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HomeMy WebLinkAbout3282 -7771 'ORDINANCE NO. 3 2 8 6 AN ORDINANCE OF THE CITY OF AUBURN, WASHINGTON, SETTING FORTH AN INTEGRATED STATEMENT OF THE CONDITIONS, RATES AND CHARGES, REQUIREMENTS, OBLIGATIONS, DUTIES AND PROCEDURES FOR THE CONSTRUCTION, MAINTENANCE AND OPERATION OF A SYSTEM OF CABLE TELEVISION SIGNAL DISTRIBUTION WITHIN THE CITY OF AUBURN, WASHINGTON. THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1 . PURPOSE. The purpose of this Ordinance is to set forth an integrated statement of the conditions , rates and charges , requirements , obli- gations , duties and procedures for the construction, maintenance and operation of a system of cable television signal distribution within the City of Auburn. All cable television companies are required by the Federal Communications Commission Rules CFR 47, Part 76, to be regulated by the political subdivision within whose boundaries they operate. Section 2. APPLICATION FOR FRANCHISE, GRANTING AND RENEWAL. Each application for the granting and renewal of a franchise to construct, operate or maintain any cable communications system upon a city right-of-way shall be filed with the Office in a form approved by the Auburn Director of Public Works . At the time of the application, the following information shall be presented: 1 . A detailed statement of the business organization of the applicant, including the following: a. The names and addresses of all persons having control of, or being entitled to have or control , 5% or more of the ownership of the applicant, either directly or indirectly, and the re- spective ownership share of each person. b. The names , residences and business addresses of all officers and directors of the applicant. ------------------ Ordinance No.3286 6-22-78 c. A detailed current certified financial statement showing the resources of the applicant to construct and/or operate the proposed system. 2. A detailed plan of the operation of the applicant, which shall include: a. A description of the cable district proposed to be served and a proposed time schedule for installation in each neighborhood or portion of the district. b. A statement or schedule setting forth all proposed classifications with rates and charges of any kind to be made against subscribers. c. A description of the equipment to be utilized and operation standards to be met as proposed by the applicant. d. A statement that the applicant is willing and able to comply with all relevant federal , state and local regulations re- garding cable communications. 3. Certificate of Compliance: A valid certificate of compliance issued by the Federal Communications Commission or an application before the Federal Communications Commission is required before operating or maintaining trans- mission and distribution lines for cable communications in the City of Auburn, Washington. Section 3. TERMS OF THE FRANCHISE. Any CATV franchise shall not be deemed and held to be an exclusive franchise or permit and shall not in any manner prevent the City of Auburn from granting other or further CATV franchises or permits in, along, over, through, under, below or across any said rights-of-way, streets , avenues , and other public lands and properties of every type and des- cription; and such franchise or permit shall in no way prevent or prohibit the City of Auburn from using any of said roads , rights-of-way, streets or other public properties or effect its jurisdiction over them or any part of them, with full power to make all necessary changes, relocations , repairs, maintenance, establishment, improvement, dedication of same as the City may deed fit, including ------------------ Ordinance No. 3286 Page Two the dedication, establishment, maintenance and improvement of all new rights-of- way and thoroughfares and other public properties of every type. Section 4. REMOVAL AND RELOCATION OF FACILITIES INSTALLED BY GRANTEE. Grantee, shall , at its sole cost and expense, protect, support, temporarily disconnect, relocate or remove from any street or other public property any of its installation when so required by the Auburn Director of Public Works by reason of traffic condition, public safety, street vacations , dedications of new right-of-way and the establishment of street grade or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity, provided that the Grantee shall in all such cases have the privilege to temporarily by-pass , in the authorized portion of the same street or right-of-way, upon approval by the City of Auburn any section of its cable or appurtenances to be so temporarily disconnected or removed. Section 5. The Grantee shall provide, if technically practicable, all basic subscriber services and a tie-in connection without cost (except for actual cost of labor, material and overhead costs) , to one outlet (TV connection) to each state-accredited public or private educational institution and each building designated by the Office, which is owned and controlled by the City of Auburn or the Auburn School District for public purposes and not residential use, when such recommended building is within 300 feet of the distribution cable. Section 6. All work done by the Grantee pursuant to any franchise shall be in full compliance with the National Electrical Safety Code and all applicable laws of the State of Washington and ordinances of the City of Auburn. In the event that Grantee fails at any time to furnish any required safeguards , signs , signals , and/or lights or to promptly backfill excavations as required by any law, ------------------ Ordinance No. 3286 Page Three r J ordinance or regulation, then the City reserves the right to proceed as may be required to so comply, and in such event the Grantee agrees and covenants to promptly reimburse the City for expenses of such work. Section 7. RAISING AND MOVING OF WIRES. If the raising or moving of cable wires is required by any third party at any time to enable use of the streets , or other public rights-of-way or properties , such party shall make written application at least three (3) days in advance of such required use, and Grantee shall raise or move said cable, wires and/or other equipment at the expense of such applicant, payable in advance: Third party does not include the City of Auburn or its agent. Section 8. LENGTH OF FRANCHISE. Each franchise granted by the City of Auburn under this ordinance shall be for a term of fifteen (15) years from the date of acceptance by the Grantee and Grantee shall have the first option for renewal for an additional fifteen (15) years (after open and full public hearings) as long as Grantee continues satisfactory performance of its obligations under the franchise. Auburn may terminate the franchise by ordinance enacted for such purpose , in the event of the wilfull failure, refusal or neglect by the Grantee to do or comply with any material and substantial requirements contained in this ordinance, or the rules and regulations of the Federal Communications Commission adopted pursuant to this ordinance. Section 9. RATES AND CHARGES. The Grantee shall charge no more for basic services in the City of Auburn than is charged by the cable industry in surrounding areas unless Grantee can show cause why such rates should be higher. ------------------ Ordinance No. 3286 Page Four The Grantee shall keep on file with the City of Auburn and the Office a copy of the current rates and charges for all services offered. The Grantee shall give subscribers , the Office and the City of Auburn sixty (60) days written notice of any changes in subscriber rates and charges. The proposed new rates shall become effective sixty (60) days after receipt of such notice by the City of Auburn City Council unless the Council shall call a public hearing on the new rates. The purpose of such a public hearing shall be to determine if the proposed new rates are just and reasonable. Section 10. MODIFICATIONS. If any portion of this Ordinance should be inconsistent with any rule or regulation now or hereafter adopted by the Federal Communications Commission, then to the extent of the inconsistency, the rule or regulation of the Federal Communications Commission shall control for so long, as such rule or regulation shall remain in effect, but the remaining portions of this Ordinance shall not hereby be affected. Section 11 . EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION PLAN. Grantee shall comply with the City of Auburn's Equal Opportunity and Affirmative Action Plan adopted by Council . The policy of the City of Auburn is to promote and afford equal treatment and service to all citizens and assure equal employ- ment opportunity to all persons based on ability and fitness regardless of race, creed, color, national origin, sex, physical , sensory or mental handicaps , age or marital status. This policy shall apply to every aspect of employment practices , employee treatment and public contact. Section 12. COMPLAINTS. The Office shall investigate all subscriber complaints and resolve them by conciliation, if possible. Complaints relative to the provisions of this ordinance, which cannot be resolved by conciliation may be appealed to the Auburn City Council for review and their determination shall be final . ------------------ Ordinance No. 3286 Page Five i Section 13. PROHIBITED PROGRAM CONTENT. No Grantee may exercise control over program content on an access channel , except to the extent necessary to prevent the presentation of program material prohibited by the rules and regulations of the Federal Communications Commission. Section 14: DISCRETE AREAS. The City of Auburn shall be considered a part of South King County as to recognition of discrete communities for purposes of cable communications and the importation of distant signals. Section 15. UNLAWFUL TO STEAL SERVICE. Every person who knowingly and wilfully makes unauthorized connection, whether physically, electrically, or inductively, or attaches any unauthorized device or devices to any cable wire, or other component of a franchised cable television system or to a television set, for the purpose of intercepting any program carried by a franchised cable television system which such person is not authorized to receive, shall be guilty of a misdemeanor, and upon conviction therefor, may be punished by fine not exceeding two hundred fifty dollars $250.00) or by imprisonment for not over thirty (30) days. Section 16. TRANSFER OF OWNERSHIP. Any franchise shall be a privilege to be held in personal trust by the original Grantee. It cannot be sold, trans- ferred, leased, assigned or disposed of in whole or in part, either by forced or involuntary sale, merger, consolidation or otherwise, without prior written approval of the Auburn City Council which shall be given only after a public hearing and under the same terms and conditions as an original application. Said application shall not be refused unless the Council finds that the public interest will not be served by the proposed transfer. In the event the Grantee is a corporation, an assignment of the franchise shall be deemed to occur if there is an actual change in control or where owner- ------------------ Ordinance No. 3286 Page Six ship of more than 50% of the voting stock of the Grantee is acquired within a 180 day period by a person or a group of persons acting in concert, none of whom already own 50% or' more of the voting stock singly or collectively. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale or similar document, a duly executed copy of which shall be filed with the Office and the Director of Public Works Department of the City of Auburn within 30 days after such transfer or assignment. Section 17. PUBLIC NOTICES AND HEARINGS. I. Franchise Application: The Auburn City Council , or any other body it designates , shall conduct a public hearing to determine the following: a.. That the public will be benefited by the granting of the requested franchise; b. That the applicant has the necessary sources to build, operate and maintain a cable television system in the franchise area; c. That the applicant will comply with all the terms and conditions placed upon the franchise by the Council , and d. That the applicant is willing and able to comply with all relevant federal , state and local regulations. II . Rates and Charges (changes) : Notice of any hearing conducted pursuant to this ordinance shall briefly describe the proposed rates and charges and the recommendation of the Office with respect thereto and shall state the place where the application and the relevant facts are available to the public; the time and place of the hearing, and the date by which written comments must be submitted. Notice of the hearing will be sufficient if published at least once during the two-week period preceding the hearing, in a newspaper of general circulation within the City of Auburn and in one or as many more community newspaper of general ------------------ Ordinance No. 3286 Page Seven circulation within the cable district of the franchise area, as may be necessary to cover the entire cable district, and if broadcast over the local access channel of the applicant or Grantee (if any) in the cable district or districts affected at least once each working day between the hours of 9 a.m. and 11 p.m. during the two weeks immediately preceding the hearing. Section 18. CONSUMER PROTECTION. Subscribers and users in each cable district shall have the protection described in this Section in addition to all other rights conferred in this Ordinance. a. Upon request, each Grantee shall furnish to the Office, and the Office shall compile and maintain for public inspection during busines"s hours, copies of: 1 . All applications and other communications submitted by the franchise applicants or Grantees to the City of Auburn, the Federal Communications Commission or any other federal , state, or local regulatory body having jurisdiction with respect to cable communi- cations within the City of Auburn. 2. Current information on ownership and management of the Grantee. 3. Current information on forms of subscriber agreements used by the Grantee; complaint procedures followed by the Grantee, and non-basic services offered by the Grantee and the rates and charges thereof; and 4. Records of all written requests for use of public access channels and leased channel time and the disposi= tion of such requests , and records of all signals and programs carried (other than radio and television broad- cast signals) . b. The Office shall also compile and maintain for public inspection during regular business hours , copies of: 1 . All federal , state, and local laws and regulations applicable to cable communications within the City of Auburn. 2. Records of all written complaints filed with the Office and the disposition thereof; and ------------------ Ordinance No. 3286 Page Eight 3. Policy statements and administrative and staff operating procedures of the Office. c. No Grantee shall cause or permit the viewing habits of any subscribed to be monitored without the subscriber's ex- pressed consent. d. Whenever a Grantee shall offer a new service or facility, or changes in channel allocation or assignment, the Grantee shall give notice thereof to the subscribers and the Office. Such new service or facility shall be made available to all subscribers, if technically and economically practicable. Section 19. EMERGENCY RIGHTS RESERVED TO THE CITY. A Grantee shall upon request of the Mayor or the Auburn City Council make its facilities immediately available to the City for emergency use during the period of any emergency or disaster declared by the Auburn City Council , the Mayor or Mayor Pro-Tem. Section 20. CONSTRUCTION AND SYSTEM EXPANSION. I. STANDARD INSTALLATION: A. Aerial Any resident may request and be connected to the cable system at the standard connection charge if the residential cable outlet is within 150 feet of an existing energized aerial distribution cable. B. Undergound Any resident may request and be connected to the cable system at the standard connection charge if the residence is within 150 feet of an existing energized undergound distribu- tion cable, provided the resident furnish an adequate trench and/or route complying with county requirements at no -cost to the Grantee. Any obstruction to the installation of the cable, such as rockeries, driveways , sidewalks , landscaping, etc. would reclassify the installation as non-standard. II . NON-STANDARD INSTALLATION: A. Aerial Where the residential cable outlet to be served is more than 150 feet from an existing aerial energized distribution ------------------ Ordinance No. 3286 Page Nine cable, the resident shall be served , if technically possible. The installation fee shall be established based on time, material and overhead costs and shall be collected in advance if so desired by the Grantee. B. Underground Where the residence to be served is more than 150 feet from an existing energized underground distribution cable, the resident shall be served, if technically possible, pro- vided that an adequate trench and/or route complying with City requirements is available at no cost to the Grantee, and that the resident has arranged for the necessary ease- ments over or under private property. The installation fee shall be established based on time, material , and overhead costs and shall be collected in advance if so desired by the Grantee. III . LINE EXTENSION: A. Aerial When the residence to be served requires an extension of the existing aerial energized distribution system, the Grantee shall extend said system one span or 300 hundred feet or multiples thereof (whichever is less) provided there is sufficient signal strength at the subscriber' s television set to comply with the Federal Communications Commission's rules and regulations Part 76, subpart K, without additional amplifying devices . If, however, additional amplifying devices are necessary, or if the extension of the aerial energized distribution system is more than one span or 300 feet (whichever is less) , the Grantee may negotiate with the subscriber for the charge in excess of the prevailing subscriber rate and/or the standard installation charge to cover the cost of time, material and overhead. IV. LOCAL IMPROVEMENT DISTRICTS: A. Grantee shall participate in all Local Improvement Districts. ------------------ Ordinance No. 3286 Page Ten V. ARTERIAL CONVERSION: For existing facilities , Grantee shall place aerial facilities undergound concurrently and in cooperation with similar programs of the telephone and power utilities. At no time shall the cable system be the only aerial facility. Grantee shall be entitled to be compensated at the same basis as other utilities. VI.. CONSTRUCTION PLAN REQUIREMENTS: Grantee shall within six (6) months from executing its acceptance of a franchise conforming to this ordinance prepare and submit a construction plan. This plan shall consider the City's desire to make cable service available to as broad a portion of the City of Auburn's constituency as possible. This plan or design shall be submitted to and approved by Auburn's Public Works Department and the Office and shall include the following: 1 . A definition of the proposed service area and the proposed franchise boundaries; 2. A proposed schedule for construction of the encabled portion within the geographic areas of the proposed franchise. Such schedule shall reflect a two-year plan period and shall be revised every two years thereafter. Failure to have a construction plan in operation one year after approval of the plan shall constitute an abandonment of the rights and privileges under this ordinance and the franchise may be revoked with the approval of the Auburn City Council and the "Mayor. VII. SYSTEM EXPENSION LIMITATION: Upon petition by the Grantee, the Auburn City Council may defer, or indefinitely suspend any expansion required by this ordinance, after showing by the Grantee that such expansion would cause unreasonable financial hardship to Grantee. Any such City Council decision shall be made by the Council after public hearings. The Auburn City Council Clerk shall publish a notice of any such hearing in a newspaper of general circulation in the vicinity of the franchise (at least) ten (10) days prior to the hearing, setting forth the time and place when and where any person or persons having any interest therein may appear before the Council and be heard. VIII . CONSTRUCTION VARIANCES: The Grantee is required in all cases to request and apply for all construction variances for system extension, subscriber installation, or any other variances that may be required by the Auburn City Council . ------------------ Ordinance No. 3286 Page Eleven IX. MISCELLANEOUS ITEMS not mentioned above shall be negotiated between the Grantee and the potential subscribers. Section 21 . INDEMNITY AND HOLD HARMLESS WAIVER OF DAMAGES. A. Grantee, its successors and assigns shall indemnify and hold harmless the City of Auburn from any and all liabilities , fees , cost and damages , whether to person or property, or expense of any type or nature which may accrue to the City by reason of the construction, operation, maintenance, repair and alteration of Grantee' s facilities; provided, however, that in case any suit or action is instituted against the City of Auburn by reason of any such damage or inury, the City shall cause written notice thereof to be given unto Grantee and Grantee thereupon shall have the duty to defend any such suit or action, without cost, or expense to the City of Auburn. B. Grantee shall have no recourse whatever against the City of Auburn for any loss, costs , expense or damage arising out or any provision or require- ment of any franchise or the enforcement thereof. No privilege nor exemption will be granted or conferred unto Grantee by any franchise except those specifi- cally prescribed herein, and any such privilege claimed under this franchise by the Grantee in any street or any subsequest improvement or installation therein. Section 22. BOND AND INSURANCE. Grantee shall , before construction, file a good and sufficient bond or any other surety, as determined by the City of Auburn, executed by a surety company, authorized to do business in the State of Washington , conditioned upon the faithful performance of all duties and obligations to be performed by the Grantee under the terms of this ordinance, including the payment of all cost, arising out of all or any part of the system from the City right-of-way when required by termination of the franchise or any other cause, including repair and restoration of damaged streets. Such bond shall be renewed ------------------ Ordinance No. 3286 Page Twelve by the Grantee annually and kept in full force and effect at all times during the life of any franchise. Any rights and privileges conferred by this ordinance, and any franchise granted pursuant thereto shall be null and void and of no force and effect until Grantee shall , file with the proper evidence that it has in full force and effect and will keep in full force and effect during the life of the franchise, public liability insurance, naming the City of Auburn and the City of Seattle as additional insureds with coverage of not less than $100,000 per person , $500,000 per accident and property damage liability of not less than $100,00. Provided that, where a single entity owns and operates more than one franchise, the Office may in its discretion, permit said entity to combine bonds and insurance coverage required by this Section. Section 23. PAYMENT OF TAXES. Should the franchisee at any time become delinquent in its payment of utility taxes to the Grantor, as required by Auburn City Ordinance No. 5.88.040, this franchise may be revoked by the resolution of the City Council after notice of this proposed action is given. Section 24. LIMITATION AND CONDITION. No Grantee nor any major stockholder shall directly or indirectly engage within the City in the business of selling , leasing, renting , servicing, or repairing radio or television sets or other receivers or parts thereof which make use of standard broadcast entertainment signals, provided that nothing therein shall prevent Grantee from making modi- fications to the tuner input circuit of the subscribers television receivers and the fine tuning of the customers operating controls only, to insure proper operation under conditions of cable connection at the time of installation or in response to subscriber complaint, or from the selling, servicing or repairing ------------------ Ordinance No. 3286 Page Thirteen receivers and other equipment belonging to other CATV system operators for use in the conduct of their businesses. Provided however, this section shall be deemed void if held by a court of competent jurisdiction to be in violation of state or federal laws regarding restraint of trade. Section 25. That this Ordinance shall take effect and be in force five (5) days from and after its passage, approval and publication, as provided by law. INTRODUCED: JUNE 19, 1978 PASSED: JUNE 19, 1978 APPROVED: JUNE 19, 1978 M A Y O R ATTEST: &W&, a, City C rk APPROVED AS TO FORM: City Attorney PUBLISHED: JULY 2, 1978 ------------------ Ordinance No. 3286 Page Fourteen & last STATE OF WASHINGTON) J SS. COUNTY OF KING ) I, Coralee A. McConnehey, the duly appointed, qualified City Clerk of the City of Auburn, a Municipal Corporation and Code City, situate in the County of King, State of Washington, do hereby certify that the fore- going is a full , true and correct copy of Ordinance No. 3286 of the ordinances of the City of Auburn, entitled "AN ORDINANCE OF THE CITY OF AUBURN, WASHINGTON, SETTING FORTH AN INTEGRATED STATEMENT OF THE CONDITIONS, RATES AND CHARGES, REQUIREMENTS, OBLIGATIONS, DUTIES AND PROCEDURES FOR THE CONSTRUCTION, MAINTENANCE AND OPERATION OF A SYSTEM OF CABLE TELEVISION SIGNAL DISTRIBUTION WITHIN THE CITY OF AUBURN, WASHINGTON. " I further certify that said Ordinance No. 3286 was duly passed by the Council and approved by the Mayor of the said City of Auburn and published as provided by law in the Auburn Globe News, a weekly newspaper published in the City of Auburn, and of general circulation therein, on the 2nd day of i July --- A.D. , 19-78_ CITY CLERK OF THE CITY OF AUBURN