20010522 2001-5 5
ORDINANCE NO. 2001-
AN ORDINANCE TO AMEND THE CITY OF FAIRFAX CODE BY REPEALING
ARTICLE III OF CHAPTER 94, BY ADDING A NEW ARTICLE III OF CHAPTER
NUMBERED 94 , AND BY RENAMING CHAPTER 94, RELATING GENERALLY TO
CABLE TELEVISION.
BE IT ORDAINED, by the City Council of the City of Fairfax, Virginia, that Article
III of Chapter 94 of the City of Fairfax Code is hereby repealed, and a new Article III of
Chapter 94 is hereby enacted as follows:
ARTICLE III
CABLE COMMUNICATIONS
Division 1. Short Title; General Provisions.
Section 94-61. Short title.
This ordinance shall be known as the City of Fairfax Communications Ordinance.
Section 94-62. Existing rights.
Nothing in this Chapter shall be deemed to abrogate the constitutionally protected
rights of a Cable system operating in the City on the date of the adoption of this ordinance.
Division 2. Definitions.
Section 94-63. Definitions.
The following words and phrases when used in this Chapter shall, for the purpose of
this Chapter, have the meanings respectively ascribed to them in this Section except in those
instances where the context clearly indicates a different meaning:
Access channel means any channel on a Cable system set aside by a Grantee for
public, educational, or governmental use.
Affiliate means any Person who owns or controls, is owned or controlled by, or is
under common ownership or control with a Grantee. For purposes of this definition, "owns"
means an ownership interest of more than five percent.
Basic service means (i) any service tier that includes the retransmission of local
television broadcast signals; (ii) any public, educational, and governmental access
programming required by a Franchise agreement to be provided to Subscribers as basic
service; and (iii) any additional video programming signals or services added to basic service
by a Grantee.
Cable Act means the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et
seq., as amended from time to time.
Cable service means: (i) the one-way transmission to Subscribers of video
programming or other programming services; and (ii) Subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming service.
Cable system or system means a facility, consisting of a set of closed transmission
paths and associated signal generation, reception and control equipment that is designed to
provide Cable service which includes video programming and which is provided to multiple
Subscribers within the City, except that such definition shall not include: (i) a system which
serves fewer than twenty Subscribers; (ii) a facility that serves only to retransmit the
television signals of one or more television broadcast stations; (iii) a facility which serves
Subscribers without using any public ways; (iv) a facility of a common carder which is
subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934,
47 U.S.C. § 201, et seq., except that such facility shall be considered a Cable system (other
than for purposes of 47 U.S.C. § 541(c)) to the extent such facility is used in the transmission
of video programming directly to Subscribers, unless the extent of such use is solely to
provide interactive on-demand services; (v) an open video system that complies with 47
U.S.C. § 573; (vi) any facilities of any electric utility used solely for operating its electric
systems; or (vii) any portion of a system that serves fewer than fifty Subscribers in the City
where such portion is a part of a larger system franchised in an adjacent county, city or town.
The foregoing definition of "cable system" shall not be deemed to circumscribe or limit the
valid authority of the City to regulate or franchise the activities of any other communications
system or provider of communications services to the full extent permitted by law.
Channel means a portion of the electromagnetic frequency spectrum that is used in a
Grantee's Cable system and that is capable of delivering a video signal as that term is defined
by the Federal Communications Commission.
City means the City of Fairfax, Virginia, in its incorporated form, or in any other
reorganized, consolidated or changed form.
City Council means the city council or any future legislative body of the city.
City Manager means the chief executive officer of the city and his designee.
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Communications Administrator means the present or succeeding employee of the City
of Fairfax designated as the Community Relations Manager or Cable Television Specialist, or
as the Communications Administrator, who shall have the duties prescribed in this Chapter
and as otherwise prescribed by city council.
Customer means "Subscriber" or "former Subscriber".
Educational Access Channel or Educational Channel means any Channel required by
a Franchise agreement to be provided by a Grantee on its Basic service tier to the City for
educational use.
Equitable Price means fair market value adjusted downward for the harm to the City
or Subscribers, if any, resulting from a Grantee's breach of its Franchise agreement or
violation of this Chapter, and as further adjusted to account for other equitable factors that
may be considered consistent with 47 U.S.C. § 547.
Fair market value means the price which property will bring when it is offered for sale
by one who desires, but is not obligated, to sell it, and is bought by one who is under no
necessity of having it.
Federal Communications Commission or FCC means that Federal agency as presently
constituted by the Communications Act of 1934, as amended, its designee, or any successor
agency.
Force Majeure means, notwithstanding any other provision of this Chapter or a
Franchise agreement, that a Grantee shall not be liable for delay in performance of, or failure
to perform, in whole or in part, its obligations pursuant to this Chapter or a Franchise
agreement due, directly or indirectly, to severe or unusual weather conditions, strike, labor
disturbance, lockout, war or act of war (whether an actual declaration of war is made or not),
insurrection, riot, act of public enemy, action or inaction of any government instrumentality or
public utility including condemnation, accidents for which a Grantee is not primarily
responsible, fire, flood or other act of God, sabotage or other events to the extent that such
causes or other events are beyond the reasonable control of a Grantee. In the event that any
such delay in performance or failure to perform affects only part of a Grantee's capacity to
perform, a Grantee shall perform to the maximum extent it is able to perform and shall take all
reasonable steps within its power to correct such cause(s) in as expeditious a manner as
possible.
Franchise means a nonexclusive initial authorization, or renewal thereof, issued by the
City which authorizes the construction, maintenance or operation of a Cable system along the
public ways within the City of Fairfax. A Franchise shall not be construed to include any
general license required for the privilege of transacting and carrying on a business within the
City as may be required by other ordinances and laws of the City, or for attaching devices to
poles or structures, whether owned by the City or a private entity, or for excavating or
performing other work in or along public ways, unless otherwise provided in a Grantee's
Franchise agreement.
Franchise agreement means a contract entered into pursuant to this Chapter between
the City and a Grantee that sets forth, subject to this Chapter, the terms and conditions under
which a Franchise will be granted and exercised.
Franchise area means the City of Fairfax.
Governmental Access Channel or Government Channel means any Channel required
by a Franchise agreement to be provided by a Grantee on its Basic service tier to the City for
government use.
Grantee means a natural Person, domestic or foreign corporation, partnership, limited
liability company, association, joint venture or organization of any kind granted a Franchise
by the City council under this ordinance, and any lawful successor thereto, or transferee or
assignee thereof.
Gross revenues means any and all cash, credits, property or consideration of any kind
or nature from the operation of the Cable system to provide Cable services as specified in a
Franchise agreement arising from, attributable to, or in any way derived directly or indirectly
by a Grantee, its affiliates, or any Person in which a Grantee has a financial interest, or by any
other entity that is a cable operator of the system. Gross revenues shall not include any taxes
on services furnished by a Grantee which are imposed directly on any Subscriber or user by
the Commonwealth of Virginia, the City, or other governmental unit and which are collected
by a Grantee on behalf of said governmental unit or as specified in a Franchise agreement. A
franchise fee is not such a tax. Gross revenues shall not include any revenues specifically
excluded in a Grantee's Franchise agreement.
Leased access channel means any channel on a Cable system designated or dedicated
for use by a Person unaffiliated with a Grantee pursuant to 47 U.S.C. § 532.
Normal operating conditions means those conditions that are within the control of the
Grantee. Conditions that are not within the control of the Grantee include, but are not limited
to, natural disasters, civil disturbances, power outages, telephone network outages, weather or
traffic conditions impairing construction or normal operation activities, vandalism, accidents
for which Grantee is not primarily responsible, sabotage, and the action or inaction of any
governmental unit. Consistent with the foregoing, conditions that are within the control of
Grantee include, but are not limited to, special promotions, pay-per-view events, rate
increases, regular or reasonably anticipatable peak or seasonal demand periods, and
construction, maintenance or upgrade of Grantee's Cable system.
PEG means public, educational, and governmental.
Person means an individual, partnership, association, joint stock company,
organization, corporation, joint venture, limited liability company, or any lawful successor
thereto or transferee thereof, but such term does not include the City.
Public access channel means any Channel required by a Franchise agreement to be
provided by a Grantee on its Basic service tier to the City or set aside by a Grantee for use by
the general public, including groups and individuals, and which is available for such use on a
non-discriminatory basis.
Public way or Public Rights-of-Way means the surface, the air space above the
surface, and area below the surface of any public street, highway, lane, path, alley, sidewalk,
boulevard, drive, concourse, bridge, tunnel, park, parkway, waterway, dock, bulkhead, wharf,
pier, public water or public easements, or other public way within the City, which, consistent
with the purposes for which it was dedicated, may be used for the purpose of installing and
maintaining a Cable system.
Rate regulated services means all services, including related equipment and
installation fees, subject to rate regulation by the City pursuant to applicable federal and
Virginia law.
Regular subscriber service means the distribution to Subscribers of signals over a
Cable system on all channels except those for which a per-program or per-channel charge is
made, two-way services, and those services intended for reception by equipment other than a
television receiver.
Service interruption means the loss of picture or sound on one or more cable channels.
Service tier means a category of Cable service or other services provided by a Grantee
and for which a separate rate is charged by the Grantee.
Subscriber means any Person who legally receives or contracts with a Grantee to
receive Cable service(s) and does not further distribute such Cable service(s).
User means any Person or organization using a PEG or leased access channel or
equipment and facilities for purposes of producing or transmitting material, as contrasted with
the receipt thereof in the capacity of a Subscriber.
Video programming means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
Division 3. Franchises.
Section 94-64. Requirement of a Franchise.
No Person shall construct, install, maintain or operate a Cable system or part of a
Cable system on, over, through, or within a public way in the City, or on, over, through, or
within any other public property of the City, unless that Person has been granted a Franchise
by the city council and its Franchise agreement is in full force and effect.
Section 94-65. Grant of Franchise.
(a) The city council may grant one or more non-exclusive cable franchises, and
each such Franchise shall be awarded by ordinance in accordance with and subject to the
provisions of this Chapter.
(b) This Chapter may be amended from time to time, and in no event shall this
Chapter be considered a contract between the City and a Grantee such that the City would be
prohibited from amending any provision hereof.
(c) A Franchise agreement may only be amended by mutual written consent of the
city council and Grantee.
Section 94-66. Acts at Grantee's expense.
Any act that a Grantee is or may be required to perform under this Chapter, a
Franchise agreement or applicable law shall be performed at the Grantee's expense, unless
expressly provided to the contrary in this Chapter, a Franchise agreement, or applicable law.
Section 94-67. Eminent Domain.
Nothing in this Chapter shall be deemed or construed to impair or affect, in any way or
to any extent, the City's rights of eminent domain.
Section 94-68. Application for grant of an initial Franchise.
(a) An application for a cable Franchise shall be submitted to the city council or its
designee. Applications shall be accompanied by a non-refundable application fee of Five
Thousand Dollars payable to the order of the "City of Fairfax," which amount may be used by
the City to offset, in whole or in part, direct expenses incurred in the franchising and
evaluation procedures, including but not limited to staff time and consulting assistance.
Payments made by an applicant under this Section are not franchise fees. To be acceptable for
filing, a signed original of the application shall be submitted together with twelve copies. The
application must conform to any applicable request for proposals, and contain all required
information. All applications shall include the names and addresses of Persons authorized to
act on behalf of all applicants with respect to the application, in accordance with this Chapter.
(b) At the time of filing an application pursuant to this Section, an applicant shall
obtain, pay all premiums for, and deliver to the City written evidence of payment of premiums
and originals of a bond or bonds running to the City with good and sufficient surety in the
amount of One Hundred Thousand Dollars.
(1) Such bond(s) shall be in a form acceptable to the City and shall protect
the City from all damages or losses arising from the failure of the Grantee to accept
the Franchise awarded in conformity with this Chapter, or to strictly adhere to the
substance of its Franchise proposal.
(2) Such bond or bonds shall be maintained for a period of two years from
the time of a Grantee's acceptance of a Franchise.
(c) The application for a grant of an initial Franchise shall provide, at a minimum,
the following information:
(1) The name and address of the applicant and an identification of the
ownership and control of the applicant, including: the names and addresses of the ten largest
holders of an ownership interest in the applicant and affiliates of the applicant, and all Persons
with five percent or more ownership interest in the applicant and its affiliates; the Persons
who control the applicant and its affiliates; all officers and directors of the applicant and its
affiliates; and any other business affiliation and cable system ownership interest of each
named Person.
(2) A demonstration of the applicant's technical ability to construct and/or
operate the proposed Cable system, including identification of key personnel.
(3) A demonstration of the applicant's legal qualifications to construct
and/or operate the proposed Cable system, including but not limited to a demonstration that
the applicant meets the following criteria:
(A) The applicant shall have the necessary authority under Virginia
law to operate a Cable system;
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(B) The applicant shall have the necessary authority under federal
law to hold the Franchise and to operate a Cable system. An applicant must have, or show
that it is qualified to obtain, any necessary federal licenses or authorizations required to
operate the system proposed;
(C) The applicant shall report if, at any time during the ten years
preceding the submission of the application, the applicant was convicted of any act or
omission of such character that the applicant cannot be relied upon to deal truthfully with the
City and the Subscribers of the Cable system, or to substantially comply with its lawful
obligations under applicable law, including obligations under consumer protection laws and
laws prohibiting anticompetitive acts, fraud, racketeering, or other similar conduct. This same
criterion shall be applied to each party owning an interest of five percent or more in the
applicant;
(4) A demonstration of the financial qualifications of the applicant,
including at least the following:
(A) The applicant's proposed rate structure, including projected
charges for each service tier, installation, converters and other proposed equipment or
services;
(B) A statement prepared by a certified public accountant regarding
the applicant's financial ability to complete the construction proposed, to meet the time frame
proposed, and to operate the Cable system proposed; and
(C) Pro forma financial projections for the proposed franchise term,
including a statement of projected income, and a schedule of planned capital expenditures,
with all significant assumptions explained in notes or supporting schedules.
(5) A description of the applicant's prior experience in Cable system
ownership, construction, and operation, and a listing of communities in which the applicant
has a cable franchise. For each community identified pursuant to this provision, the applicant
shall provide the name, address and telephone number of the local franchising authority.
(6) A detailed description of the physical facilities proposed, which shall
include at least the following:
(A) A description of the proposed system's channel capacity,
technical design, performance characteristics, headend, and access (and institutional network)
facilities and equipment;
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(B) The description of the proposed system and system design,
including a description of the miles of plant to be installed, and a description of the size of
equipment cabinets, shielding and electronics that will be installed along the plant route, the
power sources that will be used and a description of the noise, exhaust, and pollutants, if any,
that will be generated by the operation of the same;
(C) A general description of the construction techniques that the
operator proposes to use in installing the system above-ground and underground, a schedule
for construction of the system that describes where and when construction will begin, how it
will proceed, and when it will be completed, and the expected effect on right-of-way usage,
including information on the ability of the public ways to accommodate the proposed system;
and
(D) A description, where appropriate, of how services will be
converted from existing facilities to new facilities, and what will be done with existing
facilities.
(7) Information on the availability of space in conduits including, where
appropriate, an estimate of the cost of any necessary rearrangement of existing facilities.
(8) A demonstration of how the applicant will reasonably meet the future
cable-related needs and interests of the community, including descriptions of how the
applicant will meet the needs described in any community needs assessment conducted by or
for the City, and how the applicant will provide adequate PEG or other access channel
capacity, facilities, or financial support to meet the community's needs and interests as
authorized by 47 U.S.C. § 531, and will provide leased access channels as required by 47
U.S.C. § 532.
(9) A demonstration to support the findings required by Virginia Code §
15.2-2108(B), as amended.
(10) A proposed Franchise agreement with supporting analysis that
demonstrates that the terms and conditions of the proposed Franchise agreement are not more
favorable or less burdensome than those in any existing Franchise agreement within the
Franchise area.
(11) Any other information that may be reasonably necessary to demonstrate
compliance with the requirements of this Chapter.
(12) Any additional information that the City may request of the applicant
that is relevant to the City's consideration of the application.
(13) An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the application.
(14) The City may, at its discretion and upon request of an applicant, waive
in writing the provision of any of the information required by this Section.
(d) All Franchise applications for a Franchise area or areas described in this
Chapter shall include a map of suitable scale showing all federal, state, and City roads that
identifies the schedule pursuant to which the applicant proposes to construct its Cable system,
which shall be incorporated into a Franchise granted pursuant to this Chapter.
(e) An applicant shall not be issued a Franchise if it files materially misleading
information in its application or intentionally withholds material information that the
applicant lawfully is required to provide. In evaluating an application for a Franchise, the
City may consider, but not be limited to, the following factors:
(1) The extent to which the applicant has substantially complied with
applicable law and the material terms of any existing cable Franchise for the City;
(2) Whether the quality of the applicant's service under any existing
Franchise in the City, including signal quality, response to customer complaints, billing
practices, and the like, has been reasonable in light of the needs and interests of the
communities served;
(3) Whether the applicant
qualifications to provide Cable service;
has the financial, technical, and legal
(4) Whether the application satisfies any minimum requirements
established by the City and is otherwise reasonable to meet the future cable-related needs and
interests of the community, taking into account the cost of meeting such needs and interests;
(5) Whether the applicant will provide adequate PEG or other access
channel capacity, facilities, and financial support and leased access; and,
(6) Whether issuance of a Franchise is in the public interest.
Section 94-69. Application for grant of renewal Franchise.
(a) If the provisions of 47 U.S.C. § 546(a)-(g) are properly invoked, the City shall
issue a Request for Renewal Proposal ("RFRP") after conducting a proceeding to: (i) review
the renewal applicant's past performance; and (ii) identify the City's future cable-related
community needs and interests. The City shall establish deadlines and procedures for
responding to the RFRP, may seek additional information from the applicant, and shall
establish deadlines for the submission of that additional information. Following receipt of the
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application responding to the RFRP (and such additional information as may be provided in
response to requests), the city council shall determine that the Franchise should be renewed or
make a preliminary assessment that the Franchise should not be renewed. If the city council
makes a preliminary assessment that the Franchise should not be renewed, and the applicant
that submitted the renewal application notifies the City, either in its RFRP response or within
ten working days of the preliminary assessment, that it wishes to pursue any rights to an
administrative proceeding it has under the Cable Act, then the City shall commence an
administrative proceeding after providing prompt public notice thereof, in accordance with the
Cable Act.
(b) If an administrative hearing is commenced pursuant to 47 U.S.C. § 546(c), the
applicant's renewal application shall be evaluated pursuant to federal law.
(c) If the City decides to grant renewal, it shall prepare a final Franchise
agreement that incorporates, as appropriate, the commitments made by the applicant in the
renewal application. If the applicant accepts the Franchise agreement, the Franchise shall be
renewed. If the Franchise agreement is not accepted within the time limits established by 47
U.S.C. § 546(c)(1), renewal shall be deemed preliminarily denied, and an administrative
proceeding commenced if the applicant that submitted the renewal application requests it
within ten days of the expiration of the time limit established by 47 U.S.C. § 546(c)(1).
(d) Notwithstanding the preceding subsections, a cable operator may submit an
application for renewal of a Franchise pursuant to 47 U.S.C. § 546(h). Such a proposal may
be submitted at any time and the city council may, after affording the public adequate notice
and opportunity for comment, grant or deny such proposal at any time. An informal renewal
application may be denied for any reason. If an informal renewal application is granted, then
the steps specified in this Subsection pursuant to 47 U.S.C. § 546(a)-(g) need not be taken.
(e) If a renewal of a Franchise is denied, the city council may acquire ownership of
the Cable system or effect a transfer of ownership of the system to another Person. Any such
acquisition or transfer shall be at fair market value of the system as of the expiration date of
the Franchise valued as a going concern but with no value allocated to the Franchise itself.
(0
application.
(g) The provisions of this Section
consistent with 47 U.S.C. §§ 546 and 547.
Section 94-70. Applicant representatives.
Misrepresentation or fraud by the applicant shall be grounds for denial of an
shall be read and applied so that they are
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Any Person who files an initial or renewal Franchise application with the City shall
forthwith, at all times, disclose to the City, in writing, the names, addresses and occupations
of all Persons who are authorized to represent or act on behalf of the applicant in those matters
pertaining to the application. The requirement to make the disclosure described in this
Section shall continue until the City has granted or rejected an applicant's application, or until
an applicant withdraws its application.
Division 4. Administration.
Section 94-71. Powers and responsibilities.
(a) The city council delegates the performance of any act, duty, or obligation, or
exercise of any power under this Chapter or any Franchise agreement to the Communications
Administrator, except where this Chapter specifies that the city council shall take an action or
federal or Virginia law requires action by the Franchising Authority.
(b) Day-to-day administration of cable communications operations and Franchises
within the City shall be assigned to the Communications Administrator. The
Communications Administrator's powers and responsibilities include, but are not limited to,
the following functions:
(1) Preparing invitations to bid for a Franchise; establishing criteria for
review and ranking of Franchise applications; reviewing and evaluating applications for
Franchises and making selection recommendations to the city council;
(2) Monitoring the timely performance of Grantee(s) in submitting
applications for and obtaining all certificates, permits and agreements required by this Chapter
and applicable law and the performance of Grantee(s) in meeting applicable construction
timetables;
(3) Monitoring and reviewing changes in, additions to, or reductions of
Subscriber fees and rates for conformity with the requirements of this Chapter and federal
law; advising and making recommendations to the city council on the regulation of rates in
accordance with this Chapter; administering and enforcing the rate regulation provisions of
the Cable Act and federal law; promulgating rules and procedures concerning rate regulation;
and exercising any authority granted by the city council under this Chapter;
(4) Advising and making recommendations to the city council on technical,
engineering, and police power regulations of cable and communications systems within the
City;
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(5) Cooperating with other cable and communications systems, system
operators and governmental units in the development and supervision of the interconnection
of systems;
(6) Reviewing books, records and reports a Grantee is required to provide
pursuant to this Chapter and a Franchise agreement, as well as all franchise reports filed with
the FCC or any other regulatory agencies with jurisdiction over any cable or communications
system in the City, and, at the Communications Administrator's discretion, requiring the
preparation and filing of information in addition to that required by this Chapter or applicable
law, as may reasonably be required to accomplish the purposes of this Chapter;
(7) Monitoring a Grantee's performance under and compliance with the
terms of an applicable Franchise agreement and this Chapter and making recommendations to
the city council to ensure such compliance or advising and making recommendations on
matters that may constitute grounds for revoking or shortening the term of a Franchise;
(8) Receiving and investigating complaints against a Grantee and advising
a Grantee of the receipt of Subscriber complaints affecting a Grantee's system;
(9) Seeking recovery of penalties or liquidated damages provided for in
this Chapter or a Franchise agreement, including but not limited to withdrawing money from a
security fund pursuant to a Franchise agreement;
(10) Advising the city council with regard to the City's authority to regulate,
Franchise, or authorize communications systems in the City;
(11) Developing policies to encourage growth and competition in
communications, and evaluating the impact of communications systems on the City, for
review and implementation by the city council; and
(12) Other duties as assigned by the city council and the City Manager.
(c) The city council shall have the sole authority to: (i) regulate rates for rate
regulated services, except to the extent such authority is delegated to the Communications
Administrator in this Chapter; (ii) grant Franchises; (iii) authorize the entering into of
Franchise agreements; (iv) renew Franchises; (v) revoke or shorten the term of a Franchise;
(vi) authorize the transfer of a Franchise; and, (vii) authorize a change of ownership control of
a Grantee.
Division 5. Franchise Conditions.
Section 94-72. Franchise term.
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The term of an original Franchise shall not exceed fifteen years from the date the
Franchise is accepted by a Grantee. The term of a renewed Franchise shall be no more than
fifteen years. This provision shall not be construed to prohibit or restrict the extension of an
existing Franchise term pending renewal proceedings pursuant to applicable law.
Section 94-73. Notice to Grantee.
The city council shall not grant a renewal, approve a transfer, or revoke a Franchise
unless the City has given the Grantee at least thirty days' advance written notice of the initial
meeting at which the city council will consider such action. The notice shall advise the
Grantee of the time, place and purpose of the meeting. The city council's consideration or
decision may be carried over with oral notice to the Grantee.
Section 94-74. Franchise modification.
(a) A Grantee may request a Franchise modification by submitting a written
application to the Communications Administrator for any modification of a Franchise
agreement requested in accordance with to 47 U.S.C. § 545, that includes: (i) the specific
modification requested; (ii) the justification for the requested modification, including the
impact of the requested modification on subscribers and others, and the financial impact on
the applicant if the modification is approved or disapproved, demonstrated through, inter alia,
submission of pro forma financial statements; (iii) a statement indicating that the modification
is sought pursuant to 47 U.S.C. § 545, and a demonstration that the requested modification
meets the standards set forth in 47 U.S.C. § 545; (iv) any other information that the applicant
believes is necessary for the City to make an informed determination on the application for
modification; and, (v) an affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information.
(b) The city council shall consider requests for a Franchise modification upon
request by the City or Grantee. The Franchise modification request shall include a review and
recommendation by the Communications Administrator.
(c) The City may amend a Franchise, by ordinance, after notice and a public
hearing, upon application of a Grantee or upon its own initiative. This section shall not be
construed to require the City to make any such amendment.
Section 94-75. Franchise revocation.
(a) The city council shall have the tight, by ordinance, to revoke a Franchise or to
shorten the term of a Franchise to a term not less than thirty-six months from the date of the
action shortening the Franchise term, for a Grantee's failure to construct, operate or maintain
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its Cable system in accordance with this Chapter and its Franchise agreement; for failing to
comply with the conditions of occupancy for any public lands; for failing to make required
extensions of service; for willfully or knowingly making false statements on or in connection
with an initial or renewal Franchise application; for willfully or knowingly making false
statements on or in connection with any application for a transfer or a Franchise modification;
for defrauding or attempting to defraud the City or Subscribers; for any substantial violation
of the Virginia Consumer Protection Act of 1977; for any substantial violation of the Cable
Act or any regulations promulgated pursuant thereto; or for any other material breach of a
Franchise agreement or violation of this Chapter. City council actions taken pursuant to this
Subsection shall be in accordance with such other terms and conditions to revoke a Franchise
or to shorten the term of a Franchise agreement to the extent established in that Grantee's
Franchise agreement.
(b) A Grantee shall not be subject to the sanctions of this Section for any act or
omission wherein such act or omission was beyond the Grantee's control. An act or omission
shall not be deemed to be beyond a Grantee's control if committed, omitted, or caused by a
corporation or other business entity that holds a controlling interest in the Grantee, whether
held directly or indirectly. Further, the inability of a Grantee to obtain financing, for whatever
reason, shall not be an act or omission that is "beyond the Grantee's control."
(c) Any Franchise shall be deemed revoked one hundred twenty calendar days
after an assignment for the benefit of creditors or the appointment of a receiver or trustee to
take over the business of a Grantee, whether in a receivership, reorganization, bankruptcy,
assignment for the benefit of creditors, or other action or proceeding. Provided, however, that
a Franchise may be reinstated at the city council's sole discretion if, within that one hundred
twenty day period:
(1) Such assignment, receivership or trusteeship has been vacated; or
(2) Such assignee, receiver, or trustee has fully complied with the terms
and conditions of this Chapter and the applicable Franchise agreement and has executed an
agreement, approved by a court of competent jurisdiction, under which it assumes and agrees
to be bound by the terms and conditions of this Chapter and the applicable Franchise
agreement, and such other conditions as may be established or as are required by applicable
law.
(d) Notwithstanding the foregoing, in the event of foreclosure or other judicial sale
of any of the facilities, equipment, or property of a Grantee, the city council may revoke the
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Franchise by serving notice on the Grantee and the successful bidder, in which event the
Franchise and all rights and privileges of the Franchise will be revoked and will terminate
thirty calendar days after serving such notice, unless:
(1) The city council has approved the transfer of the Franchise to the
successful bidder; and
(2) The successful bidder has covenanted and agreed with the city council
to assume and be bound by the terms and conditions of the Franchise agreement and this
Chapter, and such other conditions as may be established or as are required pursuant to this
Chapter or a Franchise agreement.
(e) If the city council revokes a Franchise, or if for any reason a Grantee
terminates or fails to provide service to its Subscribers, or abandons, forfeits or fails to operate
its system, the following rights are effective:
(1) the city council may acquire ownership of or effect a transfer of the
Cable system at an equitable price; and
(2) if a Cable system is abandoned by a Grantee, the city council may sell,
assign or transfer all or part of the assets of the system.
(f) The city council may acquire ownership of and operate a Cable system,
regardless of whether such ownership is acquired following revocation or forfeiture of a
Franchise.
(g) The termination of a Grantee's Franchise shall in no way affect, limit or
foreclose any rights or remedies the City may have under the Franchise or under any provision
of law.
Section 94-76. Transfer of ownership to City; Arbitration.
(a) In those circumstances provided for in this Chapter wherein the City shall have
the right to acquire ownership of a Grantee's Cable system or substantially all of its assets, and
the price for the Cable system shall have been mutually agreed upon, within sixty days after
such agreement, the City shall give written notice to the Grantee if it elects to exercise such
right. The City's written notice shall indicate whether the entire system or substantially all of
its assets will be purchased. Ownership of the system or the identified assets will transfer to
the City at the time the City tenders the purchase price for the system or assets, which shall
not be later than 180 days after the City's notice of its exercise of a right of purchase.
(b) In the event the city council considers the purchase or transfer of a Grantee's
Cable system, or any of its assets, pursuant to the terms of a Franchise agreement and/or this
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l
Chapter, and the final price cannot be agreed upon, the 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 a manner
as the arbitrators provide in their award, but in no event will the City be responsible for more
than one-half of the expenses. The arbitrators shall follow the rules and procedures of the
American Arbitration Association, except where such procedures conflict with an express
provision of this Chapter. The arbitration heating shall take place in City of Fairfax, Virginia,
unless otherwise agreed to by the parties in writing.
(c) Where the purchase price of a Cable system has been submitted to arbitration,
the City may affirmatively accept the price determined by the arbitrators within sixty days
after the rendering of the arbitrators' decision, and make payment of such price in full to the
Grantee within 180 days after the rendering of the arbitrators' price, at which time the system
or any assets shall automatically transfer to the City. If the City fails to accept the arbitrators'
price within the aforesaid sixty-day period, and tender the purchase price in full to the Grantee
within 180 days after the rendering of the arbitrators' price, the rights of the City to acquire
shall expire.
(d) No matter or dispute between the City and a Grantee relating to this Chapter or
a Franchise agreement shall be arbitrable unless specifically provided for in this Chapter or a
Franchise agreement.
Section 94-77. City's right to assign.
A Franchise agreement shall not limit the right of the City to assign its rights to
acquire any or all of the assets of a Grantee's Cable system.
Section 94-78. Continuity of service.
(a) A Grantee shall operate its Cable system pursuant to this Chapter and its
Franchise agreement without interruption, except as otherwise provided by this Chapter or its
Franchise agreement. Following the expiration or revocation of its Franchise, a Grantee shall,
at the City's request, as trustee for its successor in interest, operate its Cable system for a
temporary period (the "Transition Period") as necessary to maintain service to Subscribers,
and shall cooperate with the City to assure an orderly transition from it to the City or another
Franchise holder.
(b) During the Transition Period, a Grantee shall not sell any of its Cable system
assets, nor make any physical, material, administrative or operational change that would tend
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to degrade the quality of service to Subscribers, decrease Gross Revenues, or materially
increase expenses without the express permission, in writing, of the City or its assigns.
The City may seek legal and/or equitable relief to enforce the provisions of this
(c)
Section.
(d)
The Transition Period shall be no longer than the reasonable period required to
arrange for an orderly transfer of the Cable system to the City or to another Franchise holder,
unless mutually agreed to by a Grantee and the City. During the Transition Period, a Grantee
will continue to be obligated to comply with the terms and conditions of this Chapter, its
Franchise agreement, and applicable laws and regulations.
(e) If a Grantee abandons its Cable system during the Franchise term, or fails to
operate its Cable system in accordance with the terms of this Chapter and its Franchise
agreement during any Transition Period, the City, at its option, may operate a Grantee's Cable
system, designate another entity to operate the Grantee's Cable system temporarily until the
Grantee restores service under conditions acceptable to the City or until a Grantee's Franchise
agreement is revoked and a new Grantee selected by the City is providing service, or obtain an
injunction requiring a Grantee to continue operations.
(f) For its management services during the Transition Period, the Grantee shall be
entitled to receive as compensation the "Net Income" generated during the Transition Period.
For the purposes of this Subsection, "Net Income" means the amount remaining after
deducting from Gross revenues all of the actual, direct and indirect, expenses associated with
operating the Grantee's Cable system, including the Franchise Fee, interest, depreciation and
all taxes, all as determined in accordance with generally accepted accounting principles.
Section 94-79. Franchise fee.
(a) Every Grantee shall pay a franchise fee of five percent of Gross revenues, as
provided in federal law and consistent with Virginia law.
(b) Each year during a Franchise term, as compensation for use of Public Rights-
of-Way and public land, a Grantee shall pay to the City, on a quarterly basis, a franchise fee.
The payments shall be made no later than thirty days following the end of each quarter.
(c) Each franchise fee payment shall be submitted with supporting detail and a
statement certified by a Grantee's chief financial officer or an independent certified public
accountant, reflecting the total amount of monthly Gross revenues for the payment period.
The City shall have the fight to reasonably require further supporting information.
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(d) The City shall have the right to inspect books and records and to audit and
recompute any amounts determined to be payable under this Chapter or a Franchise
agreement, whether the records are held by a Grantee, an Affiliate, or any other agent of a
Grantee.
(e) A Grantee shall be responsible for making available to the City all records
necessary to confirm the accurate payment of franchise fees, without regard to by whom they
are held. Such records shall be made available pursuant to the requirements of this Chapter.
(f) The City's audit expenses shall be borne by the City unless the audit discloses
an underpayment of more than three percent of any quarterly payment, in which case the
City's out-of-pocket costs of the audit shall be borne by a Grantee as a cost incidental to the
enforcement of its Franchise. Any additional undisputed amounts due to the City as a result
of the audit shall be paid within thirty days following written notice to a Grantee by the City
of the underpayment, which notice shall include a copy of the audit report. If recomputation
results in additional revenue to be paid to the City, interest will be due as specified in this
Section.
(g) The City shall have three years from the time a Grantee delivers a franchise fee
payment to question that payment, and if the City fails to question the payment within that
time period, the Grantee shall not be liable for adjustment to that payment. If the City gives
written notice to a Grantee within that three-year period, the three-year period shall be tolled
for one year to allow the City to conduct an audit. Any legal action by either party relating to
a franchise fee payment will toll the remaining term, if any, of the three-year time period and
the one-year audit period with respect to that payment.
(h) The franchise fee payments required by this section shall be in addition to any
and all taxes of a general nature or other fees or charges which a Grantee shall be required to
pay to the City or to any state or federal agency or authority, as required herein or by law, all
of which shall be separate and distinct obligations of a Grantee. A Grantee shall not have or
make any claim for any deduction or other credit of all or any part of the amount of the
franchise fee payments from or against any of said City taxes or other fees or charges which a
Grantee is required to pay to the City, except as required by law, this Chapter, or a Franchise
agreement. A Grantee shall not apply nor seek to apply all or any part of the amount of the
franchise fee payments as a deduction or other credit from or against any of said City taxes or
other fees or charges, each of which shall be deemed to be separate and distinct obligations of
a Grantee. Nor shall a Grantee apply or seek to apply all or any part of the amount of any of
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said taxes or other fees or charges as a deduction or other credit from or against any of its
Franchise obligations, each of which shall be deemed to be separate and distinct obligations of
a Grantee. Notwithstanding the above provisions of this paragraph, however, a Grantee shall
have the right to a credit, in the amount of its franchise fee payments under its Franchise
agreement, against any general utility tax on Cable services that may be imposed by the City,
to the extent such a tax is applicable to a Grantee or its Subscribers. A Grantee shall not
designate or characterize its franchise fee as a tax.
(i) In the event that any franchise fee payment or recomputation amount less than
Five Thousand Dollars is not made on or before the required date, interest shall be charged
from the due date at an annual rate equal to the commercial prime interest rate of the City's
primary depository bank during the period the unpaid amount is due. In the event that any
franchise fee payment (or payments) or any recomputation amount totaling Five Thousand
Dollars or more is not paid by the due date, then interest shall accrue to the City from the due
date at a rate equal to the interest rate then chargeable for unpaid federal income taxes (26
U.S.C. § 6621). In addition to the foregoing, the failure of a Grantee to make a timely
payment (as defined by Va. Code § 6.1-330.80) of any amount required or recomputed under
this Section shall subject a Grantee to an additional late charge of five percent of the amount
of such payment. However, for good cause shown, the Communications Administrator may
waive the provisions of this Subsection for a period not to exceed five business days.
0) In the event a Franchise is revoked prior to its expiration date, a Grantee shall
file with the City, within ninety days of the date of revocation, a financial statement certified
by an independent certified public accountant that clearly shows the Gross revenues received
by a Grantee from the end of the previous fiscal quarter through the date of revocation and
shall pay within that time the franchise fees accrued as of the date of revocation.
(k) The acceptance of any payment required herein by the City shall not be
construed as an acknowledgment or an accord and satisfaction that the amount paid is the
correct amount due, nor shall such acceptance of payment be construed as a release or waiver
of any claim that the City may have for additional sums due and payable. However, the
City's acceptance of full payment of the amount determined to be due by the City through an
audit shall be construed as an accord and satisfaction.
Section 94-80. Insurance~Bonds--Indemnity.
(a) A Grantee shall maintain, and by its acceptance of a Franchise specifically
agrees that it will maintain, throughout the entire length of a Franchise period, at least the
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following liability insurance coverage insuring the City and a Grantee: (i) commercial general
liability insurance with respect to the construction, operation, and maintenance a Grantee's
Cable system, and the conduct of a Grantee's business in the City, in the minimum amounts of
$2,000,000 per occurrence; $2,000,000 aggregate for each occurrence; and (ii) copyright
infringement insurance in the minimum amount of $2,000,000 for copyright infringement
occasioned by the operation of a Grantee's Cable system.
(b) Such commercial general liability insurance must include coverage for all of
the following: comprehensive form, premises-operations, explosion and collapse hazard,
underground hazard, products/completed operations hazard, contractual insurance, broad form
property damage, and personal injury.
(c) The City may review these amounts and shall have the right to require
reasonable adjustments to them consistent with the public interest.
(d) A Grantee shall be solely responsible for the payment of premiums due for
each policy of insurance required pursuant to this Chapter and its Franchise agreement.
(e) All insurance policies and certificates maintained pursuant to this Chapter or a
Franchise agreement shall contain the following endorsement:
It is hereby understood and agreed that this insurance coverage may not be
canceled by the insurance company nor the intention not to renew be stated by
the insurance company until at least 30 days after receipt by the City's
Secretary or Clerk, by registered mail, of a written notice of such intention to
cancel or not to renew.
(f) All insurance policies shall be with insurers qualified to do business in the
Commonwealth of Virginia, with an A-1 or better rating of insurance by Best's Key Rating
Guide, Property/Casualty Edition.
(g) All insurance policies shall be available for review by the City, and a Grantee
shall submit to the City certificates of insurance for each policy required herein.
(h) All commercial general liability insurance policies shall name the City, its
elected and appointed officials, officers, boards, commissions, commissioners, agents, and
employees as additional insureds.
(i) A Grantee shall, at its sole cost and expense, indemnify, hold harmless, and
defend the City, its elected and appointed officials, officers, boards, commissions,
commissioners, agents, and employees, against any and all claims, suits, causes of action,
proceedings, and judgments for damages or equitable relief arising out of the construction,
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maintenance, or operation of a Grantee's Cable system (to the extent that a Grantee has
operation or maintenance responsibilities pursuant to this Chapter, its Franchise agreement, or
applicable law); copyright infringements or a failure by a Grantee to secure consents from the
owners, authorized distributors, or franchisees of programs to be delivered by a Grantee's
Cable system (other than PEG content); the conduct of a Grantee's business in the City; or in
any way arising out of a Grantee's enjoyment or exercise of its Franchise agreement, unless
that specific act or omission has been authorized by the City or is the result of any act or
omission by the City or its elected and appointed officers, boards, commissions,
commissioners, agents, or employees which results in personal injury or property damage. A
general statement of authorization pursuant to this Chapter or a Franchise agreement shall not
be construed to be such an authorization.
(j) Specifically, a Grantee shall fully indemnify, defend, and hold harmless the
City and, in their capacity as such, the elected and appointed officials, officers, agents,
commissions, commissioners, boards and employees thereof, from and against any and all
claims, suits, actions, liability, and judgments, whether for damages or otherwise, subject to
47 U.S.C. § 558, arising out of or alleged to arise out of the installation, construction,
operation, or maintenance of a Grantee's Cable system, including but not limited to any claim
against a Grantee for invasion of the fight of privacy, defamation of any Person, firm or
corporation, or the violation or infringement of any copyright, trade mark, trade name, service
mark, or patent, or of any other fight of any Person, firm, or corporation. This indemnity does
not apply to programming carried on any Channel set aside for PEG use, or Channels leased
pursuant to 47 U.S.C. § 532, or to operations of the PEG Channels to the extent such
operations are carried out by a Person other than a Grantee or its agents.
(k) In the event that a Grantee fails, after notice, to undertake the City's defense of
any claims pursuant to this Section, a Grantee's indemnification shall include, but is not
limited to, the City's reasonable attorneys' fees incun'ed in defending against any such action,
claim, suit, or proceeding, any interest charges arising from any action, claim, suit or
proceeding arising under this Chapter or its Franchise agreement, the City's out-of-pocket
expenses, and the reasonable value of any services rendered by the City.
(1) In addition to the other insurance policies required by this Chapter, a Grantee
shall obtain and keep in force and effect during the entire term of its Franchise agreement,
including any extension thereof, commercial general liability insurance coverage (owner's
protection policy) in a minimum amount of two million dollars covering bodily injury and
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property damage, subject to exclusions, for the benefit of the City, its elected and appointed
officials, boards, commissions, commissioners, agents, employees, and officers. A Grantee
shall deliver to the City on or before the date of execution of a Franchise agreement an
indemnification insurance policy duly executed by the officers or authorized representatives
of a responsible and non-assessable insurance company, evidencing this coverage for the
benefit of the City, its elected and appointed officials, agents, boards, commissions,
commissioners, employees, and officers, which policy of insurance shall provide for at least
30 days' prior written notice to the City of the insurer's intention to cancel or not to renew said
policy.
(m) Neither the provisions of this Section nor any damages recovered by the City
shall be construed to limit the liability of a Grantee or its subcontractors for damages under
this Chapter or its Franchise agreement or to excuse the faithful performance of obligations
required by this Chapter and its Franchise agreement, except to the extent that any monetary
damages suffered by the City have been satisfied by a financial recovery under this Section or
other provisions of this Chapter or Franchise agreement.
(n) The City shall at no time be liable for any injury or damage occurring to any
Person or property from any acts or omissions of a Grantee in the construction, maintenance,
use, operation or condition of a Grantee's Cable system, to the extent that a Grantee has
responsibilities for such maintenance, use, operation or condition pursuant to this Chapter, its
Franchise agreement, or applicable law. The City shall not and does not assume any liability
whatsoever of a Grantee for injury to Persons or damage to property.
(o) The provisions of this Section constitute the minimum requirements of a
Grantee under this Chapter and its Franchise agreement, but shall not be additional
requirements to those identified in a Grantee's Franchise agreement.
(p) A Grantee shall obtain and maintain during the entire term of a Franchise, and
any renewal or extensions thereof, a performance bond in the City's favor in the amount not
less than $100,000 to ensure a Grantee's faithful performance of its obligations under its
Franchise agreement, this Chapter, and other applicable law. The City may, at its sole
discretion, reduce the amount of the bond upon written application by a Grantee. Reductions
granted or denied upon application by a Grantee shall be without prejudice to the Grantee's
subsequent applications or to the City's right to require the full bond at any time thereafter.
However, no application for a reduction of bond shall be submitted by a Grantee within one
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year of any prior application. In no event shall such performance bond or bonds be reduced to
less than Fifty Thousand Dollars.
(q) A performance bond shall provide the following conditions:
(1) There shall be recoverable by the City from the principal and surety,
any and all fines and penalties due to the City and any and all damages, losses, costs, and
expenses suffered or incurred by the City resulting from the failure of a Grantee to faithfully
comply with the material provisions of a Franchise agreement, this Chapter, and other
applicable law, to comply with all orders, permits and directives of any City agency or body
having jurisdiction over a Grantee's acts or defaults, to pay fees due to the City, or to pay any
claims, taxes or liens due the City. Such losses, costs and expenses shall include, but not be
limited to, reasonable attorney's fees and other associated expenses.
(2) The total amount of the performance bond required by this Chapter
shall be forfeited in favor of the City in the event:
(A) a Grantee abandons its system at any time during the term of its
Franchise or any extension thereto; or
(B) a Grantee carries out a transfer without the express written
approval of the city council as required in this Chapter.
(r) All performance bonds shall be issued by a surety with an A-1 or better rating
of insurance in Best's Key Rating Guide, Property/Casualty Edition; shall be in a form
satisfactory to the City Attorney; shall be subject to the approval of the City; and shall contain
the following endorsement:
This bond may not be allowed to lapse until at least thirty days after receipt by
the City, by certified mail, return receipt requested, of a written notice from the
issuer of the bond of intent to cancel or not to renew.
(s) All performance bonds and insurance policies required herein shall be in a
form satisfactory to the City. The City may, at any time, increase the amount of the required
performance bond to reflect increased risks to the City and the public and/or require a Grantee
to provide additional sureties to any and all bonds or to replace existing bonds with new bonds
that satisfy the criteria in this Section. No bond or insurance policy shall be cancelable.
Insurance policies written for a period less than the term of a Franchise shall be renewed at
least thirty days before the policy's expiration, and the renewed policies and evidence of
premium payments shall be promptly delivered to the City.
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(t) No Grantee shall permit any insurance policy or performance bond to expire or
approach less than thirty days prior to expiration without securing and delivering to the City a
substitute, renewal or replacement policy or bond in conformance with the provisions of this
Chapter.
(u) The City may require performance bonds and insurance policies described in
this Section to run to the benefit of the City.
Section 94-81. Transfer of Franchise.
(a) A Franchise is a privilege that is in the public trust and personal to a Grantee.
A Grantee's obligations under its Franchise involve personal services, the performance of
which involves personal credit, trust, and confidence in the Grantee.
(b) No transfer shall occur without prior written notice to and approval of the city
council. For purposes of this Section, written approval shall be expressed by ordinance. A
transfer without the prior written approval of the city council shall be considered to impair the
City's assurance of due performance. The granting of approval for a transfer in one instance
shall not render unnecessary approval of any subsequent transfer.
(c) A Grantee shall promptly notify the City of any proposed transfer. If any
transfer takes place without prior notice to the City, the Grantee shall promptly notify the City
that the transfer has occurred.
(d) At least one hundred twenty calendar days prior to the contemplated effective
date of a transfer, a Grantee shall submit to the City an application for approval of a transfer.
The application shall provide complete information on the proposed transaction, including
details on the legal, financial, technical, and other qualifications of the transferee. At a
minimum, the following information must be included in the application:
(1) all information and forms required under federal law;
(2) any shareholder reports or filings with the Securities and Exchange
Commission that pertain to the transaction;
(3) other information necessary to provide a complete and accurate
understanding of the financial position of the Cable system before and after the proposed
transfer;
(4) complete information regarding any potential impact of the transfer on
Subscriber rates and service; and
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(5) any contracts or other documents that relate to the proposed transaction,
and all documents, schedules, exhibits, or information referred to therein as the City may
request.
(e) To the extent consistent with federal law, the City may waive in writing any
requirement that information be submitted as part of the transfer application, without thereby
waiving any fights the City may have to request such information after the application is filed.
(0 For the purposes of determining whether the city council should consent to a
transfer, the City or its agents may inquire into all qualifications of the prospective transferee
and such other matters as the City may deem necessary to determine whether the transfer is in
the public interest and should be approved, denied, or conditioned as provided under
subsection (g). A Grantee and any prospective transferees shall assist the City in any such
inquiry, and if they fail to do so, the request for a transfer may be denied.
(g) In making a determination as to whether to grant, deny, or grant subject to
conditions, an application for a transfer of a Franchise, the city council may consider, by way
of example and not limitation, the legal, financial, and technical qualifications of the
transferee to operate the Cable system; any potential impact of the transfer on Subscriber rates
or services; whether a Grantee is in compliance with its Franchise agreement and this Chapter
and, if not, the proposed transferee's commitment to cure such noncompliance; whether the
transferee owns or controls any other Cable system in the City, and whether operation by the
transferee may eliminate or reduce competition in the delivery of Cable service in the City;
and whether operation by the transferee or approval of the transfer would adversely affect
Subscribers, the public, or the City's interest under this Chapter, a Franchise, or other
applicable law. The city council shall not withhold its consent unreasonably.
(h) Any Franchise transfer without the city council's prior written approval shall
be ineffective, shall make the Franchise subject to revocation at the City's sole discretion, and
shall subject the Grantee and/or tranferee to any other remedies available under a Franchise
agreement, this Chapter or other applicable law.
(i) No application for a transfer of a Franchise shall be granted unless the
transferee agrees in writing that it will abide by and accept all terms of this Chapter and the
Franchise agreement and that it will assume the obligations, liabilities, and responsibility for
all acts and omissions, known and unknown, of the previous Grantee(s) under this Chapter
and the Franchise agreement, for all purposes, including renewal, unless the City, in its sole
discretion, expressly waives this requirement in whole or in part.
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(j) Approval by the city council of a transfer shall not constitute a waiver or
release of any of the rights of the City under this Chapter and a Franchise agreement, whether
arising before or after the date of the transfer.
(k) For the purposes of this Section, a transfer means any assignment of a
Franchise that requires FCC Form 394 or equivalent.
Section 94-82. Change in ownership control of a Franchise.
Approval by an action of the city council shall be required for any transfer of control
that requires FCC Form 394 or equivalent. By its acceptance of a Franchise agreement a
Grantee shall specifically grant and agree that any such transfer of control without approval of
the city council constitutes a violation of this Chapter and its Franchise.
Section 94-83. Termination of Franchise.
Upon termination of a Franchise, whether by action of the city council as provided
above, or upon expiration of a Franchise term without extension or renewal, a Grantee shall be
obligated to cease using its system for the purposes authorized by the Franchise unless the city
council requires the Grantee to operate its system pursuant to Section 94-78.
Division 6. Rate Regulation; Books and Records; Reports.
Section 94-84. Regulation of rates.
(a) To the extent allowed by law, the city council shall regulate Subscriber rates
and charges for Rate regulated services. Except as otherwise provided herein, all rates and
charges for Rate regulated services shall be approved by the city council. In establishing such
rates and charges, the city council shall comply with the rate regulatory rules and procedures
adopted by the Federal Communications Commission pursuant to 47 U.S.C. § 543(b).
Provided, however, proposals for automatic adjustments that are in compliance with 47 C.F.R.
§§ 76.922 and 76.923 may be implemented after review and approval by the Communications
Administrator.
(b) All charges to Subscribers shall be consistent with a schedule of rates and
charges for all services offered by a Grantee. Except as otherwise provided by the city
council, any increase in the schedule of rates and charges shall not take effect until at least
sixty days after approval. In addition, no increase in rates or charges shall be implemented
unless each Subscriber subject to the increase in rates and charges has been notified of the
change at least sixty days in advance of the change. In lieu of a Grantee providing sixty days
written notice to each Subscriber subject to the increase, notification may be cablecast to
27
Subscribers by a Grantee in a manner approved by the Communications Administrator, but in
the event a cablecast notice is provided to Subscribers, a Grantee also shall give each
Subscriber subject to the increase written notice of the increase no less than thirty days before
the increase is implemented. In addition, the Grantee shall provide oral or written notification
of any pending increases to rates and charges to any Person who requests Cable service or
becomes a Subscriber after any approval of increases to rates and charges but before the rate
increase becomes effective.
(c) A Grantee shall notify in writing each Subscriber of all applicable fees and
charges for providing Cable service prior to executing a contract of service with such
Subscriber or installing any equipment to serve such Subscriber.
(d) Except as may be otherwise provided in a Franchise agreement, a Subscriber
shall have the right to have Cable service terminated without charge. A Subscriber shall not
be charged for Cable service for more than two business days following the Subscriber's
notice of termination to the Grantee. No Grantee shall enter into any agreement with a
Subscriber which imposes any charge following disconnection of service, except for
reconnection and subsequent monthly or periodic charges, and those charges shall be no
greater than charges for new customers.
(e) A Grantee shall, at least thirty days prior to the date it intends to terminate
service to any Subscriber for reason(s) of nonpayment of Subscriber fees, notify the Sub-
scriber in writing of such intention, the reason therefor and the date termination is to be
effective.
Section 94-85. Books and records.
(a) Subject to applicable law, the City shall have the right to inspect and copy at
any time during normal business hours at a Grantee's office, or at another mutually agreed
location, all books and records, including all documents in whatever form maintained,
including electronic media ("books and records") to the extent that such books and records
relate to a Grantee's Cable system or to a Grantee's provision of Cable service. To the extent
permitted by law, the City shall take reasonable steps to protect the proprietary and
confidential nature of any such documents to the extent they are designated as such by a
Grantee. The City shall have the right to copy any such books and records, except to the
extent that such books and records are proprietary and/or confidential pursuant to the Virginia
Uniform Trade Secrets Act or other applicable law.
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(b) A Grantee shall keep complete and accurate books of account and records of its
business and operations under and in connection with its Franchise agreement.
(c) Unless otherwise provided in this Chapter, all materials and information
specified in this Chapter shall be maintained for a period of three years or until the Franchise
expires, whichever is longer.
(d) A Grantee shall at all times maintain:
(1) Complete and accurate books of account and records of its business and
operations under and in connection with this Chapter and a Franchise agreement. At a
minimum, a Grantee's financial books and records shall be maintained in accordance with
generally accepted accounting principles, and shall identify:
(A) gross revenues, by service category;
(B) operating expenses, categorized by general and administrative
expenses, technical expenses, programming expenses, and overhead, if any;
(C) capital expenditures, including capitalized interest and
overhead, if any; and
(D) depreciation expenses, by category.
(2) Records of all written complaints received. The term "complaints" as
used herein and throughout this Chapter refers to complaints about any aspect of the Cable
system or a Grantee's operations, including, without limitation, complaints about employee
courtesy. Complaints recorded may not be limited to complaints requiring an employee
service call.
(3) A full and complete set of plans, records, and "as built" maps showing
the exact location of all system equipment installed or in use in the City, exclusive of
Subscriber service drops.
(4) Records of outages, indicating date, estimated duration, estimated area,
and the estimated number of Subscribers affected, type of outage, and cause.
(5) Records of service calls for repair and maintenance indicating the date
and time service was requested, the date of acknowledgment and date and time service was
scheduled (if it was scheduled), and the date and time service was provided, and (if different)
the date and time the problem was solved.
(6) Records of installation/reconnection and requests for service extension,
indicating date of request, date of acknowledgment, and the date and time service was
extended.
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(7) A general plan and schedule for construction of its Cable system
available to the public upon request.
(e) The City may require additional information, records, and documents from
time to time.
(f) A Grantee shall maintain a file of records open to public inspection in
accordance with applicable FCC rules and regulations.
(g) Each Grantee shall maintain accurate maps and improvement plans which
show the location, size and a general description of all facilities installed in the public ways
and any power supply sources, including voltages and connections. Maps shall be based on
post-construction inspection to verify location. Each Grantee shall provide a map to the City
showing the location of its facilities, in such detail and scale as may be directed by the
Communications Administrator. New maps shall be promptly submitted to the City when a
Cable system expands or is relocated. Copies of maps shall be provided in hardcopy and in
any CAD or other electronic format used by a Grantee.
(h) Each Grantee shall take all reasonable steps required to ensure that it is able to
provide the City with all information that must be provided or may be requested under this
Chapter, a Franchise agreement or applicable law, including the issuance of appropriate
subscriber privacy notices. Each Grantee shall be responsible for redacting any data that
applicable law prevents it from providing to the City. Nothing in this Section shall be read to
require a Grantee to violate federal or state law protecting subscriber privacy.
(i) If any books, records, maps, plans, or other requested documents are too
voluminous, or for security reasons cannot be copied and moved, then a Grantee may request
that the inspection take place at a location mutually agreed to by the City and the Grantee,
provided that (i) the Grantee must make necessary arrangements for copying documents
selected by the City after its review; and (ii) the Grantee must pay all travel and additional
copying expenses incurred by the City (above those that would have been incurred had the
documents been produced in the City) in inspecting those documents or having those
documents inspected by its designee.
(j) The City shall take reasonable steps to protect the proprietary and confidential
nature of any books, records, maps, plans, or other City-requested documents that are
provided pursuant to this Chapter or a Franchise agreement to the extent they are designated
as such by a Grantee.
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(k) The Communications Administrator may, for good cause shown, waive the
reporting provisions in this Section.
Section 94-86 Communications with regulatory agencies; Reports.
(a) A Grantee shall file with the City a copy of communications with regulatory
agencies, as follows:
(1) any document (other than routine, publicly available agency mailings or
publications) the Grantee files with or receives from the FCC, the United States Securities and
Exchange Commission, or the Virginia State Corporation Commission, or any successor
agency of any of these agencies, that relates to its Cable system and/or the provision of Cable
services under this Chapter or its Franchise agreement, within five working days of such filing
or receipt;
(2) any document a Grantee files with or receives from other agencies,
upon the City's request;
(3) any document that any parent of a Grantee files with or receives from
any agency that directly and materially relates to a Grantee's Cable system and/or the
provision of Cable services under this Chapter or its Franchise agreement, within five working
days of such filing or receipt.
(4) For purposes of this Subsection, documents filed by a Grantee or a
parent shall include all documents filed by or on behalf of a Grantee or its parent, but shall not
include documents filed by trade associations to which a Grantee or its parent belong unless a
Grantee or a parent has authorized the use of its name by such trade association among the
filing parties and its name is used.
(b) To the extent that such documents contain, to the satisfaction of the
Communications Administrator, the information required by other reports hereunder, the
Communications Administrator may suspend the requirement to file such other reports with
the City so as to avoid duplication and the administrative costs attendant thereto.
(c) Unless this requirement is waived in whole or in part by the City, a Grantee
shall submit a written report to the City no later than April 30th of each year during the term of
its Franchise agreement, in a form reasonably satisfactory to the City, which shall include:
(1) a summary of the previous calendar year's activities in development of
a Grantee's Cable system, including but not limited to descriptions of services begun or
dropped;
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(2) a summary of complaints, identifying both the number and nature of the
complaints received and an explanation of their dispositions, as such records are kept by a
Grantee. Where a Grantee has identified recurrent Cable system problems, the nature of any
such problems and the corrective measures taken or to be taken shall be identified;
(3) A copy of a Grantee's rules, regulations and policies available to
Subscribers of a Grantee's Cable system, including but not limited to (i) all Subscriber rates,
fees and charges, including promotional offers made to potential or current Subscribers; (ii)
copies of a Grantee's contract or application forms for Cable services; and (iii) a detailed
summary of a Grantee's policies concerning the processing of Subscriber complaints;
delinquent Subscriber disconnect and reconnect procedures; A/B switches; Subscriber
privacy; and any other terms and conditions adopted by a Grantee in connection with the
provision of Cable service to Subscribers;
(4) An annual financial report for the previous calendar or fiscal year,
certified by a Grantee's chief financial officer or, upon ninety days notice by the City, an
independent certified public accountant, including a year-end balance sheet; an income
statement showing Subscriber revenue and every material category of non-Subscriber
revenue, operating expenses by category, depreciation expenses, interest expenses, taxes paid
and a statement of sources and applications of funds;
(5) A current statement of costs of construction by component categories;
(6) A projected income statement, balance sheet, statement of sources and
applications of funds and statement of projected construction for the next two years;
(7) A reconciliation between previously projected construction and/or
financial estimates, as the case may be, and actual results;
(8) A list of Persons, including all entities controlling such Persons,
holding five percent or more of the voting stock or interests of Grantee, or its parents or
partners, or Grantee's subsidiaries, if any;
(9) A list of officers and members of the Board of Directors of a Grantee
and its parents or partners and Grantee's subsidiaries, if any, or similar officers if a Grantee is
not a corporation; and
(10) A copy of any annual reports issued by Grantee, its parents or partners
and subsidiaries.
(d) Unless this requirement is waived in whole or in part by the City, no later than
thirty days after the end of each calendar quarter during the term of its Franchise agreement, a
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Grantee shall submit a written report to the City, in a form reasonably satisfactory to the City,
which shall include:
(1) A report showing the number of service calls received by type during
that quarter, including any property damage to the extent such information is available to a
Grantee, and any line extension requests received during that quarter;
(2) A report showing the number of outages for that quarter, and
identifying separately each planned outage of one or more nodes for more than one hour at a
time, the time it occurred, its duration, the tax map area and, when available to a Grantee, the
number of homes affected; and, when a Grantee can reasonably determine that at least 500
homes were affected, each unplanned outage affecting more than 500 homes for more than
one hour, the time it occurred, the reason for the disruption and its causes, its estimated
duration, the tax map area and, when available to a Grantee, the number of homes affected;
and
(3) A report showing a Grantee's performance with respect to all
applicable customer service standards established in 47 C.F.R. '76.309(c), this Chapter, and its
Franchise agreement, signed by an officer or employee certifying its performance with these
customer service standards. If a Grantee is unable to certify full compliance for any calendar
quarter, it must indicate in its filing each standard with which it is in compliance and in
noncompliance, the dates of noncompliance, the reason for the noncompliance and a remedial
plan. A Grantee that fails to file a compliance certificate or noncompliance statement as
required herein shall be liable for the penalty specified for violation of customer service
standards in this Chapter. A Grantee shall keep such records as are reasonably required to
enable the City to determine whether a Grantee is substantially complying with all such
customer service standards, and shall maintain adequate procedures to demonstrate substantial
compliance.
(e) Unless this requirement is waived in whole or in part by the City, a Grantee
shall deliver to the City the following special reports:
(1) A Grantee shall submit monthly construction reports and weekly status
reports after the effective date for any construction undertaken during the term of a Franchise
agreement until such construction is complete, including any rebuild that may be specified in
a Franchise agreement. If consistent with a Grantee's Franchise agreement, a Grantee shall
provide the City, free of charge, twenty-four hour/seven day a week remote read-only access
to a Grantee's as-built system design maps (which the City may print by section, but not in
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their entirety), including any physical connections and software necessary to provide such
access, subject to the City's signing any requisite software license agreement;
(2) A Grantee shall submit a full explanation and copy of any notice of
deficiency, forfeiture, or other document relating to the Grantee issued by any state or federal
agency if the notice or other document would require Securities and Exchange Commission
Form 8(k) disclosure or would require footnote disclosure in the annual financial statements
of the Grantee or a parent or partner. This material shall be submitted in accordance with
deadlines specified by the Communications Administrator;
(3) A Grantee shall submit a copy and an explanation of any request for
protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by
the Grantee or by any partnership or corporation that owns or controls the Grantee directly or
indirectly. This material shall be submitted in accordance with deadlines specified by the
Communications Administrator;
(4) A Grantee shall submit a full description and explanation within thirty
days of any change or acquisition of control of a Grantee that would be cognizable pursuant to
47 C.F.R. § 73.3555 (Notes 1, 2, and 3) or any change or substitution in the managing general
partners of a Grantee, where applicable. "Control" for purposes of this definition is not
limited to majority stock ownership, but includes actual working control in whatever manner
exercised.
(5) A Grantee shall summarize the results of any annual opinion surveys it
conducts as part of its annual report provided that, if a Grantee considers such results to be
proprietary, it shall make such results available at its offices for the City's review.
(f) The City may, upon reasonable written notice, require such additional
information with respect to the reports to be submitted pursuant to this Chapter or a Franchise
agreement as may be reasonably necessary for the performance of any of the Communications
Administrator's or any other City official's duties.
Division 7. System Operations.
Section 94-87. Franchise area.
The Franchise area shall be the City of Fairfax.
Section 94-88. Cable service and system description.
(a) A Grantee shall make its Cable services available at all residences, businesses
and other structures within the Franchise area as long as the current or potential Subscriber's
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financial and other obligations to the Grantee are satisfied. A Grantee shall make Cable
service available without line extension surcharges to at least 85% of the total occupied
dwelling units in its Franchise area pursuant to the terms and conditions specified in its
Franchise agreement. A Grantee may refuse to provide Cable service when: (i) it is unable
pursuant to normal industry practice to obtain necessary programming, real property or access
rights; (ii) when its prior service, payment, or theft of service history with a Person has been
unfavorable; or, (iii) pursuant to written waiver by the Communications Administrator or
designee.
(b) A Cable system to be installed by a Grantee shall meet or exceed the technical
standards set forth in 47 C.F.R. § 76.601, et seq., including applicable amendments thereto,
and any other applicable technical standards (to the extent permitted by law). If the FCC
should delete these standards; or otherwise fail to preempt this area of regulation, the City
may prescribe technical standards, to the extent permitted by applicable law.
(c) As authorized by 47 U.S.C. § 531, a Grantee shall provide PEG access. Such
PEG access channel capacity, facilities, and financial support shall be provided as specified in
its Franchise agreement.
(d) A Grantee shall provide without charge within its Franchise area, one activated
service outlet and free regular subscriber service to each fire station, public school, police
station, public library, and such buildings used for public purposes as may be designated by
the City; provided, however, that if it is necessary to extend a Grantee's tnmk or feeder lines
more than three hundred feet solely to provide service to any such school or public building,
the City shall have the option of paying the Grantee's direct costs for such extension in excess
of three hundred feet, or of releasing the Grantee from or postponing the Grantee's obligation
to provide service to such building. Furthermore, a Grantee shall not be permitted to recover,
from any public building owner entitled to free service, more than the Grantee's actual cost for
any additional converters required and the direct cost of installing, when requested so to do,
more than one outlet, or concealed inside wiring, or a service outlet requiring more than two
hundred fifty feet of drop cable; provided, however, that the Grantee shall not charge for the
provision of regular subscriber service to the additional service outlets so installed in public
schools, police stations, fire stations, public libraries, and City offices in addition to any such
other public facilities as are specified in the Grantee's Franchise agreement. The Grantee
shall provide full operational capability to the service outlets in its Franchise area. The City,
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at its sole discretion, may waive the provisions of this Subsection in exchange for goods
and/or services of equal value to the City.
Section 94-89. Line Extension Requirements.
(a) To the extent that may be allowed by a Grantee's Franchise agreement or by
federal or state law, the City may require such Grantee to interconnect its Cable system with
other cable systems or other broadband communications facilities (e.g., a television
communication network connecting public institutions or facilities) located adjacent to or
within the City. Interconnection shall be made at such time as provided by applicable
Franchise agreement or within one hundred eighty days from the effective date of a request by
the City, or within a longer period of time as may be specified by the City in its request. No
interconnection shall take place without the prior approval of the City. All signals to be
interconnected shall comply with FCC technical standards for all classes of signals.
(b) Each Grantee shall make every reasonable effort to cooperate with cable
Franchise holders in contiguous communities in order to provide Cable service in areas within
the City.
(c) The City shall make every reasonable effort to cooperate with the franchising
authorities in contiguous communities, and with each Grantee, in order to provide Cable
service in areas outside the City.
Section 94-90. Operational requirements and construction.
(a) A Grantee shall construct, operate, and maintain its Cable system subject to the
supervision of the City or its designees, and in compliance with all applicable laws,
ordinances, rules and regulations, including any amendments thereto. The Cable system and
all its parts shall be subject to inspection by the City. The City may review a Grantee's
construction plans prior to commencement of construction.
(b) A Grantee shall design, construct, operate, and maintain the system at all times
so that signals carded are delivered to Subscribers with the minimum material degradation in
quality.
(c) No construction, reconstruction or relocation of a system or any part thereof
within the public ways shall be commenced until all applicable written permits have been
obtained. The City may impose such conditions and regulations as are necessary for the
purpose of protecting any structures in the public ways and for the proper restoration of such
public ways and structures, and for the protection of the public and the continuity of
pedestrian and vehicular traffic.
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(d) A Grantee shall perform maintenance on its system so that activities likely to
result in an interruption of service are performed during periods of minimum Subscriber use
of the system. A Grantee shall provide reasonable notice to Subscribers and the City before
interrupting service for planned maintenance or construction that is expected to take one hour
or more. Notice shall be provided by a method reasonably calculated to give Subscribers
actual notice of the planned interruption.
(e) Maintenance of a system shall be performed in accordance with technical
performance and operating standards established pursuant to FCC rules and regulations. The
City may monitor a Grantee's maintenance practices and, to the extent permitted by
applicable law, may waive requirements or adopt additional requirements as reasonable to
ensure the system remains capable of providing high-quality service.
(f) A Grantee shall install and thereafter maintain for use by the City an
Emergency Alert System ("EAS").
(1) This EAS shall at all times be operated in compliance with FCC
requirements. Subject to the foregoing, the EAS shall be remotely activated by telephone and
shall allow a representative of the City to override the audio and video on all channels on a
Grantee's Cable system that may lawfully be overridden (subject to any contractual or other
rights of local broadcasters) without the assistance of the Grantee, for emergency broadcasts
from a location designated by the City in the event of a civil emergency or for reasonable
tests.
(2) The City will provide reasonable notice to a Grantee prior to any test
use of the EAS. A Grantee shall cooperate with the City in any such test to the maximum
extent feasible.
Section 94-91. Tests and performance monitoring.
(a) A Grantee shall perform all tests necessary to demonstrate compliance with the
requirements of a Franchise agreement and other performance and technical standards
established by applicable law or regulation, and to ensure that system components are
operating as expected. All tests shall be conducted in accordance with federal rules and the
most recent and relevant edition of the National Cable Television Association's
"Recommended Practices for Measurements on Cable Television Systems," or if no recent or
relevant edition exists, such other appropriate manual as a Grantee proposes and the City
approves. In the event that technical performance standards pursuant to Federal law are
repealed or are no longer applicable to a Cable system, such standards shall remain in force
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and effect until the City, to the extent permitted by applicable law, imposes standards as it
shall deem necessary for the operation of the Cable system in accordance with good
engineering practices. The words "good engineering practices" shall have the meaning
specified in Title 47 of the Code of Federal Regulations.
(b) A Grantee shall conduct tests as follows:
(1) acceptance tests on each newly constructed or rebuilt segment prior to
Subscriber connection or activation, but not later than ninety days after
any newly constructed or substantially rebuilt segment is made
available for service to Subscribers;
(2) proof of performance tests on the system at least once every six months
or as required by FCC rules, whichever is more often, except as federal
law otherwise limits a Grantee's obligation; and
(3) special tests at the direction of the Communications Administrator.
(c) At any time after commencement of service to Subscribers, the City may
require additional reasonable tests, including full or partial repeat tests, different test
procedures, or tests involving a specific Subscriber's terminal, at a Grantee's expense, to the
extent such tests are in accordance with FCC rules and may be performed by the Grantee's
employees utilizing its existing facilities and equipment. The City may conduct independent
tests upon reasonable notice to the Grantee and if noncompliance is found, the expense thereof
shall be borne by the Grantee. The City will endeavor to arrange its request for such tests so
as to minimize hardship or inconvenience to a Grantee or to Subscribers.
(d) System monitor test points shall be established in accordance with good
engineering practices and shall be approved in advance by the City.
(e) Tests shall be supervised by a Grantee's senior engineer, who shall sign all
records of tests provided to the City.
(f) The City shall have the right to witness and/or review all tests on newly
constructed or rebuilt segments of a Grantee's Cable system. A Grantee shall provide the City
with at least two business days' notice of, and an opportunity to observe, any such tests
performed on the Grantee's System.
(g) A written report of all test results shall be filed with the City within seven days
of each test. Such reports shall, at a minimum, describe test results, instrumentation,
calibration and test procedures. In addition, the Grantee shall retain written reports of the
results of any tests required by the FCC, and such reports shall be submitted to the City upon
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the City's request. The City shall have the same rights the FCC has to inspect a Grantee's
performance test data.
(h) If any test indicates that any part or component of a system fails to meet
applicable requirements, the Grantee, without requirement of additional notice or request from
the City, shall take corrective action, retest the locations and advise the City of the action
taken and results achieved, and supply the City with a copy of the results within thirty days
from the date corrective action was completed.
(i) The City may also conduct inspections of construction areas and Subscriber
installations, including but not limited to inspections to assess compliance with a Grantee's
construction and installation requirements. The City shall notify a Grantee of any violations
found during the course of inspections, identifying the locations with particularity and stating
the specific nature of the violation. The Grantee must bring violations specified in the notice
that are within Grantee's control into compliance as follows: (i) safety violations must be
made safe within forty-eight hours of receiving notice of the violation; (ii) Virginia
Department of Transportation violations must be brought into compliance within five days of
receiving notice of the violation; and all other violations must be brought into compliance
within thirty days of receiving notice of the violation. After the specified time period, the
Grantee must submit a report to the City describing the steps it has taken to bring itself into
compliance. Inspection does not relieve a Grantee of its obligation to build in compliance
with all provisions of a Franchise.
Section 94-92. Customer service standards and consumer protection.
This Section sets forth the minimum customer service standards that a Grantee must
satisfy. In addition, a Grantee shall at all times satisfy any additional or stricter minimum
requirements established by a Franchise agreement or other applicable federal, state, or local
law or regulation, as the same may be amended from time to time, including, without
limitation, consumer protection laws.
(a) A Grantee shall comply with the customer service standards set forth in 47
C.F.R. § 76.309 (c), as such standards may be amended from time to time.
(b) A Grantee shall employ an operator or maintain a telephone answering device
twenty-four hours per day, each day of the year, to receive Subscriber complaints.
(c) A Grantee shall maintain an office within the City that shall be open and
accessible to the public with adequate telephone service during normal business hours.
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(d) A Grantee shall establish maintenance service capable of promptly locating
and correcting system malfunctions. Said maintenance service shall respond at all hours to
correct system malfunctions affecting one or more percent of a Grantee's total number of
Subscribers.
(e) A Grantee shall maintain a publicly-listed, local toll-free telephone number
that shall be available to Subscribers to request service calls, twenty-four hours per day, each
day of the year. Under Normal operating conditions, corrective action shall be initiated by a
Grantee not later than the next business day after a service call is received, and corrective
action shall be completed as promptly as practicable. Appropriate records shall be made of
service calls, showing when and what corrective action was completed.
(f) A Grantee shall arrange for pickup and/or replacement of converters or other
Grantee equipment at the Subscriber's address or by a satisfactory equivalent (such as the
provision of a postage-prepaid mailer) if requested by a mobility-limited customer.
(g) In the event that service to Subscribers is totally interrupted for more than 24
hours, Grantee shall provide the affected Subscribers with a pro rata credit or rebate of the
Subscriber's fees paid or payable.
(h) The failure of a Grantee to hire sufficient staff or to properly train its staff shall
not justify a Grantee's failure to comply with the provisions in this Section.
(i) A Grantee shall maintain a public file containing all notices provided to
Subscribers under these customer service standards. The notices shall be placed immediately
in the public file and maintained for at least one year from the date of the notice.
(j) A Grantee shall establish a clear procedure for resolving complaints filed by
Subscribers. Complaints may be made orally or in writing, at the complainant's option.
(k) A Grantee shall provide an initial response to a complaint within five days of
its receipt and a final written response within thirty days after a written complaint is received.
The final written response shall include a notice stating that if the complaint has not been
resolved to the complainant's satisfaction, the matter may be referred to the Communications
Administrator.
(1) The customer service standards set forth herein shall be in addition to the rights
and remedies provided by the Virginia Consumer Protection Act of 1977, as amended.
Section 94-93 Street occupancy; Construction standards and procedures.
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(a) All installation of electronic equipment shall be of a permanent nature, using
durable components.
(b) A Grantee shall maintain all wires, conduits, cables, and other real and
personal property and facilities comprising its Cable system in good condition, order and
repair.
(c) No construction, upgrade, rebuild, reconstruction or relocation of a Cable
system, or any part thereof, within any public way shall be commenced unless valid permits
have been obtained. A Grantee assumes the full burden of risk in securing the required
permits. Failure to obtain required permits or other approvals shall in no way relieve a
Grantee of its obligations under this Chapter and/or a Franchise agreement, except that in case
of emergency, a Grantee may carry out work to the extent necessary pending the issuance of
such permits, as long as the Grantee acts to secure the permits as soon as possible.
(d) In the event of disturbance of any road or private property by a Grantee, it
shall, at its own expense and in a manner approved by the City, replace and restore such road
or private property in as good a condition as before the work causing the disturbance was
done. In the event the Grantee fails to perform such replacement or restoration, the City shall
have the right to do so at the sole expense of the Grantee. Payment to the City for such
replacement or restoration shall be upon demand. Nothing in this Section shall be construed
to impair any rights of the owners of such private property to assert any claim against a
Grantee arising out of such disturbance.
(e) A Grantee shall cooperate with all gas, electric, telephone, water, sewer, and
other utilities in the placement of its facilities, equipment, or fixtures, so as to minimize the
costs and disruption caused by its construction or maintenance activities.
(f) A Grantee shall maintain the service of, shore up, sling, support, protect and
make good, as directed, all water pipes, gas pipes, service pipes, sewers and sewer
connections, conduits, ducts, manholes, drains, vaults, buildings, tracks or other structures,
sub-structures of public utility companies, and all service lines and structures, including sub-
structures of private abutting owners, that are located within the lines of system construction
that may be liable to disturbance or injury during the progress of the construction, and all
supports, labor, and material necessary to reconnect and restore all such structures that
become disturbed or damaged to their original condition shall be provided by the Grantee at
its own cost and expense.
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(g) Any and all public ways, public property, or private property that are disturbed
or damaged during the construction, installation, operation, maintenance, repair, replacement,
or relocation of a Cable system shall be promptly repaired by a Grantee within thirty days
after the disturbance or damage, at the Grantee's sole cost and expense. The Communications
Administrator may extend this thirty-day period for good cause shown.
(h) Upon reasonable notice, a Grantee shall, by a time specified by the City,
protect, support, temporarily disconnect, relocate, or remove any of its property when required
by the City by reason of traffic conditions; public safety; public way construction; public way
maintenance or repair (including resurfacing or widening); change of public way grade;
construction, installation or repair of sewers, drains, water pipes, power lines, signal lines,
tracks, or any other type of government-owned communications system, public work or
improvement or any government-owned utility; provided, however, that a Grantee shall, in all
such cases, with the City's consent, have the option of abandoning any property in place.
(i) If any Person that is authorized to place facilities in the public ways requests a
Grantee to protect, support, temporarily disconnect, remove, or relocate its facilities to
accommodate the construction, installation, operation, maintenance or repair of the facilities
of such other Person, the Grantee shall, after thirty days' advance written notice, take action to
effect the necessary changes requested. Unless the matter is governed by a valid contract
between the parties or federal law or regulation or Virginia law, or in any cases where the
Cable system that is being requested to move was not lawfully located in the public ways,
then the reasonable cost of the same shall be borne by the Person requesting the protection,
support, temporary disconnection, removal, or relocation and performed at no charge to the
City.
(j) In the event of an emergency, or where a Cable system creates or is
contributing to an imminent danger to health, safety, or property, or is an unauthorized use of
property, a Grantee, at its own expense, shall remove, replace or relocate any or all parts of its
system at the request of the City. If the Grantee fails to comply with the City's request, the
City may remove, relay, or relocate any or all parts of the Grantee's Cable system without
prior notice, at the sole expense of the Grantee. A Grantee shall not be responsible under this
Chapter or its Franchise agreement if such City action results in a breach of any applicable
obligation of a Grantee. The City shall not be held liable to the Grantee for any damages
arising from such removal or relocation.
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(k) A Grantee shall, on the request of any Person holding a valid building moving
permit issued by the City, or on request of the City, temporarily raise or lower its wires to
permit the moving of buildings. The expense of such temporary removal or raising or
lowering of wires shall be paid by the Person requesting the same, and the Grantee shall have
the authority to require payment in advance, except in the case where the requesting Person is
the City, in which case the Grantee will invoice the City, and the City will pay, following
completion of work. The Grantee shall be given reasonable advance notice in writing to
arrange for such temporary wire changes.
(1) A Grantee shall have the authority to trim trees and shrubs on public property
at its own expense as may be necessary to protect its wires and facilities, subject to the
regulation, supervision and/or direction of the City or other local government authority.
(m) 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 shall be permitted to use easements and rights-of-way of Virginia Power (formerly
known as VEPCO) and Chesapeake and Potomac Telephone Company (or its successor) in
accordance with the terms of their respective franchise ordinances. Approval shall be
conditioned upon compliance with the terms and conditions of this article 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 the necessary permits from the City and its agencies.
However, no location of any pole or wire-holding structure of a Grantee shall be a vested
interest and such poles, structures, or facilities shall be removed, replaced or modified by a
Grantee at its own expense and in compliance with the specification of the City whenever the
City or other governmental authority determines that the public convenience would be
enhanced thereby. 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. Copies of agreements for use of
conduits or other facilities shall be filed with the City upon City request.
(n) Where the City, other unit of government, or a public utility serving the City
desires to make use of the poles or other wire-holding structures of a Grantee but agreement
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therefor with the Grantee cannot be reached, the city council may require the Grantee to
permit such use if the city council determines that the use would enhance the public
convenience and would not unduly interfere with the Grantee's operations.
(o) Unless otherwise regulated, all transmission lines, equipment and structures
shall be installed and located to cause minimum interference with the rights and reasonable
convenience of owners of property which adjoins or abuts a street, way, or other property
upon which a Grantee has placed its facilities, and at all times such facilities shall be kept and
maintained in a safe, adequate condition, and in good order and repair. A Grantee shall at all
times employ reasonable care and shall install and maintain commonly accepted methods and
devices for preventing failures and accidents that are likely to cause damage, injuries, or
nuisances to the public. Suitable barricades, flags, lights, flares, or other devices shall be used
at such times and places as are reasonably required for the safety of all members of the public.
Any poles or other fixtures placed in any public way by a Grantee shall be placed in such a
manner as not to interfere with the usual travel on such public way.
(p) 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 paid by Grantee. No special charge shall be imposed upon any Subscriber for
such placing of facilities underground. A waiver of the requirement for underground service
to commercial buildings may be granted by the City Manager, where the resulting overhead
service does not have significant adverse effects on the adjacent properties and streets. Such
waiver shall be granted only if no additional poles are to be erected and only one line is to be
connected to each structure and only where existing overhead service runs contiguous to or is
directly across the street from the Subscriber property. Additional requirements may be
imposed to protect the public health, safety and welfare.
(q) New buried plant shall be capable of location using currently-available locating
devices.
(r) A Grantee shall be a member of the regional notification center for subsurface
installations and shall field mark the locations of its underground facilities upon request. A
Grantee shall locate its facilities for the City or other governmental authority at no charge.
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(s) No Grantee shall erect or place any towers, poles, or conduits, or construct,
upgrade, or rebuild a Cable system without first obtaining City approval of a complete
description of the Cable system facilities proposed to be erected or installed, including
engineering drawings, if required by the City, together with a map and plans indicating the
proposed location of all such facilities.
(t) Any contractor or subcontractor used for work or construction, installation,
operation, maintenance, or repair of system equipment must be properly licensed under the
laws of the Commonwealth of Virginia and all local ordinances, where applicable, and each
contractor or subcontractor shall have the same obligations with respect to its work as a
Grantee would have if the work were performed by the Grantee. A Grantee must ensure that
contractors, subcontractors and all employees who will perform work for it are trained and
experienced, and that one member of each work crew is responsible for communicating in the
official language of the Commonwealth with City and other governmental personnel at the
work site. A Grantee shall: be responsible for ensuring that the work of contractors and
subcontractors is performed consistent with its Franchise agreement and applicable laws,
regulations, policies and procedures; be responsible for all acts or omissions of contractors or
subcontractors; be responsible for promptly correcting acts or omissions by any contractor or
subcontractor; and, have a quality control program to ensure that the work is properly
performed.
(u) A Grantee shall notify the general public prior to commencing any proposed
construction, except for emergency maintenance or repair, that will significantly disturb or
disrupt public property or have the potential to present a danger or affect the safety of the
public generally. Except for emergency maintenance or repair, a Grantee shall publicize
proposed construction work at least one week prior to commencement of that work by causing
written notice of the construction work to be delivered to the City and by notifying those
Persons most likely to be affected by the work in at least one of the following ways: by
telephone, in person, by mail, by distribution of flyers to residences, by publication in local
newspapers, or in any other manner reasonably calculated to provide adequate notice. Notice
to affected Persons must include the name and local telephone number of a Grantee
representative who is qualified to answer questions concerning the proposed construction. In
addition, except for emergency maintenance or repair, before entering onto any Person's
property, a Grantee shall provide reasonable notice to the resident or tenant. The Grantee
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shall provide affected residents or tenants with a local name and phone number they can call
to discuss the Grantee's actions.
(v) A Grantee shall provide the Communications Administrator a daily report
identifying the location and time of any scheduled maintenance and/or construction. The
Grantee shall send the report in such a manner reasonably calculated to insure delivery to the
Communications Administrator no later than 8:00 a.m. on the day the maintenance and/or
construction is scheduled.
Section 94-94. Construction schedule and reports.
(a) Upon accepting a Franchise, a Grantee shall obtain all necessary federal,
Virginia, and local licenses, permits and authorizations required for the conduct of its business
and its initial construction, installation, operation, maintenance, and repair of its facilities. A
Grantee shall submit a report to the Communications Administrator documenting its
compliance with this requirement.
(b) Every Franchise agreement shall specify the construction schedule that will
apply to any required construction, upgrade, or rebuild of a Cable system. The schedule shall
provide for timely completion of the project, considering the amount and type of construction
required, and shall show areas of the City that will be affected. For the purposes of this
Section, construction shall be deemed to have commenced when the first aerial strands of
coaxial or fiber optic 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, Virginia 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 failure to meet the construction
schedule specified in a Franchise agreement shall, among other rights and remedies available
to the City under a Franchise agreement or applicable law, constitute grounds for termination
or revocation of the Franchise.
(c) Litigation instituted by a third party shall not suspend the Grantee's obligation
to construct, install, and operate its Cable system in accordance with the construction or
upgrade schedule set forth in its Franchise agreement.
(d) An initial Franchise shall include a timetable showing the percentage of
occupied dwelling units within the applicable Franchise area or areas that will be capable of
receiving Cable service at the end of each year following the beginning of construction.
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(e) Within three months after accepting a Franchise, a Grantee shall furnish the
Communications Administrator a construction schedule and map setting forth target dates
consistent with paragraphs (b) and (d) of this Section, for commencement of service to
Subscribers, and identifying the areas to be served. The schedule and map shall be updated
whenever substantial changes become necessary.
(f) Every three months after the start of construction, a Grantee shall furnish the
Communications Administrator a map that clearly defines the areas wherein regular
Subscriber service is available.
(g) The Communications Administrator may waive any provision of this Section
for just cause shown.
Section 94-95. Protection of Subscriber privacy.
(a) A Grantee shall at all times protect the privacy rights of all Subscribers,
including but not limited to those rights secured by 47 U.S.C. § 551.
(b) A Subscriber may at any time revoke any written or electronic consent to
release information by delivering to a Grantee in writing, by mail or otherwise, the
Subscriber's decision to revoke the authorization. Any such revocation shall be effective upon
receipt by the Grantee. Any Subscriber's prior written or electronic consent to release
information shall be revoked upon termination of a Grantee's service to that Subscriber.
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Division 8. Open Video Systems.
Section 94-96. Applicability of Chapter.
(a) This Chapter shall apply to open video systems that comply with 47 U.S.C.
§ 573, except as prohibited in U.S.C. § 573 or 47 CFR Part 76 Subpart S, as may be amended
from time to time.
(b) In applying this Chapter to an open video system, "Grantee" shall be taken to
refer to the open video system operator, "Cable system" to the open video system, and similar
terms shall apply similarly.
Section 94-97. Application for open video system authorization.
(a) A Person proposing to use public ways for installing cables, wires, lines,
optical fiber, underground conduit, and other devices necessary and appurtenant to the
operation of an open video system shall first obtain authorization from the city council for
such use. A Person may apply for such authorization by submitting an application containing:
(1) The name and address of the applicant and an identification of the
ownership and control of the applicant, including: the names and addresses of the ten largest
holders of an ownership interest in the applicant and affiliates of the applicant, and all Persons
with five percent or more ownership interest in the applicant and its affiliates; the Persons
who control the applicant and its affiliates; all officers and directors of the applicant and its
affiliates; and any other business affiliation and cable system ownership interest of each
named Person.
(2) A detailed description of the physical facilities the applicant proposes
to place in public ways.
(3) Any information that may be reasonably necessary to demonstrate
compliance with the requirements of federal law, including without limitation, all applicable
FCC regulations and orders.
(4) Any information that may be reasonably necessary to demonstrate
compliance with the requirements of this Article.
(5) An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the application and certifying that the
application meets all federal and state law requirements.
(6) The City may, at its discretion and upon request of an applicant, waive
in writing the provision of any of the information required by this Section.
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(b) Upon the city council's grant of open video system authorization, the applicant
shall pay to the City an amount of Fifty Thousand Dollars. The payment shall be non-
refundable, shall be made payable to the order of the "City of Fairfax" and may be used to
offset in whole or in part any direct costs incurred by the City in granting the authorization.
Section 94-98. Fee in lieu of franchise fee.
An open video system operator shall pay to the City a fee in lieu of the franchise fee required
in this Chapter, pursuant to the terms, procedures and conditions specified in this Chapter for
franchise fees.
Section 94-99. Public, educational, and governmental access obligations.
An open video system operator shall be subject to obligations pertaining to public,
educational, and governmental access pursuant to 47 CFR § 76.1505.
Section 94-100. Usage of public ways.
(a) An open video system operator shall be subject to all requirements of state and
local law regarding authorization to use or occupy the public ways, except to the extent
specifically prohibited by federal law. FCC approval of an open video system operator's
certification pursuant to 47 U.S.C. § 573 shall not confer upon such operator any authority to
use or occupy the public ways that the operator would not otherwise possess.
(b) No Person shall construct, install, maintain or operate an open video system or
part of an open video system on, over, through, or within a public way in the City, or on, over,
through, or within any other public property of the City, unless an agreement has first been
obtained pursuant to the provisions of this Article, and unless such open video system
agreement is in full force and effect.
Division 9. General Provisions.
Section 94-101. Limits on Grantee's recourse.
Except as expressly provided in this Chapter or a Franchise agreement, 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 or because of the City's enforcement thereof
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nor the City's failure to have the authority to grant the Franchise. A Grantee expressly agrees
upon its acceptance of a Franchise that it does so relying upon its own investigation and
understanding of the power and authority of the City to grant said Franchise.
Section 94-102. Special license.
The City reserves the right to issue a license, easement or other permit to anyone 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 service outside the City. Such license or easement, absent
a grant of a Franchise in accordance with this Chapter, shall not authorize or permit said
Person to use the City's public ways to provide Cable service of any nature to any home or
place of business within the City, or to render any service or connect any Subscriber within
the City to the Grantee's Cable system.
Section 94-103. Franchise validity.
A Grantee agrees, by its acceptance of a Franchise, to accept the validity of the terms
and conditions of this Chapter and its Franchise in their entirety and that it will not, at any
time, proceed against the City in any claim or proceeding challenging any term or provision of
this Chapter or its Franchise as unreasonable, arbitrary or void, or that the City did not have
the authority to impose such term or condition.
Section 94-104. Failure to enforce Franchise.
A Grantee shall not be excused from complying with any of the terms and conditions
of this Chapter or its Franchise by any failure of the City, upon any one or more occasions, to
insist upon a Grantee's performance or to seek a Grantee's compliance with any one or more
of such terms or conditions.
Section 94-105. Rights reserved to the City.
The City hereby expressly reserves the following rights:
1. To exercise its governmental powers, now or hereafter, to the full extent that
such powers may be vested in or granted to the City.
2. To adopt, in addition to the provisions contained herein, in a Franchise
agreement and in ordinances, such additional regulations as it shall find necessary in the
exercise of its police power.
3. To pursue all appropriate legal and equitable relief to enforce the terms and
conditions of this article and the Franchise agreement.
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4. To interpret the terms and conditions of this article, the Franchise agreement,
and the Grantee's application, and, in the case of conflict, to choose which terms and
conditions prevail.
5. 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.
6. To revoke a Franchise if the FCC requires that substantial sections of this
article be altered or deleted.
7. The right to amend this Chapter.
Section 94-106. Employment requirement.
A Grantee shall adhere to the Equal Employment Opporttmity regulations of the FCC
and to all federal, Virginia and local laws and executive orders pertaining to discrimination,
equal employment opportunity and affirmative action that are applicable to a Grantee.
Section 94-107. Time of essence.
Whenever this Chapter or a Franchise agreement sets forth any time for any act to be
performed by or on the behalf of a Grantee, such time shall be deemed of the essence and the
Grantee's failure to perform within the time allotted shall, in all cases, be sufficient grounds
for the City to invoke the remedies available under the terms and conditions of this Chapter
and its Franchise agreement.
Section 94-108. Acceptance.
(a) An applicant or Grantee to whom the city council grants one or more non-exclusive
Franchises shall, in addition to the non-refundable application fee specified herein, pay to the
City at the time the Grantee files its Franchise agreement acceptance, Fifty Thousand Dollars
per Franchise area. The payment shall be non-refundable, shall be made payable to the order
of the "City of Fairfax" and may be used to offset in whole or in part any direct costs incurred
by the City in granting the Franchise.
(b) A Grantee acknowledges by its acceptance of a Franchise that it has not been
induced to accept the same by any promise, oral or written, by or on behalf of the City or by
any third Person regarding any term or condition of this Chapter or a Franchise agreement
which is not expressed therein, and that no promise or inducement, oral or written, has been
made to any City employee or official regarding receipt of a cable Franchise.
(c) A Grantee acknowledges by its acceptance of a Franchise that it has carefully
read the terms and conditions of this Chapter and the Franchise agreement and accepts all of
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the terms and conditions imposed by this Chapter and the Franchise agreement and agrees to
abide by the same.
(d) A Franchise and all of its terms and conditions shall be accepted by a Grantee
by written instrument filed with the City Manager within thirty calendar days after the
granting of the Franchise.
Section 94-109. Financial penalties.
(a) For violation of this Chapter or a Franchise agreement entered into pursuant to
this Chapter, penalties shall be assessable against a Grantee. Such penalties shall: (i) be
chargeable to the Grantee, its performance bond, or any other security fund of the Grantee, in
any amount up to the limits specified below, at the City's discretion; (ii) be subject to cure
periods, to the extent listed below, that begin to run at the time the Grantee is notified in
writing of a penalty by the City; and, (iii) not be deemed cured without written evidence from
a Grantee and acceptance thereof by the City for those violations that are subject to a cure
period. The City may waive the penalties specified in this Section for good cause shown.
(1) For failure to submit any required plans indicating expected dates of
installation of various parts of the system: a penalty of $400 per day for each day the plans are
not submitted beyond a seven day cure period;
(2) For failure to commence operations in accordance with the
requirements of a Franchise agreement: penalty of $1,000 per day for each day
commencement of operations in accordance with such requirements is delayed beyond a thirty
day cure period;
(3) For failure to substantially complete construction and installation of a
system in accordance with this Chapter and/or a Franchise agreement: a penalty of $2,000 per
day for each day the construction or installation is delayed beyond a thirty day cure period;
(4) For a transfer without approval: a penalty of $2,000 per day for each
day the transfer remains in effect without the City's approval;
(5) For failure to comply with requirements for PEG use of the system: a
penalty of $1,000 per day for each day compliance is delayed beyond a fourteen day cure
period;
(6) For failure to provide complete and accurate information, reports, or
filings lawfully required under a Franchise agreement or applicable law or by the City: a
penalty of $200 per day for each day that each such filing is delayed beyond a thirty day cure
period;
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(7) For violation of a customer service standard as set forth in Section 94-
92: a penalty of $200 per violation, treating each failure to comply as a separate violation;
(8) For failure to render payment for reimbursement of any franchise
expenses, or failure to pay franchise fees or liquidated damages: a penalty of $100 for each
day each such payment is delayed;
(9) For failure to file, obtain or maintain any required performance bond or
other security fund in a timely fashion: a penalty of $200 per day for each day compliance is
delayed;
(10) For failure to restore damaged property: a penalty of $50 per day for
each day such property is not replaced beyond a ten day cure period, in addition to the cost of
the restoration as required in this Chapter or a Franchise agreement;
(11) For violation of technical standards pursuant to federal law: a penalty
of $100 per day for each day the violation is not remedied beyond a seven day cure period;
(12) For rate regulation violations or failure to conform to City orders or
resolutions, for each day that the same violation occurs or continues: a penalty of $200 for
each day the violation is not remedied;
(13) For violation of federal, Virginia, or local privacy requirements: a
penalty of $1,000 per incident; and
(14) For any other violations of this Chapter, a Franchise agreement or other
applicable law: a penalty of $200 per day for each violation for each day the violation is not
remedied beyond a seven day cure period.
(b) To the extent that financial penalties are applied to a Grantee under this
Section, the Grantee shall not be subject to liquidated damages established in a Franchise
agreement for the same violation.
(c) Violation of this Chapter shall be subject to such other remedies and penalties
as shall be prescribed by law or ordinance.
Section 94-110. Severability.
If any section of this Chapter or a Franchise agreement, or any portion thereof, 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.
Section 94-111. Preemption.
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In the event that federal or state laws, rules or regulations preempt a provision or limit
the enforceability of a provision of this Chapter, then the provision shall be read to be
preempted to the extent and for the time, but only to the extent and for the time, required by
law. In the event such federal or state law, rule or regulation is subsequently repealed,
rescinded, amended or otherwise changed so that the provision herein that had been
preempted is no longer preempted, such provision shall thereupon return to full force and
effect, and shall thereafter be binding on all Grantees, without the requirement of further
action on the part of the City.
Section 94-112. Connections to the Cable system; Use of Antennas.
To the extent consistent with federal law, Subscribers shall have the right to attach
devices to a Grantee's Cable system to allow them to transmit signals or service to video
cassette recorders, receivers and other terminal equipment, and to use their own remote
control devices and converters, and other similar equipment, so long as such devices do not
interfere with the operation of a Grantee's Cable system, or the reception of any cable
Subscriber, nor serve to circumvent a Grantee's security procedures, nor for any purpose to
obtain services illegally. A Grantee shall provide information to consumers that will allow
them to adjust such devices so that they may be used with a Grantee's Cable system.
BE IT FURTHER ORDAINED, by the City Council of the City of Fairfax, Virginia,
that the City of Fairfax Code is amended by repealing the former name of Chapter 94:
"Telecommunications", and renaming Chapter 94: "Communications".
BE IT FURTHER ORDAINED that any person providing cable service within the
City on the effective date of this ordinance pursuant to a cable Franchise previously granted
by the city council, who was in full compliance with City of Fairfax Code Section 94-172 and
that cable Franchise prior to the effective date of this ordinance and who continues to meet the
requirements established therein, shall be deemed to be in compliance with City of Fairfax
Code Section 94-80 while that cable Franchise remains in force and effect.
BE IT FURTHER ORDAINED that the provisions of this ordinance are severable, and
if any provision of this ordinance or any application thereof is held invalid, that invalidity
shall not affect the other provisions or applications of this ordinance which can be given effect
without the invalid provision or application.
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BE IT FURTHER ORDAINED that this ordinance shall become effective on
adoption.
This ordinance shall become effective as provided by law.
INTRODUCED: April 24, 2001
PUBLIC HEARING: May 22, 2001
ADOPTED: May 22, 2001
Vote
Councilman Coughlan
Councilman Greenfield
Councilman Lederer
Councilman Petersen
Councilman Rasmussen
Councilman Silverthome
Aye
Absent
Aye
Aye
Aye
Absent
Mayor
ATTEST:
-C~yVC~rk -
55