HomeMy WebLinkAboutOrdinance 2002.29 Amending chapter 9 of the town code relating to cable television F. ANN RODRIGUEZ, RECORDER
RECORDED BY: KJM
DEPUTY RECORDER
8013 AS2
SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
13251 N LON ADAMS RD
MARANA AZ 85653
DOCKET: 11959
PAGE: 4562
NO. OF PAGES: 2
SEQUENCE: 20030021390
01/03/2003
ORDIN 16:59
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MARANA ORDINANCE NO. 2002.29
AN ORDINANCE OF THE TOWN OF MARANA, ARIZONA, AMENDING CHAPTER 9
(BUSINESS REGULATIONS) OF THE TOWN CODE, RELATING TO CABLE TELEVISION.
WHEREAS, the Town Council of the Town of Marana did approve Ordinance No. 96.09, which
established regulations governing the operation of cable communications within the Town; and
WHEREAS, the Town Council has amended the Town Code from time to time; and
WHEREAS, the Mayor and Council of the Town of Marana have determined that various changes
to state and federal law governing cable communications and cable television services require the Town
to amend its cable communications regulations; and
WHEREAS, the Mayor and Council have determined that the regulations established by that
certain document entitled "ARTICLE 9-8 (CABLE TELEVISION)," having been made a public record
by the adoption of Resolution No. 2002-144, will adequately regulate the conduct of cable television Mthin
the Town, within the restrictions imposed by applicable laws; and
WHEREAS, the Mayor and Council have determined that adoption of that certain document
entitled "ARTICLE 9-8 (CABLE TELEVISION)" is in the best interest of the Town and its residents.
NOW, THEREFORE, BE IT ORDAINED bythe Mayor and Council of the Town of Marana,
Arizona, as follows:
Section 1. Chapter 9 of the Marana Town Code is hereby amended by deleting Article 9-8 (C)dBLE
COhIMUNICATIONS) and by substituting therefor that certain document entitled "ARTICLE 9-8
(CABLE TELEVISION)," having been made a public record by the adoption of Resolution No. 2002-
144.
Section 2. The various town officers and employees are authorized and directed to perform all acts
necessary or desirable to give effect to this Ordinance and portion of the Town Code.
Section 3. All ordinances, resolutions, or motions and parts of ordinances, resolutions, or morions of
the Council in conflict with the provisions of this Ordinance are hereby repealed, effective as of the effective
date of this Ordinance.
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Section 4. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any
reason held to be invalid or unconstitutional bythe decision of any court of competent jurisdiction, such
decision shall not affect the validity of the remaining portions thereof.
PASSED AND ADOPTED bythe Mayor and Council of the Town ofMarana, Ar/zona, this 17th
day of December, 2002.
Mayor BOBBY SUTTON, JR.
ATTEST:
Town Clerk
APPROVED AS TO FO~
.,~-"~a ' o ', cI.
As Town Attorney and not personally
Mamna, Arizona Ordinance No. 2002.29 Page 2 of 2
Article 9-8 CABLE TELEVISION
Section 9-8-1
Intent
A. The Town of Marana, pursuant to applicable federal and state law, is authorized to
grant one or more nonexclusive Licenses to construct, operate, maintain and
reconstruct Cable Television Systems within the Town limits.
B. The Town Council finds that the development of Cable Television Systems has the
potential of having great benefit and impact upon the residents of Marana. Because
of the complex and rapidly changing technology associated with cable television, the
Town Council further finds that the public convenience, safety and general welfare
can best be served by establishing regulatory powers which should be vested in the
Town or such Persons as the Town shall designate. It is the intent of this article and
subsequent amendments to provide for and specify the means to attain the best
possible cable television service to the public and any Licenses issued pursuant to
this article shall be deemed to include this finding as an integral part thereof.
Section 9-8-2
Definitions
For the purpose of this article, the following terms, phrases, words and their derivations shall
have the meaning given herein. Words used in the present tense include the future, words
in the plural number include the singular number, and words in the singular number include
the plural number. All capitalized terms used in the definition of any other term shall have
their meaning as otherwise defined in this Section 9-8-2. The words "shall" and "will" are
mandatory and "may" is permissive. Words not defined shall be given their common and
ordinary meaning.
A. "Basic Cable Service" means any service tier which includes the retransmission of
local television broadcast signals.
B. "Cable Act" means the Cable Communications Policy Act of 1984, 47 U .S.C. SS 521-
611 (1982 & Supp. V 1987), as amended by the Cable Television Consumer
Protection and Competition Act of 1992, Pub. L. NO.1 02-385, and as may, from time
to time, be amended.
C. "Cable Service" means:
1. The one-way transmission to Subscribers of video programming or other
programming service; and
2. Subscriber interaction, if any, which is required for the selection or use of
such video programming or other programming service.
D.
-,
"Cable Television System," "System" or "Cable System" means a facility, consisting
of a set of closed transmission paths and associated signal generation, reception,
and control equipment that is designed to provide Cable Service which includes
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video programming and which is provided to multiple Subscribers within a
community, but such term does not include:
1. A facility that serves only to retransmit the television signals of one (1) or
more television broadcast stations;
2. A facility that serves Subscribers without using any public rights-of-way;
3. A facility of a common carrier that is subject, in whole or in part, to the
provisions 0 f 4 7 U .S.C. S S 201-226, except that such facility s hall be
considered a Cable System to the extent that such facility whether on a
common carrier basis or otherwise is used in the transmission of video
programming directly to Subscribers; or
4. Any facilities of any electric utility used solely for operating its electric utility
System.
E. "Channel" or "Cable Channel" means a portion of the electromagnetic frequency
spectrum that is used in a Cable System and which is capable of delivering a
television Channel as defined by the Federal Communications Commission.
F. "Council" means the Town Council of the Town of Marana.
G. "FCC" means the Federal Communications Commission, its designated
representative or its lawful successor.
H. "Grantee" means any Person receiving a License pursuant to this article and its
agents, employees, officers, designees, or any lawful successor, transferee or
assignee.
I. "Grantor" or "Town" means the Town of Marana as represented by the Councilor
any delegate acting within the scope of its jurisdiction.
J. "Gross Annual Receipts" means all revenues derived directly or indirectly by the
Grantee or any Person in which the Grantee has a financial interest from or in
connection with the operation of the System pursuant to a License granted
hereunder, except it shall not include bad debt, sales tax or other taxes or charges
imposed on Grantee in addition to its License obligations and collected for direct
pass-through to state or federal government.
K. "Initial Service Area" means the area of the Town that will receive Cable Service
initially, as set forth in any License Agreement.
L. "Installation" means the connection of the System to Subscribers' terminals, and the
provision of Cable Service.
M. "License" means an initial authorization, or renewal thereof, issued by the Town,
whether such authorization is designated as a license, franchise, permit, resolution,
contract, certificate, agreement, or otherwise, which authorizes the construction or
operation of a Cable System.
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N. "License Agreement" means a License granted pursuant to this article, containing
the specific provisions of the License granted, including references, specifications,
requirements and other related matters.
O. "License Fee" means any tax, fee or assessment of any kind imposed by the Town
or other governmental entity on a Grantee or cable Subscriber, or both, solely
because of their status as such. The term "License Fee" does not include:
1. any tax, fee, or assessment of general applicability (including any such tax,
fee, or assessment imposed on both utilities and cable operators or their
services but not including a tax, fee, or assessment which is unduly
discriminatory against cable operators or cable Subscribers);
2. capital costs that are required by the License Agreement to be incurred by
the cable operatorfor public, educational, or Governmental Access Facilities;
3. requirements or charges incidental to the awarding or enforcing of the
License, including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated damages; or
4. any fee imposed under Title 17 of the United States Code.
P. "Normal Business Hours" means those hours during which most similar businesses
in the community are open to serve customers. In all cases, "Normal Business
Hours" must include some evening hours at least one (1) night per week and/or
some weekend hours.
Q. "Normal Operating Conditions" means those service conditions that are within the
control of the Grantee. Those conditions that are notwithin the control of the Grantee
include, but are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather conditions, and
significant legislative or regulatory requirements. Those conditions which are
ordinarily within the control of the Grantee include, but are not limited to, special
promotions, pay-per-view events, regular peak or seasonal demand periods, and
maintenance or upgrade of the System.
R. "Person" means any natural person or any association, firm, individual, partnership,
joint stock company, joint venture, trust, corporation, limited liability company,
syndicate, business or other legally recognized entity, private or public, whether for-
profit or not-for-profit.
S. "Public, Educational or Government Access Facilities" or "PEG Access Facilities"
means:
1. Channel capacity designated for public, educational, or governmental use;
and
-,
2. Facilities and equipment for the use of such Channel capacity.
T. "Section" means any section, subsection, or provision of this article.
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U. "Service Area" or "License Area" means the entire geographic area within the Town
as it is now constituted or may in the future be constituted, unless otherwise
specified in the License Agreement.
V. "Service Interruption" means the loss of picture or sound on one or more Cable
Channels affecting at least ten percent (10%) of the Town's subscribers on the
System.
W. "State" means the State of Arizona.
X. "Street" means each of the following that have been dedicated to the public or are
hereafter dedicated to the public and maintained under public authority or by others
and located within the Town limits: streets, roadways, highways, avenues, lanes,
alleys, sidewalks, easements, rights-of-way and similar public property and areas
that the Grantor shall permit to be included within the definition of Street from time
to time.
Y. "Subscriber" means any Person who orwhich lawfully elects to subscribe to, for any
purpose, Cable Service provided by the Grantee by means of or in connection with
the Cable System and who pays the charges therefor, except such Persons or
entities authorized to receive Cable Service without charge as described in the
License Agreement.
Section 9-8-3
License to Install and Operate
A License granted by the Town under the provisions of this article shall encompass the
following purposes:
A. To engage in the business of providing Cable Service, and such other services as
may be permitted by the License Agreement.
B. To erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain
cable lines, related electronic equipment, supporting structures, appurtenances, and
other property in connection with the operation of a Cable System in, on, over, under,
upon, along and across Streets or other public places within the designated Service
Area.
C. To maintain and operate said License properties for the origination, reception,
transmission, amplification, and distribution of television and radio signals for the
delivery of Cable Services and any other services permitted by the License
Agreement.
D. To set forth the obligations of a Grantee under the License Agreement.
Section 9-8-4
License Required
It shall be unlawful for any Person to construct, install or operate a Cable Television System
in the Town within any Street without a properly granted License awarded pursuant to the
provisions of this article.
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Section 9-8-5
Term of the License
A. A License granted hereunder shall be for a term established in the License
Agreement, commencing with the Grantor's adoption of an ordinance or resolution
authorizing the License.
B. A License granted hereunder may be renewed upon application by the Grantee
pursuant to the provisions of applicable state and federal law and of this article.
Section 9-8-6
License Territory
Any License shall be valid within all the territorial limits of the Town, and within any area
added to the Town during the term ofthe License, unless otherwise specified in the License
Agreement.
Section 9-8-7
Federal, State and Town Jurisdiction
A. This article shall be construed in a manner consistent with all applicable federal and
state laws.
B. In the event that the state orfederal government discontinues preemption in any area
of cable communications over which it currently exercises jurisdiction in such
manner as to expand rather than limit municipal regulatory authority, Grantor may,
if it so elects, adopt rules and regulations in these areas to the extent permitted by
law.
C. This article shall apply to all Licenses granted or renewed after the effective date of
this article. It shall further apply to the extent permitted by applicable federal or state
law to all existing Licenses granted prior to the effective date of this article.
D. Grantee's rights are subject to the police powers of the Town to adopt and enforce
ordinances necessary to the health, safety and welfare of the public. Grantee shall
comply with all applicable general laws and ordinances enacted by the Town
pursuant to that power.
E. Grantee shall not be relieved of its obligation to complywith anyofthe provisions of
this article or any License granted pursuant to this article by reason of any failure of
the Town to enforce prompt compliance.
F. This article and any License granted pursuant to this article shall be construed and
enforced in accordance with the substantive laws of the State of Arizona.
Section 9-8-8
License N on-Transferable
A. Grantee shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in
part, either by forced or involuntary sale, or by ordinary sale, consolidation or
otherwise, the License and/or Cable System or any of the rights or privileges granted
by the License, without the prior consent of the Council which consent shall not be
unreasonably denied or delayed and shall be denied only upon a good faith finding
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by the Town that the proposed transferee lacks the legal, technical or financial
qualifications to perform its obligations under the License Agreement. Any attempt
to sell, transfer, lease, assign or otherwise dispose of the License and/or Cable
System without the consent of the Council shall be null and void. This provision shall
not apply to sales of property or equipment in the normal course of business. No
consent from the Town shall be required for a transfer in trust, mortgage, or other
instrument of hypothecation, in whole or in part, to secure an indebtedness, or for a
pro forma transfer to a corporation, partnership or other entity controlli ng, controlled
by or under common control with Grantee.
B. The following events shall be deemed to be a sale, assignment or other transfer of
the License and/or Cable System requiring compliance with this Section:
1. The sale, assignment or other transfer of all or a majority of Grantee's
assets;
2. The sale, a ssignment or other transfer of capital stock or partnership,
membership or other equity interests in Grantee by one or more of its
existing shareholders, partners, members or other equity owners so as to
create a new controlling interest in Grantee;
3. The issuance of additional capital stock or partnership, membership or other
equity interest by Grantee so as to create a new controlling interest in
Grantee; and
4. The entry by the Grantee into an agreement with respect to the management
or operation of the Grantee and/or the System.
The term "Controlling Interest" as used herein means majority equity ownership of
the Grantee.
C. Except as provided below, no Grantee may sell or otherwise transfer ownership in
a License and/or Cable System, without the prior consent of the Council which
consent shall not be unreasonable denied or delayed and shall be denied only upon
a good faith finding by the Town that the proposed transferee lacks the legal
technical or financial qualifications to perform its obligations under the License
Agreement following either the acquisition or initial construction of said System by
Grantee. In the case of a sale of multiple Systems, if the terms of the sale require the
buyer to subsequently transfer ownership of one or more such Systems to one or
more third parties, such transfer shall be considered a part of the initial transaction.
No consent from the Town shall be required for the following:
1 . Any transfer of ownership interest in any License and/or Cable System which
is not subject to federal income tax liability;
2. Any sale required by operation of any law or any act of any agency, any state
or political subdivision or the Town; or
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3. Any sale, assignment, or transfer, to one or more purchasers, assignees, or
transferees controlled by, controlling, or under common control with, the
seller, assignor, or transferor.
D. In the case of any sale or transfer of ownership of any License and/or Cable System
following acq uisition of such System, the Town shall have one hundred twenty (120)
days to act upon any request for approval of such sale or transfer that contains or
is accompanied by such information as is required in accordance with Federal
Communications Commission Regulations, the requirements of this article and such
other reasonable information as the Town, in its sole discretion, may request. If the
Town fails to render a final decision on the request within one hundred twenty (120)
days from receipt by the Town of all required information, such request shall be
deemed granted unless the requesting party and the Town agree to an extension of
time.
E. Grantee shall notify Grantor in writing of any foreclosure or any other judicial sale of
all or a substantial part of the License property of the Grantee or upon the termination
of any lease or interest covering all or a substantial part of said License property.
Such notification shall be considered by Grantor as notice that a change in control
of ownership of the License has taken place and the provisions under this Section
governing the consent of Grantorto such change in control of ownership shall apply.
F. For the purpose of determining whether it shall consent to such change, transfer, or
acquisition of control, Grantor may inquire into the legal, financial, and technical
qualifications of the prospective transferee or controlling party, and Grantee shall
assist Grantor in any such inquiry. The transferee shall be required to establish that
it possesses the legal, technical and financial qualifications to operate and maintain
the System and comply with all License requirements for the remainder of the term
of the License. If, after considering the legal, financial, and technical qualities of the
applicant and determining that they are satisfactory, the Grantor finds that such
transfer is acceptable, the Grantor shall transfer and assign the rights and
obligations of such License. The consent of the Grantor to such transfer shall not
be unreasonably denied.
G. Any financial institution having a pledge of the Grantee or its assets for the
advancement of money for the construction and/or operation of the License shall
have the right to notify the Grantor that it or its designee satisfactory to the Grantor
shall take control of and operate the Cable Television System, in the event of a
Grantee default in its financial obligations. Further, said financial institution shall also
submit a plan for such operation within thirty (30) days of assuming such control that
will insure continued service and compliance with all License requirements during
the term the financial institution exercises control over the System. The financial
institution shall not exercise control over the System for a period exceeding one (1 )
year unless extended by the Grantor in its discretion and during said period oftime
it shall have the right to petition the Grantor to transfer the License to another
Grantee.
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Section 9-8-9
Purchase by Town Upon Expiration or Revocation
A. If, subject to the provisions of the Cable Act, a renewal of a License is denied, the
Town may purchase to the extent permitted by Federal law and upon payment to the
Grantee of the Cable Systems' fair market value as a going concern, exclusive of
any value allocated to the License itself, that portion of Grantee's Cable System
serving the Town of Marana.
B. Subject to the Cable Act, if a License is revoked for cause, the Town may, to the
extent permitted by Federal law, acquire that portion of the Cable System serving the
Town of Marana upon payment of an equitable price.
Section 9-8-10
Geographical Coverage
A. Grantee shall design, construct and maintain the Cable Television System to have
the capability to pass every dwelling unit in the Service Area, subject to any line
extension requirements of the License Agreement.
B. After service has been established by activating trunk and/or distribution cables for
any part of the Service Area, Grantee shall provide Cable Service to any requesting
Subscriber within that Service Area within thirty (30) days from the date of request,
provided that the Grantee is able to secure all rights-of-way necessary to extend
service to such Subscriber within such thirty (30) day period on reasonable terms
and conditions.
Section 9-8-11
Nonexclusive License
Any License granted shall be nonexclusive. The Grantor specifically reserves the right to
grant, at any time, such additional Licenses for a Cable Television System or any
component thereof, as it deems appropriate, subject to applicable state and federal law,
provided, however, that no License shall be granted on terms materially less burdensome
or more favorable than any other License granted hereunder.
Section 9-8-12
Multiple Licenses
A. Grantor may grant one or more Licenses for a Service Area. Grantor may, in its sole
discretion, limit the number of Licenses granted, based upon, but not necessarily
limited to, the requirements of applicable law and specific local considerations; such
as:
1. The capacity of the public rights-of-way to accommodate multiple coaxial
cables in addition to the cables, conduits and pipes of the utility Systems,
such as electrical power, telephone, gas and sewerage.
2. The impact on the community of having multiple Licenses.
3. The disadvantages that may result from Cable System competition, such as
the requirement for multiple pedestals on residents' property, and the
disruption arising from numerous excavations of the rights-of-way.
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4. The financial capabilities of the applicant and its guaranteed commitment to
make necessary investment to erect, maintain and operate the proposed
System for the duration of the License term.
B. Each Grantee awarded a License to serve the entire Town shall offer service to all
residences in the Town, in accordance with construction and service schedules
mutually agreed upon between Grantor and Grantee, and consistent with applicable
law.
C. Developers of new residential housing with underground utilities shall provide conduit
to accommodate cables for at least two (2) Cable Systems in accordance with the
provisions of Section 9-8-19(0).
D. Grantor may require that any new Grantee be responsible for its own underground
trenching and the costs associated therewith, if, in Grantor's opinion, the rights-of-
way in any particular area cannot feasibly and reasonably accommodate additional
cables.
E. Anyadditional License granted by the Town to provide Cable Service in a part of the
Town in which a License has already been granted and where an existing Grantee
is providing service shall require the new Grantee to provide service throughout its
Service Area within a reasonable time and in a sequence which does not
discriminate against lower income residents.
Section 9-8-13
Initial License Applications
Any Person desiring an initial License for a Cable Television System shall file an application
with the Town. A reasonable nonrefundable application fee established by the Town shall
accompany the application. Such application fee shall not be deemed to be "Franchise
Fees" within the meaning of Section 622 of the Cable Act (47 U.S.C. S 542), and such
payments shall not be deemed to be (i) "payments in kind" or any involuntary payments
chargeable against the compensation to be paid to the Town by Grantee pursuant to Section
9-8-18 hereof and applicable provisions of a License Agreement, or (ii) part of the
compensation to be paid to the Town by Grantee pursuant to Section 9-8-18 hereof and
applicable provisions of a License Agreement.
An application for an initial License for a Cable Television System shall contain, where
applicable:
A. A Statement as to the proposed License and Service Area.
B. Resume of prior history of applicant, including the legal, technical and financial
expertise of applicant in the cable television field.
c. List of the partners, general and limited, of the applicant, if a partnership, or the
percentage of stock owned or controlled by each shareholder, if a corporation.
D. List of officers, directors and managing employees of applicant, together with a
description of the background of each such Person.
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E. The names and addresses of any parent or subsidiary of applicant or any other
business entity owning or controlling applicant in whole or in part, or owned or
controlled in whole or in part by applicant.
F. A current financial Statement of applicant verified by a CPA audit or otherwise
certified to be true, complete and correct to the reasonable satisfaction of the Town.
G. Proposed construction and service schedule.
H. Any additional information that the Town deems applicable.
Section 9-8-14
Consideration of Initial Applications
A. Upon receipt of any application for an initial License, the Town Manager shall prepare
a report and make his recommendations respecting such application to the Town
Council.
B. A public hearing shall be set prior to any initial License grant, at a time and date
approved by the Council. Within thirty (30) days after the close of the hearing, the
Council shall make a decision based upon the evidence received at the hearing as
to whether or not the License(s) should be granted, and, if granted, subject to what
conditions. The Council may grant one (1) or more initial Licenses, or may decline
to grant any License.
Section 9.8.15
License Renewal
License renewals shall be in accordance with applicable law including, but not necessarily
limited to the Cable Communications Policy Act of 1984, as amended. Grantor and Grantee,
by mutual consent, may enter into renewal negotiations at any time during the term of the
License.
Section 9.8.16
Consumer Protection and Service Standards
A. Except as otherwise provided in the License Agreement, Grantee shall maintain a
local office or offices to provide the necessary facilities, equipment and personnel
to comply with the following consumer protection standards under Normal Operating
Conditions:
1. Cable System office hours and telephone availability:
i. Grantee will maintain a local, toll-free or collect call telephone access
line which will be available to its Subscribers twenty-four (24) hours
a day, seven (7) days a week.
(1 )
Trained Grantee representatives will be available to respond
to customer telephone inquiries during Normal Business
Hours.
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(2) After Normal Business Hours, the access line may be
answered by a service or an automated response System,
including an answering machine. Inquiries received after
Normal Business Hours must be responded to by a trained
Grantee representative on the next business day.
ii. Under Normal Operating Conditions, telephone answer time by a
customer representative, including wait time, shall not exceed thirty
(30) seconds when the connection is made. If the call needs to be
transferred, transfer time shall not exceed thirty (30) seconds. These
standards shall be met no less then ninety percent (90%) of the time
under Normal Operating Conditions, measured on a quarterly basis.
Hi. The Grantee will not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering
standards above unless an historical record of complaints indicates
a clear failure to comply.
iv. Under Normal Operating Conditions, the customer will receive a busy
signal less than three percent (3%) of the time.
v. Customer service center and bill payment locations will be open at
least during Normal Business Hours and will be conveniently located.
2. Installations, outages and service calls. Under Normal Operating Conditions,
each of the following four standards will be met no less than ninety-five
percent (95%) of the time measured on a quarterly basis:
i. Standard Installations will be performed within seven (7) business
days after an order has been placed. "Standard" Installations are
those that are located up to one hundred twenty-five (125) feet from
the existing distribution System.
ii. Excluding conditions beyond the control of Grantee, Grantee will
begin working on "Service Interruptions" promptly and in no event
later than 24 h ours after the interruption becomes known. The
Grantee must begin actions to correct other service problems the
next business day after notification of the service problem.
iii. At the subscriber's request, the "appointment window" alternatives for
Installations, service calls, and other Installation activities will be
within a two to four hour time block during Normal Business Hours.
(The Grantee may schedule service calls and other Installation
activities outside of Normal Business Hours for the express
convenience of the customer.)
iv. Grantee may not cancel an appointment with a customer after the
close of business on the business day prior to the scheduled
appointment.
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v. If Grantee's representative is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled,
the customer will be contacted. The appointment will be rescheduled,
as necessary, at a time that is convenient for the customer.
3. Communications between Grantee and cable Subscribers:
i. Notifications to Subscribers:
(1) The Grantee shall provide written information on each of the
following areas at the time of Installation of service, at least
annually to all Subscribers, and at any time upon request:
(a) Products and services offered;
(b) Prices and options for programming services and
conditions of subscription to programming and other
services;
(c) Installation and service maintenance policies;
(d) Instructions on how to use the Cable Service;
(e) Channel positions for programming carried on the
System; and
(f) Billing and complaint procedures, including the
address and telephone number of the Town's cable
office.
(2) Customers will be notified of any changes in rates,
programming services or Channel positions as soon as
possible through announcements on the Cable System and
in writing. Notice must be given to Subscribers a minimum
of thirty (30) days in advance of such changes if the change
is within the control of the Grantee. In addition, the Grantee
shall notify Subscribers thirty (30) days in advance of any
significant changes in the other information required by the
preceding paragraph.
ii. Billing:
(1 )
Bills will be clear, concise and understandable. Bills must be
fully itemized, with itemizations including, but not limited to,
basic and premium service charges and equipment charges.
Bills will also clearly delineate all activity during the billing
period, including optional charges, rebates and credits.
(2) In case of a billing dispute, the Grantee must respond to a
written complaint from a Subscriber within thirty (30) days.
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iii. Refunds: Refund checks will be issued promptly, but no later than
either:
(1) The customer's next billing cycle following resolution of the
request or thirty (30) days, whichever is earlier, or
(2) The return ofthe equipment supplied by the Grantee if service
is terminated.
iv.
Credits: Credits for service will be issued no later than the
customer's next billing cycle following the determination that a credit
is warranted.
Section 9-8-17
Rate Regulation
A. The Town reserves the right to regulate rates for Basic Cable Service and any other
services offered over the Cable System, to the extent permitted by federal or state
law. The Grantee shall be subject to the rate regulation provisions provided for
herein, and those of the FCC at47 C.F.R., Part 76.900, Subpart N. The Town shall
follow the rules relating to cable rate regulation promulgated by the FCC at 47
C.F.R., Part 76.900, Subpart N.
B. Except to the extent otherwise expressly permitted by applicable law, Grantee shall
provide Cable Service to each resident within the Service Area at a uniform rate.
Section 9-8-18
License Fee
A. Following the issuance and acceptance of a License, the Grantee shall pay to the
Grantor a License Fee in the amount set forth in the License Agreement.
B. The Grantor, on an annual basis, shall be furnished a Statement within sixty (60)
days of the close of the calendar year, certified by an officer of the Grantee or
audited by a Certified Public Accountant, reflecting the total amounts of gross annual
revenues and all payments, and computations forthe previous calendar year. Upon
ten ( 10) days prior written notice, Grantor shall have the right to conduct an
independent audit of Grantee's records, in accordance with generally accepted
accounting principles and if such audit indicates a License Fee underpayment of ten
percent (10%) or more, the Grantee shall assume all reasonable costs of such an
audit.
C. Except as otherwise provided by law, no acceptance of any payment by the Grantor
shall be construed as a release or as an accord and satisfaction of any claim the
Grantor may have for further or additional sums payable as a License Fee under this
article or any License Agreement or for the performance of any other obligation of the
Grantee.
D. In the event that any License Fee payment or recomputed amount is not made on
or before the dates specified in the License Agreement, Grantee shall pay as
additional compensation an interest charge, computed from such due date, at an
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annual rate equal to the prime lending rate plus one and one-half percent (1-1/2%)
during the period for which payment was due.
E. License Fee payments shall be made in accordance with the schedule indicated in
the License Agreement.
Section 9-8-19
Design and Construction Requirements
A. Grantee shall not construct any Cable System facilities until Grantee has secured,
at its own expense, all necessary permits, licenses or other forms of approval or
authorization from Grantor and other cognizant public agencies.
B. In those areas of the Town where transmission or distribution facilities of all the
public utilities providing telephone and electric power service are underground, the
Grantee likewise shall construct, operate and maintain its transmission and
distribution facilities therein underground.
C. In those areas of the Town where Grantee's cables are located on the above-ground
transmission or distribution facilities of the public utility providing telephone or electric
power service, and in the event that t he facilities of both such public utilities
subsequently are placed underground, then the Grantee likewise shall construct,
operate and maintain its transmission and distribution facilities underground, at
Grantee's cost. Certain of Grantee's equipment, such as pedestals, amplifiers and
power supplies, which normally are placed above ground, may continue to remain
in above-ground closures.
D. In new residential developments in which all the electric power and telephone utilities
are underground, the following procedure shall apply with respect to access to and
utilization of underground easements:
1 . The developer shall be responsible for contacting and surveying all Licensed
cable operators to ascertain which operators desire (or, pursuant to the
terms and provisions of this article and any License Agreement, may be
required) to provide Cable Service to that development. The developer may
establish a reasonable deadline to receive cable operator responses. The
final development map shall indicate the cable operators that have agreed to
serve the development.
2. If one (1) or two (2) cable operators wish to provide service, they shall be
accommodated in the joint utilities trench on a nondiscriminatory shared
basis. If fewer than two (2) operators indicate interest, the developer shall
provide conduit to accommodate two (2) sets of cable television cables and
dedicate to the Town any initially unoccupied conduit. The developer shall be
entitled to recoverfrom Grantor the cost of such initially unoccupied conduit
in the event that Grantor subsequently leases or sells occupancy or use
rights to any Grantee.
3. The developer shall provide at least ten (10) working days notice of the date
that utility trenches will be open to the cable operators that have agreed to
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serve the development. When the trenches are open, cable operators shall
have two (2) working days to begin the Installation of their cables, and five (5)
working days after beginning Installation to complete Installation.
4. The final development map shall not be approved until the developer submits
evidence that:
i. It has notified each Grantee that underground utility trenches are to
open as of an estimated date, and that each Grantee will be allowed
access to such trenches, including trenches from proposed Streets
to individual homes or home sites, on specified nondiscriminatory
terms and conditions; and
ii. It has received a written notification from each Grantee that the
Grantee intends to install its facilities during the open trench period
on the specified terms and conditions, or such other terms and
conditions as are mutually agreeable to the developer and Grantee,
orhas received no reply from a Grantee within ten (10) days after its
notification to such Grantee, in which case the Grantee will be
deemed to have waived its opportunity to install its facilities during the
open trench period.
5. Sharing the joint utilities trench shall be subject to compliance with state
regulatory agency and utility standards. If such compliance is not possible,
the developer shall provide a separate trench for the cable television cables,
with the entire cost shared among the participating cable operators. With the
concurrence of the developer, the affected utilities and the cable operators,
alternative Installation procedures, such as the use of deeper trenches, may
be utilized, subject to applicable law.
6. Any cable operator wishing to serve an area where the trenches have been
closed shall be responsible for its own trenching and associated costs and
shall repair all property to the condition which existed prior to such trenching.
E. Grantee shall remove, replace or modify at its own expense the installation of any of
its facilities within any Street when required to do so by the Town to allow the Town
to change, maintain, repair, improve or eliminate a Street. Nothing in this section
shall prevent Grantee from seeking and obtaining reimbursement from sources other
than the Town.
F. Al the request of any person holding a valid building moving permit and upon
sufficient notice, Grantee shall temporarily raise or lower its wires as necessary to
facilitate such move upon not less than seventy-two (72) hours advance notice. The
direct expense of such temporary changes, including standby time, shall be paid by
the holder of the moving permit and Grantee may require payment in advance.
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Section 9-8-20
Technical Standards
A. The Grantee shall construct, install, operate and maintain its System in a manner
consistent with all applicable laws, ordinances, construction standards,
governmental requirements, Federal Communications Commission technical
standards, and any standards set forth in its License Agreement. In addition, the
Grantee shall provide to the Grantor, upon request, a written report of the results of
the Grantee's periodic proof of performance tests conducted pursuant to Federal
Communications Commission standards and guidelines.
B. Repeated and verified failure to maintain specified technical standards shall
constitute a material License violation.
C. All construction practices shall be in accordance with all applicable Sections of the
Occupational Safety and Health Act of 1970, as amended, as well as all other
applicable local, state and federal laws and regulations.
D. All Installation of electronic equipment shall be installed in accordance with the
provisions of the National Electrical and Safety Code and National Electrical Code,
as amended, and as may from time to time be amended.
E. Antennae and their supporting structures (towers) shall be painted, lighted, erected
and maintained in accordance with all applicable rules and regulations of the Federal
Aviation Administration and all other applicable local, state and federal laws and
regulations.
F. All of Grantee's plant and equipment, including, but not limited to, the antenna site,
headend and distribution system, towers, house connections, structures, poles,
wire, coaxial cable, fixtures and appurtenances shall be installed, located, erected,
constructed, reconstructed, replaced, removed, repaired, maintained and operated
in accordance with good engineering practices, performed by experienced
maintenance and construction personnel so as not to endanger or interfere with
improvements that the Town may deem appropriate to make, or to interfere in any
manner with the rights or reasonable convenience of any property owner, or to
unnecessarily hinder or obstruct public use of the Streets or pedestrian or vehicular
traffic.
G. Grantee shall at all times employ ordinary care and shall install and maintain in use
commonly accepted methods and devices preventing failures and accidents which
are likely to cause damage, injury or nuisance to the public.
Section 9-8-21
Trimming of Trees
Grantee shall have the authority to trim trees, in accordance with all applicable utility
restrictions, ordinance and easement restrictions, upon and hanging over Streets, alleys,
sidewalks, and public places of the Town so as to prevent the branches of such trees from
coming in contact with the wires and cables of Grantee. Town representatives shall have
authority to supervise and approve all trimming of trees conducted by Grantee.
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Section 9-8-22
Use of Grantee Facilities
The Town shall have the right to install and maintain, free of charge, upon the poles and
within the underground pipes and unused conduits, any wires and fixtures desired by the
Town to the extent that such Installation and maintenance does not interfere with existing
operations and future use of Grantee.
Section 9-8-23
Hold Harmless
A. Grantee, under any License operated pursuant to this article, shall agree to
indemnify, h old harmless, release and defend the Town, its 0 fficers, boards,
commissions, agents and employees from and against any and all lawsuits, claims,
causes of action, actions, liability, demands, damages, disability, losses, expenses,
including reasonable attorneys' fees and costs or liabilities of any nature that may be
asserted by any Person resulting or in any manner arising from the action or inaction
of the Grantee in constructing, operating, maintaining, repairing or removing the
System, in carrying on Grantee's business or operations in the Town or in exercising
or failing to exercise any right or privilege granted by the License. This indemnity
shall apply, without limitation, to any action or cause of action for invasion of privacy,
defamation, antitrust, errors and omissions, theft, fire, violation or infringement of any
copyright, trademark, trade names, service mark or patent, or any other right of any
Person, firm or corporation, whether or not any act or omission complained of is
authorized, allowed or prohibited by this article or any License Agreement, but shall
not include any claim or action arising out of the actions or omissions of Town
officers, employees or agents or related to any Town programming or other access
programming for which the Grantee is not legally responsible.
B. The Town shall promptly notify Grantee of any claims subject to indemnification by
Grantee and shall cooperate with all reasonable requests by Grantee for information,
documents, testimony or other assistance appropriate to a resolution of such
claims. Grantee shall have full responsibility for and control of any action or
undertaking directed at the resolution of such claims.
Section 9-8-24
Insurance
Grantee shall provide insurance as specified in the License Agreement.
Section 9-8-25
Records Required and Grantor's Right to Inspect
A. Grantee shall at all times maintain:
1. A full and complete set of plans, records and "as-built" maps showing the
location of the Cable Television System installed or in use in the Town,
exclusive of Subscriber service drops and equipment provided in
Subscribers' homes.
2. If requested by Grantor, a summary of service calls, identifying the number,
general nature and disposition of such calls, on a monthly basis. A summary
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of such service calls shall be submitted to the Grantorwithin thirty (30) days
following its request in a form reasonably acceptable to the Grantor.
B. Upon forty-eight (48) hours written notice, and during Normal Business Hours,
Grantee shall permit examination by any duly authorized representative of the
Grantor, of all License property and facilities, together with any appurtenant property
and facilities of Grantee situated within the Town, and all records relating to the
License, provided they are necessary to enable the Grantor to carry out its regulatory
responsibilities under local, state and federal law, this article and the License
Agreement. Such records include all books, records, maps, plans, financial
Statements, service complaint logs, performance test results, records of request for
service, and other like materials of Grantee. Grantee shall have the right to be
present at any such examination.
C. If any of the records described in the previous subsection are proprietary in nature
or must be kept confidential by state, federal or local law, upon proper request by
Grantee, such information obtained during such an inspection shall be treated as
confidential. To the extent that any state or federal law requires Grantor to disclose
any such records, the Grantor shall be entitled to disclose those records.
D. Copies of all petitions, applications, communications and reports submitted by
Grantee, or on behalf of or relating to Grantee, to the Federal Communications
Commission, Securities and Exchange Commission, or any other federal or state
regulatory commission or agency having jurisdiction with respect to any matters
affecting the Cable System authorized pursuant to this article and any License shall
be made available tot he Town upon request. Copies of responses from the
regulatory agencies to Grantee shall likewise be furnished to the Town upon request.
Section 9-8-26
Annual Reports
A. Grantee shall submit a written end of the year report to Grantor with respect to the
preceding calendar year containing the following information:
1. A Summary of the previous year's (or in the case of the initial reporting year,
the initial year's) activities in development of the Cable System, including but
not limited to, services begun or discontinued during the reporting year.
2. A list of Grantee's officers, members of its board of directors, and other
principals of Grantee.
3. A list of stockholders or other equity investors holding five percent (5%) or
more of the voting interest in Grantee.
4. Information as to the number of Subscribers and the number of basic and
pay service Subscribers.
5. The Town, including its agents and representatives, shall have the authority,
during Normal Business Hours, to arrange for and conduct an inspection of
Annual Reports required pursuant to this article or a License Agreement. The
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Town shall give the Grantee seventy-two (72) hours written notice of the
inspection request.
6. If the requested information is proprietary in nature or must be kept
confidential by state, federal or local law, upon proper request by Grantee,
such information obtained during such an inspection shall be treated as
confidential. To the extent that any state or federal law requires Grantor to
disclose any such records, the Grantor shall be entitled to disclose those
records.
B. All reports and records required under this article shall be furnished at the sole
expense of Grantee, except as otherwise provided in this article or the License
Agreement.
Section 9-8-27
License Violation
If Grantee fails to perform in a timely manner any material obligation required by this article
or a License granted hereunder, following notice from the Grantor and an opportunity to cure
such nonperformance, Grantor may act to remedy such violation in accordance with the
following procedures:
A. Grantor shall notify Grantee of any alleged material violation in writing by personal
delivery or registered or certified mail, and demand correction within a reasonable
time, which shall not be less than ten (10) business days in the case of the failure
of the Grantee to pay any sum or other amount due the Grantor under this article or
the Grantee's License and thirty (30) days in all other cases.
B. If Grantee fails either to correct the violation within the time prescribed or to
commence correction of the violation within the time prescribed and thereafter after
diligently pursue correction of such violation, the Grantor shall then give written
notice of not less than twenty (20) business days of a public hearing to be held
before the Council. Said notice shall specify the violations alleged to have occurred.
C. At the public hearing, the Council shall hear and consider relevant evidence and
thereafter render findings and its decision. In the event that the Council finds that a
material violation exists and that Grantee has not corrected the same in a
satisfactory manner or has not diligently commenced correction of such violation
after notice thereof from Grantor and is not diligently proceeding to fully remedy such
violation, the Council may revoke the License or impose another penalty permitted
by the License agreement.
D. The Grantor shall give written notice to the Grantee of its intent to revoke the License
on the basis of a pattern of noncompliance by the Grantee, including one or more
instances of substantial noncompliance with a material provision of the License.
The notice shall setforth with specificity the exact nature ofthe noncompliance. The
Grantee shall have sixty (60) days from the receipt of the notice to object in writing
and to state its reasons for such objection. In the event the Grantor has not received
a satisfactory response from the Grantee, it may then seek termination of the
License at a public hearing. The Grantor shall cause to be served upon the Grantee,
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at least ten (10) days prior to the public hearing, a written notice specifying the time
and place of the hearing and stating its intent to request termination of the License.
E. At the hearing, the Grantor shall give the Grantee an opportunity to state its position
on the matter, present evidence and question witnesses, after which it shall
determine whether or not the License shall be revoked. The public hearing shall be
on the record and a written transcript shall be made available to the Grantee within
ten (10) business days. The decision of the Grantor shall be in writing and shall be
delivered to the Grantee. The Grantee may appeal such determination to an
appropriate court, which shall have the power to review the decision of the Grantor
and to modify or reverse such decision as justice may require. Such appeal to the
appropriate court must be taken within sixty (60) days of the issuance of the
determination of the Grantor.
Section 9-8-28
Force Majeure: Grantee's Inability to Perform
In the event Grantee's performance of any of the terms, conditions or obligations required
by this article or a License grant hereunder is prevented by a cause or event not within
Grantee's control, such inability to perform shall be deemed excused and no penalties or
sanctions shall be imposed as a result thereof. For the purpose of this Section, causes or
events not within the control of Grantee shall include without limitation acts of God, strikes,
sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency
or court, failure or loss of utilities, explosion, acts of public enemies, and natural disasters
such as floods, earthquakes, landslides, and fires.
Section 9-8-29
Abandonment or Removal of License Property
A. In the event that the use of any property of Grantee within the License Area or a
portion thereof is discontinued for a continuous period of twelve (12) months,
Grantee shall be deemed to have abandoned that License property.
B. Grantor, upon such terms as Grantor may impose, may give Grantee permission to
abandon, without removing, any System facility or equipment laid, directly
constructed, operated or maintained under the License. Unless such permission is
granted or unless otherwise provided in this article, the Grantee shall remove all
abandoned above-ground facilities and equipment upon receipt of written notice from
Grantor and shall restore any affected Street to its former state at the time such
facilities and equipment were installed, so as not to impair its usefulness. In
removing its plant, structures and equipment, Grantee shall refill, at its own expense,
any excavation that shall be made by it and shall leave all public ways and places in
as good condition as that prevailing prior to such removal without materially
interfering with any electrical or telephone cable or other utility wires, poles or
attachments. Grantor shall have the right to inspect and approve the condition of the
public ways, public places, cables, wires, attachments and poles prior to and after
removal. The liability, indemnity and insurance provisions of this article and any
security fund provided in the License shall continue in full force and effect during the
period of removal and until full compliance by Grantee with the terms and conditions
of this Section.
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C. Upon abandonment of any License property in place, the Grantee, if required by the
Grantor, shall submit to Grantor an instrument, satisfactory in form to the Grantor,
transferring to the Grantor the ownership of the License property abandoned.
D. At the expiration of the term forwhich the License is granted, or upon its revocation
or earlier expiration, as provided for herein, in any such case without renewal,
extension or transfer, the Grantor shall have the right to require Grantee to remove,
at its own expense, all above-ground portions of the Cable Television System from
all Streets and public ways within the Town within a reasonable period oftime, which
shall not be less than one hundred eighty (180) days.
E. Notwithstanding anything to the contrary set forth in this article, the Grantee may
abandon any underground License property in place so long as it does not materially
interfere with the use of the Street or public rights-of-way in which such property is
located or with the use thereof by any public utility or other cable Grantee.
Section 9-8-30
Extended Operation and Continuity of Services
Upon either expiration or revocation of the License, the Grantor shall have discretion to
permit and/or require Grantee to continue to operate the Cable Television System for an
extended period of time not to exceed six (6) months from the date of such expiration or
revocation. Grantee shall continue to operate the System under the terms and conditions
of this article and the License and to provide the regular Subscriber service and any and all
of the services that may be provided at that time.
Section 9-8-31
Receivership and Foreclosure
A. A License granted hereunder shall, at the option of Grantor, cease and terminate one
hundred twenty (120) days after appointment of a receiver or receivers, or trustee
or trustees, tot ake 0 ver a nd conduct the business of Grantee, whether in a
receivership, reorganization, bankruptcy or other action or proceeding, unless such
receivership or trusteeship shall have been vacated prior to the expiration of said one
hundred twenty (120) days, or unless:
1. Such receivers or trustees shall have, within one hundred twenty (120) days
after their election or appointment, fully complied with all the terms and
provisions of this article and the License granted pursuant hereto, and the
receivership or trustees within said one hundred twenty (120) days shall
have remedied all the faults under the License or provided a plan for the
remedy of such faults which is satisfactory to the Grantor; and
2. Such receivers or trustees shall, within said one hundred twenty (120) days,
execute an agreement duly approved by the court having jurisdiction in the
premises, whereby such receivers or trustees assume and agree to be
bound by each and every term, provision and limitation of the License
granted.
B. In the case of a foreclosure or other judicial sale of the License property, or any
material part thereof, Grantor may serve notice of termination upon Grantee and the
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successful bidder at such sale, in which event the License granted and all rights and
privileges of the Grantee hereunder shall cease and terminate thirty (30) days after
service of such notice, unless:
1. Grantor shall have approved the transfer of the License, as and in the
manner that this article provides; and
2. Such successful bidder shall have covenanted and agreed with Grantor to
assume and be bound by all terms and conditions of the License.
Section 9-8-32
Rights Reserved to Grantor
A. In addition to any rights specifically reserved to the Grantor by this article, the Grantor
reserves to itself every right and power which is required to be reserved by a
provision of any ordinance or under the License.
B. The Grantor shall have the right to waive any provision of the License, except those
required by federal or state regulation, if the Grantor determines (1) that it is in the
public interest to do so, and (2) that the enforcement of such provision will impose
an undue hardship on the Grantee or the Subscribers. To be effective, such waiver
shall be evidenced by a Statement in writing signed by a duly authorized
representative of the Grantor. Waiver of any provision in one instance shall not be
deemed a waiver of such provision subsequent to such instance nor be deemed a
waiver of any other provision of the License unless the Statement so recites.
Section 9-8-33
Rights of Individuals
A. Grantee shall not deny service, deny access, or otherwise discriminate against
Subscribers, Channel users, or general citizens on the basis of race, color, religion,
national origin, age, disability, gender or sexual preference. Nor shall Grantee fail to
extend service to any part of the Town within its licensed Service Area on the basis
of the income of the residents. Grantee shall comply at all times with all other
applicable federal, state and local laws and regulations, relating to nondiscrimination.
B. Grantee shall adhere to the applicable equal employment opportunity requirements
of federal, state and local regulations.
C. Neither Grantee, nor any Person, agency, or entity shall, without the Subscriber's
consent, tap or arrange for the tapping, of any cable, line, signal input device, or
Subscriber outlet or receiver for any purpose except routine maintenance of the
System, detection of unauthorized service, polling with audience participating, or
audience viewing surveys to support advertising research regarding viewers where
individual viewing behavior cannot be identified.
D. In the conduct of providing its services or in pursuit of any collateral commercial
enterprise resulting therefrom, Grantee shall take reasonable steps to prevent the
invasion of a Subscriber's or general citizen's right of privacy or other personal rights
through the use of the System as such rights are delineated or defined by applicable
law. Grantee shall not, without lawful court order or other applicable valid legal
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authority, utilize the System's interactive two-way equipment or capability for
unauthorized personal surveillance of any Subscriber or general citizen.
E. No cable line, wire amplifier, converter, or other piece of equipment owned by
Grantee shall be installed by Grantee in the Subscriber's premises, other than in
appropriate easements, without first securing any required consent. If a Subscriber
requests service, permission to install upon Subscriber's property shall be
presumed. Where a property owner or his predecessor has granted an easement
including a public utility easement or a servitude to another and the servitude by its
terms contemplates a use such as Grantee's intended use, Grantee shall not be
required to obtain the written permission of the owner for the Installation of cable
television equipment.
Section 9-8-34
Conflicts
In the event of a conflict between any provision of this article and a License Agreement
entered pursuant to it, the provisions of this article shall control, except as may be
specifically otherwise provided in the License Agreement.
Section 9-8-35
Severability
If any provision of this article is held by any court or by any federal or state agency of
competent jurisdiction to be invalid as conflicting with any federal or state law, rule or
regulation now or hereafter in effect, or is held by such court or agency to be modified in any
way in order to conform to the requirements of any such law, rule or regulation, such
provision shall be considered a separate, distinct, and independent part of this article, and
such holding shall not affect the validity and enforceability of all other provisions hereof. In
the event that such law, rule or regulation is subsequently repealed, rescinded, amended or
otherwise changed, so that the provision hereof which had been held invalid or modified is
no longer in conflict with such law, rule or regulation, said provision shall thereupon return
to full force and effect and shall thereafter be binding on Grantor and Grantee, provided that
Grantor shall give Grantee thirty (30) days written notice of such change before requiring
compliance with said provision or such longer period of time as may be reasonably required
for Grantee to comply with such provision.
".
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