§ 11.14.160. Television cable franchise required.

A.

Franchise required. No person may construct or operate a cable communications system in the City without first obtaining a grant of a franchise from the City pursuant to this chapter.

B.

Exceptions to franchise requirement. The following persons or entities shall not be required to obtain a franchise under this title:

1.

The City of Port Angeles;

2.

A UVPP that is only delivering cable service or other communications service to subscribers.

C.

Failure to obtain a franchise. Consistent with the requirements of due process, any person who constructs or operates a cable communications system in the City without first obtaining a franchise as required by this chapter may, in the City's discretion, be subject to:

1.

Forfeiture, by operation of law, of the person's cable communication system located in the public rights-of-way that are not authorized by an existing franchise; and/or

2.

A requirement that the cable communication system be removed, at such person's cost, and that penalties and damages allowed by law be paid.

D.

Existing franchises. Grantees of franchises existing as of the effective date of this chapter shall, in addition to all the obligations and duties prescribed by the terms of their existing franchises, be subject to the substantive and procedural requirements herein, except as prohibited by applicable law. Nothing herein is intended to invalidate a lawful, existing franchise or to waive any obligations imposed by such a franchise, or deny any existing franchisee of any contractual or other rights it may have with respect to its existing franchise. Notwithstanding the foregoing, provisions of this chapter that expressly refer to a "franchise granted pursuant to this chapter" shall not apply to franchises initially granted prior to the effective date of this chapter.

E.

Form of franchise. A franchise shall be issued in the form of written agreement, approved by resolution of the City Council, and must be accepted by the franchisee to become effective.

F.

Filing an application. A person seeking to: (1) obtain a franchise; (2) transfer a franchise: (3) extend the term of an existing franchise; (4) renew a franchise; or (5) modify an existing franchise to add new services that are required to be authorized by a franchise pursuant to this chapter, shall submit a signed original of its application and six copies to the City Clerk. The application must conform to all of the requirements of this chapter. Requests for other types of franchise modifications may be processed by the City without an application, and submitted for approval. However, nothing herein shall prevent the City from requiring an application in the event the City determines, based on the nature of the requested modification, that the public interest would best be served by the submission of an application pursuant to this chapter.

G.

Application fee.

1.

Reasonable costs. An applicant shall pay all reasonable costs incurred by the City related to the processing of any application. Costs shall include, but not be limited to, the costs of services rendered by any City employee, agent or representative, including consultants and attorneys.

2.

The initial deposit of the application fee for the consideration of an application for issuance, renewal, transfer, or modification of a franchise shall be in the amount of $5,000.00, which deposit shall be submitted with the application. The City of Port Angeles may, as costs are incurred, draw upon the deposit to recover its administrative costs, including, but not limited to, the reasonable cost of outside consultants retained by the City related to the City's consideration and processing of a franchise. The City, at any time, may require the applicant to deposit additional sums if it appears that the initial deposit or subsequent deposits will be exhausted prior to the final action by the City relating to the consideration by the City of an application for issuance, renewal, transfer or modification of a franchise. The applicant will not be entitled to further consideration by the City of Port Angeles of its requested action until such time as the additional deposit required by the City has been deposited with the City. In the event the amount of the deposit of an applicant is in excess of the amount of the administrative expenses of the City related to the action requested, the applicant shall be entitled to a return of any such excess amount. In addition, an applicant that is awarded a franchise shall pay the City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise or license. Such payment shall be made to the Treasurer of the City within 30 days after the City furnishes the franchisee or licensee with a statement of such expenses.

H.

Nature of franchise.

1.

Scope. A franchise granted pursuant to this chapter shall authorize and permit a franchisee to construct, operate, maintain and repair a cable communications system, or an OVS to provide cable service in the City, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain facilities appurtenant to such system in, on, over, under, upon, across, and along the public rights-of-way, and along such other public property that the City may authorize a franchisee to use. Rights granted may not be subdivided or subleased.

2.

Nothing passes by implication. A franchise shall not convey rights other than as expressly stated in a franchise agreement; no rights shall pass by implication.

3.

Franchise not in lieu of other authorizations. A franchise shall not include, or be a substitute for:

(a)

Compliance with requirements for the privilege of transacting and carrying on a business within the City, including, but not limited to, complying with the conditions the City may establish before constructing facilities for, or providing, non-cable services;

(b)

Any permit, agreement or authorization required in connection with operations on or in public rights-of-way or public property, including by way of example and not limitation, permits for construction, repair and maintenance activities in the right-of-way;

(c)

Any permits or agreements for occupying any other property of the City or private entities to which access is not specifically granted by the franchise.

4.

Franchise not a grant of property rights. A franchise does not convey title, equitable or legal, in the public rights-of-way.

5.

Franchise non-exclusive. No franchise shall be exclusive, or prevent the City from issuing other franchises or authorizations, or prevent the City from itself constructing, operating, or repairing its own cable communications system with or without a franchise.

6.

Franchise term. Every franchise shall be for a term of years, which term shall be ten years, unless a franchise specifies otherwise.

7.

Costs borne by franchisee. Unless otherwise specifically stated in a franchise, or required by law, all acts which a franchisee is required to perform under the franchise or applicable law must be performed at the franchisee's expense.

8.

Failure to perform. If a cable communications system operator fails to perform work that it is required to perform within the time provided for performance, the City may perform the work and bill the operator therefor. The operator shall pay the amounts billed within 30 days.

I.

Administration of ordinance; adoption of regulations.

1.

Adoption of regulations. The City of Port Angeles may from time to time adopt regulations, including but not limited to customer service standards, to implement the provisions of this chapter. This chapter, and any regulations adopted pursuant to the ordinance codified herein, are not contracts with any franchisee, and may be amended at any time.

2.

Delegation. The City Manager or his/her designees are hereby authorized to administer the provisions of this chapter and any franchise issued pursuant thereto, and to provide any notices (including noncompliance notices) and to take any action on the City's behalf that may be required hereunder or under applicable law.

3.

No waiver. The failure of the City, upon one or more occasions, to exercise a right or to require compliance or performance under a franchise or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing.

4.

Administration of public, educational and government access. The City may designate one or more entities, including itself, to control and manage the use of public, educational and governmental access channels, facilities and equipment.

J.

Transfers.

1.

Prior approval required. Every franchise shall be deemed to be held in trust, and to be personal to the franchisee. Any transfer that is made without the prior approval of the City shall be deemed invalid and a material violation of the franchise.

2.

Exception for mortgages. Notwithstanding any other provision of this chapter, pledges in trust or mortgages of the assets of a cable communications system to secure the construction, operation, or repair of the system may be made without application and without the City's prior consent. However, no such arrangement may be made without the City's prior consent if it would in any respect under any condition: (A) prevent the cable communications system operator or any successor from complying with the franchise or applicable law; or (B) permit a third party to succeed to the interest of the operator, or to own or control the system, without the prior consent of the City. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the City under any franchise, this chapter, or other applicable law.

3.

Transferee acceptance required. No City consent to a transfer shall be valid unless the transferee has, in writing, accepted and agreed to abide by all of the terms and conditions of the franchise and this chapter and to assume all obligations and liabilities thereunder, whether arising before or after the date of transfer, of its predecessor franchisee.

K.

General conditions upon construction, operation and repair and use of the public rights-of-way.

1.

Franchisee must follow local rules. The construction, operation, and repair of cable communications systems shall be performed in compliance with Chapters 13.10, 13.12, and 13.14 PAMC, and applicable provisions of PAMC Title 11, and all other applicable laws, ordinances, departmental rules, regulations and practices affecting such system. By way of example, and not limitation, local rules include zoning and safety codes, construction standards, regulations for providing notice to persons that may be affected by system construction, and directives governing the time, place and manner in which facilities may be installed, repaired and maintained in the public rights-of-way. Persons engaged in the construction, operation or repair of communications facilities shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury or nuisance to the public or to property.

2.

No permit without franchise. A franchise is required before a permit may be issued for work associated with the construction, maintenance or operation of a cable communications system. Any permit issued for such work to a person providing cable service that does not hold a franchise shall vest no rights in the permittee; the permit may be revoked at will, and the permittee shall remove all facilities installed under the permit upon the City's demand.

3.

No interference. Interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems, must be minimized. The City may require a person using the public rights-of-way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the public rights-of-way.

4.

Plans for and publicizing work. Work shall be publicized as the City may direct from time to time. The publication of work may be used to notify the public and operators of other communications systems, of the impending work, in order to minimize inconvenience and disruption to the public.

(a)

Each cable communications system operator shall provide the City a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the City that will be affected.

(b)

The City may from time to time, when the City receives an application for a permit to use a particular route, or upon the City's own initiative, designate by published order a route or proposed route for installation of cable communications system facilities and may: (1) require all persons who wish to emplace underground facilities along that route or any part thereof to install them during a specified period; and (2) otherwise prohibit emplacement of such facilities along the route or any part thereof for 24 months or after such other, longer period as is necessary to protect the public interest.

5.

Prompt repairs. Any and all public rights-of-way, other public property, or private property that is disturbed or damaged during the construction, operation, maintenance or repair of a cable communications system shall be promptly repaired by the operator at the operator's cost. Public property and public rights-of-way must be restored to the satisfaction of the City and to a condition as good or better than before the disturbance or damage occurred. No tree trimming shall be performed without the permission of the City and other affected authorities, and any tree trimming must be performed in strict accordance with the City Code.

6.

System subject to inspection. Every cable communications system shall be subject to inspection and testing by the City. Each operator must respond to requests for information regarding its system and plans for the system as the City may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated or repaired.

7.

Underground services alert. Each operator of a cable communications system that places facilities underground shall be a member of the regional notification center for subsurface installations (Utility Notification Center) and shall field mark the locations of its underground communications facilities upon request. The operator shall identify the location of its cable communication system for the City at no charge.

8.

Plan for construction. Every franchisee shall specify for the City a construction schedule that will apply to any required construction, upgrade or rebuild of the cable communications system. The schedule shall provide for the prompt completion of the project, and shall show its timetable for construction of each phase of the project, with benchmarks for deliverables and the areas of the City that will be affected. The City shall have the right to impose penalties on the operator for a failure to meet the accepted timetable and benchmarks.

9.

Use of facilities by the City. The City shall have the right to install and maintain, free of charge, upon any poles or in any conduit owned by a franchisee, any wire and pole fixtures that do not unreasonably interfere with the cable service operations of the franchisee.

10.

Construction bond. Every operator of a cable communications system shall obtain and maintain a bond to ensure the faithful performance of its responsibilities under this chapter and any franchise. The amount of the bond shall be set in the City franchise, but shall not be less than ten percent of the estimated cost of constructing a new system (in the case of a new build) and shall include a sufficient amount to cover the removal of facilities and/or restoration of City facilities within the right-of-way. In the case of an existing system the bond shall not be less than $250,000.00 and shall also include a sufficient amount to cover the removal of facilities and/or restoration of City facilities within the right-of-way. The bond is not in lieu of any additional bonds that may be required through the permitting process. The bond shall be in a form acceptable to the City Attorney. Bonds must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.

11.

Security fund. Every cable communications system operator shall establish and maintain a cash security fund or provide the City an irrevocable letter of credit in the amount of $100,000.00 to secure the payment of fees owed, to secure any other performance promised in a franchise, and to pay any taxes, fees, penalties or liens owed to the City. The letter of credit shall be in a form and with an institution acceptable to the City. Should the City draw upon the cash security fund or letter of credit, the cable communications system operator shall, within ten days, restore the fund or the letter of credit to the full required amount. This security fund/letter of credit may be waived or reduced by the City for a franchisee where the City determines in its discretion that a particular franchisee's operations are sufficiently limited that a security fund/letter of credit is not necessary to secure the required performance. The City may from time to time require a franchisee to change the amount of the required security fund/letter of credit to reflect changed risks to the City and to the public, including delinquencies in taxes or other payments to the City. The cash security fund or letter of credit must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.

L.

Books and records.

1.

Generally. Each cable communications system operator shall provide the City access to, and permit copying of, books and records related in whole or in part to the construction, operation, or repair of the cable communications system, or a group of systems of which the system is a part that may be relevant to the City's monitoring and enforcement of the operator's franchise or this chapter, so that the City may inspect and copy these books and records. The records shall include, but are not limited to, revenue records and other records related to compliance with any provision of this chapter or a franchise. A franchisee is responsible for obtaining or maintaining the necessary possession or control of all such books and records, so that it can produce the documents upon request. Books and records must be maintained for a period of five years, except that a franchise may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials. The phrase "books and records" shall be read expansively to include information in whatever format stored.

2.

Production. Books and records requested shall be produced to the City by a time and at a location in the City designated by the City Manager. However, if the requested books and records are too voluminous, or for security reasons the franchisee reasonably believes they cannot be copied and moved, then the franchisee may request that the inspection and, if necessary, copying take place at some other location mutually agreed to by the City and the franchisee, provided that: (1) the franchisee must make necessary arrangements for copying documents selected by the City after its review; and (2) the franchisee must pay all travel and additional copying expenses incurred by the City (above those that would have been incurred had the documents been produced in the City) in inspecting those documents or having those documents inspected by its designee.

M.

Reports.

1.

Obligation to submit. The City Manager may from time to time direct a franchisee to prepare reports and to submit those reports by a date certain, in a format prescribed by the City Manager, in addition to those required by this chapter.

2.

Annual reports. Unless an exemption is granted by the City Manager, no later than 90 days after the end of the operator's fiscal year, a franchisee shall submit the following information:

(a)

A fully audited or certified revenue report from the previous calendar year for the cable communications system, and a certified statement setting forth the computation of gross revenues used to calculate the franchise fee for the preceding year and a detailed explanation of the method of computation showing: (i) gross revenues by category (e.g., basic service, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); and (ii) what, if any, deductions were made from gross revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction.

(b)

A report showing the following on a quarterly basis for the most recently completed fiscal year:

(i)

The number of service calls (calls requiring a truck roll) received during the prior quarter and the percentage of service calls compared to the subscriber base; and

(ii)

The total estimated hours of known outages as a percentage of total hours of operation. An outage is a loss of sound or video on any signal, or a significant deterioration of any signal affecting two or more subscribers.

(c)

An ownership report, indicating all persons who at the time of filing control or own an interest in the franchisee of ten percent or more.

3.

Contemporaneous reports. Within ten days of their receipt or (in the case of documents created by the operator or its affiliate) filing, a franchisee shall provide the City with copies of:

(a)

Notices of deficiency or forfeiture related to the operation of the system; and

(b)

Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly.

N.

Other records required. Unless the City waives the requirement, a franchisee shall at all times maintain:

1.

Complaint records. Records of all complaints received, their nature and resolution. The term "complaints" refers to complaints about any aspect of the franchisee's operations or customer service.

2.

Outage records. Records of outages known to the franchisee, their cause and duration.

3.

Complaint response. Records of service calls for repair and maintenance indicating the date and time service was requested, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved.

4.

Installation records. Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended.

5.

Customer service. Records sufficient to show whether the franchisee has complied with each customer service standard that applies to it.

O.

Privacy. A franchisee shall take all reasonable steps required so that it is able to provide reports, books and records to the City, including by providing appropriate subscriber privacy notices. Each franchisee shall be responsible for redacting data that applicable law prevents it from providing to the City. Nothing in this section shall be read to require a franchisee to violate state or federal subscriber privacy laws. Notwithstanding the foregoing, and unless applicable law entitles the franchisee to withhold such information from the City, a franchisee is not entitled to withhold or redact any information on the grounds that it contains proprietary or confidential information.

P.

Procedures for paying franchise fees and fees in lieu of franchise fees.

1.

Fees paid quarterly. The franchise fee, or fee in lieu of franchise fee, in the amount or amounts and on the terms set out in the franchise, shall be paid quarterly unless otherwise specified in a franchise. Payment for each quarter shall be received by the City not later than 45 days after the end of each calendar quarter.

2.

Quarterly statement. Unless a franchise provides otherwise, a franchisee or other entity subject to a fee, shall file with the City within 45 days of the end of each calendar quarter a statement showing gross revenues during the preceding quarter and the number of subscribers served.

3.

Acceptance of payment not a release. No acceptance by the City of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such payment be construed as a release of any claim the City may have for additional sums payable.

4.

Fee not in lieu of taxes. Neither the franchise fee, nor the fee paid in lieu of the franchise fee, is a payment in lieu of any tax, fee or other assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and operators or their services, but not including a tax, fee, or assessment which is unduly discriminatory against operators or cable subscriber(s)).

5.

Failure to pay franchise fee. In the event that a fee payment is not received by the City on or before the due date set forth, or in a franchise, or the fee owed is not fully paid, the person subject to the fee will be charged interest from the due date at an interest rate equal to three percent above the rate for three-month federal treasury bills at the most recent United States Treasury Department sale of such treasury bills occurring prior to the due date of the franchise fee payment.

6.

Final statement of gross revenues. Within 90 days of the date a franchisee ceases operations under a franchise (whether because of franchise termination, transfer, bankruptcy or for any other reason), the franchisee shall file a final statement of gross revenues covering the period from the beginning of the calendar year in which the operations ceased to the date operations ceased. The statement shall contain the information and be certified as required by Section 1.16.3.(A.).

(Ord. 3550 § 5, 2/16/2016)