An ordinance renewing a franchise to SCI Cable, Inc. Its successors and assigns, to operate and maintain a community antenna and television system in the CITY setting forth conditions accompanying the grant of franchise; providing for CITY regulations and use of the community antenna television system; and prescribing penalties for violation of the franchise provisions.
BE IT ORDAINED By the governing body of the CITY of Lecompton:
SECTION I Short Title
This ordinance shall be known and may be cited as the “SCI Cable, Inc. Cable and Television Franchise Ordinance.”
SECTION II: Definition
For the purpose of this Ordinance, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and the words in the singular number include the plural number. The word “shall” is always mandatory and not merely directory.
(1) “City” is the CITY of Lecompton, Kansas.
(2) “Commission” is the CITY Council of Lecompton, Kansas.
(3) “Community Antenna Television System,” hereinafter referred to as “CATV System” or “system” means a system of coaxial cables or other electrical conductors and equipment used or to be used primarily to receive television or radio signals directly or indirectly off-the-air or from satellites and transmit them to subscribers for a fee.
(4) “Person” is any person, firm, partnership, association, corporation, company or organization of any kind.
(5) “GRANTEE” is SCI Cable, Inc., or persons who succeed SCI Cable, Inc. in accordance with the provisions of this franchise.
SECTION III: Grant of Nonexclusive Authority.
(A) There is hereby granted by the CITY to the GRANTEE the right and privilege to construct, erect, operate and maintain, in, upon, along, across, above, over and under the streets, alleys, public ways and public places now laid out or dedicated, and all extensions thereof, and additions thereto, in the CITY, poles, wires, cables, underground conduits, manholes, and other television conduits and fixtures necessary for the maintenance and operation in the CITY, a CATV SYSTEM for the interception, sale and distribution of television, radio satellite signals, data and voice communications.
(B) The right to use and occupy said streets, alleys, public ways and places for the purposes herein set forth shall not be exclusive and the CI1Y reserves the right to grant similar use of said streets, alleys, public ways and places, to any person at any time during the period of this franchise.
(C) In the event GRANTEE shall in the future desire to offer an expanded CATV, service, over and above that provided in (a) above, it shall have the right to apply to the CITY for an amendment to this franchise setting forth the proposed expanded services to be offered, the rates or charges for such expanded services, and the franchise fee it proposes to pay therefore. The CITY Commission shall thereafter in its regular meeting or next succeeding meeting consider such application, and upon approval thereof shall issue to GRANTEE an amendment to this Franchise permitting GRANTEE authority to render such expanded service. The CITY agrees that it will not unreasonable withhold such approval.
(D) That the non-exclusive franchise granted to say GRANTEE is granted by the CITY upon notice being given and a public hearing held pursuant to the provision of Kansas Statutes Annotated 12-2007.
SECTION IV Compliance with Applicable Laws and Ordinances
The GRANTEE shall, at all times during the life of this Franchise, be subject to all lawful exercise of the police power by the CITY and to such reasonable regulation as the CITY shall hereafter provide.
SECTIONV Territorial Area Involved
This franchise relates to the present territorial limits of the CITY and to any area henceforth added thereto during the term of this Franchise.
SECTION VI Indemnification of CITY
(A) The GRANTEE shall at all times protect and hold harmless the CITY from all claims, actions, suits, liability, loss, expense or damages of every kind and description (herein collectively referred to as “claims”) 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 negligence of the Company in the ownership, construction, repair, replacement, maintenance and operation of the Cable Television system. The CITY shall give the GRANTEE prompt written notice of any such claims filed against it.
(B) The GRANTEE 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 Kansas, and shall provide to the CITY of Lecompton, Kansas proof of said insurance at no less than the following amounts:
(1) $1,000,000 property damage in any one accident;
(2) $1,000,000 for personal injury or death to any one person;
(3) $1,000,000 for personal injury or death in any one accident,
provided however, that all such insurance may contain reasonable deductible provisions not to exceed $1,000.00 for any type of coverage.
SECTION VII Signal Quality Requirements
The GRANTEE agrees that it will provide a cable system to its subscribers which will meet or surpass the applicable Technical Standards as they have been adopted by the FCC. That in addition to the standards established by the FCC, GRANTEE shall:
(1) Produce a picture, whether in black and white or in color, that is undistorted, free from ghost images, and accompanied with proper sound on typical standard production TV sets in good repair, and as good as the state of art allows;
(2) Transmit signals of adequate strength to produce good pictures with good sound at all outlets without causing cross-modulation in all cables or interfering with other electrical or electronic systems;
(3) Limit failures to a minimum by locating and correcting malfunctions promptly, but in no event longer than twenty-four hours after notice; unless the condition causing the malfunction is beyond reasonable control of GRANTEE, in which event, GRANTEE shall repair malfunctions as soon as possible;
(4) Demonstrate by instruments and otherwise to subscribers that a signal of adequate strength and quality is being delivered
SECTION VIII Operation and Maintenance of System
(A) The GRANTEE shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system.
(B) The GRANTEE shall maintain an office, have a listed telephone, and be so operated that complaints and requests for repairs of adjustments may be received at any time.
(C) If service interruption occurs due to the negligence or willful conduct of GRANTEE, the GRANTEE shall not charge for service to a customer which has been interrupted if the customer requests in writing that the charge be adjusted. For purposes of computation under this subsection, the GRANTEE shall give credit for any period of time service is interrupted in excess of twenty-four (24) hours. However, credit to a customer or customers for service interruption shall not be required if said interruption is caused by damages due to an “Act of God” or if said interruption is the result of damages from any cause not the fault of GRANTEE, and GRANTEE has made good faith efforts to repair said damage to the system.
SECTION IX Carriage of Signals
The GRANTEE shall receive and distribute television and radio signals which are disseminated to the general public without charge by broadcasting stations licensed by the Federal Communications Commission. All FCC regulations shall be complied with regarding the carriage of the programming of any existing or future television broadcasting station which covers the Lecompton area and its principal broadcasting area.
SECTION X Program Alteration
All programs of broadcasting stations and satellite program providers carried by the GRANTEE shall be carried in their entirety as received, with announcements and advertisements and without additions, in accordance with applicable FCC rules.
SECTION XI Services
When existing distribution or trunk cable passes through the following locations, the GRANTEE shall provide services to said locations of the request of the CITY and at no cost to it for to the site designated below:
(A) Fire and police departments.
(B) Public schools and administrative buildings.
(C) CITY Hall and public facilities.
(D) Educational institutions.
SECTION XII Emergency Use of Facilities
In the case of any emergency disaster, the GRANTEE shall, upon request of the CITY Commission by signed request upon CITY stationary make available its facilities to the CITY for emergency use during the emergency or disaster period.
SECTION XIII Reserved For Future Use
SECTION XIV Safety Requirements
(A) The GRANTEE 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) The GRANTEE shall install and maintain its wire, cables, fixtures, and other equipment in accordance with the requirements of the national electrical safety code promulgated by the National Bureau of Standards, and in such manner that they will not interfere with any installations of the CITY or of a public utility serving the CITY.
(C) All structures and all lines, equipment, and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of the CITY, wherever situated or located, shall at all times be kept and maintained in a safe suitable, substantial condition, and in good order and repair, at the expense of the GRANTEE. Provided, however, GRANTEE reserves all rights to pursue claims for any damages caused to the system by the CITY or third parties.
(D) The GRANTEE shall maintain a force of one or more resident agents or employees at all time and shall have sufficient employees to provide safe, adequate and prompt service for its facilities.
SECTION XV New Developments
It shall be the policy of the CITY liberally to amend this franchise, upon application of the GRANTEE, when necessary to enable the GRANTEE to take advantage of any developments in the field of transmission of television, radio, or satellite signals which will afford it an opportunity more effectively, efficiently, or economically to serve its customers. Provided, however, that this Section shall not be construed to require the CITY to make any amendment or to prohibit it from unilaterally changing its policy stated herein.
SECTION XVI Conditions on Street Occupancy
(A) All transmissions and distribution structures, lines, and equipment erected by the GRANTEE within the CITY shall be so located as to cause minimum interference with the proper use of streets, alleys, 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 streets, alleys, or other public ways and places.
(B) In case of disturbance of any street, sidewalk, alley, public way, paved or other improved area, the GRANTEE shall, at its own cost and expense and in a manner approved by the CITY, replace and restore such street, sidewalk, alley, public way, paved or other improved area in as good condition as before the work involving such disturbance was done.
(C) If at any time during the period of this franchise the CITY shall lawfully elect to alter or change the grade of any street, sidewalk, alley or other public way involving public funds, the GRANTEE 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 fixture placed in any public way by the licensee shall be placed in such a manner as not to interfere with the usual travel on such a public way.
(E) The GRANTEE shall, on the request of any person holding a building-moving permit issued by the CITY or other lawful authority, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the GRANTEE shall have the authority to require such payment in advance. The GRANTEE shall be given not less than 24 hours advance notice to arrange for such temporary wire changes.
(F) The GRANTEE at its own expense shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, and public ways and places of the CITY so as to prevent the branches of such trees from coming in contact with the wires and cables of the GRANTEE, 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 GRANTEE. GRANTEE will give the city reasonable notice before it begins trimming trees upon any overhanging streets, alleys, sidewalks and public ways to enable the city to exercise city’s option to complete such trimming described above at GRANTEE’S expense. However, GRANTEE shall not be required to give CITY notice if immediate trimming is necessary to promote public safety and welfare, and the integrity of the system.
(G) In all sections of the CITY where the cables, wires, or other like facilities of public utilities are placed underground, the GRANTEE shall place its cables, wires, or other like facilities underground to the maximum extent that existing technology reasonably permits the GRANTEE to do so.
(H) The CITY shall be notified of the location before any excavation work commences on any public right-of-way and/or public easements. The CITY may determine whether the excavation for any of GRANTEE’S facilities in or on public property conflicts with the location of the CITY utilities or plans for future utilities. The CITY shall not withhold approval of necessary system excavation not involving relocation of CITY utilities. The GRANTEE shall be responsible to replace and return to its original condition the public property and any private citizens encroachment thereon. GRANTEE’S responsibility includes re-seeding as necessary.
SECTION XVII Preferential or Discriminatory Practices Prohibited
The GRANTEE shall not, as to rates, charges, service, service facilities, rules, regulations, or in any other respect make or grant any undue preference or advantage to any person, nor subject any person to any prejudice or disadvantage. However, nothing in this provision shall be construed to prohibit the reduction or waiving of charges in conjunction with promotional campaigns for purposes of attracting subscribers.
SECTION XVIII Removal of Facilities Upon Request
Upon termination of service to any subscriber, the GRANTEE shall promptly remove all its facilities and equipment from the premises of such subscriber upon his or her request.
SECTION XIX Transfer of Franchise and Facilities
(A) The GRANTEE shall not transfer or assign this Franchise or sell or transfer its plant or system to another, without prior written approval of the COMMISSION. Such COMMISSION approval shall not be unreasonably withheld; provided, however, that any transfer or assignment made without COMMISSION approval, as herein provided, shall not relieve the GRANTEE from the duty and responsibility of causing the Assignee of this franchise to comply with all the terms and conditions of the franchise or to perform the same himself. Nothing herein shall prevent the GRANTEE from pledging or mortgaging its plant or system as security for monies borrowed, without COMMISSION approval. COMMISSION may adjust its franchise fee upon transfer or assignment of this franchise.
SECTION XX Filings and Communications with Regulatory Agencies
Copies of all petitions, applications and communications submitted by the GRANTEE to the Federal Communications commission, Securities and Exchange commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting CATV operations authorized pursuant to this franchise, shall also be submitted simultaneously to the CITY COMMISSION.
SECTION XXI CITY Rights in Franchise
(A) The right is hereby reserved to the CITY or the CITY Commission to adopt, in addition to the provision contained herein and in existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of the police power; provided that such regulations by ordinance or otherwise, shall be reasonable and not in conflict with the rights herein granted.
(B) The CITY shall have the right to inspect the maps, plans and other like materials of the GRANTEE at any time during normal business hours.
(C) The CITY shall have the right to install and maintain upon the poles of the GRANTEE any wire and pole fixtures necessary for a police alarm system on the conditions that such wire and pole fixtures be installed in accordance with all of the applicable safety and National Electrical Codes and standards and that such fixtures do not interfere with the GRANTEE’s operations. When the CITY desires to install such fixtures, the CITY and the GRANTEE will enter into Pole Attachment Agreement which will provide for a payment by the CITY to the GRANTEE of not less than the charges which are made by utility companies at that time for similar services. In addition the agreement shall contain a clause whereby the CITY agrees to indemnify the system for all damages suffered as a result of the City’s exercise of this right arid to hold the GRANTEE harmless from any claims, actions, and damages arising from the exercise of this right.
(D) The CITY may observe all construction or installation work performed subject to the provisions of this franchise and make such inspections as it shall find necessary to ensure compliance with the terms of this franchise and other pertinent provisions of law.
(E) At the expiration of the term for which this Franchise is granted, or upon its termination and cancellation, as provided for herein, the CITY may have the right to require the GRANTEE to remove at its own expense all portions of the CATV system from all public ways within the CITY.
SECTION XXII
(A) The GRANTEE shall file with the CITY Clerk true and accurate addresses of all existing installations.
(B) The CITY Clerk shall notify GRANTEE of all property annexed into the CITY and GRANTEE shall immediately upon notification include the annexed area into the franchise fee requirements.
SECTION XXIII Payment to the County
The GRANTEE shall pay to the CITY on or before January 20 and July 20 of each year a $100.00 or $3.00 per customer, whichever is greater, franchise fee.
(Ord. 779; 03-05-2007)
SECTION XXIV Forfeiture of Franchise
(A) In addition to all other rights and powers pertaining to the CITY by virtue of this franchise or otherwise, the CITY reserves the right to terminate and cancel this franchise and all rights and privileges of the GRANTEE hereunder in the event that the GRANTEE:
(1) Violates any provision of this franchise, except where such violation is without fault or through excusable neglect;
(2) Becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt;
(3) Attempts to evade any of the provision of this franchise of practices any fraud or deceit upon the CITY.
(B) Such termination and cancellation shall be by ordinance duty adopted after thirty (30) day’s notice to the GRANTEE provided, however, that if GRANTEE shall correct its default within said thirty (30) days, no ordinance of termination or cancellation shall be adopted. In the event that such termination and cancellation depends upon a finding of fact, such finding of fact as made by the CITY COMMISSION or its representative shall be conclusive unless found by a court of competent jurisdiction not to be supported by the evidence. Provided, however, that before this franchise may be terminated and cancelled under this section, the GRANTEE must be provided with an opportunity to be heard before the CITY COMMISSION as herein provided under Section XXXIV, Procedures.
SECTION XXV City’s Right of Intervention
The GRANTEE agrees not to oppose intervention by the CITY in any suit or proceeding, which is directly related to the operation of GRANTEE’S CATV SYSTEM in the CITY, and to which the GRANTEE is a party.
SECTION XXVI Further Agreement and Waiver by GRANTEE
The GRANTEE agrees to abide by all provisions of this franchise.
SECTION XXVII Duration and Acceptance of Franchise
(A) This franchise and the rights, privileges, and authority hereby granted shall take effect and be in force from and after final passage hereof, and publication as provided by law, and shall continue in force and effect for a term of five (5) years, with the option to renew the Franchise for an additional five (5) years upon the agreement of all parties.
SECTION XXVIII Erection, Removal and Common Use of Poles
(A) No poles or other wire-holding structures shall be erected by the GRANTEE without prior approval of the CITY COMMISSION with regard to location, height, type and other pertinent aspect. However, no location of any pole or wire-holding structure of the GRANTEE shall be a vested interest and such poles or structures shall be removed or modified by the GRANTEE at its own expense whenever the CITY COMMISSION determines that the public convenience would be enhanced thereby. Provided, however, that GRANTEE will not be required to modify its existing poles in a manner which is inconsistent with the commonly accepted standard of the industry and which do not equally apply to utility companies serving the CITY.
(B) Where poles or other wire-holding structures already existing for use in serving the CITY are available for use by the GRANTEE, but GRANTEE does not make arrangements for such use the CITY COMMISSION may require the GRANTEE to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the GRANTEE are just and reasonable.
SECTION XXIX Number of Channels
The GRANTEE shall use its best efforts to make available one (1) channel for commercial and non-commercial service for the benefit of the inhabitants of the CITY.
SECTION XXX Rates
The rated and charges for television, radio, and satellite signals distributed hereunder shall be fair and reasonable and no higher than necessary to meet all costs of programs and service, including a fair profit.
The current rates at the time of this renewal are:
Installation Fee (Aerial) $25.00
Subscriber Fee Per Month 26.00
Expanded 11.95
Late Charge 5.00
Premium Service (HBO) 11.95
Or (SHO)
GRANTEE shall have the right to adjust rates from time to time in accordance with state and federal law to meet programming and service costs and achieve a fair profit.
Section XXXI Complaints, Administration and Notification
The CITY Clerk of the CITY or its Assistant is designated as the person who, on behalf of the CITY, shall have primary responsibility for the Administration of the Franchise, and the procedures for resolving subscribers’ complaints. The GRANTEE at the time of initial subscription to the system shall provide each subscriber with a written notice of the procedures for reporting and resolving complaints as provided in this franchise or as established by agreement of GRANTEE and the CITY Clerk.
SECTION XXXII Federal Regulation
Any lawful modification resulting from amendment of the “Franchise Standards” section 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 FCC regulations, or in the event no obligatory date is established, within one (1) year of adoption or at the time of Franchise renewal, whichever occurs first.
SECTION XXXIII Procedures
(A) Any inquiry, proceeding investigation or other action to be taken or proposed to be taken by the CITY in regard to the operation of GRANTEE’s cable television system, including action in regard to termination, cancellation or a change in subscription rates shall be taken only after public notice of such action or proposed action and the time and place of a public hearing heron is published once a week for three (3) consecutive weeks in some newspaper printed and published and having general circulation in the CITY; a copy of such legal notice of action or proposed action is served directly on GRANTEE either personally or at its office in Lecompton, Kansas at least fifteen (15) days prior to the date of said public hearing; and the GRANTEE is given the opportunity to respond in writing and/or to be heard at said hearing.
(B) The public notice required by this section shall state clearly the action or proposed action to be taken, the time provided for response and the person or persons in authority to whom such responses should be addressed, and such other procedures as may be specified by the CITY.
SECTION XXXIV Parties Rights and Duties Upon Expiration or Cancellation of Franchise
(A) At the expiration of the term for which this franchise is granted, if the parties are unable to negotiate a new franchise, after public hearing upon the same, the CITY, at its option, and upon payment of the fair market value of the system as determined by arbitration in the manner hereinafter described, shall become the owner of the CA TV system in the CITY as a going business. The fair market value of the system shall be determined by negotiations between the parties, and if the parties are unable to agree within thirty (30) days after the expiration of the Franchise, GRANTEE shall within ten (10) days appoint an appraiser, the CITY shall likewise appoint an appraiser, and the two appraisers so appointed shall within ten (10) days after their appointment appoint a third appraiser. The appraisers so appointed shall within ten (10) days after the appointment of the last appraiser meet in the CITY, view the CATV system and hear the evidence and contentions of the parties as to fair market value of the CATV system and having. heard said matter, shall determine the fair market value, which determination shall be binding upon the parties.
(B) In the event this Franchise is terminated or cancelled other than by expiration of its term the CITY, at its option and upon the payment of the depreciated cost value of its system to the GRANTEE, shall become the owner of the CATV system in the CITY as a going business. The depreciated cost value of the system shall be determined from the books and records of the GRANTEE using standard and accepted accounting methods and procedures, without valuation of any right or privilege appertaining to GRANTEE under this Franchise.
(C) Upon the exercise of either of the foregoing options by the CITY or its assigns, the GRANTEE shall immediately transfer to the CITY possession and title to all facilities and property, real and personal, of the CATV business, free from any and all liens and encumbrances not agreed to be assumed by the CITY in lieu of some portion of the purchase price set forth above; and the GRANTEE shall execute such warranty deeds or other instruments of conveyance to the CITY as shall be necessary for this purpose. The GRANTEE shall make it a condition of each contract entered into by it with reference to its operations under this Franchise that the contract shall be subject to the exercise of this option by the CITY and the CITY shall have the right to succeed to all privileges and obligations thereof upon the exercise of such option.
(D) In either case of termination of this Franchise as specified above during the interim period while transfer of the system is being arranged, the original Franchisee shall continue service to the public as a trustee for its successor in interest, subject to an accounting for net earnings or losses during the interim period for a period of time not to exceed six (6) months from the date of termination, it is understood and agreed that the original franchisee shall receive a fee for its services as trustee; and if the parties cannot agree upon a reasonable trustee fee, the amount thereof shall be established by arbitration.
(E) In either case of termination of this Franchise as specified above, the CITY may assign its right to purchase the GRANTEE’ s CA TV system as a going business to any other person, firm, or corporation which it deems, after holding public hearing upon the question, would be suitable to operate said system under a franchise from the CITY.
(F) The CITY may review GRANTEE’s Compensation and customer base at the expiration or cancellation of the franchise agreement. The review will be accomplished at the equally shared expense of GRANTEE and may be performed prior to any negotiations for renewal of the franchise.
SECTION XXXV Publication Costs
The GRANTEE shall assume the cost of publication of this franchise as such publication is required by law and such is payable upon the GRANTEE’s filing of acceptance of the franchise.
SECTION XXXVI Severability
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction or the FCC, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions hereof.
(Ord. 772, 12-05-2005; Ord. 779, 03-05-2007)