HomeMy WebLinkAbout2537 Cable Franchise Communication SystemsOrdinance No. 2537
AN ORDINANCE OF THE CITY OF PORT TOWNSEND ADOPTING A
MASTER CABLE ORDINANCE GOVERNING THE PROVISION OF
CABLE COMMUNICATIONS SYSTEMS WITHIN THE CITY OF PORT
TOWNSEND; PROVIDING FOR DEFINITIONS, APPLICATION AND
FRANCHISE FEES, PUBLIC HEARING REQUIREmeNTS, MINIMUM
CONSTRUCTION AND SAFETY STANDARDS, RIGHTS-OF-WAY
REGULATIONS, NOTICE TO THE CITY PRIOR TO INCREASING
RATES, TRANSFER OF OWNERSHIP, REVOCATION OF FRANCHISE,
AND OTHER FRANCHISE PROVISIONS APPLYING TO ANY CABLE
FRANCHISEE OPERATING IN THE CITY OF PORT TOWNSEND
WHEREAS, this Master Cable Television Ordinance ("Master Ordinance") sets forth
regulatory procedures for granting a cable television franchise in compliance with the Federal
Cable Communications Policy Act, 47 U.S.C. § 521 et seq., the Telecommunications Act of
1996, and applicable Federal Communications Commission (FCC) Rules; and
WHEREAS, the Port Townsend City Council finds that the development of cable
television and communication systems has the potential of greatly benefiting and impacting city
of Port Townsend residents; and
WHEREAS, the City Council further finds that because of the complex and rapidly
changing technology associated with cable systems, the public's convenience, safety and general
welfare can best be served by establishing powers which should be vested in the City of Port
Townsend as provided in federal and state law; and
WHEREAS, it is the intent of this ordinance to regulate, in the public interest, the
operation of cable systems and the use of public rights-of-way, and to establish standards,
procedures and requirements to apply to all cable system franchisees operating within the city
limits of Port Townsend,
NOW, THEREFORE, the City Council of the City of Port Townsend does ordain as
follows:
Section 1. Chapter 5.14, Cable Television System, of Title 5, Business Licenses and
Regulations, of the Port Townsend Municipal Code is hereby repealed in its entirety, and
replaced by a new Chapter 5.14, entitled Port Townsend Master Cable Television Ordinance,
as follows:
Chapter 5.14
Port Townsend Master Cable Television Ordinance
Sections:
5.14.010
5.14.020
5.14.030
5.14.040
5.14.050
5.14.060
5.14.070
5.14.080
5.14.090
5.14.100
5.14.110
5.14.120
5.14.130
5.14.140
5.14.150
5.14.160
5.14.170
5.14.180
5.14.190
5.14.200
5.14.210
5.14.220
5.14.230
5.14.240
5.14.250
5.14.260
5.14.270
5.14.280
5.14.290
Purpose.
Definitions.
Authority - Grant of non-exclusive franchise.
Franchise issuance.
Transfer of ownership.
Franchise fee.
Indemnity.
Bonds.
Insurance.
Franchisee's obligations to the public.
Improvement requirements.
Permits required - terms of use and occupancy of streets.
Compliance.
Rates.
Nondiscrimination.
Equalization of civic contributions.
Subordinate to city and prior lawful occupancy.
No recourse against city for loss or expense.
Subsequent action by state or federal agencies.
Cable system evaluation.
Record inspection.
Reports.
Termination and revocation.
Remedies to enforce compliance.
Interpretation.
Effect of prior franchises.
Compliance with applicable laws/necessity to obtain permits.
Incorporation by reference into each franchise.
Inconsistency.
5.14.010 Purpose.
It is the purpose of this ordinance to regulate, in the public interest, the operation of cable
telecommunication systems and their use of city public rights-of-way, streets or facilities by
establishing procedures for the granting and termination of franchises, by prescribing rights and
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duties of cable operators and users of cable systems, and by providing generally for cable service
to the citizens of Port Townsend.
5.14.020 Definitions.
1. "Access channels" means: (1) channel capacity designated for public, educational, and
governmental (PEG) use; and (2) facilities and equipment for the use of such channel capacity.
2. "Access fa 'olities" means materials and equipment for the use of such channel capacity.
3. "The Act" collectively means the Cable Communications Policy Act of 1984, the
Cable Television Consutner Protection and Competition Act of 1992 (codified at 47 U.S.C. § 521
et seq.), and the Telecommunications Act of 1996, as now or later amended.
4. "Addressability" means the ability of a system allowing a franchisee to authorize by
remote control customer terminals to receive, change or to cancel any or all specified
programming.
5. "Applicant" means any person or entity that applies for a franchise.
6. "Basic cable service" means all signals of domestic television broadcast stations
provided to any Customer (except a signal secondarily transmitted by satellite carrier beyond the
local service area of such station, regardless of how such signal is ultimately received by the cable
system) any public, educational, and governmental programming required by the franchise to be
carried on the basic tier, and any other programming placed on the basic service tier by the cable
operator.
7. "Cable services" means (1) the one-way transmission to customer of video
programming or other programming service, and (2) customer interaction, if any, which is
required for the selection by the customer of such video programming.
8. "Channel" means a single path or section of the spectrum which carries a television
signal.
9. "Character generator,' means a device used to generate alpha numerical programming
to be cablecast on a cable channel.
10. "City" means the city of Port Townsend, a municipal corporation of the State of
Washington.
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11. "Cable operator" means any person or group of persons (1) who provides cable
service over a cable system and directly or through one or more affiliates owns a significant
interest in such cable system, or (2) who otherwise controls or is responsible for, through any
arrangement the management and operation of such cable system.
12. "Cable system" means a facility, consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that is designed to provide cable
service and other service to customers.
13. "Customer" means a person or entity or user of the cable system who lawfully
receives cable services or other service therefrom with franchisee's express permission.
14. "Data transmission" means (1) the movement of encoded information by means of
electrical or electronic transmission systems; (2) the transmission of data from one point to another
over communications channels.
15. "Dwelling units" means residential living facilities as distinguished from temporary
lodging facilities such as hotel and motel rooms and dormitories, and includes single family
residential units and individual apartments, condominium units, mobile homes within mobile home
parks, and other dwelling units within multiple family residential units.
16. "FCC" means the Federal Communications Commission, a regulatory agency of the
United States government.
17. "Fiber optics" means the technology of guiding and projecting light for use as a
communications medium.
18. "Franchise" means the initial authorization or renewal issued by the franchising
authority, whether such authorization is designated as a franchise, permit, license, resolution,
contract, certificate or otherwise, which authorizes construction and operation of the cable system
for the purpose of offering cable service or other service to customers.
19 "Franchisee" means the person, firm or corporation to whom or which a franchise is
granted by the council under this ordinance or their lawful successor, transferee or assignee,
subject to such conditions as may be defined in city ordinance.
20. :"Gross revenues"means any and all receipts and revenues received directly or
indirectly from provision of cable service over the cable system including, but not limited to, other
sources of revenues such as local and National advertising and Home Shopping Channel revenues
and installation fees, except transactions related to real property receipts by a franchisee, any taxes
on services furnished by a franchisee imposed on any customer or used by any governmental unit,
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agency or instrumentality and collected by a franchisee for such entity, and net uncollectible debts
are not considered as revenue in this definition.
21. "Headend" means the electronic equipment located at the start of a cable system,
usually including antennas, preamplifiers, frequency converters, demodulators and related
equipment.
22. "Installation" means the connection of the system from feeder cable to customers'
terminals.
23. "Institutional Networks (I-Nets)" means a cable communications system designated
principally for the provision of non-entertainment services to schools, public agencies or other
non-profit agencies, separate and distinct from the customer network, or on secured channels of
the customer network.
24. "Interactive services" means services provided to customers where the customer
either: (1) receives both information consisting of television or other signals and transmits signals
generated by the customer or equipment under his/her control for the purpose of selecting what
information shall be transmitted to the customer or for any other purpose; or (2) transmits signals
to any other location for any purpose.
25. "Office" means the person or entity designated by the city as being responsible for the
administration of a franchise for the city.
26. "Property of franchisee" means all property owned, installed or used by a franchisee
in the conduct of its business in the city under the authority of a franchise granted pursuant to this
Master Cable Television Ordinance ("Master Ordinance").
27. "Proposal" means the response, by an individual or organization, to a request by the
city regarding the provision of cable services; or an unsolicited plan submitted by an individual
or organization seeking to provide cable services in the city.
28. "Public right-of-way" or "street" means the surface, the air space above the surface
and the area below the surface of any public street, including, but not limited to, any public alley,
boulevard, drive, easement, right-of-way or sidewalk under the jurisdiction of the city.
29. "Public works director" means the director of the public works department for the city
of Port Townsend or his or her designee.
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5.14.030 Authority - Grant of non-exclusive franchise.
A. Authority to Grant Franchise. The city council may grant a non-exclusive franchise
for ail or any defined portion of the city. The service area shall be the entire area defined in a
Franchise Agreement between the city and a franchisee.
B. Grant of Franchise. In the event that the city council shail grant to a franchisee a
non-exclusive, revocable franchise to construct, operate, maintain and reconstruct a cable
communications system within the Franchise Area, or renewai of an existing franchise, the
franchise shail constitute both a right and an obligation to provide the services of a cable
communications system as required by the provisions of this Master Ordinance and the Franchise
Agreement. The Franchise Agreement shall include those provisions of a franchisee's Application
for Franchise that are finaily negotiated and accepted by the city council and a franchisee.
1. Any franchise granted under the terms and conditions of this Master
Ordinance shail be consistent with federai, state and locai laws and regulations. In the event of
conflict between the terms and conditions of the franchise and law or statutory requirements, the
law or statutory requirements shail control.
2. Any franchise granted is subject to the general ordinance provisions now
in effect or hereafter made effective. Nothing in the franchise shail be deemed to waive the
requirements of other codes and ordinances of the city with regard to permits, fees to be paid or
manner of construction.
a. Franchise required. No cable communications system shail be
ailowed to occupy or use the streets in the franchise area or be ailowed to operate unless the city
has granted a franchise for such system in accordance with the provisions of this Master
Ordinance.
b. Establishment of franchise requirements. The city may establish
requirements reflecting changing technology, economic or legai issues as appropriate that may
affect a new or renewai franchise at such time that these applications are received.
c. Duration. The term of any new franchise and ail rights, privileges,
obligations and restrictions pertaining thereto shail be as established in the Franchise Agreement,
unless terminated sooner as provided in this Master Ordinance.
d. Franchise non-exclusive. Any franchise granted shall be non-
exclusive. The city specifically reserves the right to grant, at any time, such additionai franchises
for a cable television system as it deems appropriate.
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5.14.040 Franchise issuance.
Prior to the consideration of a request for a franchise, the city council shall conduct a public
hearing to consider public testimony and comment as well as the following:
A. Initial Franchise.
Applicant;
That the public will be benefited by the granting of a franchise to the
2. That the applicant has the requisite financial and technical resources and
capabilities to build, operate and maintain a cable television system in the area;
3. That the applicant has no conflicting interests, either financial or
commercial, which will be contrary to the interests of the city;
4. That the applicant will comply with all terms and conditions placed upon
a franchisee by this Master Ordinance;
5. That the applicant is capable of complying with all relevant federal, state,
and local regulations pertaining to the construction, operation and maintenance of the facilities and
systems incorporated in its application for a franchise;
6. The capacity of public rights-of-way to accommodate the cable system;
cable system; and
The present and future use of the public rights-of-way to be used by the
8. The potential disruption to existing users of the public rights-of-way to be
used by the cable system and the resultant inconvenience which may occur to the public.
9. Any other condition that the city may deem appropriate.
B. Renewal Franchise.
1. Whether the applicant has substantially complied with the material terms of
the existing franchise and with applicable law;
2. Whether the quality of the applicant's service, including but not limited to
signal quality and response to consumer complaints and billing practices, but without regard to
the mix, quality, or level of cable services or other services provided over the system, has been
reasonable in light of community needs;
7 Ord. 2537
3. Whether the applicant has the financial, legal and technical ability to provide
the services, facilities and equipment as set forth in the operator's proposal or application; and
4. Whether the applicant's proposal is reasonable to meet the future
cable-related community needs and interests, taking into account the cost of meeting such needs
and interests.
5. In any hearing for a franchise renewal, the applicant shall be afforded fair
.opportunity for full participation, including the right to introduce evidence, to require the
production of evidence, and to question witnesses.
6. At the completion of a proceeding under this section, the city council shall
issue a written decision stating the reasons for such decision granting or denying the application
for renewal based upon the record of such proceeding, and shall transmit a copy of such decision
to the applicant.
5.14.050 Transfer of ownership.
A. Consent to Sale, Transfer, Assignment or Encumbrance - Requirements. A
franchisee's right, title, or interest in the franchise shall not be sold, transferred, assigned, or
otherwise encumbered, other than to an affiliate, without the prior consent of the city authority,
which shall not be unreasonably withheld and shall be granted unless the proposed assignee does
not meet acceptable standards of character, financial capacity and operating capability. No such
consent shall be required, however, for a transfer in trust, by other hypothecation, or by
assignment of any rights, title, or interest of the franchisee in the franchise or cable system in
order to secure indebtedness. Approval shall not be required for mortgaging purposes provided
that the collateral does not specifically affect the assets of this franchise, or if the said transfer is
from a franchisee to another person or entity controlling, controlled by, or under common control
with a franchisee.
In any transfer of a franchise requiring city approval, the applicant must show technical ability,
financial capability, legal and general qualifications as determined by the city. Applicant must
agree to comply with all provisions of the franchise. Costs associated with the transfer process
shall be~reimbursed to the city. ~e city shall ~render a final decision on any request for approval
,within 120 days, unless the city and the franchisee agree to an extension of time.
B. Assignment Deemed to Occur. An assignment of a franchise shall be deemed to
occur if there is an actual change in control or where ownership of fifty percent (50%) or more
of the beneficial interests, singly or collectively, are obtained by other parties. The word
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"control" as used herein is not limited to majority stock ownership only, but includes actual
working control in whatever manner exercised.
C. Notification. Regardless of the circumstances, a franchisee shall promptly notify
the city prior to any proposed change, transfer, assignment or acquisition by any other party of
a franchisee's company. In the event that the city adopts a resolution denying its consent and such
change, transfer, assignment or acquisition of control has been effected, the city may cancel the
franchise.
D. Compliance with Terms of Franchise Agreement. Whether or not the city's consent
is required, the franchisee shall ensure that upon any sale, transfer, assignment or encumbrance
of the franchisee's right, title or interest in the franchise, the new franchisee shall comply with
all terms of any Franchise Agreement between the city and the franchisee, including but not
limited to any requirements related to PEG channels and access equipment and facilities.
5.14.060 Franchise fee.
A. Payment. A franchisee shall make payment to the city on a quarterly basis on or
before the thirtieth (30th) day of each January, April, July and October, in a sum equal to five
percent (5 %) of the franchisee's gross revenues as defined herein from the operation of the cable
system.
B. In Addition to Other Fees and Taxes. The franchise fee required in this section is
in addition to taxes and fees generally applied to other utilities or businesses, and/or the cost of
bonds, security funds, letters of credit or any other costs incidental to the award or enforcement
of the Franchise.
5.14.070 Indemnity.
By acceptance of a franchise granted pursuant to this Master Ordinance and the rights and
privileges thereby granted, a franchisee shall covenant and agree with the city for itself, its
successors and assigns, to at all times, defend, indemnify and hold harmless the city, its officers,
officials, employees and agents from any and all claims, actions, suits, liability, loss, cost,
expenses or damages of every kind or description which may accrue to or be suffered by any
person or persons or property, and to appear and defend at its own cost and expense, any action
instituted or begun against the city for damages by reason of a franchisee's construction,
reconstruction, readjustment, repair, maintenance, operation or use of the streets of the city, or
any act(s) or omission(s) of a franchisee, its successors or assigns, exercising any privilege
conferred by this Master Ordinance or by such franchise; provided, however, that in the event any
such claim, action, suit or demand be presented to or filed with the city or any court having
9 Ord. 2537
jurisdiction, the city shall notify a franchisee, and the franchisee shall have the right, at its election
and at its sole cost and expense, to settle and compromise such claim or demand, or to defend the
same at its sole cost and expense, by its own attorneys.
In case judgment shall be rendered against the city in any such suit or action, each party shall fully
satisfy such judgment to the extent of its comparative fault within ninety (90) days after such
action or suit shall have been finally determined, if determined adversely to either party.
5.14.080 Bonds.
A franchisee shall promptly repair or cause to be repaired any damage to city property caused by
a franchisee or any agent of a franchisee. A franchisee shall comply with all present and future
ordinances and regulations regarding excavation or construction and, if deemed necessary by the
city, shall be required to post a performance bond or other surety acceptable to the city in an
amount specified by the city warranting that all restoration work will be done promptly and in a
workmanlike manner and that penalties, if any, after final adjudication are paid to the city within
ninety (90) days of such finding.
5.14.090 Insurance.
A franchisee shall furnish the city with a certificate of comprehensive liability insurance naming
the city as an additional insured. The amount of such policy shall be as deemed appropriate by
the city. Such insurance must be in place no later than the date of acceptance of a franchise by
a franchisee. This insurance shall be maintained in full force at the franchisee's expense
throughout the period of the franchise. The city may delineate more specific details concerning
such insurance prior to the award of a given franchise.
5.14.100 Franchisee's obligations to the public.
A. A franchisee, in the use of the public streets and rights-of-way, shall ensure that:
1. The safety, functioning and appearance of the facilities installed in public
streets and rights-of-way comply with all applicable regulations governing the installation of such
utilities;
2. 'The cost of the installation, construction, operation or renewal of such
facilities be borne by a franchisee or customer, or a combination of both; and
10 Ord. 2537
3. The owner of property will be justly compensated by a franchisee in
accordance with law for any damages caused by the installation, construction, operation or
removal of such facilities by the cable operator; and
4. When cable passes over or under private or publicly owned property, the
franchisee shall obtain the property owner's permission whenever it is required by law.
5.14.110 Improvement requirements.
A. City's Rights to Make Improvements. Nothing in this Master Ordinance shall be
construed to prevent the city or any local improvement district from sewering, paving, grading,
altering or otherwise improving or re-improving any of the streets of the city, including the
installation of city-owned utilities, and the city shall not be liable to a franchisee for any damages
resulting from such work or the exercise of the city's rights. In addition, this Master Ordinance
shall not be construed ?,o as to deprive the city of its existing or future right to regulate and control
the use of city streets.
B. Duty to Protect, Support, Temporarily Disconnect, Relocate or Remove -
Notification. A franchisee shall, upon forty-eight (48) hours notice, at its sole cost and expense
protect, support, temporarily disconnect, make minor relocations or remove from any street,
right-of-way or any other public place, any of its installations when so required by the city for
reasons of traffic conditions or public safety, street vacations, dedications of new rights-of-ways
and the establishment and improvement thereof, street construction, change or establishment of
street grade, or the construction of any public improvement or structure by any governmental
agency acting in a governmental capacity.
C. Major Relocation of Installation, Facilities - Notice. Unless an emergency exists
under § 5.14.120(J) of this chapter, whenever the city in its sole judgement determines that any
of the circumslances listed in subsection B above necessitates a major relocation of a franchisee's
then existing facilities, the city shall provide a franchisee with at least sixty (60) days written
notice requiring such ~elocation. The relocation shall be completed by a franchisee at no cost to
the city and within the time frame set by the city. Upon the franchisee's failure to complete
relocation to its installations and facilities as directed, the city may remove them at a franchisee's
expense.
5.14.120 Permits Required - Terms of use and occupancy of streets.
A. Safety Requirements. The terms and conditions of a franchisee's use and
occupancy of public streets and public fights-of-way in the city shall be as follows:
11 Ord. 2537
1. A franchisee, in accordance with applicable national, state, and local safety
requirements shall, at all times, employ ordinary care and shall install and maintain and use
commonly accepted methods and devices for preventing failures and accidents which are likely
to cause damage, injury, or nuisance to the public.
2. All structures and all lines, equipment and connections in, over, under, and
upon the streets, sidewalks, alleys, and public ways or places of a franchise area, wherever
situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in
good order and repair.
3. The city reserves the general right to see that the system of a franchisee is
constructed and maintained in a safe condition. If a violation of the National Electrical Safety
Code or other applicable regulation is found to exist, the city will, after discussions with a
franchisee, establish a reasonable time for a franchisee to make necessary repairs. If the repairs
are not made within the established time frame, the city may make the repairs itself or have them
made and collect all reasonable costs from a franchisee.
B. Notification/Construction Projects. Upon application for each construction,
digging, or other city permit a franchisee will submit to the public works department its plan for
advance notification for the proposed project. A franchisee will follow all city standards,
regulations and requirements with regard to each project, including flagging and traffic controls.
The city shall have the right to determine where lines, facilities, utility tunnels, poles, wires,
maintenance holes or any other appurtenances shall be located, consistent with city ordinances,
regulations or policies. In the event that an emergency situation arises which precludes such
advance notification, a franchisee shall subsequently inform the city of the nature of the
extraordinary event and the action taken.
C. lJndergrounding. In any area of the city in which telephone, electric power wires
and cables have been placed underground, or in any area where the city requires above ground
telephone, electric power and cables to be placed underground, a franchisee may not erect poles
or run or suspend wires, cables or other conductors thereon, but must lay or move such wires,
cables or conductors underground in the manner required by the city at a franchisee's sole cost.
If an ordinance is passed creating a local improvement district which involves placing underground
certain utilities including that of a franchisee which are then located overhead on poles and
suspended wires, a franchisee shall remove poles, cables and wires from the surface of the streets
within such district and shall place the same underground in conformity with the requirements of
the public works director. When property owners pay the costs of placing facilities underground
by the local improvement district method or otherwise, franchisee shall share pro rata in such
funding.
D. Pole Installation and Attachment - Joint Use. All poles, cables, wires, antennae,
conduits or appurtenances shall be constructed and erected in a neat, workmanlike manner and
12 Ord. 2537
shall be at a height and position as approved by the public works director. A franchisee erecting
or maintaining poles shall allow anyone constructing under the authority of this Master Ordinance
and the city, joint use of its poles upon payment of a reasonable proportion of the cost of such
poles installed and shall obey any order issued by the public works director relative to the joint
use of poles.
E. Building Moving. Whenever a person obtains city permission to use any street for
the purpose of moving any building, a franchisee, upon fourteen (14) days written notice from the
city, shall raise or remove, at the expense of the person moving the building, any of a franchisee's
cable which may obstruct the removal of such building in accordance with regulations and general
city ordinances. Where more than one street is available for the moving of such building, the
building shall be moved on the street that causes the least interference, as determined by the public
works director.
F. Location of Facilities. A franchisee shall provide the city with maps which show
the horizontal location of its facilities within the city limits. When so directed by the city, a
franchisee shall submit plans on a Digital Geographical Information System (GIS) and on a
computer based format compatible with Auto CAD. In addition, a franchisee shall consult with
the public works department to specify the vertical location of its facilities within city limits, in
a manner and format agreed to by the city and the franchisee. Future projects shall be
coordinated with the city's Capital Facilities Plan (CFP).
G. Relocation of Facilities. A franchisee shall, unless an emergency arises, upon sixty
(60) days' notice, at its own cost and expense, move any underground, surface or overhead
construction which interferes with any local improvement district work or with any construction
for public purposes authorized or ordered by the city. When the cost of such relocation is paid
by property owners through a local improvement district or otherwise, franchisee shall share in
this compensation on a pro rata basis.
H. Abandonment of Facilities. A franchisee accepting a franchise under the terms of
this Master Ordinance for the installation of ducts, utility tunnels, vaults, maintenance holes,
poles, wires or any other appurtenances, shall remove such installation when it is no longer
required or used as ordered by the public works director. A franchisee agrees to notify the public
works director immec~iately upon any abandonment of facilities.
I. Tree Trimming. Upon approval of the public works director, a franchisee shall
have the authority to trim trees upon and overhanging streets, public ways and public places in
the franchise area so as to prevent the branches of such trees from coming into contact with a
franchisee's wires and cables. A franchisee shall be responsible for debris removal from such
activities, and transport, where possible, to the city compost facility. It is understood that, for
the most part, a cable franchisee uses existing poles and does not engage in extensive tree
trimming. However, to the extent that it does engage in tree trimming, a franchisee shall:
13 Ord. 2537
1. Provide the public works director with a plan of actual work areas including
a map and scheduled dates before any work is done;
2. Refrain from applying herbicides or pesticides to trees or shrubs unless the
application is first approved by the public works director and is consistent with city policy;
3. Designate a contact person to be available for citizen inquiry and
information and to follow-up to review problems or concerns with the public works department
and/or the city tree and brushing committee, as requested by the city;
4. Maintain a file for all customer contacts regarding tree trimming; and
5. Continue an outgoing cooperative effort with the city with regards to present
and future maintenance work, including a cooperative replanting plan as necessary.
Provided, however, that nothing in this section prevents a franchisee from taking immediate action
when an emergency exists and the vegetation poses a threat to the public health and safety or its
facilities.
J. Dangerous conditions - Authority of city to abate. Whenever a franchisee's
construction, installation or excavation of facilities authorized by this Master Ordinance has caused
or contributed to a condition that appears to substantially impair the lateral support of the
adjoining street or public places, streets, utilities or city property, or endangers the public, the
public works director in his/her sole judgement may direct a franchisee, at its own expense, to
take actions to protect the public, adjacent public places, city property or street utilities; and such
action may include compliance within a prescribed time.
In the event that a franchisee fails or refuses to promptly take the actions directed by the city, or
fails to fully comply with such directions, or if emergency conditions exist which require
immediate action, the city may enter upon the property and take such actions as are necessary to
protect the public, the adjacent streets, or street utilities, or to maintain the lateral support thereof,
or actions regarded as necessary safety precautions; and a franchisee shall be liable to the city for
the costs thereof.
K. Restoration of Streets. After construction, installation, maintenance or repair of
the facilities authorized by this Master Ordinance or any permit obtained by virtue of a franchise
granted under this Master Ordinance, a franchisee shall leave all streets, avenues, highways or
public places in as good and safe condition in all respects as they were before the commencement
of such work by a franchisee and in accordance with all city ordinances, regulations and street
14 Ord. 2537
standards. The public works director shall have final approval of the condition of such streets and
public places after completion of construction. A franchisee's responsibility under this section
shall extend for twelve (12) months after completion of construction, installation, maintenance or
repair of such facilities for inadequate restoration of streets that was not apparent at the time of
any such final approval.
L. Reimbursement. Franchisee shall reimburse the city for all actual administrative
expenses incurred by the city that are directly related to receiving and approving a permit or
license and to inspect plans and construction. Where the city incurs actual administrative expenses
for review or inspection of activities undertaken through the authority granted in this Master
Ordinance, franchisee shall pay such expenses directly to the city.
M. Underground Utilities Council. A franchisee shall be a member of and operate
within the policies established by both the Jefferson County Underground Utility Coordinating
Council and the statewide One Call Underground Utility Locate Center.
5.14.130 Compliance.
Construction, maintenance and operation of a franchisee's system including house connections,
shall be in accordance with the provisions of this Master Ordinance and in accordance with the
provisions of all other applicable codes and ordinances, including the National Electrical Code,
and a franchisee shall comply with ail applicable state and federal laws and the rules and
regulations of the FCC relating to cable television systems.
5.14.140 Rates.
A. City Regulation of Rates. In accordance with the provisions of the Act and with
part 76 of Title 47 of the Code of Federal Regulations as now or later amended, the city reserves
the right to regulate the appropriate rates and/or charges for providing cable services and to
establish and monitor such rates.
B. Schedule of Rates - Notice of Any Change. Within thirty (30) days after the grant
of any franchise hereunder a franchisee shall file with the city a complete schedule of all rates to
be charged to customers. Prior to implementation of any change in rates or charges for any
service or equipment provided by a franchisee, a franchisee shall provide to the city and all
customers a minimum of thirty (30) days' written notice of the new schedule of rates to be
charged.
15 Ord. 2537
5.14.150 Nondiscrimination.
A franchisee shall not, as to rates, charges, service facilities, rules, regulations or in any other
respect, make or grant any preferences or advantage to any person nor subject any person to any
prejudice or disadvantage; provided, that nothing in this Master Ordinance shall be deemed to
prohibit the establishment of a graduated scale of charges and classified rate schedules including
discounts to senior citizens and disabled persons of low income to which any customer coming
within such classification would be entitled, and provided further that connection and/or service
charges may be waived or modified during promotional campaigns of a franchisee. A franchisee
will not deny access to cable communications service to any group of potential residential
customers because of the income of the residents of the local area in which the group resides.
5.14.160 Equalization of civic contributions.
A. Payment of Propositional Franchising Costs. In the event of one or more franchises
being granted the city may require that such subsequential franchisees pay to the city an amount
proportionally equal to franchising costs contributed by the initial franchisee. These costs may
include but are not limited to such features as PEG access equipment and facilities, contributions
to any PEG access fund, institutional network costs, and bi-directional or equivalent cable installed
to municipal buildings or institutions and similar expenses. On the anniversary of the grant of
each later awarded franchise, such franchisees shall pay to the city an amount proportional to the
amount contributed by the original franchisee, based upon the amount of customers held by such
franchisees.
B. Provision of PEG Access Channels and Emergency Override System. Additional
franchisees shall provide all PEG access channel(s) and the emergency override system currently
available to the customers of existing franchisees. In order to provide these access channels,
additional franchisees may be required to interconnect, at their cost, with existing franchisees
cable systems, subject to any reasonable terms and conditions that the existing franchisee
providing the interconnection may require. These interconnection agreements shall be made
directly between the franchisees. The city council, in such cases of dispute regarding costs, may
be called upon to arbitrate regarding these arrangements.
5.14.170 Subordinate to city and prior lawful occupancy.
Any privilege claimed under any such franchise by a franchisee in a street or other public property
shall be subordinate to the city's police powers and to any prior occupancy of the streets or other
public property. In addition to the inherent powers of the city to regulate and control any
franchise the city issues, the authority granted to it by the Act, and those powers expressly
16 Ord. 2537
reserved by the city, or agreed to and provided for in a franchise, the right and power is reserved
to the city to promulgate such additional regulations of general applicability as it may find
necessary in the exercise of its powers.
5.14.180 No recourse against the city for loss or expense.
A franchisee shall have no recourse whatsoever against the city for any loss, cost, expense or
damages arising out of the issuance of a franchise under this Master Ordinance or because of the
city's related enforcement actions.
5.14.190 Subsequent action by state or federal agencies.
If any subsequent federal, state or local law, ordinance or regulation shall require or permit a
franchisee to perform any act which may be in conflict with the terms of this Master Ordinance,
or shall prohibit a franchisee from performing any act in conformance with the terms of this
Master Ordinance, then as soon as possible following knowledge thereof, a franchisee shall so
notify the city. If the city council determines that a material provision of this Master Ordinance
is affected by such changed or new law, ordinance or regulation, the city and a franchisee shall
enter into good faith negotiations to modify this Master Ordinance to conform with such changed
requirements. Failure to complete these negotiations to the satisfaction of both parties within a
reasonable time shall constitute a material breach of the franchise, but in no event shall a period
of less than 180 days be deemed unreasonable pursuant to this section.
5.14.200 Cable system evaluation.
In addition to periodic meetings, the city may require reasonable evaluation sessions at any time
during the term of a franchise. It is intended that such evaluations cover areas such as customer
service, response to the community's cable-related needs, and a franchisee's performance under
and compliance with the terms of a franchise.
5.14.210 Record inspection.
Subject to statutory and constitutional limits and two working days' advance notice, the city
reserves the right to inspect the records of a franchisee necessary for the enforcement of a
franchise and verification of the accuracy of franchise fee payments at any time during normal
business hours provided that the city shall maintain the confidentiality of any trade secrets or other
proprietary information in the possession of a franchisee. Such documents shall include such
17 Ord. 2537
information as financial records, customer records within the context of Section 631 of the Act,
and plans pertaining to a franchisee's operation in the city.
5.14.220 Reports.
A. Report of Activities. A franchisee shall furnish, upon request, a report of its
activities as appropriate. Such report shall include:
1. Most recent annual report.
2. A copy of the 10-K report, if required by the Securities and Exchange
Commission.
4.
5.
6.
7.
8.
9.
10.
11.
12.
The number of homes passed.
The number of customers with basic services.
The number of customers with enhanced basic services.
The number of customers with premium services.
The number of customers with ala carte services.
The number of customers with pay-per-view services.
The number of hook-ups in period.
The number of disconnects in period.
Total number of miles of cable in city.
A summary of complaints received by category, length of time taken to
resolve and action taken to provide resolution.
13. Copies of all FCC complaint logs.
14. A statement of its current billing practices, and a sample copy of the bill
format.
15. A current copy of its customer service contract.
18 Ord. 2537
16. Report on operations. Such other reports with respect to its local operation,
affairs, transactions or property that may be appropriate.
5.14.230 Termination and revocation.
A. Notice on Non-Compliance. If a franchisee willfully violates or fails to comply
with any of the material provisions of this franchise, the city shall give written notice to a
franchisee of the alleged non-compliance of its franchise. A franchisee shall have forty-five (45)
days from the date of notice of non-compliance to cure such alleged default or, if such default
cannot be cured within forty-five (45) days, to present to the city a plan of action whereby such
default can be promptly cured.
B. Revocation or Termination of Franchise. If such default continues beyond the
applicable dates agreed to for such sure, the city shall give a franchisee written notice that all
rights conferred under this Master Ordinance and its franchise may be revoked or terminated by
the city council after a public hearing. A franchisee shall be entitled to not less than thirty (30)
days' prior notice of the date, time and place of the public heating. The city may elect, in lieu
of the above and without any prejudice to any of its other legal fights and remedies, to obtain an
order from the superior court having jurisdiction compelling a franchisee to comply with the
provisions of the franchise and recover damages and costs incurred by the city by reason of a
franchisee's failure to comply.
5.14.240 Remedies to enforce compliance,
In addition to any other remedy provided herein, the city reserves the right to pursue any lawful
remedy to compel or force a franchisee and/or its successors and assigns to comply with the terms
hereof, and the pursuit of any fight or remedy by the city shall not prevent the city from thereafter
initiating the termination or revocation procedures established in this Master Ordinance.
5.14.250 Interpretation.
A franchisee shall comply with all pertinent rules, regulations and requirements of the FCC, or
any other federal or state body or agency having jurisdiction in regard to cable television systems.
5.14.260 Effect of prior franchises.
Nothing contained in this Master Ordinance shall abridge, impair, alter, modify or in any way
affect any right, privilege or immunity of either a franchisee or the city conferred by or arising
19 0rd. 2537
under any cable franchise granted prior to and remaining in effect on the effective date of the
ordinance; provided, that the acceptance of a franchise granted under this Master Ordinance for
any cable service area shall be deemed to constitute the surrender by a franchisee of the right to
operate a cable television system in that cable service area under any prior franchise.
5.14.270 Compliance with applicable laws/necessity to obtain permits.
A franchisee shall comply with all applicable federal, state, and local laws governing cable
television operation and the grant of a franchise by a second class city in the State of Washington.
The franchisee shall obtain all licenses and/or permits, including but not limited to land use or
building permits, as required by federal, state and local laws.
5.14.280 Incorporation by reference into each franchise.
This Master Ordinance shall be incorporated in its entirety by reference into and become a part
of each and every cable television franchise granted by the city.
5.14.290 Inconsistency.
If any portion of this Master Ordinance should be inconsistent or conflict with any rule or
regulation now or later adopted by the FCC or other federal law, then to the extent of the
inconsistency or conflict, the rule or regulation of the FCC or other federal law shall control for
so long, as such rule, regulation, or law remains in effect; provided the remaining provisions of
this Master Ordinance shall not be affected.
(Ord. 2537 § 1, 1996.)
S~ion 2. ~e,y..e, mhil~. If any clause, sentence, paragraph, section or part of this Master
Ordinance or its application to any person or circumstance is held to be invalid or unconstitutional
by a court of competent jurisdiction, such order or judgment shall not affect the validity or
constitutionality of the remainder of any part of this Master Ordinance. To this end, the
provisions of each clause, sentence, paragraph, section or part of this law are declared severable.
20 Ord. 2537
This Master Ordinance shall take effect and be in force five days after the date of its
publication in the manner provided by law.
Read for the first, second, and third times and passed by the City Council of the City of
Port Townsend, Washington, at a regular meeting thereof, held this 19th day of August, 1996.
Attest:
Juli~cCulloc~ Mayor "
Pam Kolacy, Cit~ Clerk
Approved as to Form
City Attorney
07/15/96 [Cable] Ord\{CabMast.doc}
21 Ord. 2537