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ORD CC 08/10/76 - Telecable FranchiseORDINANCE NO. 76-12 AN ORDINANCE GRANTING A FRANCHISE TO TELECABLE, INC., OF HUNTS- VILLE/TEXAS, ITS SUCCESSORS AND ASSIGNS TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY OF HUNTSVILLE, TEXAS, SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE PROVIDING FOR CITY REGULATION AND USE OF THE CABLE TELEVISION SYSTEM. Section 1. DEFINITIONS. For the purpose of this ordinance the following terms, phrases, words, abbreviations, and their deri- vations shall have the meaning herein given. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. (a) "City" shall mean the City of Huntsville, Texas. v (b) "Council" shall mean the governing body of the City. (c) "Company" shall mean the grantee of rights under this ordinance. (d) "Person" shall mean any person, firm, partnership, association, corporation, company or organization of any kind. (e) "Franchise area" shall mean that area within the corporate limits of the City.* (f) "Street" shall mean the surface of the space above and below any public street, right of way, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive communications or utility 2 easement, now or hereafter existing as such within the franchise area. (g) "Property of Company" shall mean all property owned, installed or used by the Company in the conduct of a CATV business in the City. * [or, where appropriate that area shown on the map attached as Exhibit 1 and immediately adjacent areas.) (h) "CATV" shall mean a cable television system as hereinafter defined. (i) "Cable Television System" shall mean a system composed of, without limitation, antenna, cables, wires, lines, towers, wave guides, or any other conductors, converters, equipment or facilities, designed, constructed or wired for the purpose of producing, receiving, amplifying and distri- buting by coaxial cable audio and /or visual radio, television, electronic or electrical signals to and from persons, subscribers and locations in the franchise area. (j)— "Basic CATV Service" shall mean the distribution of broadcast television signals by the Company. (k) "Subscriber" shall mean any person or entity re- ceiving basic CATV service. (1) "Gross Annual Basic Subscriber Revenues" shall • mean any and all compensation and other considera- tion received directly by the Company from sub- 3 5 scribers in payment for regularly furnished basic CATV service. Gross annual basic subscriber re- venue shall not include any taxes on services furnished by the Company imposed directly on any subscriber or user by any city, state or other governmental unit and collected by the Company for such governmental unit. Section 2. GRANT OF AUTHORITY. Whereas the City has approved the legal, character, financial, technical and other qualifications of the Company and the adequacy and feasibility of the Company's construction arrangements as,part of a full public proceeding af- fording due process, including specific notice to members of the public of the line extension provisions of Section 7 hereof, there is hereby granted by the City to the Company the right and privi- lege to engage in the business of operating and priding a CATV system in the City, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public street, public way and public place, now laid out or dedicated and all extensions thereof and additions thereto in the franchise area such poles, wires, cable, conductors, ducts, conduit vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the CATV system; and in addition, so to use, operate, and pro- vide similar facilities or properties rented or leased from other persons, firms or corporations including but not limited to any public utility or other grantee franchised or permitted to do busi- ness in the City. 36 4 Section 3. NON - EXCLUSIVE GRANT. The right to use and occupy said street, and other public ways for the purpose herein set forth, shall not be exclusive, and the City reserves the right to grant a similar use in said streets to any other person. Section 4. TERM OF FRANCHISE. The franchise and rights here- in granted shall take effect and be in force 30 days from and af- ter the final passage hereon and upon filing of acceptance by the Company and shall continue in force and effect for a term of 15 years after the effective date of this franchise. The franchise may be renewed for an additional fifteen year period following a full public proceeding affording due process. Section 5. CONDITIONS OF STREET OCCUPANCY. (a) All transmission and distribution structures, lines, and equipment erected by the Company within the franchise area shall be so located as to cause minimum interference with\he proper use of streets, and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who join any of the said street or other public ways and places. The CATV system shall be constructed and operated in com- pliance with all City, State and National construction and electrical codes and shall be kept current with new codes. The Company shall install and maintain its wires, cables, fixtures and other equip- ment in such manner that they will not interfere with any installa- tions of the City or of a public utility serving the City. (b) In case of disturbance of any street, public way, or paved area, the Company shall, at its own cost and expense and in a manner approved by. the City, replace and restore such street, 37 public way or paved area in as good a condition as before the work involving such disturbance was done. (c) If at any time during the period of franchise the City shall lawfully elect to alter or change the grade of any street, sidewalk, alley, or other public way, the Company, upon reasonable notice by the City, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at its own expense. {d} Any poles or other fixtures placed in any public way by the Company shall be placed in such manner as not to interfere with the usual travel on such public way. (e) The Company shall, on the request of any person holding a building moving permit issued by 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 the paid by the person requesting the same, and the Company shall have the authority to require such payment, in advance. The Company shall be given not less than forty -eight (48) hours' notice to ar- range for such temporary wire changes. (f) The Company shall have the authority to trim trees upon and overhanging streets and public ways and places of the fran- chise area so as to prevent the branches of such trees from coming in contact with the wires and cables of the Company, except that at the option of the City, such trimming may be done by it or under its supervision and direction at the expense of the Company. (g) The Company shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public 38' place,. or remove from the street or other public place, ,any prop- erty of the Company when required by the City by reason of traffic conditions, public safety, street vacation, freeway and street con- struction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by public agencies; provided, however, that the Company shall in all such cases have the rights and obligations of abandonment of property of the Company, subject to City ordinances. (h) The City shall have the right to make additional use, for any public or municipal purpose, of any poles or conduits con- trolled or maintained exclusively by or for Company in any street, provided such use by City does not interfere with the use by Com- pany., The City shall indemnify and hold harmless C ppany against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damages, costs or liabilities of every kind and nature whatsoever arising out of such use of Company's poles or conduits. Section 6. .SAFETY REQUIREMENTS. (a) The Company shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. (b) All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of the franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable con- dition, and in good order and repair. 7 Section 7. SYSTEM CONSTRUCTION AND EXTENSION. (a) Whereas Company has installed energized trunk cable throughout at least 90% of the franchise area, the CATV system as presently constructed is hereby approved as to extent of service area. Company is hereby a ze• to extend the system as neces- sary within the franchise area. (b) Company, whenever it shall receive a request for service (from at least ten subscriber within 1320 cable feet of its trunk cable, shall extend its system to such subscribers at no cost to the subscribers for system extension other than the usual connec- tion fees for all subscribers, provided that such extension is tech- nically and physically feasible. The 1320 feet shall be measured in extension length of Company's cable required for service located within the public way or easement and shall not include length of necessary service drop to the subscriber's home or premises. (c) No person, firm or corporation in the Company's service area shall be arbitrarily refused service. However, in recognition of the capital costs involved, for unusual circumstances, such as requirement_for underground cable, or more than 150 feet of distance from distribution cable to of service to subscribers, or a density of less than ten subscribers • 1320 feet of cable system, in order to prevent inequitable burdens on potential cable subscribers in more densely populated areas, service may be made available on the basis of cost of materials,__Labor and easement.., cr 8 (d) In the event additional adjacent territory is incorporated within the City's limits, by annexation or otherwise, Company's rights and duties under this Ordinance shall be deemed to include such additional territory. Section B. OPERATIONAL STANDARDS. The Company shall operate and maintain its cable television system in full compliance with the standards set forth by the Federal Communications Commission. Section 9. LOCAL OFFICE; COMPLAINTS. The Company shall main- tain a local business office or agent which subscribers may tele- phone during regular business hours without incurring added message or toll charges, so that complaints regarding cable television opera- tions may be promptly reported to the Company. Should a subscriber have an unresolved complaint regarding cable television operations, the subscriber shall be entitled to file his complai?►t with the City Clerk, who has primary responsibility for the continuing admini- stration of the franchise and the procedures for resolving complaints, and thereafter to meet jointly with a representative of the Council and a representative of the Company within thirty (30) days to fully discuss and resolve such matters. The Company shall notify each subscriber, at the time of initial subscription to the service of the Company, of the procedures for reporting and resolving such complaints. 9 Section 10. RATES. The Company's rates shall be no more 15..00 ?'20.-C/(5 SO) 5.25 .S.Xa� than: Single Dwelling Units Conne coon Charge Monthly Charge First TV Outlet Additional TV or FM Outlet -0- 1.30 ✓ (with original connection) Relocation of Outlet Reconnection of Outlet 7.50 i Multiple Dwelling Units (contained within one structure or group, -where all service is billed to one customer) 7.50 Apartments Dwelling Units Served: 10 or more Hotels and Motels Rooms Served: 10 or more 3.30 1.30 Rates shall remain in effect for not less than 12 ca onths after the effective date. Subject to these procedures; Tompany may pass along to'subscribers such additional fees as may be imposed on it, including but not limited to direct taxes, copyright fees, and permit fees. Section 11. PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED. The Company shall not as to rates, charges, service facilities, rules, regulations or in any other respect make or grant any pre- ference or advantage to any person nor subject any person to any 10 prejudice or disadvantage, provided that nothing in this franchise shall be deemed to prohibit the establishment of a graduated scale of charges and classification would be entitled, and provided further that connection and service charges may be waived or modified dur- ing promotional campaigns of Company. Section 12. FRANCHISE PAYMENTS. The Company shall pay to the City, on or before March 31 of each year, a franchise fee not to exceed four (4%) per cent, the franchise fee shall be three (3%) per cent until a four (4%) per cent fee has been approved, in writ- ing, by the F.C.C. *, the franchise fee shall be based on gross annual basic subscriber revenues received for cable television operations in the City for the preceding calendar year. No other fee, charge or consideration shall be imposed. Sales tax or other taxes levied directly on a per subscription basis and collected by the Company shall be deducted from the gross annual basic subscr‘tber revenues before computation of sums due the City is made. The Company shall provide an annual summary report showing gross annual basic subscriber revenues received during the preceding year. Section 13. INDEMNIFICATION OF CITY. (a) The Company shall at all times protect and hold harmless the City from all claims, actions, suits, liability, loss, expense *Note: Franchise fee cannot exceed three percent without spe- cific justification to the F.C.C. in accordance with Section 76.31(b) of the F.C.C. Rules. 113 11 or damages of every kind and description, including investigation costs, court costs, and attorney's fees, which may accrue to or be suffered or claimed by any person or persons arising out of the negligence of the Company in the ownership, construction, repair, replacement, maintenances and operation of said cable television system and by reason of any license, copyright, property right or patent of any article or system used in the construction or use of said system. City shall give Company prompt notice of any such claims, actions, and suits, without limitation, in writing. The Company shall maintain in full force and effect during the life of any franchise, public liability insurance in a solvent insurance company authorized to do business in the State of Texas, at no less than the following amounts: a. $50,000 property damage in any one accident; b. $100,00 for personal injury to any one person; c. $300,000 for personal injury in any one accident; Provided that all such insurance may contain reasonable deductible provisions not to exceed $1,000.00 for any type of coverage, and provided, further, the City may require that any and all investi- gation of claims made by any person, firm, or corporation against the City arising out of any use or misuse of privileges granted to the Company hereunder shall be made by, or at the expense of the Company or its insurer. Section 14. PROCEDURES. (a) Any inquiry, proceeding, investigation or other action to be taken or proposed to be taken by the City in regard to the k 12 3` operations of Company's cable television system, including action in regard to a change in subscription rates, shall be taken only after thirty (30) days public notice of such action or proposed action is published in a local daily or weekly newspaper having general circulation in the City; a copy of such action o_ proposed action is served directly on Company; and, the Company has been given an opportunity to respond in writing and /or at hearing as may be specified by the City, and have been given an opportunity to on the action or proposed action. (b) The public notice clearly the action or proposed for response and the person or responses should be addressed, members respond of the general public or comment in writing required by this section shall state action to be taken, the time provided persons in authority to whom such and such other procedures as may be specified by the City. If a hearing is to be held, the public notice shall give the date and time of such hearing, whether public participation will be allowed and the procedures by which such parti- cipation may be obtained. The Company shall be a necessary party to any hearing conducted in regard to its operations. Section 15. PROCEDURE UPON TERMINATION. Upon expiration of the franchise, if the Company shall not have acquired an exten- sion or renewal thereof and accepted the same, it may have and it is hereby granted, the right to enter upon the streets, and public ways of the City, for the purposes of removing therefrom any or all of its property and otherwise. In so removing said property the Company shall refill, at its own expense, any excavation that '13 13 shall be made by it, and shall leave said streets and public ways and places in as good condition as that prevailing prior to the Company's removal of its property. Section 16. APPROVAL OF TRANSFER. The Company shall not sell or transfer its plant or system to another, other than a parent company or a wholly -owned subsidiary of the Company, nor_transfer any rights under this franchise to another without Council approval. Provided, that no sale or transfer shall be effective until the vendee, assignee or lessee has filed in the office of the City Clerk an instrument duly executed reciting the fact of such sale, assign- ment or lease accepting the terms of the franchise and agreeing to perform all the conditions thereof. Such Council approval will not be unreasonably withheld and neither this Section nor other Sections of this franchise shall preclude the mortga ing, hypothe- cating, or the assignment of certain rights in the system, or the pledge of stock by the Company for the purpose of financing. Section 17. NEW DEVELOPMENTS. It shall be the policy of the City liberally to amend this franchise upon application of the Company, when necessary to enable the Company to take advantage of any developments in the field of transmission of television and radio signals which will afford it an opportunity more effectively, efficiently or economically to serve its customers. Section 18. MISCELLANEOUS PROVISIONS. (a) When not otherwise prescribed herein, all matters herein required to be filed with the City shall be filed with the City Clerk. 14 (b) The Company shall assume the cost of publication of this franchises as such publication is required by law. A bill for publication costs shall be presented to the Company by the City Clerk upon the Company's filing of acceptance and shall be paid at that time. (c) In the case of any emergency or disaster, the Company shall, upon request of the City, make available its facilities to the City for emergency use during the emergency or disaster period. Section 19. COMPLIANCE WITH APPLICABLE LAWS AND ORDINANCES. The Company shall at all times - during the life of this franchise be subject to all lawful exercise of the policy power by the City. The City reserves the right to adopt from time to time in addition to the provisions herein contained such ordinances as may be deemed necessary to the exercise of police power. Such regulation shall be reasonable and not destructive to the rights herein granted and not in conflict with the laws of the State or other local laws or regulations. Section 20. VIOLATIONS. (a) From and after the effective date of this ordinance, it shall be unlawful for any person to construct, install or main- tain within any public street in the City, or within any other public property of the City, or within any privately -owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdi- vision map approved by the City, any equipment or facilities for 15 distributing any television signals or radio signals through a CATV system, unless a franchise authorizing such use of such street or property or area has first been obtained, and unless such franchise is in full force and effect. (b) It shall be unlawful for any person, firm or corpora- tion to make any unauthorized connection, whether physically, elec- trically, acoustically, inductively or otherwise, with any part of the franchised CATV system within this City for the purpose of enabling himself or others to receive any television signal, radio signal, picture, program or sound, without payment to the operator of said system. (c) It shall be unlawful for any person, without the consent of the owner, to wilfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound. Section 21. PENALTIES. Any person violating or failing to /comply with any of the provisions of Section 20 of this ordinance f/ shall be guilty of a misdemeanor and for each day of violation or 1 failure to comply may be punished by a fine not to exceed $100.00 `or by imprisonment for a term of not to exceed thirty (30) days nx by both such fine and imprisonment, Section 22. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held illegal, invalid or unconstitutional by the decision of any court or regu- latory body of competent jurisdiction, such decision shall not af- fect the validity of the remaining portions hereof. The Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause, and phrase hereof, irrespec- hig 16 tive of the fact that any one or more sections, subsections, sen- tences, clauses, or phrases be declared illegal, invalid or uncon- stitutional. The invalidity of any portion of this ordinance shall not abate, reduce or otherwise affect any consideration or other obligation required of the Company. All ordinances and parts of ordinances in conflict with the provisions of this ordinances are hereby repealed. Section 23. FEDERAL REGULATION. Any modification resulting from amendment of Section 76.31 ( "Franchise Standards ") of the Rules and Regulations of the Federal Communications Commission shall be incorporated into this franchise as of the date such modifications become obligatory under F.C.C. regulations, or in the event no obli- gatory date is established, within one year of adoption or at the time of franchise renewal, whichever occurs first. Section 24. EFFECTIVE DATE. This ordinance shall take effect and be in force thirty (30) days from and after its passage, sub- ject to acceptance by the Company within said thirty (30) day period. Passed the City Council q(,/("j G1.S7" %0 , 1976, (SEAL) CITY OF HUNTSVILLE, TEXAS BY • i Morris I. I. Waller, Mayor ATTE 4w2-14a7- Ruth Deshaw, City Secretary APPROVED AS TO FOR: 1111,11 Jack Haney, Acting City I}ttorney (1 TO: Mayor Nash . . • TECHNICAL ADVISORY COMMITTEE Cable Television MEMBER OFFICE PHONE • ,; CONTACTED ON 5/26/81 Mr. Don Adams 295 -5781 Mr. Gary Collins 295 -3421 Dr. Dick Cording 294 -1401 Dr. Bob Eubanks 294 -1340 Mr. Tim Franer 291 -1171 Mr. Joe Henderson 295 -2624 Mr. Jack Kyle 295 -6371 Mr. Jack Nichols 295 -2651 Mr. Gary Randazzo 295 -5407 Dr. Charles Schmidt . ... . . . 294 - 1313(0) 295 -7687 accepted accepted accepted accepted out of town- 4eckned accepted* accepted accepted out of town for week H) accepted ** *Accepted, but does not particularly want to chair this committee. * *Accepted, but was concerned about the longevity of this committee assignment, as with retirement, he plans to be out of town fituently. RD:rd May 26, 1981 THIS COPt1ITTEE'S CHARGE WI Res rectfully submitted, Ruth DeShaw City Secretary BE: To research and advise the City Council on matters pertaining to cable television operations. The work will include study of pending technological advance- ments, industrial and educational applications, com- munity and fringe area responsibilities and contrac- tual- franchise matters.