19820928 1982-33ORDINANCE NO. 1982-33
AN ORDINANCE AMENDING CHAPTER 5.1
OF THE CODE OF THE CITY OF FAIRFAX, VIRGINIA
TO PROVIDE FOR THE FRANCHISING AND REGULATION OF
CABLE TELEVISION WITHIN THE CITY OF FAIRFAX, AND THE
ACTIVITIES RELATED THERETO.
BE IT ORDAINED by the City Council of the City of Fairfax,
Virginia, that Chapter 5.1 of the Code of the City of Fairfax,
Virginia be and it is hereby amended to read in its entirety as
follows:
"CHAPTER 5.1
CABLE TELEVISION
Article I. Purposes and Definitions.
Purposes.
Definitions.
Article II. __I_~_n_qi_n_~_ Legislation.
Registration.
Statement of expenditures.
Campaign contributions.
Communications with officers and
employees of the city.
Duties of the clerk.
Reserved.
Article III. Franchise--Requirement and Ap~licatio__ n.
Franchise required.
Franchise applications.
Proposed Service Area.
Proposals for access channels
service outlets.
Reserved.
Service schedule.
Reserved.
Statements of application expenses.
Applicant representatives.
and public
Article IV. G_____~r_a_n_t_i_n_~ a Franchise.
Granting a franchise.
Fee for granting a franchise.
Article V. AcceRt_i__n~ a Franchise.
~5.1-20.
~5.1-21.
Accepting a franchise.
Effect of acceptance.
Article VI. Conditions of Franchise.
~5.1-22.
~5.1-23.
~5.1-24.
~5.1-25.
~5.1-26.
~5.1-27.
~5.1-28.
§5.1-29.
~5.1-30.
TerTR.
Insurance, bonds and indemnity.
Letter of credit.
Service Area.
Extension outside the Service
Area.
Construction schedule and reports.
System description and service.
Franchise fee.
Basic subscriber service rates and other
charges.
Service, adjustment and complaint procedure.
1982-33
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~5.1-32.
~5.1-33.
~5.1-34.
$5.1-35.
~5.1-36.
~5.1-37.
~5.1-38.
~5.1-39.
Books and records.
Tests and performance monitoring.
Street occupancy.
Protection of privacy.
Employment requirement.
Transfer of franchise.
Grantee's obligation as trustee.
Limits on recourse.
Article VII. AmendmentL_Rev_i~e_w_~ Renewal and
Revocation of a Franchise.
~5.1-40.
§5.1-41.
~5.1-42.
~5.1-43.
~5.1-44.
Franchise amendment.
Franchise review and renewal.
Franchise revocation.
Reserved.
Notice to Grantee.
Article VIII. Transfer of Franchise.
~5.1-45.
~5.1-46.
~5.1-47.
Transfer of ownership to city.
Provision for arbitration.
City's right to assign.
Article IX. Financial Disclosure.
~5.1-48.
~5.1-49.
Financial disclosure by applicants.
Financial disclosure by officers and
employees of the city.
Article X. General Provisions.
~5.1-50.
~5.1-51.
~5.1-52.
~5.1-53.
~5.1-54.
S5.1-55.
~5.1-56.
~5.1-57.
Time is of the essence.
Rights reserved to the city.
Special license.
Liquidated damages.
Unlawful acts.
Penalties.
Failure to enforce franchise.
Seve rabi 1 i ty.
Article I. Purposes & Definitions
Sec. 5.1-1. Purposes.
The purposes of this chapter are to:
(a) Provide for the registration and regulation of
activities to influence legislation pertaining to cable
television systems in the city,
(b) Provide for the franchising and regulation of
cable television systems within the city in the public
interest and in accordance with all applicable State and
Federal laws,
(c) Provide for the payment of a fee and other
valuable consideration to the city for the construction and
operation of cable television systems in the city,
(d) Provide for the regulation by the city of the
rates to be charged to subscribers for cable television
services in the city,
(e) Provide for the development of cable television
systems as a means to improve communications between and
among the members of the public and public institutions of
the city,
1982-33
-3-
(f) Provide remedies and prescribe penalties for
violation of this chapter and the franchise(s) granted
hereunder, and
(g) Preserve public confidence in government by
providing for disclosure of actual and potential conflicts
of interest.
Sec. 5.1-2. Definitions.
For purposes of this chapter, the following terms,
phrases, words, abbreviations and their derivations shall
have the meanings respectively ascribed to them by this
section.
~licant. Any person, partnership, corporation,
association, syndicate, joint venture or other entity of
any kind which files an application to bid for a cable
television system franchise, and its agents and its
representatives. This term shall not include an attorney
for the applicant in any provision of this chapter where
compliance with such provision would violate the
attorney-client privilege.
A_~lication. A document submitted in conformance with
this chapter setting forth a proposal for a franchise.
A_p_plication expenses. All expenses paid or incurred
by an applicant for a cable television system franchise.
Such expenses shall include:
(a) Expenses pa id or incurred for engineering or
other consultant services utilized in preparing the
application filed with the city for a cable television
system franchise.
(b) Legal expenses paid or incurred for services
utilized in preparing the application filed with the City
for a cable television system franchise.
(c) Readily identifiable salaries, or portions
thereof, or compensation of employees of the applicant
whose services have been used to further in any way the
application.
(d) Assignment, issuance, promise of assignment or
issuance to any person, of any ownership interest in the
applicant, and the consideration, if any, paid or promised
therefor.
(e) Compensation other than that specified in
subsections (a) through (d) above to any person intended to
further in any way the application.
Basic subscriber service. The distribution to
subscribers of signals over a cable television system on
all channels except two-way services, those for which a
per-program or per-channel charge is made, and those
intended for reception by equipment other than a television
broadcast receiver, as such signals are described in the
franchise.
Business associate. Any person, partnership,
corpor~ion, ass~~6n, syndicate, joint venture or other
entity of any kind with whom one or one's immediate family
is jointly or mutual ly engaged in any profi t-seeking
enterprise or endeavor; and any person, partnership,
corporation, association, syndicate, joint venture, or
other entity of any kind in which one or one's immediate
1982-33
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family is an officer, director, employee, or holder of a
legal, equitable, actual or beneficial interest.
Cable television system. Any facility which is
operated to perform for hire, either in whole or in part,
the service of receiving, amplifying, modifying or
originating television, radio or other electrical signals
for the purpose of transmitting or distributing such
signals by wire, cable or other means to subscribing
members of the public. This definition shall not include
(a) any system which serves fewer than twenty subscribers
or (b) any system which serves only the residents of one or
more contiguous apartment dwellings under common ownership,
control or management, and commercial establishments
located on the premises of such dwellings.
Ci_~. The City of Fairfax,
incorporated form, or in any
consolidated or changed form.
Virginia, in its
other reorganized,
~ clerk.
Virginia.
The clerk of the City of Fairfax,
Cit council. The city council or any
legis al~--tl~ve body of the City of Fairfax, Virginia.
futu re
~C_it_~ ma_na__a~. The chief executive officer of the City
of Fa~~ Virginia, and his designee.
Co~ ns ation. Any salary, gift, payment, benefit,
subscription, loan, advance, reimbursement, or deposit of
money or anything of value; and any contract, promise or
agreement, contingent or not contingent, to give, pay,
benefit, subscribe, loan, advance, reimburse, or deposit
any money or anything of value.
Eme_~n c~. An emergency or disaster, including a
"natural disaster," "man made disaster," "major disaster,"
"state of emergency," and/or "local emergency" as defined
in Va. Code, S44-146.16.
E_~e ndi tu re. Any payment, distribution, loan,
advance, deposl---~-t, reimbursement, or gift of money, real
estate or anything of value; and any contract, promise or
agreement to make any payment, distribution, loan, advance,
deposit, reimbursement or gift of money, real estate or
anything of value.
Fair market value. The price which property will
bring~ when l~s offered for sale by one who desires, but
is not obliged, to sel 1 it, and may be bought by one who is
under no necessity of having it.
Federal Communications Commission. (FCC) The Federal
agency as presently constituted by the Communications Act
of 1934, as amended, or any successor agency.
Franchise. The nonexclusive rights granted hereunder
to construct and operate a cable television system along
the public ways in the city, or within specified areas in
the city. It is not intended to include any license or
permit required for the privilege of transacting business
within the city as may be required by other ordinances and
laws of the city.
Grantee. Any person, partnership, corporation,
assocla~o~, syndicate, joint venture, or other entity of
any kind, and its lawful successor, transferee or assignee,
granted a franchise by the city council under this chapter.
1982-33 -5-
Gross revenues. All revenues derived frcm supplying
basic subscriber service, monthly or periodic charges for
service, installation fees and reconnect fees, revenues
derived from per-program or per-channel charges, leased
channel revenues, advertising revenues, and any other
revenues received, gained or derived by the Grantee, its
employees, agents, successors, assignees, and lessees in
connection with the cable television system within the
city.
Influence l_e_~i sla tion. To promote, advocate, or
oppose or to attempt to promote, advocate, or oppose, the
passage, defeat, executive approval or veto of legislation
relating to cable television systems by communication with
any city council member, the city manager, the city clerk
or any member of the managerial staff of the city.
Interest. Any relationship, whether by ownership,
emp 1 oym---ent, gift, fee, or otherwise; whether present,
promised, or reasonably expected; whether direct or
indirect; whether legal or equitable; whether actual or
beneficial; from or because of which a person, his or her
immediate family, or his or her business associates have
received financial benefit or have a right or reasonable
expectation, whether vested or contingent, to receive
financial benefit in the future, directly or indirectly.
Immediate family. One's spouse, siblings, children,
spouses of siblings and their children, parents, and
grandchildren, whether or not they are members of the same
household.
Le_~i_slation. Ordinances, resolutions, amendments,
nominati~ ~-~-d other matters pending or to be pending
before the city council, including executive approval or
veto of any matter acted upon or to be acted upon by the
city council relating to any cable television system.
~. The amount remaining after deducting from
gross revenues all of the actual, direct and indirect,
expenses associated with operating the cable television
system including the franchise fee, interest, depreciation
and Federal and State income taxes.
Officers and emRl_oyees of the ci.t~. City council
members, the city manager, the city clerk, members of the
managerial staff of the city, and al 1 officers and
directors of any consulting firm hired by the city for
cable television system purposes.
Public way. The surface, the air space above the
surface, and the area below the surface of any public
street, road, highway, lane, path, alley, sidewalk,
boulevard, drive, bridge, easement, other public
right-of-way, or other public property and any temporary or
permanent fixtures or improvements located thereon now or
hereafter held by the city.
Service Area. The area served by the cable television
syste~--~ic~-h- area is the entire city.
Subscriber. Any person who receives or contracts with
a Grantee to receive the basic subscriber service and/or
any one or more of such other services as may be provided
by the Grantee's cable television system, and who does not
further distribute such service(s).
1982-33
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Article II. Inf luencin~t_Le_~i s 1 a tion.
Se__~c. 5.1-3._ . R_~_~istration.
(a) Each person who receives compensation to
influence legislation relating to any cable television
system, directly or indirectly, shall file with the city
clerk a registration statement showing al 1 of the
fol lowing:
( 1 ) The person ' s name,
business phone number and occupation;
business address,
(2) The name, business address, and business
phone number of the person(s) from whom compensation is
made to the person influencing legislation, and a
description of the financial relationship involved; and
(3) A brief description of the legislation for
which compensation is made to the person to influence.
(b) The registration statement shall be filed within
thirty (30) days of receipt of compensation. Upon a change
in any information required by this section, the
registration statement filed pursuant to this section shall
be amended, within thirty ( 30 ) days, to reflect such
change.
(c) No registration statement shall be valid beyond
the 31st day of December of each year.
(d) No registration fee shall be charged.
Sec. 5.1-4. Statement of expenditures.
(a) Each person who receives compensation to
influence legislation shall file with the city clerk a
statement of expenditures showing all of the following:
( 1 ) The total amount of expenditures, and a
description of such expenditures, made by the person filing
the registration statement to influence legislation;
(2) The specific purpose of each expenditure;
(3) The name(s) of the public body, officers and
employees of the city to whom or on whose behalf the
expenditures were made; and
(4) The exact legislation sought to be
influenced, by ordinance or resolution number, or other
specific identification.
In cases in which it is impractical or impossible to
determine exact dollar amounts or values of expenditures,
reporting of good faith estimates, based upon reasonable
accounting procedures, shall constitute compliance with
this section.
(b) The statement of expenditures shall be filed on
or before the fifth day of each month after each month in
which expenditures are made. Each statement shall cover
expenditures made during the preceding month.
(c) All persons who receive compensation to influence
legislation shall retain receipts and maintain records for
all expenditures that are required to be reported pursuant
to this section. These receipts and records shall be
maintained for two years after the 31st day of December of
the year in which the expenditure was made.
1982-33 -7-
Sec. 5.1- 5. CamRa_i~q~n- ~qqntr ibut ions.
Ail persons who receive compensation to influence
legislation shall report the amount of any campaign contri-
butions which have been made to members of the city council
and the name (s) of such members. Such report shal 1 be
filed with the statement of expenditures required in this
article, when a franchise application is submitted, and
within sixty (60) days after the contribution is made
during the term of any franchise.
Sec. 5.1-6.
Communications with officers and _~em]~l_o~e_e_s_
of the cit~._
(a) Communication with officers and employees of the
city by applicants relating to any cable television system
shall be limited to public sessions. Other ccmmunication
with officers and employees of the city by applicants is
prohibited, except that requests for information or for
meetings to exchange information may be addressed to the
city manager. The city manager may release such
information or al low such meetings subject to the
requirements of this chapter and other reasonable
restrictions as the city manager may impose. Officers and
employees of the city shall disclose any discussions held,
information provided or meetings attended other than city
council's public sessions with applicants.
(b) The disclosure required by this section shall be
made by filing a statement with the city clerk summarizing
the discussions within one week of the contact. The
statement shall contain the name or names of the persons
contacting the officer or employee of the city; the name
and position of the officer or employee of the city
contacted; the method of communication, with a copy of it
attached, if written; and the date, place and subject
matter of the communication. The city clerk shall keep
these statements as required by this article.
( c ) The prohibitions against communications with
officers and employees of the city by applicants does not
include the registration statement, the statement of
expe ndi tu res, and the report of campa ig n c ontr ibut ions
required to be filed with the city clerk pursuant to this
article.
Sec. 5.1-7. Duties of the city__clerk.
The city clerk shall keep on file the registrations,
statements, campaign contributions and disclosures required
by this article. Such registrations, statements, campaign
contributions and disclosures are public records and open
to public inspection. The city clerk shall provide copies
of such registrations, statements, campaign contributions
and disclosures to the general public upon request and may
charge a reasonable fee therefor.
Sec. 5.1-8. Reserved.
Article III. Franchise--Requirement and Application.
Sec. 5.1-9. Franchise required.
No person, partnership, corporation, association,
syndicate, joint venture or other entity of any kind shall
construct, install, maintain or operate a cable television
system or part of a cable television system in a public way
in the city, unless a franchise has first been obtained
pursuant to the provisions of this chapter, and unless such
franchise is in full force and effect.
1982 -33
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Sec. 5.1-10. Franchise _applications ·
(a) An application for a cable television system
franchise shall be submitted to the city council, or its
designee, on a written application form furnished by the
city, and in accordance with procedures and schedules
established by the city. Application forms may request
facts and information the city deems appropriate.
(b) Applications shall be accompanied by a
non-refundable application fee of five thousand ($5,000.00)
dollars payable to the "City of Fairfax." This amount
shall be used by the city to offset direct expenses
incurred in the franchising and evaluation procedures,
including, but not limited to, staff time and consulting
assistance.
Sec. 5.1-11. Proposed Service Area.
An application for a cable television system franchise
shall include a map of the city showing all highways and
public buildings. The map shall indicate the portion of
the Service Area proposed to be served by the applicant
within twelve (12) months after the acceptance of the
franchise, and within each twelve ( 12 ) month period
thereafter until the entire Service Area is served. The
map shall also name all the neighborhoods, developments and
communities proposed to be served within such time periods.
Sec. 5.1-12.
Proposals for access channels and public
service outlets.
An application for a cable television system franchise
shall include proposals to include services and outlets for
public, education, local government, and leased access
channels.
Sec. 5.1-13. Reserved.
Sec. 5.1-14. Service schedule.
An application for a cable television system franchise
shall include a timetable showing the percentage of
occupied dwelling units within the Service Area that will
be capable of receiving cable television service at the end
of each year following the acceptance of the franchise.
Such timetable may be incorporated into the franchise, and
if so, shall be enforceable against the Grantee under the
provisions of this chapter.
Sec. 5.1-15. Reserved.
Sec. 5.1-16. Statements of application expenses.
(a) Each applicant for a cable television system
franchise shall, simultaneously with the submission of the
application, file with the city clerk a complete statement
of application expenses incurred up to the thirtieth day
prior to the filing of an application.
1982-33 -9-
(b) Each applicant for a cable television system
franchise shall, on or before the thirtieth day following
the filing of such application, file with the city clerk a
statement of such additional application expenses incurred
by the applicant for the period beginning on the thirtieth
day prior to the filing of the application and ending at
the close of business on the day of the filing of the
application.
( c ) Each applicant for a cable tel evi sion system
franchise shall, on or before the ninetieth day following
the filing of such application, file with the city clerk a
statement of such additional application expenses incurred
by the applicant for the period beginning on the day of
following the filing of the application and ending on the
sixtieth day following the filing of the application.
( d ) Each applicant for a cable television system
franchise shall file with the city clerk a statement of
application expenses incurred for each sixty-day period
following the filing of the application. Such statement
shall be submitted to the city clerk on or before the
thirtieth day following the close of each sixty-day period.
(e) The statements of application expenses required
herein shall be in writing. Each item of expenses shall
indicate the payer, payee, amount of payment, the reason
for the payment, and the date of payment. A payment of
money need not be itemized if the payments to the payee do
not exceed one hundred dollars ($100.00) during any
reporting period. Any person to whom any ass ig nme nt,
issuance, promise of assignment or issuance, of any
ownership interest in the applicant is made without
consideration shall be specifically identified. Until the
city grants a franchise, rejects an application or until an
applicant withdraws its application, each applicant shall
provide the city with the statements described in this
section.
Sec. 5.1-17. ~Appl~icant r~epresentatives.
Each applicant for a cable television system franchise
in the city shall, at all times, disclose and file with the
city manager, in writing, the names, addresses and
occupations of all persons who are authorized to represent
or act on behalf of the applicant in matters pertaining to
the application. Until the city grants a franchise,
rejects an application or until an applicant withdraws its
application, the requirement to make the disclosure
described in this section shall continue.
Article IV. Granti~n~q a Franchise.
Sec. 5.1-18. Granti_n~g a franchise.
One or more nonexclusive franchises may be granted in
the city by ordinance, after a notice and public hearing,
to those applicants which, in the city council's judgment,
may best serve the public interest.
Sec. 5.1-19. Fee for ~r_a~n~t_i_n~q a franchise.
A Grantee shall, in addition to the non-refundable
application fee, pay to the city at the time the Grantee
files its written acceptance of the city's franchise, an
amount not to exceed fifty thousand dollars ($50,000),
which amount shall be prescribed by the city council. Such
1982-33
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payment shall be non-refundable, shall be made to the order
of the "City of Fairfax" and shall be used to offset any
direct costs incurred by the city in granting the franchise
not defrayed by the application fees set forth in this
chapter.
Article V. Acce~t_i_n~_ a Franchise.
Sec. 5.1-20. Acc_ej~t_i_n_g a franchise.
(a) A franchise and its terms and conditions shall be
accepted by the Grantee by a written instrument duly
executed, sworn to and filed with the city manager within
thirty (30) days after the granting of the franchise. In
its acceptance, the Grantee shall declare that it has
carefully read the terms and conditions of this chapter and
the franchise, and that it accepts and agrees to abide by
such terms and conditions. If the Grantee fails to file
the instrument as required herein, the Grantee forfeits its
right to a franchise.
(b) Acceptance of a franchise by the Grantee shall
operate as a waiver by the Grantee of any claim to operate
a cable television system in the city without the
regulatory power of the city, even if the Grantee
previously operated a cable television system in the city.
(c) On the date of acceptance, the Grantee shall
assume and pay for the cost of publication of this chapter.
Sec. 5.1-21. Effect of acceptance.
By accepting a franchise a Grantee shal 1 agree to:
(a) Accept the validity of the terms and conditions
of this chapter and the franchise in their entirety, and
(b) Incorporate all the terms and conditions of its
application as required by the city council and not in
conflict with this chapter, into its franchise.
Article VI. Conditions of a Franchise.
Sec. 5.1-22. Term.
The term of an original franchise shal 1 be fifteen
years from the date the franchise is accepted by a Grantee.
There is no limit to the number of terms of a franchise.
The term of a renewed franchise shall not be longer than
fifteen years.
Sec. 5.1-23. Insuranqe_,_ bonds and indemnity.
(a) At the time the Grantee accepts the franchise,
and at al 1 times during the term of the franchise,
including the time for removal of facilities or management
as a trustee as provided for in this chapter, the Grantee
shal 1 obtain, pay al 1 premiums and expenses for, and
deliver to the city manager, written evidence of payment of
premiums for and originals or duly authenticated copies of
the following:
1982-33
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(1) A general ccmpr ehens ive public liability
policy or policies for injury to or death of a person or
persons caused or alleged to be caused by the operations of
the Grantee under the franchise, with a minimum liability
of one million dollars ($1,000,000) per personal injury or
death of any one person, and two mil lion dollars
($2,000,000) for personal injury or death of any two or
more persons in any one occurrence.
( 2 ) A property damage insurance pol icy or
policies for property damage caused or alleged to be caused
by the operations of the Grantee under the franchise, with
a minimum liability of five hundred thousand dollars
($500,000) for property damage to the property of any one
person, and one million dollars ($1,000,000) for property
damage to the property of any two or more persons in any
one occurrence.
( 3 ) Copyright infringement insurance for
copyright infringement caused or alleged to be caused by
the operations of the Grantee under the franchise, with a
minimum liability of one million dollars ($1,000,000) for
the infringement of copyrights.
(4) A performance bond or bonds running to the
city with good and sufficient surety approved by the city
in the sum of two hundred fifty thousand dollars ($250,000)
conditioned upon the faithful performance and discharge of
the obligations imposed by this chapter and the franchise
including, but not limited to, faithful compliance with the
construction timetable in the franchise. Such bond or
bonds shall further provide that if the Grantee fails to
comply with any term or condition of this chapter, the city
may recover jointly and severally from the principal and
the surety any damages suffered by the city as a result of
such noncompliance, including ful 1 compensation,
indemnification, and cost of removal of Grantee's
facilities, plus costs and attorney's fees. Within sixty
(60) days of the filing of the acceptance required in this
chapter or prior to the commencement of construction,
whichever time is earlier, the amount of the performance
bond or bonds shall be increased to the sum of five hundred
thousand dollars ($500,000). The bond or bonds shall be
terminated when regular subscriber service is available to
one hundred percent (100%) of the occupied dwelling units
within the Service Area, as certified by the city manager
to the city council.
(b) All bonds and insurance policies required herein
shall be in a form satisfactory to the city attorney. All
bonds and insurance policies shall indemnify, defend and
save harmless the city, its officers, boards, commissions,
agents and employees for al 1 claims arising from the
operations of Grantee ( including the costs, defenses,
attorney's fees and interest). The city may at any time,
if it deems itself insecure, require a Grantee to provide
additional sureties to any and all bonds or to replace
existing bonds with new bonds with good and sufficient
surety approved by the city. No bond or insurance policy
shall be cancelled unless or until notice has been received
by the city at least ninety (90) days prior to the proposed
date of cancellation with a description of the reason for
such proposed cancellation. Insurance policies written for
a period less than the term of the franchise shall be
renewed at least sixty (60) days before a policy's
expiration and any substituted, renewed, or replacement
policies and evidence of premium and expense payments shall
be delivered forthwith to the city manager.
(c) A Grantee shall, at the time the Grantee accepts
the franchise and at all times during the term of the
franchise, including the time for removal of facilities or
1982-33 '
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management as a trustee as provided for in this chapter, at
its sole cost and expense, defend, indemnify and hold
harmless the city, its officials, boards, ccmmissions,
agents and employees against any and all claims, suits,
causes of action, proceedings, or judgments for damages and
expenses arising out of the granting, construction or
operation of the cable television system franchise in the
city. These damages shall include, but not be limited to,
penalties arising out of copyright infringements and
damages arising out of any failure by a Grantee to secure
consents from the owners, authorized distributors or
licensees of programs to be delivered by the Grantee's
cable television system whether or not any act or omission
complained of is authorized, allowed, or prohibited by the
franchise. Expenses shall include, but not be limited to,
all out-of-pocket expenses, such as costs and attorney
fees, and the reasonable value of any services rendered by
the city attorney or his assistants or any officials,
boards, commissions, agents and employees of the city.
(d) The city may require bonds and insurance policies
described in this section to run to the benefit of both the
city and other governmental units located or operated
within the city.
( e ) Nothing in this chapter shal 1 be de emed to
prevent the city from cooperating with the Grantee and
participating in the defense of any litigation at its sole
cost and expense. No recovery by the city of any sum by
reason of the bonds required herein shall be any limitation
upon the liability of the Grantee to the city. The city's
right to recover under the bond or bonds shal 1 be in
addition to any other rights retained by the city under
this chapter and other applicable law.
(f) The Grantee shall immediately notify the city in
writing of any litigation that may develop that could
affect the insurance required herein.
Sec. 5.1-24. Letter of credit.
(a) Within thirty (30) days after the acceptance of a
franchise, the Grantee shall file with the city manager a
letter of credit from a financial institution approved by
the city in the amount set forth in the request for
proposal which shall be no more than fifty thousand dollars
($50,000.00). The form and content of such letter of
credit shall be approved by the city attorney. The letter
of credit shall be used:
(1) To insure the Grantee's compliance with the
terms and conditions of this chapter, the franchise, and
all orders, permits and directions of the city; and
(2) To insure the Grantee's payment of any
liabilities of the Grantee, including but not limited to
any fee, damages, tax, debt, claim, rebate, lien, expense,
interest, late charge or penalty due the city, or due to
another person upon request of the city, arising out of the
construction, operation or maintenance of the cable
television system.
(b) The letter of credit shall contain the following
endorsement:
"At least sixty (60) days prior written notice
shall be given to the city by the financial
institution of any intention to cancel, replace,
fail to renew, or materially alter this letter of
credit. Such notice shall be given by registered
mail to the city attorney."
1982-33
-13-
(c) The city council may request payment from the
letter of credit of any of the Grantee's liabilities to the
city, or to another person upon request of the city, due
and unpaid, including but not limited to any fee, damages,
tax, debt, claim, rebate, lien, expense, interest, late
charge or penalty, after giving the Grantee five (5) days
written notice of such request. Upon such request for
payment, the city shall give the Grantee written notice of
the amount and date thereof.
(d) Within fifteen (15) days of the date of written
notice from the city of its request for payment to the
financial institution, the Grantee shall take all steps
necessary to assure that the amount of the credit is
restored to the amount set forth in the request for
pr opos a 1.
(e) The rights reserved to the city with respect to
the letter of credit are in addition to all other rights of
the city, whether reserved by this chapter, a franchise or
otherwise authorized by law. No action, proceeding or
exercise of a right with respect to such letter of credit
shall affect any other right the city may have.
Sec. 5.1-25. Service Area.
The scheduling of service in the Service Area shall be
subject to approval, after public hearing, by the city
council. The scheduling of service in the Service Area may
be amended by the city council on its own motion or by the
Grantee, subject to approval by the city council after
public hearing. Service within the Service Area shall be
at fixed rates, and shall not include any line extension
surcharges. The scheduling of service in the initial
Service Area shall not be amended except in a manner which
is consistent with the construction schedule contained in
section 5.1-14 herein.
Sec. 5.1-26. Extension outside the Service Area.
(a) The city, by resolution, may require, after
hearing, a Grantee to interconnect its cable television
system with other cable television systems or other
broadband communications facilities, such as a television
communication network connecting public institutions or
facilities. Such interconnect ion shal 1 be made if
technically possible within ninety (90) days of a request
made by the city council pursuant to such resolution, or
within a longer period of time as may be specified by the
city council in its resolution, provided however, that
interconnection shall not be required until completion of
construction in accordance with the provisions of the
franchise.
(b) The city shall make every reasonable effort to
cooperate with the franchising authorities in contiguous
communities, and with the Grantee, in order to provide
cable television service in areas outside the city.
(c) If the city annexes or acquires any additional
area, the Grantee may be required to extend cable
television service to such area within one year of the
annexation or acquisition.
Sec. 5.1-27. Construction schedule and reRo~r~t~s~.
(a) No later than sixty (60) days after accepting a
franchise, a Grantee shall apply for or otherwise file all
documents required to obtain all necessary Federal, State
and local licenses, permits and authorizations required for
the conduct of its business, and the construction and
1982-33
-14-
installation of its facilities. A Grantee shall submit
monthly reports to the city manager on progress in this
respect until all such licenses, permits and authorizations
are secured. The city may review a Grantee's construction
plans prior to cc~mencement of any construction,
reconstruction or relocation.
(b) A Grantee shall commence construction of the
cable television system within sixty ( 60 ) days after
acceptance of a franchise or within thirty (30) days of
receipt of all necessary licenses, permits and
authorizations, whichever comes first. It shall complete
construction of the system and shall offer and be capable
of delivering cable television service to al 1 occupied
dwelling units in the Service Area and all public service
outlets in the franchise area described in this chapter in
accordance with the following schedule:
No Later Than
Minimum Percentage of Occupied
Dwelling Units and Minimum
Percentage of Public Service
Outlets in the Service Area
12 months after commencing
construction ..................... 50%
24 months after commencing
construction ..................... 100%
For the purposes of this section, construction shall be
deemed to have commenced when the first aerial strands of
cable have been attached to a pole, or the first
underground trench has been opened. The failure of a
Grantee to secure the necessary Federal, State and local
licenses, permits, and authorizations required for the
conduct of its business shall, in no way, relieve the
Grantee from the obligations of this section. The
Grantee's failure to observe the construction schedule
above or incorporated into the franchise shall, in addition
to other rights of the city, be grounds for the city to
terminate or revoke the franchise.
( c ) Within three months after accepting the
franchise, a Grantee shall file with the city manager a
construction schedule and map setting forth target dates
consistent with its franchise and this section, for
commencement of basic subscriber service and the areas to
be served. The schedule and map shall be updated whenever
substantial changes are necessary.
(d) Within ten (10) days after the commencement of
construction, the Grantee shall notify the city manager in
writing, of the date of such commencement. Every three
months after commencing construction, a Grantee shall file
with the city manager a report on progress of construction
until complete. The report shall include a map that clearly
defines the areas wherein basic subscriber service has been
made available in the previous three months and the areas
wherein basic subscriber service is to be available in the
next three months. The report shall al so include the
number of occupied dwelling units in which basic subscriber
service has been made available in the previous three
months.
Sec. 5.1-28. System description and service.
(a) A Grantee shall construct, operate, and maintain
the cable television system in ful 1 compliance with all
applicable rules and regulations, including amendments, of
the Federal Communications Commission and all other
1982-33
-15-
applicable Federal, State or local laws and regulations.
The cable television system and all its parts shall be
subject to inspection by the city.
(b) The cable television system des igned,
constructed, instal led, operated and maintained by a
Grantee shall provide the highest quality service
consistent with state-of-the-art technology and conform
with all the capacity, capability and technical performance
requirements set forth in the FCC's Rules for Cable
Television including applicable amendments thereto. If the
FCC deletes such requirements, or otherwise fails to
provide for technical performance requirements, the city
may amend this chapter to incorporate technical performance
requirements.
(c) The cable television system shall:
( 1 ) Be capable
thirty-five (35) channels.
of transmitting at least
(2) Be capable of distributing color signals
without material degradation of color fidelity and
intelligence. When the signals the Grantee distributes are
received in color, they shall be distributed in color where
technically feasible.
(3) Be capable of producing a picture that is of
as high quality as the state-of-the-art allows,
undistorted, free from ghost images, and acccmpanied with
proper sound on typical standard production television sets
in good repair.
(4) Be capable of demonstrating by instruments
and otherwise to subscribers that a signal of adequate
strength and quality is being delivered.
( 5 ) Provide for experimentation
provision of new cable services.
for the
(6) Conform in all respects with the standards
and specifications set forth in the application of the
Grantee for a cable television system franchise in the
city, which standards and specifications are not in
conflict with the terms and conditions of this chapter and
the franchise.
(d) The Grantee shal 1 meet the fol lowing minimum
requirements in providing public, education, local
government, and leased access channels:
(1) The Grantee shall have available equipment
for local production and presentation of cablecast
programs, other than automated services, and permit its use
for the production and presentation of public access
programs. The Grantee shall not enter into any contract,
arrangement, or lease for use of such equipment which
prevents or inhibits the use of such equipment for a
substantial portion of time for public access programming.
(2) The Grantee shall have no control over the
content of access cablecast programs. However, this
limitation shal 1 not prevent the Grantee ' s taking
appropriate steps to insure compliance with the operating
rules described herein.
( 3 ) The public access channel ( s ) shal 1 be
available to residents of the city on a nondiscriminatory
basis, without charge. Charges for equipment, personnel,
and production of public access programming shall be
reasonable and consistent with the goal of affording users
1982-33
-16-
a low-cost means of television access. A Grantee shall
provide without charge such production facilities and
personnel to enable users of the public access channels to
produce television programs that do not exceed thirty
minutes duration. A Grantee shal 1 also provide without
charge the replay of users' supplied video tapes on the
public access channel if such tapes do not exceed two hours
duration. The Grantee may require that such tapes be in a
standard format compatible with the Grantee's playback
facilities. The Grantee shall adopt operating rules for
the public access channel(s), to be filed with the city
manager prior to the activation of the channel(s), designed
to prohibit the presentation of any advertising material
designed to promote the sale of commercial products or
services ( including advertising by or on behalf of
candidates for public office), lottery information, and
obscene or indecent matter. Such rules shal 1 require
nondiscriminatory access and permit public inspection of a
complete record of the names and addresses of all persons
or groups requesting access time. Such record shall be
retained for a period of two years.
(4) The education access channel(s) shall be
available for the exclusive use of local educational
authorities without charge. The Grantee shall provide,
without charge, production, technical and administrative
assistance to develop and produce educational programming.
A program injection point shall be provided without charge
at one public school as requested by the city. The Grantee
shal 1 adopt operating rules for the education access
channel(s), to be filed with the city manager prior to
activation of the channel (s), designed to prohibit the
presentation of any advertising materi al des igned to
promote the sale of commercial products or services
(including advertising by or on behalf of candidates for
public office), lottery information, and obscene or
indecent matter. Such rules shall also permit public
inspection of a complete record of the names and addresses
of all persons or groups requesting access time. Such
record shall be retained for a period of two years.
(5) The local government access channel(s) shall
be available for the exclusive use of local government
authorities without charge. The city ' s government
authorities shall have priority on such channel.
( 6 ) The leased access channel ( s ) shal 1 be
available to leased users. Priority shal 1 be given
part-time users on at least one channel. The Grantee shall
adopt operating rules for the channel(s), to be filed with
the city manager prior to activation of the channel(s),
designed to prohibit the presentation of lottery
information and obscene or indecent matter. Such rules
shall require nondiscriminatory access and sponsorship
identification, specify an appropriate rate schedule, and
permit public inspection of a ccmplete record of the names
and addresses of all persons or groups requesting access
time. Such record shall be retained for a period of two
years.
(e) A Grantee shal 1 pr ovide and maintain without
charge within the franchise area, one public service outlet
activated for basic subscriber service to each fire
station, public school, police station, public library,
City Hall and such other buildings used for public purposes
as may be designated by the city. Additional public
service outlets at each location shall be provided at the
cost of labor and materials. The Grantee shall not charge
for the provision of basic subscriber service to any of
these locations. The city may make, without charge,
attachments to facilities owned by the Grantee in
1982-33
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connection with the city's fire, police or other
governmental services. The Grantee shall provide full
operational capacity to the public service outlets in the
franchise area in accordance with the construction schedule
set forth in this chapter or the franchise, whichever is
earlier.
(f) A program injection point shal 1 be provided
without charge at City Hall. The Grantee shall train, at
its own expense, one officer or employee of the city for
program origination and coordination.
(g) The cable television system shall be designed so
that none of the occupied dwel ling units within the
franchise area shall be more than four air miles from a
head-end or distribution hub.
(h) Except as otherwise provided herein, a Grantee
shall not operate its cable television system in any way to
di sc riminate aga ins t or on be hal f of any person or
organization. All persons and organizations shall have
fair and equal access to the cable television system for
lawful purposes, in accordance with applicable Federal,
state and local laws.
(i) A Grantee shall not permit the transmission of
any programming under its control that is obscene or
indecent. At the option of the subscriber, the Grantee
shall provide at cost, a device capable of blocking out or
otherwise disabling a television set from receiving those
channels upon which the Grantee imposes a per-program or
per-channel charge. This device shal 1 be designed to
permit a subscriber, by the use of a key or similar locking
system, to prevent others, who do not have a key, from
viewing or receiving the programs on such channels.
(j) In the case of any emergency, upon request of the
city, a Grantee, without charge, shall make available its
facilities for use and provide personnel to the city or
other governmental authorities during the emergency period.
The Grantee shall provide a means of interrupting channels
on the cable television system to present emergency
messages by the city or other governmental authorities.
The equipment for such interruption shall be instal led
without charge to the city in City Hall.
Sec. 5.1-29. Franchise fee.
(a) A Grantee, in consideration of the privilege
granted under a franchise to operate a cable television
system, shall build a cable television system in accordance
with the terms and conditions of this chapter and the
franchise and shall pay a franchise fee to the city during
the period of operation under the franchise. The franchise
fee shall be no more than the maximum amount permitted
under Federal or State law. A Grantee shall, at all times,
have the duty to take forthwith all steps necessary and
proper to relieve itself and the city from any limitations
which may exist under law with regard to franchise fee
1 imitations.
(b) A Grantee shal 1 file with the city manager,
within thirty (30) days after the expiration of each of the
Grantee's fiscal quarters, a financial statement clearly
showing the gross revenues received by the Grantee during
the preceding quarter. Payment of the quarterly portion of
the franchise fee shall be made to the city at or before
the time such financial statement is filed. A Grantee
shall also file with the city manager, within one hundred
twenty (120) days following the expiration of the Grantee's
fiscal year, a financial statement for that year clearly
1982-33
-18-
showing the yearly total of gross revenues received by the
Grantee. Each financial statement shall be examined and
reported on by an independent public accountant certified
in the Commonwealth of Virginia. The cost of such audit
shall be borne by the Grantee.
( c ) The city shal 1 have the right to inspect a
Grantee's income records, audit such records, and recompute
any amounts determined to be payable under this chapter.
Any additional amounts due the city, as indicated by the
audit, plus interest as specified herein, shall be paid to
the city within thirty (30) days following written notice
to the Grantee by the city. The cost of such audit shall
be borne by the Grantee if it is determined that the
Grantee's payment to the city is increased thereby by more
than five percent (5%).
(d) If any franchise fee payment is not made by the
due date, interest shall be charged from such due date at
an annual rate of fifteen percent (15%) or the interest
rate then chargeable for unpaid federal income taxes (26
U.S.C. S6621), whichever is higher. If any franchise fee
payment(s) totalling five thousand dollars ($5,000.00) or
more is not paid by the due date, interest shall be charged
from such due date at an annual rate of fifteen percent
(15%) or the interest rate then chargeable for unpaid
federal income taxes (26 U.S.C. S6621), whichever is
higher. In addition to the foregoing, the failure of the
Grantee to make a timely payment (as defined by Va. Code,
§6.1-330.26) of any amount shall subject the Grantee to an
additional late charge of five percent (5%) of the amount
of such payment. Should legal action be required to
collect such fee(s), interest or late charges, the city
shal 1 be entitled to attorney ' s fe es of thirty-three
percent (33%) of the total amount due, plus costs.
(e) If a franchise is revoked or terminated prior to
its expiration date, the Grantee shall file with the city
manager, within thirty (30) days of the date of revocation
or termination, a financial statement clearly showing the
gross revenues received by the Grantee since the end of the
previous fiscal quarter and shall pay within such thirty
(30) days the franchise fees accrued as of the date of
revocation or termination.
(f) No acceptance of any payment hereunder shall be
construed as a release or as an accord or satisfaction of
any claim the city may have for further or additional sums
payable under this chapter.
(g) Nothing contained in this chapter shal 1 be
construed to exempt the Grantee from any tax, business
license tax, levy or assessment which is authorized by law.
(h) The city has the right to change, by ordinance,
the franchise fee and the revenues on which such fee is
based.
Sec. 5.1-30.
Basic subscriber service rates and other
(a) Basic subscriber service rates during the first
three (3) years of a franchise shall be specified in the
franchise. Such rates shall be fair and reasonable and
shall be no higher than necessary to meet all costs of
services, assuming efficient and econcmical management,
plus a fair rate of return. The rates so specified shall
not, except as otherwise provided herein, be increased
without the consent of the city council, by ordinance after
notice and public hearing.
1982-33
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(b) After the first three (3) years of a franchise,
basic subscriber service rates shall, subject to the
provisions of this chapter, become unregulated unless the
city council shall have adopted an ordinance regulating
rates.
(c) The city council, at any time, may adopt an
ordinance, after notice and public hearing, regulating
basic subscriber service rates to be effective at any time
following the first three (3) year period.
(d) All charges to subscribers shal 1 be consistent
with a rate schedule for all services offered by a Grantee.
Changes in the basic subscriber service rate schedule shall
not take effect until at least ninety (90) days after
written notice of the proposed changes is delivered to the
city manager, and to each subscriber subject to any
increase in rates. Such notice shall describe all existing
rates, all proposed changes, the reasons therefor, and all
terms and conditions related thereto. The city manager
shall forward the notice to the city council within ten
(10) days of receipt. Any person who requests cable
television service or becomes a subscriber after the
written notice is delivered to the city manager but before
the rate increase becomes effective, shall be immediately
notified in writing by the Grantee that rate increases are
scheduled. Such written notice of the scheduled
increase(s) shall be sent, by the Grantee, by first class
mail not later than three ( 3 ) days, not including
Saturdays, Sundays, and legal holidays, after such service
is requested.
(e) A Grantee shal 1 not, with regard to rates,
discriminate against or on behalf of any person. However,
the Grantee, with the approval of the city council, may
establish different basic subscriber service rates for
different classes of subscribers based upon cost of service
differential s, so long as the Grantee shal 1 not
discriminate between any subscribers of the same class.
(f) A Grantee shall notify in writing each subscriber
of all applicable rates and charges for providing cable
television service prior to executing a contract of service
with such subscriber or installing any equipment to serve
such subscriber.
(g) A Grantee may, for promotional purposes, at its
own discretion, waive, reduce or suspend connection charges
and/or monthly service rates for a period not exceeding
sixty (60) days.
(h) A subscriber shall have the right to have its
service disconnected without charge at any time. Such
disconnection shall be made as soon as practicable and in
no case later than ten (10) days following the date of
written notice to the Grantee of same. A refund of unused
basic subscriber service charges, plus interest at the rate
of at least five percent (5%) annual interest, shall be
paid to the subscriber within thirty (30) days from the
date of disconnection. A Grantee shall not require payment
of any charge following disconnection of service, except
those due for services previously provided, and charges for
reconnection and subsequent monthly or periodic charges
which shall be no greater than charges for new customers.
This section shall not prevent a Grantee from refusing
service to any person because the Grantee's prior accounts
with that person remain due and owing.
1982-33 -2 O-
(i) A Grantee may offer service which requires
advance payment of periodic bas ic subscriber service
charges for no more than six (6) months in advance. Such
advance payment shall be discounted and subject to the
conditions contained in this section. Rate increases shall
not be effective with respect to any subscriber until after
expiration of any period for which advance payment has been
accepted by the Grantee.
(j) At least thirty (30) days prior to the date it
intends to terminate service to any subscriber because of
the reason of non-payment of subscriber charges, a Grantee
shall notify such subscriber in writing of such intention,
the reason therefor and the date such termination is to be
effective.
(k) The city may require the Grantee to collect any
consumer tax that may be imposed on subscribers. The
Grantee may adjust its rates to add any Federal, state or
local taxes or fees imposed directly on subscribers.
Sec. 5.1-31. Servic~e~L~a_d_justment and comRlaint procedure.
(a) At all times during its franchise, a Grantee
shall have a maintenance service within the city capable of
promptly locating and correcting system malfunctions. Such
maintenance service shall respond at all hours to correct
system malfunctions affecting one or more percent of a
Grantee's total number of subscribers in the city.
(b) At all times during its franchise, a Grantee
shall maintain a listed local telephone number and shall
employ an operator or answering service to be available to
subscribers for service and complaint calls, twenty-four
(24) hours per day. Corrective action shall be initiated
by a Grantee not later than the next business day after a
service or complaint call is received, and corrective
action shall be completed as promptly as practicable.
Records shall be made of all service and complaint calls,
and shall include the name and address of the subscriber,
the date and time of the service call or complaint, the
nature of the service call or complaint, the resolution of
the service call or complaint, and the date and time of
such resolution. Such records shall be available to the
city during normal business hours and retained in Grantee's
files for not less than three (3) years. Microfilm copies
of such records shall satisfy the requirements of this
section. A summary of such calls and complaints shall be
prepared by the Grantee and filed with the city manager
annually in a form acceptable to the city manager. Such
summary shall be filed within thirty (30) days after the
expiration of twelve (12) months after service is provided
to the first subscriber, and within thirty (30) days after
the expiration of each twelve (12) month period thereafter.
(c) A Grantee shall provide each subscriber, at the
time service is provided to the subscriber, written
information which shall include:
(1) Name, address, mailing address, and
telephone number within the city of the Grantee ' s
representative ( s ) to whom the subscriber may request
information or submit consumer or service complaints
concerning the cable television system franchise.
(2) Name, business address, mailing address, and
telephone number of the city manager to whom the subscriber
may request information or submit consumer or service
complaints concerning the cable television system
franchise.
1982-33
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(d) The city manager shall keep records of subscriber
service calls and complaints for not less than three (3)
years.
(e) If a Grantee fails to respond satisfactorily to
service calls or complaints concerning the cable television
service, the city manager, after notice and opportunity to
be heard, may require the Grantee to respond and adjust a
pro-rata portion of the subscriber charges for the extent
and degree of service deficiencies.
(f) A Grantee may interrupt cable television system
service after 7:00 a.m. and before 1:00 a.m. only with good
cause and for the shortest time possible and, except in
emergency situations, only after giving notice, reasonably
calculated to reach subscribers, of service interruption at
least twenty-four (24) hours in advance of the service
interruption. Service may be interrupted between 1:00 a.m.
and 7:00 a.m. for routine testing, maintenance, adjustment,
and repair, without notification, except on Saturdays,
Sundays, or legal holidays.
Sec. 5.1-32. Books and records.
(a) A Grantee shall file with the city manager a list
showing the names and addresses of persons owning one
percent (1%) or more of the outstanding stock or equivalent
ownership interest in the Grantee, at the following times:
( 1 ) Within thirty
acceptance of a franchise;
( 30 ) days fol lowing the
(2) Annually within thirty (30) days of the end
of the calendar year during a franchise, and
(3) Within thirty (30) days of the change of
ownership of one percent (1%) or more of the outstanding
stock or equivalent ownership interest in a Grantee.
Such list shall include a roster of the Grantee's officers
and directors (or equivalent managerial personnel ) and
their addresses.
(b) At all times during its franchise, a Grantee
shall maintain complete and accurate books and records of
its cable television system franchise operations within the
city, at an address on file with the city manager. The
office shall be open and accessible to the public and have
telephone service during normal business hours. Such books
and records shall include copies of all documents required
by this chapter and the franchise. The books and records
shal 1 contain the fol lowing in sufficient detail,
consistent with generally accepted accounting principles:
(1) Total revenues, by service category.
(2) Operating expenses, categorized by general
and administrative expenses, technical expenses, and
programming expenses, and overhead where applicable.
(3) Capital expenditures, to include capitalized
interest overhead, if any.
(4) Depreciation expenses, by category.
(c) A Grantee shall retain such books and records, in
any reasonable form, for a period of not less than fifteen
(15) years. The city may extend the retention period
through the term of any renewed franchise.
1982-33
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(d) The books and records of a Grantee's operation
within the city shall be made available within ten (10)
days of a request by the city manager in the Grantee's city
office during normal business hours, for inspection and
audit by the city.
( e ) Copies of a Grantee ' s schedule of charges;
contract and application forms for basic subscriber
service; policy regarding the processing of subscriber
complaints; delinquent subscriber disconnect and reconnect
procedures; and any other terms and conditions adopted as
the Grantee's policy in connection with its subscribers
shall be filed with the city manager and conspicuously
posted in the Grantee's city office.
(f) The Grantee's city office shall be where all
notices, directions, orders and requests by the city under
this chapter are sent or delivered. The mailing or
delivery of any notice, direction, order or request by the
city shall be deemed to be direct personal notice and to be
given at the time of mailing or delivery. Every notice
served on the city by the Grantee shall be on the city
manager, City Hall, 10455 Armstrong Street, Fairfax,
Virginia.
(g) Copies of al 1 agreements, correspondence,
petitions, reports, applications and other documents sent
to or received by a Grantee from Federal, State or local
agencies having jurisdiction in matters affecting the
Grantee ' s cable television system franchise shal 1 be
promptly filed with the city manager by the Grantee.
Sec. 5.1-33. Tests and performance monitoring[.
(a) Within sixty (60) days after the first cable
television service is made available to subscribers, a
Grantee shall adopt a procedure for testing the cable
television system, consistent with the terms and conditions
of this chapter and the franchise, which includes rules for
test conditions, equipment, locations, time intervals, and
measurements. The testing procedure shall meet the minimum
standards of the applicable Federal Communications
Commission rules and regulations, and shall be subject to
the approval of the city.
(b) Not later than ninety (90) days after any new or
substantial ly rebuilt portion of the cable television
system is made available for cable television service to
subscribers, technical performance tests shall be conducted
by Grantee(s) to demonstrate full compliance with all
applicable technical standards including the Technical
Standards of the Federal Communications Commission. Such
tests shall be performed by, or under the supervision of,
an independent registered professional engineer. A report
of such tests shall be filed with the city manager,
describing test results, instrumentation, calibration, test
procedures, any recommendations for improving technical
performance, and the qualifications of the engineer
responsible for the tests.
(c) System monitor test points shall be established
at or near the output of the last amplifier in the longest
feeder line, at or near trunk line extremities, and at
locations to be specified in the franchise. Periodic tests
shall be made at the test points as shall be described by
the city manager.
(d) At any time after commencement of service to
subscribers, the city may require additional tests,
1982-33 -2 3-
including full or partial repeat tests, different test
procedures, or tests involving a specific subscriber's
terminal, at the Grantee's expense to the extent such tests
may be performed by the Grantee's employees utilizing its
existing facilities and equipment. The city may conduct
its own tests upon reasonable notice to the Grantee. If
noncompliance is found by the city, the expense of the
city's tests shall be borne by the Grantee. The city will
endeavor to arrange its request for such additional tests
to minimize hardship or inconvenience to a Grantee or to
subscribe rs.
(e) Copies of any performance test required by the
Federal Communications Commission shall be filed with the
city manager. The city shall have the same rights as the
Federal Communications Commission has to inspect a
Grantee's performance test data.
(f) The city shall have the right to employ qualified
consultants to assist in the administration of this, or any
other section of this chapter.
Sec. 5.1-34. Street ocqu]~a~n_q~.
(a) A Grantee shall utilize existing poles, conduits
and other facilities whenever possible. A Grantee shall
not construct or install any new, different, or additional
poles, conduits, or other facilities in a public way or on
private property until the Grantee obtains written approval
of the appropriate governmental authority and the property
owner except the Grantee shal 1 be permitted to use
easements and rights-of-ways of VEPCO and Chesapeake and
Potomac Telephone Company in accordance with the terms of
the VEPCO and Chesapeake and Potomac Telephone Company
Franchise Ordinances. Approval shall be conditioned upon
compliance with the terms and conditions of this chapter
and the franchise, upon compliance with applicable
provisions of this code, upon compliance with applicable
subdivision regulations, if any, and upon protection of the
public health, safety and general welfare. Approval shall
not be unreasonably withheld and the city will put forth
its best efforts to expedite the issuance of necessary
permits from the city and its agencies. No location of any
pole, conduit, or other facility of a Grantee shall be a
vested interest. Such poles, conduits, or other facilities
shall be removed, replaced or modified by a Grantee at its
own expense and in compliance with the specifications of
the city whenever the city council or other governmental
authority so requests. The Grantee shall not be entitled to
any damages from the city, city council, or other
governmental authority for any injury to the Grantee's
poles, conduits or other facilities for such removal,
replacement or modification.
(b) Where the city, other governmental authority, or
a public utility serving the city desires to make use of
the poles, conduits, or other facilities of a Grantee but
agreement therefor with the Grantee cannot be reached, the
city council may require the Grantee to permit such use for
consideration and upon such terms as the city council
determines to be just and reasonable and in accordance with
the standards of 47 U.S. Code S224 and any successor
legislation, if the city council determines that the use
would not unduly interfere with the Grantee's operations.
(c) Unless otherwise regulated, all facilities of a
Grantee shall be installed and located without interference
except where it is unavoidable with other public utilities,
public facilities or with the rights and reasonable
convenience of owners of property which adjoins the
property upon which a Grantee has placed its facilities.
1982-33
-24-
At all times such facilities shall be maintained in safe,
orderly repair. A Grantee shall at all times employ at
least reasonable care to ins tal 1 and ma intain its
facilities to prevent failures and accidents which are
likely to cause damage, injuries, or nuisances to the
public. The Grantee shall erect and maintain at its own
expense, suitable barricades, flags, lights, flares, signs
or other devices at such times and places as are reasonably
required for the safety of all persons. No poles, conduits
or other facilities placed or maintained in any public way
by a Grantee shall interfere with the use of such public
way.
(d) In those areas of the city where electric and
telephone utility lines have been placed underground, a
Grantee shall place its facilities underground. In areas
where either telephone or electric utility lines are
aboveground at the time of installation, the Grantee may
install its facilities aboveground. However, at such time
as both of those utility lines are placed underground, the
Grantee shall forthwith place its facilities underground,
and the cost thereof shall be pa id by the Grantee. No
special charge shall be imposed upon any subscriber for
such placing of facilities underground.
(e) In the event of disturbance of any public way or
private property by a Grantee, it shall, at its own expense
and in a manner approved by the city, other appropriate
governmental authority, or the owner, as the case may be,
replace and restore such public way or private property in
as good a condition as before the work causing such
disturbance was done. The Grantee shall guarantee and
maintain such replacement and restoration for a period of
two years. If the Grantee fails to perform such
replacement or restoration, or other obligations under this
section, the city, other governmental authority, or the
owner shall have the right to do so at the sole expense of
the Grantee, and shall not be liable to the Grantee for
damages resulting therefrom. Payment to the city, other
governmental authority, or owner for such replacement,
restoration, or fulfilled obligation shall be upon demand.
(f) At the request of any person holding a valid
building moving permit issued by the city or any other
governmental authority, and upon at least forty-eight (48)
hours notice, the Grantee shall temporarily move or cut its
facilities as necessary to facilitate such move. The direct
expense of such temporary changes, including standby time,
shall be paid by the permit holder, and the Grantee shall
have the authority to require payment in advance.
(g) After ten (10) days written notice to the city,
Grantee may trim trees in a public way at its own expense
and liability as necessary to protect its facilities,
subject to the regulation, supervision and/or direction
that may be imposed by the city or other governmental
authority.
(h) A Grantee shall file with the city manager maps,
plats and permanent records of the location and character
of all facilities constructed. These maps, plats and
permanent records shall be up-dated every three months by
the Grantee.
(i) If, in a fire or an emergency, in the judgment of
the commander at the scene or the city manager, it is
necessary to cut or remove the Grantee's facilities, this
may be done. Repairs necessitated by this action shall be
made by the Grantee, at its own expense and without charge
to the city.
1982-33
-25-
Sec. 5.1-35. Protection of ]Ar~iv~ac~f.
(a) A Grantee shall not receive any aural, visual or
digital signal, including any polling of channel selection,
and shall not permit the transmission of any such signal,
from any subscriber' s premises without first obtaining
written permission of the subscriber. This provision is
not intended to prohibit the use or transmission of signals
useful only for the control or measurement of system
performance.
(b) A Grantee shall not permit the installation of
any special terminal equipment in any subscriber's premises
that will permit transmission frcm the subscriber's
premises of two-way services utilizing aural, visual or
digital signals without first obtaining written permission
of the subscriber.
( c ) A Grantee shal 1 not sel 1 or otherwi se make
available to any person any list of names and addresses of
subscribers or any list which identifies the individual
viewing habits of subscribers without first obtaining the
written permission of all subscribers on the list.
(d) Written permission required under this section
shall be contained in a separate document with a prominent
statement that the subscriber is authorizing the permission
in full knowledge of its provisions. The authorization
shall be revocable at any time by the subscriber without
penalty of any kind.
Sec. 5.1-36. EmRl~o~yment requirement.
A Grantee shall not refuse to hire, nor discharge from
employment, nor discriminate against any person regarding
compensation, terms, conditions, or privileges of
employment be cause of age, sex, race, color, creed, or
national origin. A ~-rantee shall take affimative action to
insure that applicants are employed and employees are
treated equally without regard to the ir age, sex, race,
color, creed or national origin. This condition includes,
but is not limited to, the fol lowing: recruitment,
advertising, employment interviews, employment, rates of
pay, forms of compensation, selection for training,
upgrading, transfer, demotion, layof f, and termination.
Sec. 5.1-37. Transfer of franchise.
(a) The franchise granted under this chapter shall be
a privilege to be held in personal trust by the Grantee.
It shall not be assigned, transferred, sold or disposed of,
in whole or in part, by voluntary sale, merger,
consolidation, by forced or involuntary sale, or otherwise,
without prior consent of the city council, by ordinance,
and then only on such conditions as may therein be
prescribed. The city shal 1 not withhold its consent
unreasonably. The city is empowered to take legal or
equitable action to set aside, annul, revoke, or cancel the
franchise, or any transfer of the franchise, if the
transfer is not made according to the procedures set forth
in this chapter.
(b) The Grantee shall notify in writing the city
manager within ninety (90) days of any proposed sale,
transfer or assignment of a franchise. Any sale, transfer
or assignment of a franchise shall be subject to the
provisions of this chapter and shall be made in writing, an
executed copy of which shall be filed with the city manager
within ten (10) days after any such sale, transfer or
assignment. The proposed buyer, transferee or assignee
1982-33
-26-
shall become responsible for the full performance of all
conditions, liabilities, covenants and obligations of this
chapter, the franchise, and reasonable amendments thereto,
and shal 1 provide proof of financi al and character
qualifications as determined by the city council. The
failure of the Grantee to construct all of the cable
television system may be a reason to refuse consent for the
transfer of the franchise.
(c) No consent shall be required for a transfer in
trust, mortgage, or other instrument of hypothecation, in
whole or in part, to secure an indebtedness except when
such hypothecation exceeds seventy-five percent (75%) of
the fair market value of the property used by the Grantee
in the operation of its cable television system. Prior
consent of the city council, by ordinance, shal 1 be
required for such hypothecation. The city shal 1 not
withhold its consent unreasonably. This subsection shall
not apply to a transfer from a foreclosure or default in
the conditions of indebtedness.
(d) Prior consent of the city council shal 1 be
required where ownership or control of fifty percent (50%)
or more of the right to control of the Grantee is acquired
in any transaction or series of transactions by a person or
group of persons acting in concert, none of whom already
own or control fifty percent (50%) or more of such right of
control, singularly or collectively. By its acceptance of
a franchise a Grantee specifically agrees that any such
acquisition occurring without prior consent of the city
council shall constitute a violation of the franchise by
the Grantee.
(e) The consent of the city council to any sale,
transfer, lease, trust, mortgage or other instrument of
hypothecation shall not constitute a waiver or release of
any of the rights of the city under this chapter and the
fr anch i se.
Sec. 5.1-38. Grantee' s obli~La_tion as trustee.
(a) A Grantee shall have a duty as trustee at all
times to hold its assets for the benefit of any successor
in interest from the expiration, termination or revocation
of a franchise until the earlier of the following events:
(1) Grantee transfers to a successor in interest
all of its rights, title and interest to all assets, real
and personal, related to its cable television system; or
(2) The city's right to either acquire or assign
its rights to acquire any of the Grantee's assets expires
without the city having exercised such a right; or
(3) The city council requires the Grantee to
remove all its facilities from the public way.
Without the written permission of the city council or its
assigns, the Grantee shall not, during its duty as trustee,
sell any of the cable television system assets; or make any
physical, material, administrative or operational changes
that would tend to degrade the quality of service to the
subscribers, decrease gross revenues, or material ly
increase expenses. The Grantee shall at all times as
trustee operate the cable television system in accordance
with terms and conditions of this chapter and the franchise
as if the franchise had not expired or been terminated or
revoked.
1982-33
-27-
(b) In the event of expiration, termination or
revocation of a franchise, this section shall not be
construed to give a Grantee any vested or other franchise
right. The right of the Grantee in such circumstances
shall exist only on a day-to-day basis until a transfer is
effected.
(c) For its management services during the period as
a trustee, the Grantee shall be entitled to receive as
compensation the net profit generated during the period
between the expiration, termination or revocation of the
franchise, as the case may be, and the transfer of the
Grantee's assets to a successor. If the city council
determines that the Grantee is responsible for any delay in
transfer of the Grantee ' s assets, the Grantee shal 1
continue to act as trustee without compensation for its
management services for the period of delay as determined
by the city council.
(d) This section shall in no way limit the power of
the city upon expiration, termination or revocation of a
franchise, to require the Grantee to cease all operations
whatsoever and/or remove its facilities, or exercise any
rights the city would otherwise have.
Sec. 5.1-39. Limits on recourse.
(a) Except as expressly provided in this chapter, a
Grantee shall have no recourse against the city for any
loss, expense or damage resulting from the terms and
conditions of this chapter or the franchise, the
enforcement thereof, or the city's failure to have the
authority to grant the franchise. A Grantee expressly
agrees that upon its acceptance of the franchise it does so
relying upon its own investigation and understanding of the
power and authority of the city to grant the franchise.
( b ) A Grantee, by accepting the fran chi se,
acknowledges that it has not been induced to accept the
franchise by any promise, oral or written, by or on behalf
of the city, regarding any term or condition of this
chapter or the franchise not expressed therein. A Grantee
further pledges that no promise or inducement, oral or
written, has been made to any officers or employees of the
city regarding receipt of the cable television system
franchise. A Grantee further pledges that it will not hire
any individual employed ful 1 time by the city or any
consultant employed by the city to assist the city in the
administration of this chapter. Such proscription of
employment shall extend for one year following the granting
of the franchise unless the city council consents to such
employment at an earlier time.
( c ) A Grantee acknowledge s by acceptance of a
franchise that it has carefully read the terms and
conditions of this chapter and the franchise and accepts
without reservation the obligations imposed by the terms
and conditions of this chapter and the franchise.
(d) Any decision or decisions of the city council
concerning the selection of one or more Grantees and the
awarding of one or more franchises is final. A11
applicants agree, as a condition of application, not to
contest the city council's decision(s) in any court of law
or before the Federal Communications Commission.
(e) A Grantee shall not apply for any waivers,
exceptions or declaratory rulings from the Federal
Communications Commission or any other Federal or state
agency without the written permission of the city manager.
1982'33
-28-
Article VII. Amend_m~e_ntL_Review~ Renewal and
Revocation of Franchise.
Sec. 5.1-40. Franchise amendment.
The city may amend a franchise, by ordinance, after
notice and a public hearing, upon application of a Grantee
or upon its own initiative to enable the Grantee to take
advantage of advancements in the state-of-the-art which
will afford it an opportunity to serve its subscribers or
the city more effectively, efficiently or economically.
This section shall not be construed to require the city to
make any such amendment.
Sec. 5.1-41. Franchise review and renewal.
(a) The city council may hold a public hearing at any
time during a franchise to review the cable television
system performance and design modifications and to propose
any amendments to the franchise. No amendments to the
franchise shall be made until after a public hearing is
held on such amendments. All amendments shall be made by
ordinance.
(b) The city council shall set a time and place,
within one year be fore the franchise expiration, for a
public hearing to review a Grantee's performance during the
entire term of its franchise; to consider the adequacy of
the franchise from the standpoint of the city, the Grantee,
and the Federal Communications Commission Rules for Cable
Television; and to determine the advisability of renewing
the Grantee's franchise.
(c) After the public hearing, if the city council
determines that the Grantee has been in substantial
compliance with the terms and conditions of this chapter
and the franchise, the city council may renew the Grantee's
franchise, with any reasonable amendments, for not more
than fifteen (15) years. The city shall notify the Grantee
of its intent to renew the franchise within one year of the
expiration date of the franchise. The city council may
require a Grantee to pay the city, as a condition of
renewal of the franchise, an amount which the city council
determines will compensate the city for the direct expense
above normal administrative costs incurred in connection
with the renewal of the franchise.
(d) Even though the city council may determine that
the Grantee has been in substantial compliance with the
terms and conditions of this chapter and the franchise, the
city council shal 1 have the right not to renew the
franchise. If the city council does not renew the
franchise, the city council shall have the option, to the
extent permitted by law, and after a public hearing, to
acquire the assets of the Grantee's cable television
system, or to assign such right to acquire such assets, or
to require the Grantee to remove all its facilities from
the public way. The amount paid for such assets shall be
the fair market value of the system as of the expiration
date of the franchise. The city council's options to
acquire the assets of the Grantee or to assign such right
to acquire such assets shall be exercised within one year
from the expiration date of the franchise.
Sec. 5.1-42. Franchise revocation.
(a) A franchise may be revoked, by an ordinance
passed by the city council, after a public hearing, if a
Grantee:
1982-33
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(1) Refuses, neglects or fails to construct,
operate or maintain its cable television system in
accordance with the terms and conditions of this chapter
and the franchise,
(2) Refuses, neglects or fails to comply with
the conditions of occupancy of any public way,
(3) Refuses, neglects or fails to make required
extensions of service,
(4) Wilfully or knowingly makes one or more
omissions or false statements on or in connection with its
franchise application or its operation of a cable
television system in the city,
(5) Violates any other term or condition of this
chapter or the franchise,
( 6 ) Violates any rule or regulation adopted
under the terms and conditions of this chapter and the
fr anch ise,
( 7 ) Violates any provision of
Consumer Protection Act of 1977, as amended,
the Virginia
(8) Violates any Federal or state statute, rule
or regulation applicable to cable television systems,
(9) Becomes insolvent, or unable or unwilling to
pay its debts, or seeks or obtains relief under the
bankruptcy laws, or
(10) Becomes subject to condemnation proceedings
by third parties in which all or a significant part of the
system is condemned.
(b) If the city manager believes that grounds for
revocation exist or have existed, the city manager shall
notify the Grantee, in writing, of such grounds. If within
thirty (30) days following such written notification by the
city manager, the Grantee has not furnished proof to the
satisfaction of the city manager that corrective action has
been taken, that corrective action is being actively and
expeditiously pursued, that the alleged grounds did not
occur, or that the al leged grounds were beyond the
Grantee ' s control, the city manager shal 1 notify the
Grantee in writing of any dissatisfaction of the Grantee's
response and of possible revocation, and refer the matter
to the city council. The city council may, after a public
hearing, require the Grantee to take corrective action or
revoke the Grantee's franchise. Any finding of fact made
by the city council in revoking the Grantee's franchise
shall be final unless modified by a court of competent
jurisdiction.
(c) A Grantee shall not be subject to the sanctions
of this section for any act or omission if such act or
omission was beyond the Grantee's control. The following
acts or omissions shall not be deemed to be beyond a
Grantee's control:
(1) An act or omission by, or caused by a
corporation or other business entity which holds, directly
or indirectly, a controlling interest in the Grantee, and
( 2 ) The inability of
financing, for whatever reason.
a Grantee to obtain
(d) If a franchise is revoked by the city council,
the city council shall have the option, to the extent
1982-33
-30-
permitted by law, and after a public hearing, to acquire
the assets of the Grantee's cable television system or the
option to assign such right to acquire. Either option must
be exercised within one year from the of the revocation
date of the franchise.
(e) If a franchise is revoked by the city council,
the city council may require the Grantee to remove all its
facilities from. the public way within ninety (90) days of
such revocation.
(f) The revocation of a Grantee's rights under a
franchise shall in no way affect any other rights the city
may have under the franchise or under any provision of law.
Sec. 5.1-43. Reserved.
Sec. 5.1-44. Notice to Grantee.
The city council shall not take action at any public
hearing before the city council involving the amendment,
review, renewal, or revocation of a Grantee's franchise
unless the city has given the Grantee at least fourteen
(14) days written notice of such public hearing. The
notice shall advise the Grantee of the public hearing's
time, place, proposed action affecting the Grantee, and the
Grantee's opportunity to be heard.
Article VIII. Transfer of Franchise.
Sec. 5.1-45. Transfer of franchise to citl.
(a) The city may give written notice to the Grantee
that the city elects to exercise its right to purchase a
Grantee's cable television system or any of its assets, and
may acquire such assets at any one of the following times:
(1) At the time of giving notice of its election
of its right to purchase (in which case the assets shall
automatically transfer to the city, payment of fair market
value to follow);
(2) At any time specified by the city after
giving notice of its election of its right to purchase (in
which case the assets shall automatically transfer to the
city, payment of fair market value to follow); or
(3) At the time of payment of the fair market
value.
Unless the notice of election by the city specifically
exercises a right described in paragraph (1) or (2) above,
paragraph (3) shall apply. The fair market value shall be
determined as of the expiration, termination or revocation
date of the franchise. In those circumstances where
paragraph (3) applies, and the question of fair market
value has been submitted to arbitration, the city may
affirmatively accept the award of the arbitrators within
sixty (60) days after the rendering of the arbitrators'
decision, at which time the assets shall automatically
transfer to the city. However, if the city fails to accept
the arbitrators' decision within such sixty (60) day
period, the rights of the city to purchase shall cease for
six (6) months following the sixty (60) day period after
the arbitrator's decision.
(b) In those circumstances provided for in this
chapter wherein the city has the right to purchase a
1982-33
-31-
Grantee's cable television system, or any of its assets, no
question of fair market value shall be submitted to
arbitration until ninety (90) days have lapsed from the
giving of notice that the city elects to exercise its
right. Thereafter either a Grantee or the city may submit
the matter to arbitration.
( c ) Transfer of the Grantee ' s as sets under this
section shal 1 be free from any and al 1 liens and
encumbrances not expressly assumed by the city.
(d) If any time lapses between the time of transfer
of assets and the time of payment therefor, the Grantee
shall be entitled to interest during the interim at the
rate of eight percent (8%) per annum.
(e) Any contract entered into by the Grantee
concerning its cable television system assets shall be
subject to and conditioned upon the city's rights under
this section.
Sec. 5.1-46. Provision for arbitration.
In the event the city elects to purchase a Grantee's
cable television system, or any of its assets, and the fair
market value cannot be agreed upon, the final price shall
be determined by a panel of arbitrators. The panel shall be
composed of one arbitrator chosen by the city, one
arbitrator chosen by the Grantee, and a third arbitrator
chosen by the first two. The expenses of the arbitration,
including the fees of the arbitrators, shall be borne by
the parties in such manner as the arbitrators provide in
their award, but in no event shall the city be obliged for
more than one-half the expenses. The determination of a
majority of the arbitrators shal 1 be binding on the
parties. The arbitrators shal 1 fol low the rules and
procedures of the American Arbitration Association except
where in conflict with an express provision of this
chapter, in which case such provision controls. The
arbitrators shall make all reasonable efforts to determine
the fair market value within thirty (30) days of submission
of the issue to them. The arbitration hearing shall take
place in the city unless otherwise agreed to by the parties
in writing.
Sec. 5.1-47. Cit_~'s right to assig_q.
The city may assign its rights to acquire any or all
of the assets of a Grantee's cable television system.
Article IX. Financial Disclosure.
Sec. 5.1-48. Financial disclosure b~5 a_~p~plicants.
(a) Every request for proposal shall require, and
every cable television system franchise application shall
contain, a complete and detailed listing, under oath, of
the following information:
(1) The names and positions of all officers and
employees of the city known to the applicant to have any
interest in the applicant, and the extent of such interest.
(2) The names and las t-known addresses of all
persons who have acted as attorney, broker, consultant, or
agent of the applicant with respect to the application.
1982-33
-32-
(3) The names and last-known addresses of all
persons who own or control any interest in the applicant.
In the case of a partnership or joint venture or syndicate,
the names and last-known addresses of all partners or
participants shall be listed. In the case of a corporation
having fewer than twenty (20) stockholders, the names and
last known addresses of all stockholders shall be listed.
In the case of a corporation having twenty ( 20 )
stockholders or more, the names and last-known addresses of
the twenty ( 20 ) stockholders who own or control the
greatest percentage of ownership interest in the applicant
shall be listed. However, in the case of a corporation
having more than two hundred (200) stockholders and whose
stock is traded on a national stock exchange, the names and
last-known addresses of those stockholders who own or
control any ownership interest of one percent (1%) or more
shall be listed. If any stockholder identified under this
subsection is not an individual, the names and last-known
addresses of all persons who own or control five percent
(5%) or more interest in such stockholder shall be listed.
For the purpose of this subsection, a person holding any
ownership interest as a trustee shall be so noted.
(4) The names and last-known addresses of all
holders of debt of the applicant, other than stockholders
or suppliers of goods and services paid on current account,
in excess of five thousand dollars ($5,000.00) or one
percent (1%) of the total outstanding indebtedness of the
applicant, whichever is lesser.
(5) The name and position of each officer and
employee of the city to whom, or to whose immediate family,
the applicant or any person described in subsections (2)
and (3) herein has made any gift or donation of one hundred
dollars ($100.00) or more within three (3) years preceding
the filing of the application, the name of the donor, and
the amount or value of the gift or donation. As to elected
officers and employees of the city, this requirement
includes disclosure of gifts or donations to their
"principal campaign committees" and "authorized committees"
as defined by 2 U.S.C. S431, and campaign committees formed
pursuant to Va. Code, S24.1-251 et seq.
(b) The city council in its discretion may eliminate
any applicant from consideration for the award of a cable
television system franchise within the city who is not in
compliance with the provisions of the disclosure
requirements of this chapter.
Sec. 5.1-49.
Financial disclosure b~ officers and em lo~
of the cit~.
Within thirty (30) days after receipt of notification
by the city manager that an application for a cable
television franchise has been received by the city and
again within thirty (30) days after the adoption of an
ordinance granting a cable television system franchise,
each officer and employee of the city shall file with the
city manager a complete and detailed statement, under oath,
to the best of their information, knowledge and belief,
after a duly diligent search, containing the following
information:
(a) The name of each applicant which has applied for
a cable television franchise in which the officer or
employee of the city, a member of his or her immediate
family, or any of his or her business associates, has any
interest; the amount, nature, and extent of the interest;
and the name of the person possessing such interest.
1982-33
-33-
(b) The name of any partner, participant,
stockholder, officer, employee, representative, or any
member of the immediate family of any of them, of any
applicant, who has made any gift or donation of one hundred
dollars ($100.00) or more to the officer or employee of the
city, or to a member of his or her immediate family, or to
any of his or her business associates, within three (3)
years preceding the filing of the application, and the name
of the recipient and amount or value of the gift or
donation.
Article X. General Provisions.
Sec. 5.1-50. Time is of the essence.
Whenever this chapter or the franchise sets forth any
time for any act to be performed by or on the behalf of a
Grantee, such time shal 1 be deemed of the essence. The
Grantee's failure to perform within the time al lotted
shall, in all cases, be sufficient grounds for the city to
invoke the remedies available under the terms and
conditions of this chapter and the franchise.
Sec. 5.1-51. Rights reserved to the citl.
The city expressly reserves the fol lowing rights:
(a) To exercise its governmental powers at any time
to the full extent that such powers may be vested in or
granted to the city.
(b) To adopt, in addition to the provisions contained
in this chapter, in the franchise and in any other existing
applicable ordinances, such additional ordinances and
regulations as it deems necessary in the exercise of its
police power.
(c) To pursue all appropriate legal and equitable
relief to enforce the terms and conditions of this chapter
and the franchise.
(d) To interpret the terms and conditions of this
chapter, the franchise and the Grantee's application, and,
in the case of conflict, to choose which te~ms and
conditions prevail.
(e) To acquire by condemnation according to law any
property of the Grantee, the award for which shall not
include any valuation based upon the franchise.
( f ) To revoke a franchise if the Federal
Communications Commission requires that substantial
sections of this chapter be altered or deleted.
Sec. 5.1-52. Special license.
The city reserves the right to issue a license,
easement or other permit to any person other than a Grantee
to permit that person to traverse any portion of a
Grantee's franchise area within the city in order to
provide cable television service outside the city. Such
license, easement, or other permit, absent a franchise in
acccordance with this chapter, shal 1 not authorize such
person to provide cable television service of any nature to
any place within the city or provide any cable television
service or connect any subscriber within the city to the
Grantee's cable television system.
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Sec. 5.1-53. Li~idated dama~.
In addition to any other remedy provided for in this
chapter, or otherwise available under law, the city shall
have the power to recover liquidated damages from a Grantee
under certain conditions. The conditions for and amounts
of such damages are listed below. By accepting a
franchise, a Grantee agrees that the following conditions
will cause damages to the city, and that the amounts are
established because it is difficult to ascertain the exact
amount of the damages. The damages resulting to the city
include, but are not limited to administrative costs
incurred by the city and loss of franchise fees that would
have otherwise been paid to or would have become due the
city.
(a) For failure to supply books, records, statements,
information and reports required by the city in accordance
with the terms and conditions of this chapter or the
franchise -- fifty dollars ($50) per day.
(b) For failure to complete construction and
installation, and to commence operation of the cable
television system within the required time limits -- two
hundred dollars ($200) per day.
(c) After commencement of operation of the cable
television system, for failure to provide cable television
service to a subscriber in accordance with the terms and
conditions of this chapter and the franchise -- ten dollars
($10) per day per subscriber affected, but not to exceed
fifty dollars ($50) per subscriber per month, and not to
exceed one thousand dollars ( $1,000 ) per day in the
aggregate. This amount shall be reduced by any refunds of
subscriber fees made to subscribers affected by the failure
to provide cable television service.
(d) For any other violation of the terms and
conditions of this chapter and the franchise or the rules,
orders or regulations adopted thereunder -- twenty-five
dollars ($25) per day.
Sec. 5.1-54. Unlawful acts.
(a) It shall be unlawful for any person to attach, in
any way, or cause or allow the attachment, in any way, any
equipment, of any nature, which allows access or use of the
cable television service without payment to the Grantee.
(b) It shall be unlawful for a Grantee to willfully
fail, refuse or neglect to construct, operate or maintain
its cable television system in accordance with the terms
and conditions of this chapter or the franchise.
(c) It shall be unlawful for a Grantee to transmit or
cause or allow the transmission, or receive or permit or
allow the reception, of any signal from any subscriber's
premises, except for signals useful only for the control or
measurement of system performance, without first obtaining
written permission from the subscriber.
(d) It shall be unlawful for a Grantee to install, or
cause or allow the installation of any equipment on any of
the subscriber's premises that will permit transmission
from the subscriber's premises of any signals, except for
signals useful only for the control or measurement of
system performance, without first obtaining written
permission from the subscriber.
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(e) It shall be unlawful for any person to fail to
comply with the disclosure requirements set forth in this
chapter.
(f) It shall be unlawful for any person or Grantee
subject to this chapter to fail to comply with any of the
terms and conditions set forth in this chapter.
Sec. 5.1-55. Penalties.
A violation of this chapter shall be deemed a Class 1
misdemeanor. Each day the violation continues shal 1
constitute a separate offense.
Sec. 5.1-56. Failure to enforce franchise.
A Grantee shall not be excused from complying with any
of the terms and conditions of this ordinance or the
franchise by any failure of the city to insist upon the
Grantee's performance or to seek Grantee's compliance with
any one or more of such terms or conditions.
Sec. 5.1-57. Severability.
If any section or any portion thereof of this chapter
or the franchise is held invalid or unconstitutional by any
court of competent jurisdiction or administrative agency,
such decision shall not affect the validity of the
remaining portions hereof.
This ordinance shall become effective immediately upon its
adoption.
Introduced: August 10, 1982
Public hearing by City Council:
September 14, 1982
Adopted:
September 28, 1982
ATTEST:
MAYOR