no cost to the City.
(g) The Grantee shall use its best efforts to give prior notice to any
adjacent private property owners who will be negatively affected or impacted
by Grantee’s work in the Rights-of-Way.
(h) If any removal, relaying or relocation is required to accommodate the
construction, operation or repair of the facilities of a Person that is
authorized to use the Rights-of-Way, the Grantee shall, after thirty (30)
days advance written notice and payment of all costs by such Person,
commence action to effect the necessary changes requested by the responsible
entity. If multiple responsible parties are involved, the City may resolve
disputes as to the responsibility for costs associated with the removal,
relaying or relocation of facilities among entities authorized to install
facilities in the Rights-of-Way if the parties are unable to do so
themselves, and if the matter is not governed by a valid contract between
the parties or any State or federal law or regulation.
(4) Use of Existing Poles and
Undergrounding of Cable.
(a) Where existing poles,
underground conduits, ducts or wire holding structures are available for use
by the Grantee, but it does not make arrangements for such use, the City may
require, through the established permit, or any other applicable procedure,
the Grantee to use such existing poles and wireholding structures if the
City determines that the public convenience would be enhanced thereby and
the terms available to the Grantee for the use of such poles and structures
are just and reasonable.
(b)The Grantee agrees to place its cables, wires or other like facilities
underground, in the manner as may be required by the provisions of the City
Code and City policies, procedures, rules and regulations, as amended from
time to time, where all utility facilities are placed underground. The
Grantee shall not place facilities, equipment or fixtures where they will
interfere with any existing gas, electric, telephone, water, sewer or other
utility facilities or with any existing installations of the City, or
obstruct or hinder in any manner the various existing utilities serving the
residents of the City. To the extent consistent with the City Code, City
policies, procedures, rules and regulations, System cable and facilities may
be constructed overhead where poles exist and electric or telephone lines or
both are now overhead. However, in no case may the Grantee install poles in
areas of the City where underground facilities are generally used by the
utilities already operating. If the City, at a future date, requires all
electric and telephone lines to be placed underground in all or part of the
City, the Grantee shall, within a reasonable time, similarly move its cables
and lines, at no expense to the City, and shall not seek damages from the
City for such compliance.
(5) Installation of Facilities.
(a) No poles, towers, conduits,
amplifier boxes, pedestal mounted terminal boxes, similar structures or
other wire-holding structures shall be erected or installed by the Grantee
without obtaining any required permit or other authorization from the City.
(b) No placement of any pole or wireholding structure of the Grantee is to
be considered a vested fee interest in the Rights-of-Way or in City
property. Whenever feasible, all transmission and distribution structures,
lines, wires, cables, equipment and poles or other fixtures erected by the
Grantee within the City are to be so located and installed as to cause
minimum interference with the rights and convenience of property owners.
(6) Safety Requirements.
(a) All applicable safety
practices required by law shall be used during construction, maintenance and
repair of the System. The Grantee agrees, at all times, to employ ordinary
and reasonable care and to install and maintain in use commonly accepted
methods and devices for preventing failures and accidents that are likely to
cause damage or injuries to the public or to property. All structures and
all lines, equipment and connections in the Rights-of-Way shall at all times
be kept and maintained in a safe condition, consistent with applicable
safety codes.
(b) The Grantee’s construction, operation or maintenance of the System shall
be conducted in such a manner as not to interfere with City communications
technologies related to the health, safety and welfare of City residents.
(c) The Grantee shall install and maintain such devices as will apprise or
warn Persons using the Rights-of-Way of the existence of work being
performed on the System in Rights-of-Way.
(d) The Grantee shall be a member of the One Call Notification System
(otherwise known as “Gopher State One Call”) or its successor, and shall
field mark the locations of its underground facilities upon request.
Throughout the term of this Franchise, the Grantee shall identify the
location of its facilities for the City at no charge to the City.
(7) City Use of Facilities. The
City, after consultation with the Grantee, shall have the right to use for
its sole Noncommercial purposes the Grantee’s poles, conduits, ducts and
manholes free of charge, provided that such current or continued use will
not unreasonably interfere with the present or future needs or operations of
the Grantee.
(8) Removal of Facilities at Expiration of Franchise. At the expiration of
the term for which this Franchise is granted, or upon the expiration of any
renewal or extension period which may be granted, the City shall have the
right to require the Grantee, at the Grantee’s sole expense: (i) to remove
all portions of the System from all Rights-of-Way within the City; and (ii)
to restore affected sites to their original condition. Should the Grantee
fail, refuse or neglect to comply with the City's directive, all portions of
the System, or any part thereof, may at the option of the City become the
sole property of the City, at no expense to the City, or be removed, altered
or relocated by the City at the cost of the Grantee. The City shall not be
liable to the Grantee for damages resulting from such removal, alteration or
relocation.
4-106 Design Provisions.
(1) System Facilities and
Equipment.
(a) Upon completion of the System
Upgrade, the System generally shall have at least the following
characteristics:
i. a modern design when built,
utilizing an architecture that will permit additional improvements necessary
for high-quality and reliable service throughout the Franchise term, and the
capability to operate continuously on a twenty-four (24) hour a day basis
without severe material degradation during operating conditions typical to
the Minneapolis/St. Paul metropolitan area;
ii. standby power generating capacity at the headend. The Grantee shall
maintain motorized standby power generators capable of powering all headend
equipment for at least twenty-four (24) hours. The back-up power supplies
serving the System shall be capable of providing power to the System for not
less than three (3) hours per occurrence measured on an annual basis
according to manufacturer specifications in the event of an electrical
outage. The Grantee shall maintain sufficient portable motorized generators
to be deployed in the event that the duration of a power disruption is
expected to exceed three (3) hours;
iii. facilities of good and durable quality, generally used in high-quality,
reliable systems of similar design;
iv. a System that conforms to or exceeds all applicable FCC technical
performance standards, as amended from time to time, which standards are
incorporated herein by reference, and any other applicable technical
performance standards. End of the line performance must meet or exceed FCC
specifications at the end of the Subscriber Drop;
v. a System shall, at all times, comply with applicable federal, State and
local rules, regulations, practices and guidelines pertaining to the
construction, upgrade, operation, extension and maintenance of Cable
Systems, including, by way of example (but not limitation):
(a) National Electrical Code, as
amended from time to time; and
(b) National Electrical Safety Code (NESC), as amended from time to time.
vi. facilities and equipment
sufficient to cure violations of FCC technical standards and to ensure that
Grantee’s System remains in compliance with the standards specified in
subsection 4-106(a)(v);
vii. such facilities and equipment as necessary to maintain, operate and
evaluate the Grantee’s System for compliance with FCC technical and customer
service standards, as such standards may hereafter be amended;
viii. status monitoring equipment to alert the Grantee when and where
back-up power supplies are being used, which capability shall be activated
and used on or before the completion of the System Upgrade;
ix. all facilities and equipment required to properly test the System and
conduct an ongoing and active program of preventative maintenance and
quality control, and to be able to quickly respond to customer complaints
and resolve System problems;
x. antenna supporting structures designed in accordance with any applicable
governmental building codes, as amended, and painted, lighted and erected
and maintained in accordance with all applicable rules and regulations of
the Federal Aviation Administration, the Federal Communications Commission
and all other applicable codes and regulations;
xi. facilities and equipment at the
headend allowing the Grantee to transmit or cablecast signals in
substantially the form received, without substantial alteration or
deterioration. For example, the headend should include equipment that will
transmit color video signals received at the headend in color, stereo audio
signals received at the headend in BTSC stereo format, and a signal received
with a secondary audio track with both audio tracks;
xii. the Grantee shall provide adequate security provisions in its Subscriber
site equipment to permit parental control over the use of Grantee’s Cable
Service. The Grantee, however, shall bear no responsibility for the exercise
of parental controls and shall incur no liability for any Subscriber’s or
viewer’s exercise or failure to exercise such controls;
xiii.facilities and equipment capable of operating within the temperature
ranges typical to the climate of the Coon Rapids area over the calendar
year;
xiv. the System shall be so constructed and operated that there is no
perceptible deterioration in the quality of Public, Educational or
Governmental Access Channel signals after delivery of such signals to the
first interface point with an Institutional Network hub, Grantee’s headend
or the subscriber network, whichever is applicable, as compared with the
quality of any other channel on the System. As used in this paragraph,
“deterioration” refers to delivery that is within the control of the
Grantee; and
xv. the Grantee must have TDD/TYY (or equivalent) equipment at the company
office, and a publicly listed telephone number for such equipment, that will
allow hearing impaired customers to contact the company.
(2) The Grantee is authorized and
required to continue to operate Grantee’s Cable System substantially as it
exists on the date hereof, and to provide service substantially equivalent
to its existing service, within the territorial limits of the City as of the
Effective Date of this Franchise, until such time as the System is upgraded,
as provided herein.
(3) The Grantee shall complete a System Upgrade in accordance with the
schedule set forth in Section 4-108 providing at least the following
characteristics:
(a) upon completion of the System
Upgrade, the System shall include a hybrid fiber-coaxial architecture, with
fiber-optic cable from the headend to hubs, and from hubs to Nodes. Nodes
System-wide shall serve on average 250 dwelling units or less, with a
minimum of three (3) fibers connecting such a 250-home average Node to
System headends and hubs. Individual Nodes may serve cable passing a number
of dwelling units in excess of 250, provided there is no adverse effect on
the performance characteristics of the System serving Subscribers from that
Node;
(b) segmentation of the System so that sufficient capacity is available for
interactive services at all times;
(c) activation of the bandwidth from 5 to 40 MHz for upstream transmissions;
(d) no more than four (4) amplifiers per coaxial cable in each cascade from
any Node;
(e) a capacity rating of at least 750 MHz for all active and passive
components;
(f) modular audio control units shall be utilized for each channel for
volume control on analog service, excluding off-air broadcast channels or
channels that are sent through a processor instead of being modulated and
de-modulated; and
(g) electronic transmission and powering equipment connecting the hub(s) in
the Coon Rapids System to the Grantee’s other hubs and/or headend facilities
in the Twin Cities metropolitan area shall be of a redundant design.
(4) The upgraded System shall
initially have a minimum analog channel capacity of at least 78 channels,
downstream to all Subscribers, plus additional capacity for digital and
other services.
(5) All power supplies for the System shall be equipped with standby power
capability in accordance with Section 4-106(1a)(ii). Additionally, the
Grantee shall use status monitoring equipment at all power supply locations
in the System. Such equipment shall have the capabilities described in
Section 4-106(1a)(viii).
(6) PEG channels shall not be channel mapped without the prior approval of
the City. As to all other channels, the Grantee shall make good faith
efforts to avoid channel mapping unless that mapping is required to deliver
a high-quality signal or to comply with applicable laws or regulations. In
the event mapping of non-PEG channels is required to deliver a high quality
signal or to comply with applicable laws or regulations, the Grantee agrees
to map as few channels as possible.
(7) Emergency Alert System.
(a) The Grantee shall install and
thereafter maintain an Emergency Alert System (“EAS”) fully compliant with
local, state and federal EAS requirements. This EAS shall at all times be
operated in compliance with FCC regulations.
(b) In the event that the City requires the Grantee to provide for local
activation of the EAS, the City may, from time to time, conduct reasonable
tests of the EAS. The City shall provide reasonable notice to the Grantee
prior to any test use of the EAS. The Grantee shall cooperate with the City
in any such test.
(8) During the design, walkout and
preliminary construction activities related to the System Upgrade, the
Grantee shall seek to identify the non-video interests of the business
community within the City and shall seek to quantify business community
demand for non-video services. Prior to making any final determination of
such demand, the Grantee shall solicit input from the City regarding the
location of business corridors that may desire such services. The Grantee
shall, in connection with the System Upgrade, install conduit adequately
sized to address future System rebuilds or System additions, with the intent
to obviate the need to reopen the Rights-of-Way for construction and
installation work.
(9) The City may request, as part of the System Upgrade, that the Grantee
remove from the Rights-of-Way, at its own expense, existing equipment, plant
and facilities that will not be used in the future, whether activated or
not. If any unused or deactivated equipment remains in Rights-of-Way after
such City request and the Grantee’s reasonable opportunity to remove, the
City may remove such plant, facilities and equipment at the Grantee’s
expense. The Grantee may appeal any request to remove existing equipment,
plant and facilities to the City Council and thereby stay City action until
a final decision is issued by the City Council. In the event existing
facilities, plant and equipment are left underground in the Rights-of-Way,
the City may require the Grantee to provide accurate maps showing the
location and the nature of the deactivated or unused facilities, plant and
equipment, if such information has not already been provided to the City.
(10) The Grantee shall not assert or otherwise raise any claim before a
court of competent jurisdiction or any administrative agency alleging that,
as of the Effective Date of this Franchise, the minimum System design and
performance requirements set forth in this Franchise are unenforceable under
or inconsistent with then current applicable laws or regulations, or any
orders or decisions of the FCC.
4-107 High-Speed Services.
(1) To the extent the Grantee can
lawfully provide high-speed Internet service via the System as a Cable
Service, the System shall provide such a service if the System is
technically capable of providing that service.
(2) The Grantee shall offer one (1) free residential Cable Modem or its
equivalent and free monthly Cable Modem service, including Internet access,
to the following entities if they cannot use the Institutional Network for
high-speed data transmission or Internet access: (i) each elementary and
secondary school located in City that is passed by the cable distribution
network; and (ii) all governmental institutions designated in Exhibit A. The
specified Cable Modems and monthly Cable Modem service shall be made
available to every consenting school and governmental institution within six
(6) months of the date that two-way high-speed Internet access is introduced
to Subscribers on a commercial basis.
4-108 System Construction Timetable.
(1) Grantee shall complete all
construction related to the System Upgrade (including the Institutional
Network) and shall fully activate the upgraded System on or before December
31, 2001. The Grantee shall provide for phased activation launches of the
subscriber network as Nodes are completed. Failure to timely complete such
construction shall be a violation of this Franchise.
(2) Within ninety (90) days after the Effective Date of this Franchise, the
Grantee shall commence application for necessary permits, licenses,
certificates and authorizations which are required in the conduct of its
business.
(3) Within ninety (90) days after the Effective Date of this renewed
Franchise, Grantee shall commence System preliminary construction, walkout,
electronic design, fiber design, and other associated System Upgrade steps,
and shall give written notice to the City upon commencement of such
activities.
(4) All construction shall be performed in accordance with applicable laws
and regulations, except where specifically waived by the City.
(5) The Grantee shall provide the City with notice prior to commencement of
steps of the System Upgrade in which possible service disruptions or
physical construction activities may occur, including but not limited to: (i)
tap pedestal replacements; (ii) amplifier/line extender pedestal
replacements; (iii) underground duct replacement; (iv) overlashing of aerial
fiber optic lines; and (v) underground placement or replacement of coaxial
cables.
(6) Upon completion of the System Upgrade initial design, the Grantee shall
make available to the City for review, on a confidential basis, a concise
description of the facilities proposed to be erected or installed, and
subscriber network design prints/map(s), which shall include at least the
following elements: (i) trunk and feeder design; (ii) fiber routes; (iii)
Node locations; (iv) standby power supply locations; and (v) areas of the
City to be served by each Node.
4-109 Periodic Progress Reporting. Following commencement
of construction of the System Upgrade or any similar major construction, the
Grantee shall, upon request of the City, meet with the City and provide an
update on the progress of the System Upgrade or other construction.
(1) Public Notification. Prior to
the beginning of the System Upgrade and periodically during each phase, the
Grantee shall inform the public and its Subscribers, through various means,
about: (i) the progress of the System Upgrade or major construction; (ii)
areas where construction crews will be working; and (iii) any expected
temporary interruptions to existing services which may occur.
(2) Delays in the System Upgrade. The Grantee shall not be excused from the
timely performance of its obligation to begin and complete any System
Upgrade within the time specified herein, except for the following
occurrences:
(a)Any “Force Majeure” situation,
as described herein; and
(b) Unreasonable failure or delay by the City to issue any permits or
permission upon a timely and complete application submitted to the City by
the Grantee or its contractor representative and tender of any required
permit fee.
(3) Consequences of Delays. Absent
a showing of excusable delay pursuant to subsection 4-109(2) above, should
the Grantee be unable to demonstrate the commencement or timely completion
of the System Upgrade by the times specified herein, or be unable to
reasonably justify any delays, then the Grantee shall be in violation of a
material provision of this Franchise and the City may, in its sole
discretion, either grant the Grantee an extension of time to complete such
construction, or implement any enforcement measures or penalties specified
in this Franchise or the City Code, including but not limited to revocation
of the Franchise. In the event of excusable delay pursuant to subsection
4-109(2), the time for completion will be extended by the period of such
delay.
4-110 Line Extension Requirements.
(1) Subject to subsection
4-109(2), the Grantee shall make Cable Service available to all residences,
businesses and other structures within the City, including multiple dwelling
unit buildings, whose owners or occupants request Cable Service, except for
multiple dwelling unit buildings to which the Grantee, after best efforts,
has not obtained authorization to access.
(2) Within the City’s boundaries,
including any areas annexed after the Effective Date of this Franchise, the
Grantee must extend its System upon request to provide service to any Person
or business upon request, without charging such Person or business more than
the Standard Installation charges for the individual Subscriber’s Drop, as
long as the following conditions are satisfied, unless the Grantee
demonstrates to the City's satisfaction that a waiver of this requirement is
justified due to extraordinary circumstances:
(a) the new Subscriber requesting
service is located 150 feet or less from the termination of the Cable
System; and
(b) the area of the City in which the new Subscriber resides has a density
of at least thirty-five (35) dwelling units per mile of feeder cable,
excluding Drop footage, when aerial construction is required for an
extension, and at least fifty (50) dwelling units per mile of feeder cable,
excluding Drop footage, when underground construction is required for an
extension. All areas that reach the applicable density requirement at any
time during the Franchise term shall be provided service upon reaching the
minimum density. The City, for its part, shall facilitate the extension of
service by requiring developers and utility companies to provide the Grantee
with at least fifteen (15) days advance notice of an available open trench
for the placement of necessary cable, but in no event shall the City have
any liability for its failure to require any Person to provide notice, or
for any developer's or utility company’s failure to provide advance notice
hereunder.
(3) In the event that the
requirements set forth in subsection 4-109(2) are not met, Persons
requesting service can be required to bear the remainder of the total
construction costs on a pro rata basis.
(a) The “total construction costs”
are defined as the Actual Cost to construct the entire extension including
electronics, pole make-ready charges and labor, but not the cost of the
house Drop.
(b) In the event the number of Subscribers in a particular area of the City
reaches the density specified in Section 4-110(2b) within three (3) years
from the date construction of the extension is completed, the Grantee shall
return to the then existing Subscribers, pro rata, the full amount of their
contributions for the extension.
(4) Irrespective of the density
requirements set forth in this Section 4-110, the Grantee shall continue to
offer Service to all dwelling units serviceable prior to the System Upgrade.
(5) The Grantee shall be given a reasonable period of time to construct and
activate cable plant to service annexed or newly developed areas, but in no
event shall the applicable timeframe exceed twelve (12) months from notice
thereof by the City to Grantee, and qualification of the area requesting
service pursuant to Section 4-110(2b).
4-111 System Maintenance.
(1) The Grantee shall interrupt
Service only for good cause and for the shortest time possible. Such
interruption shall occur during periods of minimum use of the System. The
Grantee shall use its best efforts to provide the City with at least
twenty-four (24) hours’ prior notice of a planned service interruption,
except for a planned service interruption which will have a minimal impact
on Subscribers, usually meaning affecting less than one hundred (100)
Subscribers or less than a fifteen (15) minute interruption.
(2) Maintenance of the System shall be performed in accordance with the
technical performance and operating standards established by FCC rules and
regulations. Should the FCC choose to abandon this field and does not
preempt the City’s entry into this field, the City may adopt such technical
performance and operating standards as its own, and the Grantee shall comply
with them at all times.
4-112 System Tests and Inspections; Special Testing.
(1) Grantee shall perform all
tests necessary to demonstrate compliance with the requirements of the
Franchise and other performance standards established by law or regulation.
(2) The City shall have the right to inspect all construction or
installation work performed pursuant to the provisions of the Franchise. In
addition, the City may require special testing of a location or locations
within the System if there is a particular matter of controversy or
unresolved complaints regarding System construction, operations or
installation work pertaining to such location(s). Such tests shall be
limited to the particular matter in controversy. The City shall endeavor to
so arrange its request for such special testing so as to minimize hardship
or inconvenience to the Grantee or to the Subscribers of such testing.
(3) Before ordering such tests, the Grantee shall be afforded thirty (30)
days following receipt of written notice to investigate and, if necessary,
correct problems or complaints upon which tests were ordered. The City shall
meet with the Grantee prior to requiring special tests to discuss the need
for such and, if possible, visually inspect those locations which are the
focus of concern. If, after such meetings and inspections, the City wishes
to commence special tests and the thirty (30) days have elapsed without
correction of the matter in controversy or resolution of complaints, the
tests shall be conducted at the Grantee’s expense by a qualified engineer
selected by the City and the Grantee, and Grantee shall cooperate in such
testing.
(4) Unless otherwise provided in this Franchise, tests shall be supervised
by the Grantee’s chief technical authority, who shall certify all records of
tests provided to the City.
(5) The Grantee shall provide the City with at least two (2) business days
prior written notice of, and opportunity to observe, any tests performed on
the System.
(6) Test results shall be filed with the City within fourteen (14) days of a
written request by the City.
(7) If any test indicates that any part or component of the System fails to
meet applicable requirements, the Grantee, without requirement of additional
notice or request from the City, shall take corrective action, retest the
locations and advise the City of the action taken and the results achieved
by filing a written report certified by the Grantee's chief technical
authority.
4-113 Drop Testing and Replacement. The Grantee shall
replace, at no separate charge to an individual Subscriber, all Drops and/or
associated passive equipment incapable of passing the full 750 MHz System
capacity at the time a Subscriber upgrades service to a level which requires
a signal above the 550 MHz spectrum.
4-114 FCC Reports. Unless otherwise required by the terms
of this Franchise, the results of any tests required to be filed by Grantee
with the FCC or in the Grantee’s public file shall upon request of the City
also be filed with the City within ten (10) days of the request.
4-115 Nonvoice Return Capability. Grantee is required to
use cable and associated electronics having the technical capacity for
nonvoice return communications.
4-116 Lockout Device. Upon the request of a Subscriber,
the Grantee shall make a Lockout Device available at no additional charge,
other than a charge for a Converter.
4-117 Types of Service. Should the Grantee desire to
change the selection of programs or services offered on any of its tiers, it
shall maintain the mix, quality and level of services provided over the
System. Any change in programs or services offered shall comply with all
lawful conditions and procedures contained in this Franchise and in
applicable law or regulations.
4-118 Uses of System. The Grantee shall, upon request of
the City, advise the City of all active uses of the System, for both
entertainment and other purposes, and the City shall have the right to
conduct unannounced audits of such usage.
4-119 Additional Capacity. The Grantee shall notify the
City in writing, in advance of the installation of any fiber optic capacity
not contemplated by the initial design or System Upgrade, so that additional
fibers may be installed on an Actual Cost basis for government and
institutional use. If the City wishes to request additional fiber, it may
notify the Grantee within fifteen (15) days of receipt of the Grantee’s
notification.
4-120 Service Provisions.
(1) Customer Service Standards.
The Grantee shall at all times comply with FCC customer service standards.
In addition, the Grantee shall at all times satisfy all additional or
stricter customer service requirements included in this Franchise and any
customer service requirements set forth in any ordinance or regulation
lawfully enacted by the City.
(2) Video Programming. Except as otherwise provided in this Franchise or in
applicable law, all programming decisions remain the discretion of the
Grantee, provided that the Grantee notifies the City and Subscribers in
writing thirty (30) days prior to any channel additions, deletions or
realignments unless otherwise permitted under applicable federal, State and
local laws and regulations. Grantee shall cooperate with City and use best
efforts to provide all Subscriber notices to the City prior to delivery to
Subscribers. Location and relocation of the PEG channels shall be governed
by Sections 4-121(1c) and 4-121(1d).
(3) Regulation of Service Rates.
(a) The City may regulate rates
for the provision of Cable Service, equipment or any other communications
service provided over the System to the extent allowed under federal or
State law(s). The City reserves the right to regulate rates for any future
services to the extent permitted by law.
(b) The Grantee shall provide at least one billing cycle prior written
notice (or such longer period as may be specified in FCC regulations) to
Subscribers and to the City of any changes in rates, regardless of whether
or not the Grantee believes the affected rates are subject to regulation,
except to the extent such notice requirement is specifically waived by
governing law. Bills must be clear, concise and understandable, with
itemization of all charges.
(4) Sales Procedures. The Grantee
shall not exercise deceptive sales procedures when marketing Services within
the City. In its initial communication or contact with a Subscriber or a
non-Subscriber, and in all general solicitation materials marketing the
Grantee or its Services as a whole, the Grantee shall inform the
non-Subscriber of all levels of Service available, including the lowest
priced and free service tiers. The Grantee shall have the right to market
door-to-door during reasonable hours consistent with local ordinances and
regulations.
(5) Subscriber Inquiry and Complaint Procedures. The Grantee shall have a
publicly listed toll-free telephone number which shall be operated so as to
receive general public and Subscriber complaints, questions and requests on
a twenty-four (24) hour-a-day, seven (7) days-a-week, 365 days a year basis.
Trained representatives of the Grantee shall be available to respond by
telephone to Subscriber and service inquiries.
(a) The Grantee shall maintain
adequate numbers of telephone lines and personnel to respond in a timely
manner to schedule service calls and answer Subscriber complaints or
inquiries in a manner consistent with regulations adopted by the FCC and the
City where applicable and lawful. Under Normal Operating Conditions,
telephone answer time by a customer representative, including wait time,
shall not exceed thirty (30) seconds when the connection is made. If the
call needs to be transferred, transfer time shall not exceed thirty (30)
seconds. These standards shall be met no less than ninety (90) percent of
the time under Normal Operating Conditions, measured on a quarterly basis.
Under Normal Operating Conditions, the customer will receive a busy signal
less than three (3) percent of the time.
(b) Subject to the Grantee's obligations pursuant to law regarding privacy
of certain information, the Grantee shall prepare and maintain written
records of all complaints received from the city and the resolution of such
complaints, including the date of such resolution. Such written records
shall be on file at the office of the Grantee. The Grantee shall provide the
City with a written summary of such complaints and their resolution upon
request of City. As to Subscriber complaints, Grantee shall comply with FCC
record-keeping regulations, and make the results of such record-keeping
available to the City upon request.
(c) Excluding conditions beyond the control of the Grantee, the Grantee
shall commence working on a service interruption within twenty-four (24)
hours after the service interruption becomes known and pursue to conclusion
all steps reasonably necessary to correct the interruption. The Grantee must
begin actions to correct other service problems the next business day after
notification of the service problem, and pursue to conclusion all steps
reasonably necessary to correct the problem.
(d) The Grantee may schedule appointments for Installations and other
service calls either at a specific time or, at a maximum, during a four-hour
time block during the hours of 9:00 a.m. to 8:00 p.m., Monday through
Friday, and 9:00 a.m. to 5:00 p.m. on Saturdays. The Grantee may also
schedule service calls outside such hours for the convenience of customers.
The Grantee shall use its best efforts to not cancel an appointment with a
customer after the close of business on the business day prior to the
scheduled appointment. If the installer or technician is late and will not
meet the specified appointment time, he/she must use his/her best efforts to
contact the customer and reschedule the appointment at the sole convenience
of the customer. Service call appointments must be met in a manner
consistent with FCC standards.
(e) The Grantee shall respond to written complaints from the City in a
timely manner, and provide a copy of each response to the City within thirty
(30) days. In addition, the Grantee shall respond to all written complaints
from Subscribers within (30) days of receipt of the complaint.
(6) Subscriber Contracts. The
Grantee shall file with the City any standard form Subscriber contract
utilized by Grantee. If no such written contract exists, the Grantee shall
file with the City a document completely and concisely stating the length
and terms of the Subscriber contract offered to customers. The length and
terms of any Subscriber contract(s) shall be available for public inspection
during the hours of 9:00 a.m. to 5:00 p.m., Monday through Friday.
(7) Service Credit.
(a) In the event a Subscriber
establishes or terminates service and receives less than a full month's
service, Grantee shall prorate the monthly rate on the basis of the number
of days in the period for which service was rendered to the number of days
in the billing cycle.
(b) If, for any reason, Service is interrupted for a total period of more
than twenty-four (24) hours in any thirty (30) day period, Subscribers
shall, upon request, be credited pro rata for such interruption.
(8) Refunds or Credits.
(a) Any refund checks shall be
issued promptly, but not later than either:
(i) the Subscriber’s next billing
cycle following resolution of the request or thirty (30) days, whichever is
earlier; or
(ii) the return of the equipment supplied by the Grantee if Service is
terminated.
(b) Any credits for Service shall
be issued no later than the Subscriber’s next billing cycle following the
determination that a credit is warranted.
(9) Late Fees. Fees for the late
payment of bills shall not be assessed until after the Service has been
fully provided. Late fee amounts on file with City shall not be adjusted by
the Grantee without the City’s prior approval.
(10) Notice to Subscribers.
(a) The Grantee shall provide each Subscriber at the time
Cable Service is installed, and at least every twelve (12) months
thereafter, the following materials:
(i) instructions on how to use the Cable Service;
(ii) billing and complaint procedures, and written
instructions for placing a service call, filing a complaint or requesting an
adjustment (including when a Subscriber is entitled to refunds for outages
and how to obtain them);
(iii) a schedule of rates and charges, channel positions
and a description of products and services offered, including any free or
universal service;
(iv) prices and options for programming services and
conditions of subscription to programming and other services; and
(v) a description of the Grantee’s installation and service
maintenance policies, Subscriber privacy rights, internet/Cable Modem
policies and privacy rights (only at installation of such service),
delinquent Subscriber disconnect and reconnect procedures and any other of
its policies applicable to Subscribers.
(b) Copies of materials specified in the preceding
subsection shall be provided to the City upon request.
(c) All Grantee promotional materials, announcements and
advertising of Cable Service to Subscribers and the general public, where
price information is listed in any manner, shall be clear, concise, accurate
and understandable
(11) Exclusive Contracts and Anticompetitive Acts
Prohibited.
(a) The Grantee may not require a residential Subscriber to
enter into an exclusive contract as a condition of providing or continuing
Cable Service.
(b) The Grantee shall not engage in acts prohibited by
federal or State law that have the purpose or effect of limiting competition
for the provision of Cable Service in the City.
(12) Office Availability and Drop Boxes.
(a) The Grantee shall install, maintain and operate,
throughout the term of this Franchise, a single drop box at a location
agreed upon by the City and the Grantee. Additional drop boxes may be
installed at other locations. Drop boxes shall be emptied at least once a
day, Monday through Friday, with the exception of legal holidays, and
payments shall be posted to Subscribers’ accounts within forty-eight (48)
hours of pick-up. Subscribers shall not be charged a late fee or otherwise
penalized for any failure by the Grantee to empty a drop box as specified
herein, or to properly credit a Subscriber for a payment timely made.
(b) After consultation with and approval by the City, the
Grantee shall provide Subscribers with at least sixty (60) days’ prior
notice of any change in the location of the customer service center(s)
serving the Coon Rapids System, which notice shall apprise Subscribers of
the customer service center's new address, and the date the changeover will
take place.
4-121 Access Channel(s) Provisions
(1) Public, Educational and Government Access.
(a) The City is hereby designated to operate, administer,
promote, and manage PEG access programming on the Cable System.
(b) The Grantee shall continue to dedicate and make
available six (6) 6 MHz analog video channels for public, educational,
governmental and religious use. The six (6) 6 MHz PEG Access Channels shall
be allocated as follows on the Effective Date of this Franchise:
(i) one (1) full-time 6MHz analog video channel for
Noncommercial City Government Access Channel use;
(ii) one (1) full-time 6 MHz analog video channel for
Noncommercial Public Access Channel use; and
(iii) four (4) full-time 6 MHz analog video channels for
Noncommercial Public, Educational, religious and/or Government Access
Channel use, to be programmed by the City, in its sole discretion.
The City shall have the right to rename, reprogram or
otherwise change the use of these channels at any time, in its sole
discretion, provided such use is Noncommercial and public, educational,
governmental or religious in nature. Nothing herein shall diminish any
rights of the City to secure additional PEG channels pursuant to Minn. Stat.
§238.084, which is expressly incorporated herein by reference.
The City agrees to loan to Grantee two of the six PEG
access channels, currently identified for illustrative purposes only as
Channels 60 and 61, for cablecast of programming for any lawful purposes
until the City gives written notice requesting return of control and use of
either or both channels. Such notice shall be given at least twelve (12)
months prior to the date for actual and effective return of control and use
of either or both Channels 60 and 61. If Grantee’s contract for the
programming service on such channel(s) is scheduled to expire in less than
twelve (12) months from the date of such notice, Grantee shall return
control of the channel to the City when the programming contract expires,
provided that in no event shall Grantee be required to return control of the
channel to City in less than ninety (90) days from the date written notice
is given to Grantee. Notice for the return of one channel shall not be
construed as a waiver of the right to require the return of the second
channel at a later date. Grantee agrees its obligation to return use and
control of Channels 60 and 61 is otherwise unconditional, and not dependent
on any showing of need or cause. The Grantee further agrees that when one or
both of these channels are returned for use by the City, such channels shall
be received by all Subscribers.
(c) Public Access Channel 15 and Government Access Channel
16 shall not be relocated without the consent of the City. If the City
agrees to change the channel designation for Public Access Channel 15 and/or
Government Access Channel 16, the Grantee must provide at least three (3)
months notice to the City prior to implementing the change, and shall
reimburse the City and/or PEG entity for any reasonable costs incurred for:
(i) purchasing or modifying equipment, business cards and signage; (ii) any
marketing and notice of the channel change that the City reasonably
determines is necessary; (iii) logo changes; and (iv) promoting, marketing
and advertising the channel location of the affected PEG channel(s) during
the twelve-month period preceding the effective date of the channel change.
Alternatively, the Grantee may choose to supply necessary equipment itself,
provided such equipment is satisfactory to the City or PEG entity.
(d) Prior to the completion of the System Upgrade, the
Grantee shall have the right to relocate each of the PEG channels (other
than Public Access Channel 15 and Government Access Channel 16) one time
without the City’s consent, and without reimbursing the City for any costs
it incurs as a result of the relocation. If a qualified PEG channel has been
relocated once without City approval, that channel may not be moved again
unless: (i) the City has consented to the move; and (ii) the Grantee
reimburses the City and/or a PEG entity for all reasonable costs of such
move, as described below, and provides at least three (3) months notice to
the City before making the change in channel designation. After the System
Upgrade is completed, no PEG channel shall be relocated without the mutual
consent of the City and the Grantee. If the Grantee and the City agree to
change the channel designation for a PEG channel, the Grantee must provide
at least three (3) months notice to the City prior to implementing the
change, and shall reimburse the City and/or PEG entity for any reasonable
costs incurred for: (i) purchasing or modifying equipment, business cards
and signage; (ii) any marketing and notice of the channel change that the
City reasonably determines is necessary; (iii) logo changes; and (iv)
promoting, marketing and advertising the channel location of the affected
PEG channel(s) during the twelve-month period preceding the effective date
of the channel change. Alternatively, the Grantee may choose to supply
necessary equipment itself, provided such equipment is satisfactory to the
City or PEG entity. Notwithstanding anything to the contrary, the Grantee
shall not be required to repay any school for any on-premises school
expenses that arise out of any PEG channel relocation.
(e) The Grantee shall provide, install and maintain (at no
cost to the City) all equipment, facilities and software necessary to allow
the City to independently insert PEG programming on the PEG channel known on
the Effective Date as 57, without overriding the programming carried on that
channel outside the Coon Rapids System. If the City requests return of
either or both of the loaned channels identified in subsection (b) above,
the obligation described in this subsection (e) shall at that time apply to
the identified channel(s) as well.
(f) As long as the Grantee’s System carries Basic Cable
Service channels in analog form, the Grantee must make the PEG channels
available in analog form to Subscribers within the City. If and when the
Grantee’s Cable System carries PEG channels in digital form, those digital
PEG channels must be made available as a digital service to all Subscribers
in the City. At all times, the Grantee’s Cable System must make the PEG
channels available to all Basic Cable Service Subscribers residing within
the City in at least one format (digital or analog); thus, the Grantee shall
make the PEG channels available to all such Subscribers in analog form
unless and until it makes Basic Cable Service channels available to
Subscribers only in digital form. If the Grantee opts to carry PEG channels
in a digital format, it shall assume the cost of replacing all equipment
necessary to ensure that PEG signals can be produced and transmitted on the
Grantee’s digital service tier.
(g) In the event the Grantee makes any change in the System
and related equipment and facilities or in signal delivery technology, which
change directly or indirectly causes the signal quality or transmission of
PEG channel programming or PEG services to fall below technical standards
under applicable law, the Grantee shall, at its own expense, provide any
necessary technical assistance, transmission equipment and training of PEG
personnel, and in addition, provide necessary assistance so that PEG
facilities may be used as intended, including, among other things, so that
live and taped programming can be cablecasted efficiently to Subscribers.
(h) All PEG channels shall be transmitted in the same
format as all other Basic Cable Service channels and shall be carried on the
Basic Service tier.
(i) The City shall be responsible for switching PEG signals
and Institutional Network transmissions.
4-122 PEG Support Obligations.
(1) Beginning on the Effective Date, the Grantee shall pay
to the City PEG support of the greater of (i) $200,000 per year, or (ii) an
amount equal to $1.50 per Subscriber per month from all Subscribers
receiving and paying for Basic Cable Service from Grantee. The Grantee may
recover the amount of this PEG support obligation via an itemization on
Subscriber billing statements (“PEG Fee”). The Grantee shall apply one PEG
Fee on the master account for services delivered to non-dwelling bulk
accounts, such as hotels, motels or hospitals. The Grantee shall calculate
PEG Fees on a pro rata basis for bulk accounts in residential multiple
dwelling unit (“MDU”) buildings in the following manner: if the bulk rate
for Basic Cable Service is one third (1/3) of the current residential rate,
then a pro rated PEG Fee shall be added to the bulk bill for an MDU building
in an amount equal to one third (1/3) of the current PEG Fee. If the bulk
rate for Basic Cable Service is raised in any MDU building, the pro-rated
PEG Fee in that building shall be recalculated and set based on the
foregoing formula, regardless of any cap on per Subscriber PEG Fee amounts.
On the first four anniversaries of the Effective Date, the City may increase
the $1.50 per subscriber aspect of the PEG Fee identified in item (ii) above
by the amount of the CPI or three (3) percent, whichever is less. On the
fifth anniversary of the Effective Date, the City may increase the $1.50 per
subscriber aspect of the PEG Fee identified in item (ii) above to an amount
not to exceed $2.00. From the sixth through the fourteenth anniversaries of
the Effective Date, the City may increase the $1.50 per subscriber aspect of
the PEG Fee identified in item (ii) above by the amount of the CPI or three
(3) percent, whichever is less. Through calendar year 2000, an estimated PEG
Fee shall be prepaid to the City on a quarterly basis, no later than thirty
(30) days prior to the beginning of each calendar quarter. The estimated PEG
Fee shall be reconciled annually to reflect actual PEG Fee receipts by the
Grantee, subject to more frequent reconciliation ordered by the City. Any
amounts due to the City as a result of a reconciliation shall be paid by the
Grantee to the City within thirty (30) days following written notice to the
Grantee by the City of the underpayment. If reconciliation discloses an
overpayment by the Grantee, the Grantee may credit the amount of any
overpayment against its next quarterly PEG Fee payment. Beginning in
calendar year 2001, payments for the PEG Fee pursuant to this subsection
shall be made quarterly on the same schedule as franchise fee payments.
(2) In the event any payment required by subsection (a) is
not made on or before the required date, the Grantee shall pay, during the
period such unpaid amount is owed, additional compensation and interest
charges computed from such due date, at an annual rate of ten percent (10%).
The Grantee waives any right to claim that any interest or penalties imposed
hereunder constitute franchise fees within the meaning of 47 U.S.C. §542.
Failure to pay required PEG Fees shall also be a violation of this
Franchise, subject to all sanctions herein.
(3) In connection with the System Upgrade, the Grantee
shall, at the City’s expense, on an Actual Cost basis, provide and install
state-of-the-art modulators and demodulators at City Hall and the high
school located within the City. These modulators and demodulators shall be
maintained and repaired by the Grantee at its sole expense during the term
of this Franchise.
(4) The Grantee shall at all times provide, at no cost to
the City, bidirectional fiber-optic links between the hub for the Coon
Rapids System and the following locations: (i) City Hall; and (ii) a PEG
studio designated by the City. Each link shall originate at the address in
Exhibit A, run through the City’s master control center and terminate at the
Grantee’s hub serving the City. Within eighteen (18) months of the Effective
Date, the Grantee shall, with respect to the fiber-optic links, provide and
install, at no cost to the City, at the Grantee’s hub or headend, as
applicable, and each site specified above, all equipment, software and
materials for amplification, conversion, receiving, transmitting, routing
and processing of signals to be used for PEG or I-Net purposes. The Grantee
shall continue to have this obligation regardless of where the City’s master
control or the pertinent headend or hub is located.
(5) The Grantee shall at all times provide and maintain,
at no cost to the City, fiber-optic links between (A) the City’s master
control center at City Hall, and (B) locations on the I-Net designated by
the City for remote originations. The City must be able to use these links
to send a signal upstream via the Institutional Network to the appropriate
access control center(s), so that the signals may be routed onto the
appropriate PEG or I-Net channel. The Grantee shall bear the cost of
providing an agile modulator.
4-123 PEG Access Capital Grants. The Grantee shall make
the following capital support payments:
(1) A one-time payment of $300,000 (the “Initial Capital
Support Grant”) to be used for PEG facilities and/or PEG equipment
(including, but not limited to, studio and portable production equipment,
editing equipment and program playback equipment). The City, in its sole
discretion, shall allocate the Initial Capital Support Grant among City
agencies and departments, and any PEG access entities. Payment of the
Initial Capital Support Grant shall be made to the City in one lump sum
within six (6) months of the Effective Date of this Franchise. The Grantee
may (i) treat the Initial Capital Support Grant as a franchise requirement
and (ii) pass the amount paid pursuant to this paragraph through to
Subscribers as an external cost, and may itemize the amount attributable to
the Initial Capital Support Grant on subscriber’s monthly bills, either as
part of the PEG Fee line item or as a separate line item, all in accordance
with applicable federal law. The amounts recovered by the Grantee hereunder
shall not reduce the PEG Fee.
(2) A one-time, lump sum payment of $300,000 (the
“Supplemental Capital Support Grant”) on the seventh anniversary of the
Effective Date of this Franchise. The Supplemental Capital Support Grant
shall be used by the City for PEG facilities and/or PEG equipment
(including, but not limited to, studio and portable production equipment,
editing equipment and program playback equipment). The City, in its sole
discretion, shall allocate the Supplemental Capital Support Grant among City
agencies and departments, and any PEG access entities. The Grantee may
recover the cost of the Supplemental Capital Support Grant in its rates, and
may itemize the amount attributable to the Supplemental Capital Support
Grant on Subscribers’ monthly bills, either as part of the PEG Fee line item
or as a separate line item, all in accordance with applicable federal law.
The amount recovered by the Grantee each month pursuant to this paragraph
shall not reduce the PEG Fee.
4-124 Regional Channel. The Grantee shall designate
standard VHF Channel 6 for uniform regional channel usage to the extent
required by State law.
4-125 Leased Access Channels. The Grantee shall provide
Leased Access Channels as required by federal and State law.
4-126 Universal PEG Tier
(1) The Grantee shall offer the following services and
benefits to all current and potential Subscribers whose dwelling units are
passed by cable plant: (i) the Universal PEG Tier, free of charge; (ii) free
Installation of a service Drop; and (iii) one free cable television outlet.
(2) The Universal PEG Tier shall be offered by the Grantee
for the term of the Franchise, unless the Grantee (or its successors) and
the City mutually agree to suspend or terminate the Universal PEG Tier
program.
(3) The Grantee agrees to provide, at no cost to Universal
PEG Tier Subscribers, an A/B switch and all cable-related equipment
necessary to allow reception of local broadcast stations on a Universal PEG
Tier Subscriber’s television receiver, provided said television receiver is
capable of receiving broadcast television signals. For purposes of this
provision, the term “cable-related equipment” shall not include antennas,
antenna wires, video cassette recorders or similar devices.
(4) The Grantee and the City agree that the rates charged
to Subscribers will not increase as a result of the Grantee’s implementation
of the Universal PEG Tier program, except that the Grantee may recover the
expense of the Universal PEG Tier as part of the PEG Fee itemization on
Subscribers’ monthly billing statements. The amount recovered by the Grantee
each month shall not exceed $0.07 per Subscriber, shall not reduce the PEG
Fee and shall not be subject to the PEG Fee Cap. Upon activation of the
Universal PEG Tier, and each year thereafter, the Grantee shall provide the
City with a reconciliation of amounts collected and expended related to the
provision of the Universal PEG Tier. The Grantee agrees to adjust the
Universal PEG Tier fee for any overpayment or underpayment.
(5) Notice of the availability of the Universal PEG Tier
shall be provided in the informational package that is provided to
Subscribers on an annual basis, and in promotional materials that shall be
sent to potential Subscribers each year.
(6) Should a Universal PEG Tier Subscriber require or
request a set-top terminal device or other equipment not essential to the
reception of the Universal PEG Tier, or should a Universal PEG Tier
Subscriber require a Drop that exceeds 150 feet in length, the Universal PEG
Tier Subscriber shall be responsible for paying the regulated charges for
such equipment, and for the additional costs associated with installing a
drop in excess of 150 feet. “Additional costs,” as used in this paragraph,
shall mean the Grantee's total Installation costs, less the Installation
costs that the Grantee would incur by constructing a standard 150-foot Drop.
(7) For purposes of this Section 6.6, the following
definitions shall apply:
(a) “Universal PEG Tier” shall mean all PEG channels
identified in this Franchise or subsequently added pursuant to the
Franchise.
(b) “Drop” shall mean an aerial or underground cable, not
to exceed 150 feet in length, that runs from the nearest connection point on
a feeder cable to the point of connection in a Subscriber’s dwelling unit.
4-127 Grantee Use of PEG Studio.
(1) The City owns and operates a PEG studio and related
facilities in City Hall. The Grantee may use the City’s studio and
associated equipment, free of charge, after (i) filing a written request
with the City, and (ii) receiving the written approval of the City. The
City, in its sole discretion, may approve or deny any request filed by the
Grantee. As part of any approval, the City will designate the times and
dates that the Grantee may utilize the PEG studio. The Grantee may choose
one or more of these times and dates to utilize the City’s PEG studio, and
shall provide the City with prior written notice of the times and dates, if
any, it selects. Any use of the PEG studio and PEG equipment by the Grantee
shall be subordinate to the City’s or any PEG entity’s use thereof, and the
City may cancel any program production or other work scheduled by the
Grantee for any reason; provided that twelve (12) hours’ prior notice of
cancellation is furnished to the Grantee.
(2) In using the City’s PEG studio and equipment, the
Grantee shall be solely responsible for:
(a) preparing scripts or other written materials needed for
a particular program production;
(b) supplying all personnel necessary for production and/or
editing;
(c) purchasing and/or constructing and delivering any sets
or backdrops that are needed for a particular program production, if the
City’s standard sets and backdrops are not adequate;
(d) producing any video footage or graphics to be included
in a particular program;
(e) providing any food and/or beverages to be consumed by
program participants;
(f) booking and transporting guests for program
productions, and paying any guest’s appearance or speaking fees; and
(g) ensuring that all work begins and ends at the time(s)
prescribed by the City.
(3) The Grantee and its producers shall be responsible for
obtaining any required authorization(s) for the use of materials requiring
rights from broadcast stations, national networks, sponsors, music licensing
organizations, performers’ representatives, authors, composers and copyright
or trademark owners. Likewise, the Grantee and its producers shall obtain
any authorizations necessary for the appearance of or reference to a Person
in a particular program.
(4) The Grantee agrees to indemnify, defend and hold
harmless the City and its officers, committees, boards, commissions,
commissioners, elected and appointed officials, employees, agents and
volunteers from and against any and all losses, liabilities, claims,
obligations, costs and expenses (including attorney’s fees) (i) which arise
from or in connection with any claim that the content of the programming
produced by the Grantee at the City’s studio facilities infringes any
criminal or civil law, copyright, trademark, trade name, trade secret or
service mark or is obscene, defamatory or violates any rights of publicity
or privacy, (ii) which arise from or in connection with any breach of
contractual obligations to third parties, (iii) which arise from or in
connection with claims for failure to comply with applicable federal laws,
rules, regulations or other requirements of local, state or federal
authorities, or (iv) for any other injury or damage in law or equity which
claims result from the Grantee’s use of the City’s studio facilities and
equipment.
(5) The Grantee agrees that in using the City’s studio
facilities and equipment, it shall at all times comply with applicable laws,
standards, policies, rules and procedures, and any amendments thereto.
(6) Nothing in Sections 4-121 to 4-129 shall be deemed to
create or continue a First Amendment forum and the City’s studio facilities
shall not be treated as such a forum. By executing this Franchise, the
Grantee waives any rights it may have to assert that any actions of the City
violate its First Amendment rights.
4-128 PEG Obligations. Except as expressly provided in
this Franchise, the Grantee shall not make any changes in PEG support or in
the transmission, reception and carriage of PEG channels and equipment
associated therewith, without the consent of the City.
4-129 Costs and Payments not Franchise Fees. The parties
agree that any costs to the Grantee associated with the provision of support
for PEG access or the Institutional Network pursuant to Sections 4-121
through 4-136 of this Franchise do not constitute and are not part of a
franchise fee and fall within one or more of the exceptions to 47 U.S.C.
§542.
4-130 Institutional Network (I-NET) Provisions and Related
Commitments
(1) Institutional Network Facilities and Capacity.
(a) Except as modified in this Section, the Grantee shall,
at its sole expense, continuously operate and maintain the Institutional
Network that was constructed pursuant to the terms of the Prior Franchise
and any amendments thereof. Every institution within the City that is (i)
connected to the I-Net as of the Effective Date and (ii) listed in Exhibit A
(the “Coaxial I-Net Sites”) shall continue to be served by the I-Net, at no
charge to the City or any institution. The City (and its departments and
agencies), and all institutions located at the Coaxial I-Net Sites (the
“I-Net Users”) shall have exclusive use of all I-Net capacity, to the extent
provided in Section 4-131. I-Net Users may not sell or resell services or
capacity to any third party. However, I-Net Users may provide services to
themselves, including those which the Grantee otherwise sells to others. The
limitations of this paragraph shall not prevent the City or I-Net Users from
subleasing, bartering, selling, reselling or giving away capacity on the
Institutional Network to any other public or nonprofit entity for
noncommercial purposes that do not directly compete with any products or
services offered by the Grantee.
(2) The I-Net shall continue to provide 450 MHz of
activated capacity with no less than 56 standard video (6 MHz) channels (25
upstream channels and 31 downstream channels) to the Coaxial I-Net Sites.
Any existing amplifiers that will be used in the I-Net shall be retuned and
tested before the date set forth in Section 4-108(1) of this Franchise. If
any amplifier does not pass the Grantee’s performance test(s), the Grantee
shall take all steps necessary to meet applicable standards, and the
affected amplifier shall be retested. At the City’s request, the Grantee
shall send the City the results of each test conducted under this paragraph.
(3) All I-Net distribution system power supplies shall
have the standby capability of providing at least three (3) hours of backup
power. Prior to battery failure, the Grantee shall connect I-Net power
supplies to portable generators capable of producing adequate electrical
current until commercial power is restored.
(4) After the Effective Date, any governmental, public or
educational institutions designated by the City shall be connected to the
I-Net via coaxial cable, if such institutions agree to reimburse the Grantee
for its Actual Costs of installing an I-Net connection.
(5) Except as otherwise provided in Sections 4-130 through
4-136, the Grantee shall, at all times provide, at no cost to the City, the
fiber-optic or other cabling, switching systems and other electronics,
equipment, software and other materials necessary to route I-Net signals to
and from institutions and to and from institutions to Subscribers. The
Grantee shall continue to have this obligation regardless of where the
City’s master control or the pertinent headend or hub is located.
4-131 Grantee’s Use of I-Net Capacity. The I-Net shall be
for the exclusive use of the City and I-Net Users throughout the term of the
Franchise. Notwithstanding the foregoing, the Grantee may use capacity on
the I-Net, including for lease or other commercial purposes, provided that
the City and I-Net Users are not using such capacity and further provided
that the Grantee’s use does not interfere with use of the I-Net by the City
or I-Net Users. Upon receiving oral or written notice from the City, the
Grantee or a lessee shall immediately cease using the I-Net for any purpose
that the City, in its sole discretion, determines is interfering with I-Net
Users’ communications. Use of the I-Net by the City and I-Net Users shall,
at all times, have priority over any use(s) by the Grantee or any lessee.
The Grantee or a lessee shall terminate its use of any channel capacity on
the I-Net within three (3) months after receiving notice from the City that
the City or any I-Net User has determined to use such capacity. Any
agreement entered into by the Grantee and a third party for the lease of
I-Net capacity shall be subject to the terms and conditions of this
Franchise.
4-132 I-Net Performance Standards. The Grantee shall
maintain the I-Net in accordance with technical and performance standards
set forth in Exhibit B (I-Net Performance Standards), which is made a part
hereof. The Grantee shall provide the City, or its designee, upon request,
with reports of the performance of the I-Net and the Grantee's compliance
with the aforementioned technical and performance standards.
4-133 Institutional Network Security. The Grantee and the
City shall at all times use reasonable efforts to protect the security of
the Institutional Network. For purposes of this paragraph, “to protect
security” means to protect those physical elements of the Institutional
Network under the party’s direct control from unauthorized intrusion, signal
theft, tampering, wiretapping or other actions that might: (i) compromise
the integrity of or degrade the signals carried over the Institutional
Network; or (ii) result in the unauthorized interception and disclosure of
information.
4-134 Institutional Network Repair and Maintenance.
(1) The Grantee shall maintain, repair, reconstruct and,
as necessary, replace coaxial I-Net links and shall recover the Actual Cost
for such activities from the City.
(2) The Grantee shall maintain, repair, reconstruct and,
as necessary, replace Institutional Network plant as described in subsection
(i) and (ii) below at no cost to the City during the term of this Franchise
or any extension thereof:
(a) preventative and routine maintenance of the I-Net shall
be performed in the same timeframe and in the same fashion as routine and
preventative maintenance are performed for the Grantee’s subscriber network.
Actual or potential problems discovered during the course of preventative
and routine maintenance shall be immediately reported to the City. After
informing the City of an actual or potential problem, the Grantee shall,
within a reasonable period of time, prepare and transmit a report to the
City describing the corrective action, if any, that was or will be taken.
(b) within ten (10) minutes of receiving notice or
otherwise learning of a maintenance or repair problem, the Grantee’s
technicians shall begin actively working on the problem. The Grantee shall
work on the problem continuously until it is resolved. Notwithstanding the
above, the Grantee shall meet the network availability standard described in
Exhibit B for each Coaxial I-Net Site.
4-135 Interconnection and Use of Adjacent Institutional
Networks.
(1) Concurrent with the System Upgrade, the Grantee shall
construct interconnection links to the Institutional Networks of Grantee’s
Systems serving: (i) the City of Columbia Heights, Minnesota; (ii) the
member cities of the Quad Cities Cable Communications Commission; (iii) the
member cities of the North Metro Telecommunications Commission; and (iv) the
member cities of the Northwest Suburban Cable Communications Commission
(“Adjacent Institutional Networks”). Each interconnection link shall be
completed within a reasonable timeframe mutually agreed upon by the City and
the Grantee, unless an extension is granted upon petition by the Grantee.
The Grantee shall be responsible for switching all signals carried over the
interconnection links described in this paragraph, including signals that
are originated by or intended for the City or I-Net Users.
(2) Upon request of City and to the extent that Grantee
can reasonably obtain all requisite authorizations, the Grantee shall, at
the City’s expense and to the extent technically and economically feasible,
connect the Coon Rapids System to the State fiber optic network constructed
pursuant to the “Connecting Minnesota” project. This interconnection link
shall have the minimum characteristics and capabilities described in Section
4-135(3) of this Franchise.
(3) Every interconnection link established pursuant to
this Section 4-135 shall, at a minimum: (A) use a fiber optic transmission
medium; (B) allow for the seamless transmission of all required signals on
both systems; and (C) provide, for the City’s exclusive use, at least one
(1) 6 MHz channel for forward video purposes, one (1) 6 MHz channel for
return video purposes, one (1) 6 MHz channel for forward data and/or other
purposes and one (1) 6 MHz channel for return data and/or other purposes.
(4) The Grantee shall cooperate with any interconnection
corporation, regional interconnection authority, or state or federal agency
which may be hereafter established for the purpose of regulating,
facilitating, financing or otherwise providing for the interconnection of
cable systems beyond the boundaries of the City.
(5) At the City’s request, the Grantee shall use its best
efforts to obtain any required authorization from the North Metro
Telecommunications Commission and the Quad Cities Cable Communications
Commission (the “Adjacent Commissions”) which is necessary to allow the City
to utilize capacity on the Adjacent Institutional Networks. In the event the
Grantee is unable to obtain such authorization after using its best efforts,
or if the Adjacent Institutional Networks are not under the control of the
Adjacent Commissions, the Grantee shall provide the City with available
bandwidth on the Adjacent Institutional Networks, free of charge, as
follows: if capacity on the Adjacent Institutional Networks is available and
under the Grantee’s control (or if the Grantee has I-Net capacity available
to it under the terms of its franchises with the Adjacent Commissions) the
Grantee shall dedicate and furnish for City use the greater of 12 MHz of
bandwidth, or the maximum amount of bandwidth available and under Grantee's
control, up to 12 MHz. Upon request, the Grantee shall make additional
Adjacent Institutional Network capacity available to the City at Actual
Cost, provided that additional bandwidth is available and under the
Grantee’s control. In no event shall Grantee have any obligation or be
responsible for providing any additional equipment as a result of this
subsection.
4-136 Subscriber Network Drops to Designated Buildings.
(1) Grantee shall provide, free of charge, Installation
and activation of one (1) subscriber network Drop, and one (1) cable outlet
at those institutions currently receiving such facilities, and the
institutions identified and designated for such facilities in Exhibit A,
which is attached hereto and made a part hereof.
(2) The Grantee shall provide Basic Cable Service and any
equipment necessary to receive such service, free of charge, to those
institutions currently receiving Basic Cable Service, and the institutions
identified and designated for such service in Exhibit A. Institutions
currently receiving additional Cable Services from the Grantee shall
continue to receive those same services, or comparable services, during the
term of this Franchise, free of charge.
(3) Additional subscriber network Drops and/or outlets
will be installed at designated institutions by the Grantee on an Actual
Cost basis. Alternatively, said institution may add outlets at its own
expense, as long as such Installation meets the Grantee’s standards. The
Grantee shall have three (3) months from the date of City designation of
additional institution(s) to complete construction of the Drop and outlet,
unless weather or other conditions beyond the control of the Grantee require
more time.
4-137 Operation and Administration Provisions
(1) Administration of Franchise. The City’s designated
cable television administrator shall have continuing regulatory jurisdiction
and supervision over the System and the Grantee's operation under the
Franchise. The City may issue such reasonable rules and regulations
concerning the construction, operation and maintenance of the System as are
consistent with the provisions of the Franchise and law.
(2) Delegated Authority. The City may appoint a citizen
advisory body or may delegate to any other body or Person authority to
administer the Franchise and to monitor the performance of the Grantee
pursuant to the Franchise. The Grantee shall cooperate with any such
delegatee of the City.
(3) Franchise Fee.
(a)During the term of the Franchise, the Grantee shall pay
quarterly to the City or its delegatee a Franchise fee in an amount equal to
five percent (5%) of its Gross Revenues.
(b)Any payments due under this provision shall be payable
quarterly. The payment shall be made within thirty (30) days of the end of
each of Grantee’s fiscal quarters together with a report showing the basis
for the computation. The City shall have the right to require further
supporting information for each franchise fee payment.
(c)All amounts paid shall be subject to audit and
recomputation by City and acceptance of any payment shall not be construed
as an accord that the amount paid is in fact the correct amount. The Grantee
shall be responsible for providing the City all records necessary to confirm
the accurate payment of franchise fees. The Grantee shall maintain such
records for five (5) years, unless in the Grantee’s ordinary course of
business specific records are retained for a shorter period, but in no event
less than three (3) years. If an audit discloses an overpayment or
underpayment of franchise fees, the City shall notify the Grantee of such
overpayment or underpayment. The City’s audit expenses shall be borne by the
City unless the audit determines that the payment to the City should be
increased by more than five percent (5%) in the audited period, in which
case the costs of the audit shall be borne by the Grantee as a cost
incidental to the enforcement of the Franchise. Any additional amounts due
to the City as a result of the audit shall be paid to the City within thirty
(30) days following written notice to the Grantee by the City of the
underpayment, which notice shall include a copy of the audit report. If the
recomputation results in additional revenue to be paid to the City, such
amount shall be subject to a ten percent (10%) annual interest charge. If
the audit determines that there has been an overpayment by the Grantee, the
Grantee may credit any overpayment against its next quarterly payment.
(d)In the event any franchise fee payment or recomputation
amount is not made on or before the required date, the Grantee shall pay,
during the period such unpaid amount is owed, the additional compensation
and interest charges computed from such due date, at an annual rate of ten
percent (10%).
(e)Nothing in this Franchise shall be construed to limit
any authority of the City to impose any tax, fee or assessment of general
applicability.
(f)The franchise fee payments required by this Franchise
shall be in addition to any and all taxes or fees of general applicability.
The Grantee shall not have or make any claim for any deduction or other
credit of all or any part of the amount of said franchise fee payments from
or against any of said taxes or fees of general applicability, except as
expressly permitted by law. The Grantee shall not apply nor seek to apply
all or any part of the amount of said franchise fee payments as a deduction
or other credit from or against any of said taxes or fees of general
applicability, except as expressly permitted by law. Nor shall the Grantee
apply or seek to apply all or any part of the amount of any of said taxes or
fees of general applicability as
