Ordinance 1991-04
. ORDINANCE NO. 9/-~
An Ordinance of the city of wylie
Granting a Franchise to communications services, Inc.
d/b/a TCI Cablevision of Texas, Inc.
for the Construction and operation of a
Cable System
The City of Wylie, having determined that the financial,
legal and technical ability of Communications Services, Inc.
d/b/a TCI Cablevision of Texas, Inc. is reasonably sufficient to
provide services, facilities and equipment necessary to meet the
future cable-related needs of the community, does hereby ordain
as follows:
SECTION I
Definition of Terms
1.1 Terms. For the purpose of this Ordinance, the follow-
ing terms, phrases, words, and abbreviations shall have the mean-
ings ascribed to them below. When not inconsistent with the con-
text, words used in the present tense include the future tense,
words in the plural number include the singular number, and words
in the singular number include the plural number:
a. "Affiliate" means an entity which owns or controls, is
owned or controlled by, or is under common ownership
with Grantee.
b. "Basic Cable" is the tier of service regularly provided
to all subscribers that includes the retransmission of
local broadcast television signals.
c. "Cable Act" means the Cable Communications Policy Act
of 1984, as amended.
d. "Cable Service" means (i) the one-way transmission to
subscribers of video programming or other programming
service, and (ii) subscriber interaction, if any, which
is required for the selection of such Video Programming
or any other lawful communication service.
e. "Cable System" means a facility, consisting of a set of
closed transmission paths and associated signal genera-
tion, reception, and control equipment or other com-
munications equipment that is designed to provide Cable
Service and other service to subscribers.
f. "FCC" means Federal Communications Commission, or suc-
cessor governmental entity thereto.
g. "Franchise" shall mean the initial authorization, or
renewal thereof, issued by the Franchising Authority,
whether such authorization is designated as a
franchise, permit, license, resolution, contract,
certificate, or otherwise, which authorizes construc-
tion and operation of the Cable System for the purpose
of offering Cable Service or other service to
Subscribers.
h. "Franchise Authority" means the City of Wylie, or the
lawful successor, transferee, or assignee thereof.
i. "Grantee" means Communications Services, Inc. d/b/a TCI
Cablevision of Texas, Inc., or the lawful successor,
transferee, or assignee thereof.
j. "Gross Revenues" mean the monthly Cable Service
revenues received by Grantee from Subscribers of the
Cable System inclusive of franchise fees received from
subscribers; provided, however, that such phrase shall
not include (i) revenues received from any national ad-
vertising carried on the Cable system; (ii) any taxes
on Cable Service which are imposed directly or in-
directly on any Subscriber thereof by any governmental
unit or agency, and which are collected by the Grantee
on behalf of such governmental unit or agency.
k. "Person" means an individual, partnership, association,
joint stock company, trust corporation, or governmental
entity.
I. "Public Way" shall mean the surface of, and space above
and below, any public street, highway, freeway, bridge,
land path, alley, court, boulevard, sidewalk, parkway,
way, lane, public way, drive, circle, or other public
right-of-way, including, but not limited to, public
utility easements, dedicated utility strips, or
rights-of-way dedicated for compatible uses and any
temporary or permanent fixtures or improvements located
theron now or hereafter held by the Franchise Authority
in the Service Area which shall entitle the Franchise
Authority and the Grantee to the use thereof for the
purpose of installing, operating, repairing, and main-
taining the Cable System. Public Way shall also mean
any easement now or hereafter held by the Franchise
Authority within the Service Area for the purpose of
installing, operating, repairing and maintaining the
Cable System. Public Way shall also mean any easement
now or hereafter held by the Franchise Authority within
the Service Area for the purpose of public travel, or
for utility or public service use dedicated for com-
patible uses, and shall include other easements or
rights-of-way as shall within their proper use and
meaning entitle the Franchise Authority and the Grantee
to the use thereof for the purposes of installing or
transmitting Grantee's Cable Service or other service
over poles, wires, cables, conductors, ducts, conduits,
vaults, manholes, amplifiers, appliances, attachments,
and other property as may be ordinarily necessary and
pertinent to the Cable System.
m. "Service Area" means the present municipal boundaries
of the Franchising Authority, and shall include any ad-
dition thereto by annexation or other legal means.
n. "Service Tier" means a category of Cable Service or
other services, provided by Grantee and for which a
separate charge is made by Grantee.
o. "Subscriber" means a person or user of the Cable System
who lawfully receives Cable Services or other service
therefrom with Grantee's express permission.
p. "video Programming" means programming provided by, or
generally considered comparable to programming provided
by, a television broadcast station.
SECTION II
Grant of Franchise
2.1 Grant. The City hereby grants to Grantee a non-
exclusive Franchise which authorizes the Grantee to construct and
operate a Cable System and offer Cable Service and other services
in, along, among, upon, across, above, over, under, or in any
manner connected with Public Ways within the Service Area and for
that purpose to erect, install, construct, repair, replace,
reconstruct, maintain, or retain in, on, over, under, upon,
across, or along any Public Way and all extensions thereof and
additions thereto, such poles, wires, cables, conductors, ducts,
conduits, vaults, manholes, pedestals, amplifiers, appliances,
attachments, and other related property or equipment as may be
necessary or appurtenant to the Cable System.
2.2 Term. The Franchise granted pursuant to this Ordinance
shall be for an initial term of twenty five (25) years from the
effective date of the Franchise as set forth in section 2.3, un-
less otherwise lawfully terminated in accordance with the terms
of this Ordinance.
2.3 AcceDtance: Effective Date. Grantee shall accept the
Franchise granted pursuant hereto by signing this ordinance and
filing same with the City Clerk or other appropriate official or
agency of the Franchising Authority within sixty (60) days after
the passage and final adoption of this Ordinance. Subject to the
acceptance by Grantee, the effective date of this Ordinance shall
be the sixtieth day after its passage and final adoption.
2.4 Favored Nations. In the event the Franchising
Authority enters into a franchise, permit, license, authorization
or other agreement of any kind with any other person or entity
other than Grantee to enter into the City's streets and public
ways for the purpose of constructing or operating a Cable System
or providing Cable Service to any part of the service area, the
material provisions thereof shall be reasonably comparable to
those contained herein, in order that one operator not be granted
an unfair competitive advantage over another, and to provide all
parties equal protection under the law.
SECTION III
Standards of Service
3.1 Conditions of Street OccuDancy. All transmission and
distribution structures, poles, other lines, and equipment in-
stalled or erected by the Grantee pursuant to the terms hereof
shall be located so as to cause a minimum of interference with
the proper use of Public Ways and with the rights and reasonable
convenience of property owners who own property that adjoins any
of said Public Ways.
3.2 Restoration of Public Ways. If during the course of
Grantee's construction, operation, or maintenance of the Cable
System there occurs a disturbance of any Public Way by Grantee,
it shall, at its expense, replace and restore such Public Way to
a condition reasonably comparable to the condition of the Public
Way existing immediately prior to such disturbance.
3.3 Relocation at Request of Franchisinq Authority. Upon
its receipt of reasonable advance notice, not to be less than
five (5) business days, the Grantee shall, at its own expense,
protect, support, temporarily disconnect, relocate in the Public
Way, or remove from the Public Way, any property of the Grantee
when lawfully required by Franchising Authority by reason of
traffic conditions, public safety, street abandonment, freeway
and street construction, change or establishment of street grade,
installation of sewers, drains, gas or water pipes, or any other
type of structures or improvements by the Franchising Authority;
but, the Grantee shall in all cases have the right of abandonment
of its property. If public funds are available to any company
using such street, easement, or right of way for the purpose of
defraying the cost of any of the foregoing, such funds shall also
be made available to the Grantee.
3.4 Relocation at Request of Third Party. The Grantee
shall, on the request of any person holding a building moving
permit issued by the Franchising Authority, temporarily raise or
lower its wires to permit the moving of such building, provided:
(a) the expense of such temporary raising or lowering of wires is
paid by said person, including, if required by the Grantee,
making such payment in advance; and (b) the Grantee is given not
less than ten (10) business days advance written notice to
arrange for such temporary wire changes.
3.5 Trimming of Trees and Shrubbery. The Grantee shall
have the authority to trim trees or other natural growth over-
hanging any of its Cable System in the Service Area so as to
prevent branches from coming in contact with the Grantee's wires,
cables, or other equipment. The Grantee shall reasonably compen-
sate the Franchising Authority or property owner for any damages
caused by such trimming, or shall, at its own cost and expense,
reasonably replace all trees or shrubs damaged as a result of any
construction of the System undertaken by Grantee. Such replace-
ment shall satisfy any and all obligations Grantee may have to
the Franchise Authority and the property owner pursuant to the
terms of this Section.
3.6 Use of Grantee's EauiDment by Franchisina Authority.
Subject to any applicable state or federal regulations or
tariffs, the Franchising Authority shall have the right to make
additional use, for any public purpose, of any poles or conduits
controlled or maintained exclusively by or for the Grantee in any
Public Way; provided that (a) such use by the Franchising
Authority does not interfere with a current or future use by the
Grantee; (b) the Franchising Authority holds the Grantee harmless
against and from all claims, demands, costs, or liabilities of
every kind and nature whatsoever arising out of such use of said
poles or conduits, including, but not limited to, reasonable at-
torneys' fees and costs; and (c) at Grantee's sole discretion,
the Franchising Authority may be required either to pay a
reasonable rental fee or otherwise reasonably compensate Grantee
for the use of such poles, conduits, or equipment; provided,
however, that Grantee agrees that such compensation or charge
shall not exceed those paid by it to public utilities pursuant to
the applicable pole attachment agreement, or other authorization,
relating to the Service Area.
3.7 Safety Reauirements. Construction, installation, and
maintenance of the Cable System shall be performed in an orderly
and workmanlike manner. All such work shall be performed in sub-
stantial accordance with applicable FCC or other federal, state,
and local regulation. The Cable System shall not unreasonably
endanger or interfere with the safety of persons or property in
the Service Area.
3.8 Aerial and Underground Construction. In those areas of
the Service Area where all of the transmission or distribution
facilities of the respective public utilities providing telephone
communications and electric services are underground, the Grantee
likewise shall construct, operate, and maintain all of its trans-
mission and distribution facilities underground; provided that
such facilities are actually capable of receiving Grantee's cable
and other equipment without technical degradation of the Cable
System's signal quality. In those areas of the Service Area
where the transmission or distribution facilities of the respec-
tive public utilities providing telephone communications, and
electric services are both aerial and underground, Grantee shall
have the sole discretion to construct, operate, and maintain all
of its transmission and distribution facilities, or any part
thereof, aerially or underground. Nothing contained in this Sec-
tion 3.8 shall require Grantee to construct, operate, and main-
tain underground any ground-mounted appurtenances such as sub-
scriber taps, line extenders, system passive devices (splitters,
directional couplers), amplifiers, power supplies, pedestals, or
other related equipment. Notwithstanding anything to the con-
trary contained in this Section 3.8, in the event that all of the
transmission or distribution facilities of the respective public
utilities providing telephone communications and electric serv-
ices are placed underground after the effective date of this Or-
dinance, Grantee shall only be required to construct, operate,
and maintain all of its transmission and distribution facilities
underground if it is given reasonable notice and access to the
public utilities' facilities at the time that such are placed un-
derground.
3.9 Reauired Extensions of Service. The Cable System as
constructed as of the date of the passage and final adoption of
this Ordinance substantially complies with the material provi-
sions hereof. Grantee is hereby authorized to extend the Cable
System as necessary, as desireable, or as required pursuant to
the terms hereof within the Service Area. Whenever Grantee shall
receive a request for service from at least fifteen (15) Sub-
scribers within 1320 cable bearing strand feet (one-quarter cable
mile) of its trunk or distribution cable, it shall extend its
Cable System to such subscribers at no cost to said Subscribers
for system extension, other than the usual connection fees for
all Subscribers; provided that such extension is technically
feasible, and if it will not adversely affect the operation,
financial condition, or market development of the Cable System,
or as provided for under Section 3.10 of this Ordinance.
3.10 Subscriber Charaes for Extensions of Service. No Sub-
scriber shall be refused service arbitrarily. However, for un-
usual circumstances, such as a Subscriber's request to locate his
cable drop underground, existence of more than one hundred fifty
(150) feet of distance from distribution cable to connection of
service to Subscribers, or a density of less than fifteen (15)
Subscribers per 1320 cable-bearing strand feet of trunk or dis-
tribution cable, Cable Service or other service may be made
available on the basis of a capital contribution in aid of con-
struction, including cost of material, labor, and easements. For
the purpose of determining the amount of capital contribution in
aid of construction to be borne by Grantee and Subscribers in the
area in which Cable Service may be expanded, Grantee will con-
tribute an amount equal to the construction and other costs per
mile, multiplied by a fraction whose numerator equals the actual
number of potential Subscribers per 1320 cable-bearing strand
feet of its trunks or distribution cable, and whose denominator
equals fifteen (15) Subscribers. Potential Subscribers will bear
the remainder of the construction and other costs on a prorata
basis. Grantee may require that the payment of the capital
contribution in aid of construction borne by such potential
Subscribers be paid in advance.
3.11 service to Public Buildinas. The Grantee shall
provide without charge one (1) outlet of Basic Service to each of
the Franchising Authority's office building(s), fire station(s),
police station(s), and public school building(s) that are passed
by its Cable System. The outlets of Basic Service shall not be
used to distribute or sell Cable Services in or throughout such
buildings; nor shall such outlets be located in common or public
areas open to the public. Users of such outlets shall hold
Grantee harmless from any and all liability or claims arising out
of their use of such outlets, including but not limited to, those
arising from copyright liability. Notwithstanding anything to
the contrary set forth in this section 3.11, the Grantee shall
not be required to provide an outlet to such buildings where the
drop line from the feeder cable to said buildings or premises ex-
ceeds one hundred fifty (150) cable feet, unless it is techni-
cally feasible and so long as it will not adversely affect the
operation, financial condition, or market development of the
Cable system to do so, or unless the appropriate governmental en-
tity agrees to pay the incremental cost of such drop line in ex-
cess of 150 cable feet. In the event that additional outlets of
Basic Service are provided to such buildings, the building owner
shall pay the usual installation fees associated therewith, in-
cluding, but not limited to, labor and materials. Upon request
of Grantee, the building owner may also be required to pay the
service fees associated with the provision of Basic Service and
the additional outlets relating thereto.
3.12 Emergency Override. In the case of any emergency or
disaster, the Grantee shall, upon request of the Franchising
Authori ty, make available its facilities for the Franchising
Authority to provide emergency information and instructions
during the emergency or disaster period. The Franchising
Authority shall hold the Grantee, its agents, employees, of-
ficers, and assigns hereunder, harmless from any claims arising
out of the emergency use of its facilities by the Franchising
Authority, including, but not limited to, reasonable attorneys'
fees and costs.
section IV
Requ1ation bY Franchise Authority
4.1 Franchise Fee.
A. Grantee shall pay to the Franchising Authority a
franchise fee equal to five percent (5%) of Gross Revenues
received by Grantee from the operation of the Cable System on an
annual basis; provided, however, that Grantee may credit against
any such payments (i) any tax, fee, or assessment of any kind im-
posed by Franchising Authority or other governmental entity on a
cable operator, or subscriber, or both, solely because of their
status as such; (ii) any tax, fee, or assessment of general ap-
plicability which is unduly discriminatory against cable
operators or subscribers (including any such tax, fee, or assess-
ment imposed, both on utilities and cable operators and their
services), and (iii) any other special tax, assessment, or fee
such as a business, occupation, and entertainment tax. For pur-
poses of this section, the 12-month period applicable under the
Franchise for the computation of the franchise fee shall be a
calendar year, unless otherwise agreed to in writing by the
Franchising Authority and Grantee. The franchise fee payment
shall be due and payable ninety (90) days after the close of the
preceding calendar year. Each payment shall be accompanied by a
brief report from a representative of Grantee showing the basis
for the computation. In no event, shall the franchise fee pay-
ments required to be paid by Grantee exceed 5 percent of Gross
Revenues received by Grantee in any 12-month period.
B. Limitation on Franchise Fee Actions. The period
of limitation for recovery of any franchise fee payable hereunder
shall be five (5) years from the date on which payment by the
Company is due. Unless within five (5) years from and after said
payment due date the City initiates a lawsuit for recovery of
such franchise fees in a court of competent jurisdiction, such
recovery shall be barred and the City shall be estopped from as-
serting any claims whatsoever against the Company relating to any
such alleged deficiencies.
4.2 Rates and Charges. The Franchising Authority may not
regulate the rates for the provision of Cable Service and other
services, including, but not limited to, ancillary charges relat-
ing thereto, except as expressly provided herein and except as
authorized pursuant to federal and state law including, but not
limited to, the Cable Act and FCC Rules and Regulations relating
thereto. From time to time, Grantee has the right to modify its
rates and charges including, but not limited to, the implementa-
tion of additional charges and rates; provided, however, that
Grantee shall give notice to the Franchising Authority of any
such modifications or additional charges thirty (30) days prior
to the effective date thereof.
In the event that Basic Service rate increases are subject
to approval of the Franchising Authority, the Grantee may, at its
discretion and without consent of the Franchising Authority, in-
crease rates relating to the provision of Basic Service by an
amount which is at least equal to five (5) percent per year.
4.3 Renewal of Franchise. The Franchising Authority and
the Grantee agree that any proceedings undertaken by the
Franchising Authority that relate to the renewal of the Grantee's
Franchise shall be governed by and comply with the provisions of
section 626 of the Cable Act (as such existed as of the effective
date of the Cable Act), unless the procedures and substantive
protections set forth therein shall be deemed to be preempted and
superseded by the provisions of any subsequent provision of
federal or state law.
In addition to the procedures set forth in said Section
626(a), the Franchising Authority agrees to notify Grantee of its
preliminary assessments regarding the identity of future cable-
related community needs and interests, as well as, the past per-
formance of Grantee under the then current Franchise term. The
Franchising Authority further agrees that such a preliminary as-
sessment shall be provided to the Grantee prior to the time that
the four (4) month period referred to in Subsection (c) of Sec-
tion 626 is considered to begin. Notwithstanding anything to the
contrary set forth in this section 4.3, the Grantee and Franchis-
ing Authority agree that at any time during the term of the then
current Franchise, while affording the public appropriate notice
and opportunity to comment, the Franchising Authority and Grantee
may agree to undertake and finalize negotiations regarding
renewal of the then current Franchise and the Franchising
Authority may grant a renewal thereof. The Grantee and the
Franchising Authority consider the terms set forth in this sec-
tion to be consistent with the express provisions of section 626
of the Cable Act. A reproduction of section 626 of the Cable act
as such existed as of the effective date of the Cable Act is at-
tached hereto as Schedule 1 and incorporated herein by this
reference.
4.4 Conditions of Sale. Except to the extent expressly
required by federal or state law, if a renewal of Grantee's
Franchise is denied and the Franchising Authority either lawfully
acquires ownership of the Cable System or by its actions lawfully
effects a transfer of ownership of the Cable System to another
party, any such acquisition or transfer shall be at a fair market
value, determined on the basis of the Cable System valued as a
going concern.
Grantee and Franchising Authority agree that in the case of
a lawful revocation of the franchise, at Grantee's request, which
shall be made in its sole discretion, Grantee shall be given a
reasonable opportunity to effectuate a transfer of its Cable Sys-
tem to a qualified third party. The Franchising Authority further
agrees that during such a period of time, it shall authorize the
Grantee to continue to operate pursuant to the terms of its prior
Franchise; however, in no event shall such authorization exceed a
period of time greater than six (6) months from the effective
date of such revocation. If, at the end of that time, Grantee is
unsuccessful in procuring a qualified transferee or assignee of
its Cable System which is reasonably acceptable to the Franchis-
ing Authority, Grantee and Franchising Authority may avail them-
selves of any rights they may have pursuant to federal or state
law; it being further agreed that Grantee's continued operation
of its Cable System during the six (6) month period shall not be
deemed to be a waiver, nor an extinguishment of, any rights of
either the Franchising Authority or the Grantee. Notwithstanding
anything to the contrary set forth in section 4.4, neither
Franchising Authority nor Grantee shall be required to violate
federal or state law.
4.5 Transfer of Franchise. Grantee's right, title, or in-
terest in the Franchise shall not be sold, transferred, assigned,
or otherwise encumbered, other than to an Affiliate, without the
prior consent of the Franchising Authority, such consent not to
be unreasonably withheld. No such consent shall be required,
however, for a transfer in trust, by mortgage, by other
hypothecation, or by assignment of any rights, title, or interest
of Grantee in the Franchise or Cable System in order to secure
indebtedness.
Section V
Comoliance and Monitorina
5.1 Testina for Comoliance. The Franchising Authority may
perform technical tests of the Cable system during reasonable
times and in a manner which does not unreasonably interfere with
the normal business operations of the Grantee or the Cable System
in order to determine whether or not the Grantee is in compliance
with the terms hereof and applicable state or federal laws. Ex-
cept in emergency circumstances, such tests may be undertaken
only after giving Grantee reasonable notice thereof, not to be
less than two (2) business days, and providing a representative
of Grantee an opportunity to be present during such tests. In
the event that such testing demonstrates that the Grantee has
substantially failed to comply with a material requirement
hereof, the reasonable costs of such tests shall be borne by the
Grantee. In the event that such testing demonstrates that
Grantee has substantially complied with such material provisions
hereof, the cost of such testing shall be borne by the Franchis-
ing Authority. Except in emergency circumstances, the Franchis-
ing Authority agrees that such testing shall be undertaken no
more than two (2) times a year in the aggregate, and that the
results thereof shall be made available to the Grantee upon
Grantee's request.
5.2 Books and Records. The Grantee agrees that the
Franchising Authority may review such of its books and records,
during normal business hours and on a nondisruptive basis, as are
reasonably necessary to monitor compliance with the terms hereof,
or as otherwise required by law. Such records shall include, but
shall not be limited to, any public records required to be kept
by the Grantee pursuant to the rules and regulations of the FCC.
Notwithstanding anything to the contrary set forth herein,
Grantee shall not be required to disclose information which it
reasonably deems to be proprietary or confidential in nature.
The Franchising Authority agrees to treat any information dis-
closed by the Grantee to it as confidential, and only to disclose
it to employees, representatives, and agents thereof that have a
need to know, or in order to enforce the provisions hereof.
section VI
Insurance. Indemnification. and
Bonds or Other Surety
6.1 Insurance Requirements. Grantee shall maintain in full
force and effect, at its own cost and expense, during the term of
the Franchise, Comprehensive General Liability Insurance in the
amount of $1,000,000 combined single limit for bodily injury, and
property damage. Said insurance shall designate the Franchising
Authority as an additional insured. Such insurance shall be
non-cancellable except upon thirty (30) days prior written notice
to the Franchising Authority.
6.2 Indemnification. The Grantee agrees to indemnify, save
and hold harmless, and defend the Franchising Authority, its of-
ficers, boards and employees, from and against any liability for
damages and for any liability or claims resulting from property
damage or bodily injury (including accidental death), which arise
out of the Grantee's construction, operation, or maintenance of
its Cable system, including, but not limited to, reasonable
attorney's fees and costs.
6.3 Bonds and other surety. Except as expressly provided
herein, Grantee shall not be required to obtain or maintain bonds
or other surety as a condition of being awarded the Franchise or
continuing its existence. The Franchising Authority acknowledges
that the legal, financial, and technical qualifications of
Grantee are sufficient to afford compliance with the terms of the
Franchise and the enforcement thereof. Grantee and Franchising
Authority recognize that the costs associated with bonds and
other surety may ultimately be borne by the subscribers in the
form of increased rates for Cable Services. In order to minimize
such costs, the Franchising Authority agrees to require bonds and
other surety only in such amounts and during such times as there
is a reasonably demonstrated need therefor. The Franchise
Authority agrees that in no event, however, shall it require a
bond or other related surety in an aggregate amount greater than
$10,000, conditioned upon the substantial performance of the
material terms, covenants, and conditions of the Franchise. Ini-
tially, no bond or other surety will be required. In the event
that one is required in the future, the Franchising Authority
agrees to give Grantee at least sixty (60) days prior written
notice thereof stating the exact reason for the requirement.
Such reason must demonstrate a change in the Grantee's legal,
financial, or technical qualifications which would materially
prohibit or impair its ability to comply with the terms of the
Franchise or afford compliance therewith.
section VII
Enforcement and Termination of Franchise
7.1 Notice of Violation. In the event that the Franchising
Authority believes that the Grantee has not complied with the
terms of the Franchise, it shall notify Grantee in writing of the
exact nature of the alleged non-compliance.
7.2 Grantee's Riaht to Cure or ResDond. Grantee shall have
thirty (30) days from receipt of the notice described in section
7.1 to (a) respond to the Franchising Authority contesting the
assertion of noncompliance, or (b) to cure such default or, in
the event that by the nature of default, such default cannot be
cured within the thirty (30) day period, initiate reasonable
steps to remedy such default and notify the Franchising Authority
of the steps being taken and the projected date that they will be
completed.
7.3 Public Hearina. In the event that Grantee fails to
respond to the notice described in section 7.1 pursuant to the
procedures set forth in section 7.2, or in the event that the al-
leged default is not remedied within sixty (60) days after the
Grantee is notified of the alleged default pursuant to section
7.1, the Franchising Authority shall schedule a public meeting to
investigate the default. Such public meeting shall be held at
the next regularly scheduled meeting of the Franchising Authority
which is scheduled at a time which is no less than five (5) busi-
ness days therefrom. The Franchising Authority shall notify the
Grantee of the time and place of such meeting and provide the
Grantee with an opportunity to be heard.
7.4 Enforcement. subject to applicable federal and state
law, in the event the Franchising Authority, after such meeting,
determines that Grantee is in default of any provision of the
Franchise, the Franchising Authority may:
a) Foreclose on all or any part of any security provided
under this Franchise, if any, including without limita-
tion, any bonds or other surety; provided, however, the
foreclosure shall only be in such a manner and in such
amount as the Franchising Authority reasonably deter-
mines is necessary to remedy the default;
b) Commence an action at law for monetary damages or seek
other equitable relief;
c) In the case of a substantial default of a material
provision of the Franchise, declare the Franchise
Agreement to be revoked; or
d) Seek specific performance of any provision, which
reasonably lends itself to such remedy, as an alterna-
tive to damages.
The Grantee shall not be relieved of any of its obligations to
comply promptly with any prov1s1on of the Franchise by reason of
any failure of the Franchising Authority to enforce prompt
compliance.
7.5 Acts of God.
or non-compliance with
fer any enforcement or
compliance or alleged
God, power outages, or
to control.
The Grantee shall not be held in default
the provisions of the Franchise, nor suf-
penalty relating thereto, where such non-
defaults are caused by strikes, acts of
other events reasonably beyond its ability
SECTION VIII
Unauthorized ReceDtion
8.1 Misdemeanor. In addition to those criminal and civil
remedies provided by state and federal law, it shall be a mis-
demeanor for any person, firm or corporation to create or make
use of any unauthorized connection, whether physically, electri-
cally, acoustically, inductively, or otherwise, with any part of
the Cable System without the express consent of the Grantee.
Further, without the express consent of Grantee, it shall be a
misdemeanor for any person to tamper with, remove, or injure any
property, equipment, or part of the Cable system or any means of
receiving Cable Service or other services provided thereto. Sub-
j ect to applicable federal and state law, the Franchising
Authority shall incorporate into its criminal code, if not
presently a part thereof, criminal misdemeanor law which will en-
force the intent of this Section 8.1.
Section IX
Miscellaneous provisions
9.1 Documents Incoroorated and Made a Part Hereof. The
following documents shall be incorporated herein by this
reference, and in the case of a conflict or ambiguity between or
among them, the document of latest date shall govern:
a) Any enabling ordinance in existence as of the date
hereof; and
b) Any proposal submitted by Grantee pursuant to a Fran-
chise renewal procedure, as amended and supplemented
during the Franchise renewal negotation process;
c) Any franchise agreement between Grantee and Franchising
Authority reflecting the renewal of the Franchise, if
any.
9.2 PreemDtion. If the FCC, or any other federal or state
body or agency shall now or hereafter exercise any paramount
jurisdiction over the subject matter of the Franchise, then to
the extent such jurisdiction shall preempt and supersede or
preclude the exercise of the like jurisdiction by the Franchising
Authority, the jurisdiction of the Franchising Authority shall
cease and no longer exist.
9.3 Actions of Franchising Authority. In any action by the
Franchising Authority or representative thereof, mandated or per-
mitted under the terms hereof, such party shall act in a
reasonable, expeditious, and timely manner. Furthermore, in any
instance where approval or consent is required under the terms
hereof, such approval or consent shall not be unreasonably
withheld.
9.4 Notice. Unless expressly otherwise agreed between the
parties, every notice or response to be served upon the Franchis-
ing Authority or Grantee shall be in writing, and shall be deemed
to have been duly given to the required party five (5) business
days after having been posted in a properly sealed and correctly
addressed envelope by certified or registered mail, postage
prepaid, at a Post Office or branch thereof regularly maintained
by the U.s. Postal Service.
The notices or responses to the Franchising Authority shall
be addressed as follows:
The city of Wylie
2000 North Highway 78
Wylie, Texas 75098
The notices or responses to the Grantee shall be addressed as
follows:
TCI Cablevision of Texas, Inc.
121 A North Greenville Ave.
P.O. Box 64
Allen, Texas 75002
with a copy to:
TCI Cablevision of Texas, Inc.
ATTENTION: Legal Department
P.O. Box 5630
Denver, CO 80217
OR
4643 South Ulster, Denver, CO 80237
The Franchising Authority and the Grantee may designate such
other address or addresses from time to time by giving notice to
the other.
9.5
contained
thereof.
pretation
Descriotive Headinas. The captions to sections
herein are intended solely to facilitate the reading
Such captions shall not affect the meaning or inter-
of the text herein.
9.6 Severability. If any Section, sentence, paragraph,
term, or provision hereof is determined to be illegal, invalid,
or unconstitutional, by any court of competent jurisdiction or by
any state or federal regulatory authority having jurisdiction
thereof, such determination shall have no effect on the validity
of any other section, sentence, paragraph, term or provision
hereof, all of which will remain in full force and effect for the
term, of the Franchise or any renewal or renewals thereof.
Passed and adopted this /.:2 day of -f-~~ . J.9.22." by the
following vote:
AYES: 6
NOES: 0
ABSENT: I
ATTEST:
city of wylie
ATTEST:
communications Services, Inc.
Title:
SCHEDULE 1
RENEWAL
"Sec. 626. (a) During the 6-month period which begins with the
36th month before the franchise expiration; the franchising
authority may on its own initiative, and shall at the request of
the cable operator, commence proceedings which afford the public
in the franchise area appropriate notice and participation for
the purpose of-
"(1) identifying the future cable-related community
needs and interests; and
"(2) reviewing the performance of the cable operator
under the franchise during the then current fran-
chise term.
"(b) (1) Upon completion of a proceeding under subsection
(a), a cable operator seeking renewal of a franchise may, on its
own initiative or at the request of a franchising authority, sub-
mit a proposal for renewal.
"(2) Subject to section 624, any such proposal shall
contain such material as the franchising authority may require,
including proposals for an upgrade of the cable system.
"(3) The franchising authority may establish a date by
which such proposal shall be submitted.
"(c) (1) Upon submittal by a cable operator of a proposal
to the franChising authority for the renewal of a franchise, the
franchising authority shall provide prompt public notice of such
proposal and, during the 4-month period which begins on the
completion of any proceedings under subsection (a), renew the
franchise or, issue a preliminary assessment that the franchise
should not be renewed and, at the request of the operator or on
its own initiative, commence an administrative proceeding, after
providing prompt public notice of such proceeding, in accordance
with paragraph (2) to consider whether-
"(A) the cable operator has substanially complied with
the material terms of the existing franchise and
with applicable law;
"(B) the quality of the operator's service, including
signal quality, response to consumer complaints,
and billing practices, but without regard to the
mix, quality, or level of cable services or other
services provided over the system, has been rea-
sonable in light of community needs;
"(C) the operator has the financial, legal, and techni-
cal ability to provide the services, facilities,
and equipment as set forth in the operator's
proposal; and
"(D) the operator's proposal is reasonable to meet the
future cable-related community needs and inter-
ests, taking into account the cost of meeting such
needs and interests.
" (2) In any proceeding under paragraph ( 1), the cable
operator shall be afforded adequate notice and the cable operator
and the franchise authority, or its designee, shall be afforded
fair opportunity for full participation, including the right to
introduce evidence (including evidence related to issues raised
in the proceeding under subsection (a)), to require the produc-
tion of evidence, and to question witnesses. A transcript shall
be made of any such proceeding.
"(3) At the completion of a proceeding under this subsec-
tion, the franchising authority shall issue a written decision
granting or denying the proposal for renewal based upon the
record of such proceeding, and transmit a copy of such decision
to the cable operator. Such decision shall state the reasons
therefor.
"(d) Any denial of a proposal for renewal shall be based on
one or more adverse findings made with respect to the factors
described in subparagraphs (A) through (D) of subsection (c) (1),
pursuant to the record of the proceeding under subsection (c). A
franchising authority may not base a denial of renewal on a
failure to substantially comply with the material terms of the
franchise under subsection (c) (1) (A) or on events considered
under subsection (c) (1) (B) in any case in which a violation of
the franchise or the events considered under subsection (c) (1)
(B) occur after the effective date of this title unless the
franchising authority has provided the operator with notice and
the opportunity to cure, or in any case in which it is documented
that the franchising authority has waived its right to object, or
has effectively acquiesced.
"(e) (l) Any cable operator whose proposal for renewal has
been denied by a final decision of a franchising authority made
pursuant to this section, or has been adversely affected by a
failure of the franchising authority to act in accordance with
the procedural requirements of this section, may appeal such
final decision or failure pursuant to the provisions of section
635.
"(2) The court shall grant appropriate relief if the court
finds that-
"(A) any action of the franchising authority is not in
compliance with the procedural requirements of
this section; or
"(B) in the event of a final decision of the franchis-
ing authority denying the renewal proposal, the
operator has demonstrated that the adverse finding
of the franchising authority with respect to each
of the factors described in subparagraphs (A)
through (D) of subsection (c) (1) on which the
denial is based is not supported by a prepon-
derance of the evidence, based on the record of
the proceeding conducted under subsection (c).
"(f) Any decision of a franchising authority on a
proposal for renewal shall not be considered final unless all ad-
ministrative review by the state has occurred or the opportunity
therefor has lapsed.
"(g) For purposes of this section, the term 'franchise
expiration' means the date of the expiration of the term of the
franchise, as provided under the franchise, as it was in effect
on the date of the enactment of this title.
"(h) Notwithstanding the provisions of subsections (a)
through (g) of this section, a cable operator may submit a
proposal for the renewal of a franchise pursuant to this subsec-
tion at any time, and a franchising authority may, after afford-
ing the public adequate notice and opportunity for comment, grant
or deny such proposal at any time (including after proceedings
pursuant to this section have commenced). The provisions of
sub-sections (a) through (g) of this section shall not apply to a
decision to grant or deny a proposal under this subsection. The
denial of a renewal pursuant to this subsection shall not affect
action on a renewal proposal that is submitted in accordance with
subsections (a) through (g).
