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929,'~ ,,~, ORDINANCE N0. 9~ 9 ':' AN ORDINANCE GRANTING A FRANCHISE TO AMERICAN CABLEVTSION OF WEST MEMPHIS, INC. (ACWM) AND ASSIGNS, TO OWN, OPERATE AND MAINTAIN A COP~iP4UNITY TELEVISION SYSTEM TN THE CITY OF WEST MEMPHIS, ARKANSAS, SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OR FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SAID SYSTEP4 BY THE SAID CITY; ESTABLISHING A CABLE TELEVISION PROGRAM ADVISORY COUNCIL AND AUTHORIZING THE MAYOR TO EXECUTE JOINT POLES AGREEMENT. i ~ ~~ .# WHEREAS, the Federal Communications Commission has issued rules and regulations setting forth requirements which must be in any franchise granted; and WHEREAS, the legal, character, financial, technical and t~ other qualifications together with the adequacy of the con- struction program of American Cablevision of West Memphis, a wholly owned subsidiary of American Television and Communi- cations Corporation has been approved by the franchising authority as part of a full public proceeding affording due process. NOW, THEREk'ORE, BE TT RESOLVED AND ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF WEST MEMPHIS, ARKANSAS. SECTION 1. Short Title. This Ordinance shall be known and may be cited as the "West Memphis Cable Television Franchise Ordinance". SECTTOPJ 2. Definitions. 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 words in the singular number include the plural number. The woad "shall" is always mandatory and not merely directory. (1) "City" is the City of West Memphis, Arkansas. (2) "Company" is the grantee of rights under this Ordinance >~ ,~ awarding a franchise and is American Cablevision of West Memphis (ACWM) or .assigns. .:.. _ (3) "Person" is any person, firm, partnership, association, corporation, company or organization of any kind. (4) "System" shall mean the entire installation. (5) "FCC" shall mean the Federal Communications Commission. ~ ~' . , . :, 2. . t ' SECTION 3. Grant of Authority. This Franchise by the City is in the exercise of its Police Powers. There is hereby granted by the City to the Company the non-exclusive 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, utility or any other easements now laid out or dedicated, and all ex- tensions or additions of any of same in the City, poles, wires, cables, underground conduits, man-holes and other television conductors and fixtures of any sort necessary or incident to the maintenance and operation in the City of a community tele- vision system for the reception and distribution of television signals, subject to use by the City of West Memphis and the West Memphis Utility Commission of such poles to the extent such use does not interfere with the Company's use, and subject to such restrictions as the City may have been limited to in the acceptance of said easements as rights of way. SECTION 4. Compliance with Applicable Laws and Ordinances. The Company 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 here- , after by ordinance provide: SECTION 5. Company Liabi],~ty - Indemnification. It is expressly understood by and between the Company and the City that the Company shall save the City harmless from all loss sustained by the City on account of any suit of any nature, including contractual, court costs, attorney fees, judgment, execution, claim or demand whatsoever, resulting from negligence on the part of the Company in the construction, operation or maintenance of the system described in this Franchise. The City shall notify the Company's representative in the City within fifteen (15) days after the presentation of any claim or demand to the City, either by suit or otherwise, made against the City on account of any negligence as aforesaid on the part of the Company. The Company shall carry and pay the cost of the 3. ~.- following liability insurance in support of its undertaking to hold the City harmless from loss sustained on account of the negligence of the Company, in at least the amounts indi- cated below, for injury to or death of persons and injury to or destruction of property: (1) $100,000.00 for property damage to any one person; (2) $200,000.00 for property damage in any one accident; (3) $100,000.00 for personal injury to any one person; (4) $300,000.00 for personal injury in any one accident; (5) Tn the event the City Council believes that it is necessary and reasonable for the protection of citizens of the City, they may require that the amounts of insurance set out above be increased. ~, The Company shall comply with all provisions of the Work- man's Compensation Law of Arkansas. SECTION 6. Service Standards. The Company shall maintain a suitable business office in West r4emphis, Arkansas, which office shall be open during all usual business hours, have a listed telephone, and be so operated that complaints and re- quests for repairs or adjustments may be received at any time and further, a complaint procedure shall be established by said local office and all complaints shall receive prompt action within no longex than two (2) days from the receipt of notice by the Company. SECTION 7. Company Rules. The Company shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary or incident to the exercise by the Company of its rights or as shall be reasonably necessary or incident to the performance by the Company of its obligations under this Franchise, and to assure an uninterrupted service to each and all of its customers. Provided, however, that such rules, regu- lations, terms and conditions shall not be in conflict with the provisions hereof or of laws or rules of the State of Arkansas, the County of Crittenden, the City of West Memphis, the Federal Communications Commission or the United States. .. 4. SECTION 8. Condition on Street Occupancy. (1) The Company may enter into one or more contracts c- ~'t,. with the West Memphis Utility Commission, Southwestern Bell Telephone Company or the owner or lessee of any poles or posts located within the City to whatever extent such contract or contracts may be expedient and of advantage to the Company in furnishing the service covered by this Franchise to its customers. (2) The Company system, poles, wires and appurtenances shall be located, erected and maintained so that none of it shall endanger or interfere with the lives of persons, or inter- fere with any improvements the City may deem proper to make or hinder unnecessarily or obstruct the free use of the street, alleys, bridges, easements or public property. (3) The Company shall not place poles or other fixtures where the same will interfere with any gas, electric or tele- phone fixtures, water hydrant or main, and all such poles or other fixtures placed in or on any street or other easement of the City or utility commission shall be placed according to the requirements of the West Memphis Utility Commission and any City Ordinance and then in such a manner as not to inter- fere with the usual travel on said streets, alleys and public ways or use of such easements. (4) The City shall have the right at its own expense to designate an engineer to approve the Company's plans and, if ~^~ an engineer be so'designated,~no construction shall be commenced without the prior approval of said engineer based upon plans ,,;,,~;u submitted to him. All property shall be restored to its original condition at the cost of the Company. I ~~ SECTION 9. Payments to City. The Company shall pay to the City, in addition to any and all privilege licenses and ad valorem or other taxes hereafter levied by the City, a sum equivalent to three percent (3$) of the annual gross operating revenues received by the Company for services rendered to customers within the City during each year of operation under this Franchise. "Annual gross operating revenues" shall consist 5. w of receipts from customers located in the City for trans- mission of television signals by the Company under contracts with such customers but does not include revenues from the sale of optional Pay TV services. The Company shall pay a franchise of three percent (3~) on Pay TV operating revenues. "Pay TV operating revenues" shall consist of receipts from Pay TV subscribers less Pay TV programming costs. SECTION 10. Rates and Charges. In its rates, charges,' k service facilities, rules, regulations or in any other respect, American Cablevision of West Memphis shall not make or grant any preference or advantage to any person nor subject any person to any prejudice or disadvantage within the same classifications of service. The Company shall have the right to establish different classifications of service for residential and commer- cial users and to adopt charges and rate schedules to which any subscriber within those classifications shall be entitled. ,~ The initial schedule of subscriber charges to be paid by citizens of West Memphis will be as follows, subject to ex- ;~; ,. ,. planation by notes (1) through (5) as set out below: Connection Charges (1)(2)(3) First Outlet $15.00 Each Additional Outlet (4) 10.00 Monthly Charges First Outlet $ 7.50 Each Additional Outlet 3.00 FM Service (5) 1.50 Miscellaneous Reconnect $10.00 Relocate 10.00 Collection 5.00 Converter Deposit 15.00 "~ (Refundable} Commercial Accounts Not to exceed prevailing residential rates NOTES: (1} Off-System Connection Charges: In the event a dwelling unit is either located more l than 150 feet from Company's cable system or requires underground connection, connection shall be done at the cost of time and materials. • ~, 6. (2) Special Connection Charges: Time and material connection charges shall apply in cases when concealed wiring of existing buildings or other extensive requirements are requested beyond a normal connection. t (3) May be waived during construction and during special promotions on a non-discriminatory basis. (4) May be waived if connections are done at the same time as original connection. (5) Assumes subscriber has basic cable outlet. American Cablevision of West Memphis reserves the right to ~' set rates as it deems appropriate and reasonable, so long as :,:.~:, those rates shall not exceed the rates which would result from the application of the cost of living increase that has accrued from the date of enactment of this Ordinance to any date the rates are reset to the initial rates specified above, unless approved by the City of West Memphis. For such computation, the National Consumer Price Index shall be used to represent changes in cost of living. The initial rates as established herein shall remain in effect during the Company's first year of operation and at no time will first outlet rates be changed by less than fifty (50) cents per month. Tn cases where City approval is required, the Company shall make a formal request to the City, and the City shall respond to such request within sixty (60) days of the date of said re- quest. Unless notified to the contrary by the City, the re- quested rate schedule shall be effective ninety (90) days follow- ing the rate increase request. SECTION 11. Free Connection and Service. The Company shall furnish, upon request, one outlet for each local school, mun~.cipal office building or facility within its service area and not more than one hundred fifty (150) feet from the Company's existing service facilities. An initial connection to each such ,,,,,, building will be made free of charge; internal wiring and addi- tional connections will be done for the cost of time and materials only. Tn no case will there be a monthly charge for service to such buildings. In addition, the Company agrees that one channel of its system will be reserved for the use of the City as a pub- tic service, educational or informational channel. The City 1 Z, 7. will furnish any special equipment necessary to feed public service, educational or informational programs originated by the City into the Company's system. The Company reserves the right to use the channel described herein at any time or during any period for which no program or use of such channel is scheduled by the City in accordance with reasonable rules to be prescribed by the Company. SECTION 12. Records and Re orts. The City shall have access at all reasonable hours to all of the Company's plans, contracts and engineering, accounting, financial, statistical, customer and service records relating to the property and the operation of the Company and to all other records required to be kept hereunder. The following records and reports shall be filed with an appropriate City official and shall be available in the local office of the Company; (1) Company Rules and Regulations. Copies of such rules, regulations, terms and conditions adopted by the Company for the conduct of its business. (2) Annual Gross Operating Revenues. An annual certified report showing annual gross operating revenues, annual expenses and total investment of the Company from its operations within the City during the preceding year and such other information which the City shall reasonably request with respect to proper- ties and expenses related to the Company's services within the City for such period. SECTION 13. Term of Franchise and Renewal Thereof. The franchise and rights herein granted shall take effect and be in force from and after the final passage hereof as required by law, and shall continue in force and effect for a term of twenty ,, (20) years. Y ~ ~ ~ .. The Company may petition the City of West 1!lemphis for a renewal ar,~d renegotiation of tw,franchise when not more than two (2) years remain in the term of said franchise and the City of West Memphis shall not arbitrarily refuse to renew said fran- chise at such time. S `, 8. SECTION 1~4. Construction of System. Upon grant of this Franchise to construct and maintain a community television system in the City, the Company must enter into contracts with the West Memphis Utility Commission, Southwestern Bell Te1e- phone Company or others for the use of poles and posts necessary for proper installation of the system, obtain right of wa Y permits from appropriate State, County and Federal officials necessary to cross highways or roads under their respective jurisdictions to supply the main trunk lines from the Company's receiving antennas, obtain permission from the Federal Aviation Administration to erect and maintain antennas suitable to the needs of the system and its subscribers and obtain whatever other permits a city, county, state or federal agency may re- quire. Tn the construction, installation and maintenance of its system the Company will use steel, cable and electronic devices, all of specialized and advanced design and type; in the operation of its system, the Company will employ personnel with training, skill and experience in electronics and communi- cations. The Company shall not be required to construct in areas now in the City or which may be annexed where there are fewer than 60 homes per mile. Promptly after the grant of this Franchise, the Company shall furnish a bond with corporate surety issued by a company acceptable to the City in the amount of $35,000.00 payable to the City and conditioned upon completion of construction of the system as specified herein. The said bond may be reduced to $10,000.00 upon completion of construction. Within thirty (30~ days of the effective date of the fran- chise, American Cablevision of West Memphis shall diligently pursue acquisition of all necessary certificates, permits, ,,,, licenses and agreements which. are required to construct a CATV system in the City. Within sixty C60~. days of receipt of such certificates, permits, licenses and agreements, the Company shall commence construction of the CATV system. Thereafter, construction .. ,r' 9. shall proceed so as to make service available throughout the City at the earliest possible time. American Cablevision of West T~emphis shall fully construct ~` and make operational the proposed CATV system within twelve (12) months following the date on which. construction commences. The onl constraint t thi it t i il f y o s comm men s a ure to meet the 12-month construction deadline as a result of circumstances beyond American Cablevision of West Memphis' control. SECTION 15. Emergency Warning System. The System will include an emergency warning system which will make it possible for a designated city official to override the audio signal on all channels simultaneously to deliver emergency messages. This capability will be provided at no cost to the City. SECTION 16. Local Origination. The CATV system will serve as an outlet for locally originated programming in a manner con- , sistent with FCC regulations. The Company will have the capabi- lity to produce and distribute color programming from its offices. Further, the Company will actively encourage the development of such programming by groups and individuals in the community. SECTION 17. Separate System. The system in West Memphis, Arkansas, shall be operated as a distinct and separate system from any other system of the Company; however, interconnections with other systems are authorized. The office and field staff of the Company, other than the local manager, shall be composed of residents of West Memphis, Arkansas, if it is reasonably possible to do so, and the Company shall train such employees at its own expense to obtain local qualified personnel. SECTION 18. Comply with FCC Standards. Any modification in the Federal Communications Commission standards applicable to the system shall be automatically incorporated in and become a part of the franchise granted the. Company within one (1) year of the final adoption of any such modification by the Federal Communications Commission. SECTION 19. Cable Television Program Advisory Council. There is hereby established a Cable Television Program Advisory a~ .,• , .. , 10. . Council consisting of nine (4) members, nominated by the Mayor and approved by the City Council. Said members shall serve a term of three (3) years, provided that the first appointments shall be three (3) for a one-year period; three (3) for a two-year period; and three (3) for a period and thereafter ll i t t h three-year , , a app o n men s s all be for a three- year period. The Advisory Council shall have at least two (2) represen- tatives from the West Memphis City Council; two (2) represen- tatives from the educational community; two (2) representatives from business, professional or banking communities; and three (3) citizen representatives. The Cable Television Advisory Council shall make recommen- dations to the Company and to the City of West Memphis, Arkansas, on the programming for, and the coordination, of the educational, governmental, and local originated channels. The Advisory Council, in making its recommendations for programming and in coordination of the educational, governmental, *~ and local originated channels, shall promote the interest, wel- fare and entertainment of the community with emphasis on en- hancement of civic development and shall make recommendation to insure that programming is'impartial and non-discriminatory. The City of West Memphis may submit proposals for pro- .~ ,,, .: w gramming on government channel or channels to the Advisory Council for recommendations ant~he educational institutions ,;~, ~- , . may submit proposals or planned programming for educational channel or channels to the Advisory Council for recommendations. The Company may submit planned programming for local originated channel or channels to the Advisory Council for recommendation, but nothing shall prohibit the Advisory Council from submitting its own findings and recommendations to said bodies whether said proposals have been submitted to them for comment or not. The Advisory Council shall have the authority to submit proposed rules and regulations for the conduct of its business to the Mayor and Council for approval, shall have the right to ,,, i , ~~ ~' ~~ 11. ' hold hearings and make recommendations to the Company and to the educational community on programming for education and local origination; all such actions shall be advisory only. SECTION 20. Arkansas Programming. The Company shall make every reasonable effort on a continuing basis to obtain FCC approval for the importation into West Memphis, Arkansas, of non-network signals from at least one (1) television station located in Little Rock, Arkansas. The citizens of West Memphis, Arkansas, are not able to obtain television reception from any television station within the State of Arkansas, and the public interest dictates that the Company obtain non-network material, including documentaries, sports, news and other such non-network programs originating within the State of Arkansas if it is rea- ,~, ,,~ sonably possible. to do so. SECTION 21. Mayor Authorized to Execute Joint Poles Agreement.' The Mayor of the Cy'~of West Memphis be and is '~ authorized to execute on behalf of the City of West Memphis an agreement whereby the said City grants a license to ACWM to permit such corporation to attach or install its cables, wires and applicances to poles; conduit, in trenches and use the ease- ments of the City for the purpose of furnishing broad band tele- communications system service for delivery via cable pursuant to the franchise granted by the City. Said agreement shall pro- vide for the said company to pay an annual rental for attachments made to poles, payable semi-annually, at the rate of no less than Four and 30/100ths Dollars ($4.30) per pole per year; pro- visions to insure that any expenses incurred by the City of West Memphis in connection with the license shall be borne by ACWM; provisions for adequate insurance and techinal requirements f to protect the City and the residents of West Memphis, Arkansas; ~; and provisions that the agreement must be approved by the City Attorney, the chief engineer of the West Memphis Utility Com- mission, and the attorney for said Commission. SECTION 22. Delegation of Responsibility of Joint Pole Agreement to West P4emphis Utility Commission. In addition to the Authority granted the West Memphis Utility Commission by ~~'~, ~~. 12. prior ordinances, the Commission is hereby authorized to carry out and fully implement the agreement between the City of West Memphis and ACWM for joint poles, conduit and trench use, when .executed, in all respects. The Commission is authorized ~ ,~ to set the rates for the licensing of poles and all other charges or matters necessary to insureat there will be no expense to the City of West Memphis in connection with such license. The Commission is further authorized to act in its own name on be- half of the City of West Memphis in connection with the licensing of individual poles to the licensee; to use the forms and pro- cedures set forth in said agreement or substitute other forms or procedures whenever the Commission deems appropriate; to permit the licensee to use all easements, right-of-ways and property rights which may now or hereafter be used by the Commission and in general to act on behalf of the City of West , Memphis in all things directly or indirectly set forth in such agreement. SECTION 23. Extension of Franchise to Include Areas Annexed. The Company shall within one (1) year of notification by the City, extend its broad band telecommunications network so as to provide "full network service" to all residents of newly annexed areas of the City 'not then served by a broad band tele- communications network where there are at least 60 dwelling units per mile of cable plant. SECTION 24. Publication Costs. The Company shall assume the costs of publication of this Ordinance as such publication is required by law. A bill for publication costs shall be pre- sented to the Company by the appropriate City officials upon the Company's filing of its acceptance of this Franchise and the said publication costs shall be paid at that time by the Company. SECTION 25. Activities Prohibited. The Company shall not allow its cable or other operations to interfere with television reception of persons not served by the Company, nor shall the system interfere with, obstruct or hinder in any manner, the operation of the various utilities serving the residents of the ~~, 4 c 13. City. The Company shall not perform repair service t© tele- vision sets and shall not permit any of its employees, in- stallers or servicemen to perform such services on their own or to recommend how or by whom such repair services should be performed. It is not the intention of the parties that this Franchise shall embrace the area of operation generically known as "Pay TV" except with regard to the establishment of a mutually agreeable franchise fee for such service. SECTION 26. Separability. Tf 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, such portion shall be deemed a separate, distinct and independent provision and such holding shall not effect the validity of the remaining portions hereof. SECTION 27. Ordinances and Resolutions Repealed. All ordinances, resolutions or parts thereof in conflict with the provisions of this Ordinance are hereby repealed. Ordinance No. 632 amended is hereby specifically repealed. ADOPTED this ~ day of ~~ ~,/~ /' ~ , 1978 , ,7 Mayor ATTEST: ~~