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TABLE OF CONTENTS
SECTION 1. SHORT TITLE ............................................. .. 1
SECTION 2. DEFINITIONS ............................................. ..1
SECTION 3. GRANT OF AUTHORITY .................................... .. 6
SECTION 4. COMPLIANCE WITH APPLICABLE LAWS AND ORDINANCES .. .. 7
SECTION 5. GRANTEE LIABILITY -INDEMNIFICATION . ................. .. 8
SECTION 6. SERVICE STANDARDS ..................................... . 10
SECTION 7.
........................................
GRANTEE RULES. 13
.
SECTION 8. CONDITION OF STREET OCCUPANCY ...................... .. 13
SECTION 9. RIGHT OF ACQUISITION BY THE CITY AND TRANSFER OF
OWNERSHIP OR CONTROL ................................ .. 16
SECTION 10. PAYMENTS TO CITY ...................................... .. 17
SECTION 11. RATES AND CHARGES .................................... .. 18
SECTION 12. FREE CABLE TELEVISION CONNECTION AND SERVICE ..... .. 18
SECTION 13. RECORDS AND REPORTS ............................... .. 19
SECTION 14. TERM OF FRANCHISE AND RENEWAL THEREOF ........... .. 21
SECTION 15. SYSTEM UPGRADE ....................................... .. 21
SECTION 16. CONSTRUCTION OF SYSTEM .............................. .. 23
SECTION 17. EMERGENCY WARNING SYSTEM .......................... .. 24
SECTION 18. CITY CHANNEL . ......................................... .. 25
SECTION 19. EXPANSION OF ACCESS CHANNELS ............... .. 25
SECTION 20. SEPARATE SYSTEM ................................. .. 26
SECTION 21. COMPLY WITH FCC STANDARDS ........................... . 27
SECTION 22. ARKANSAS PROGRAMMING .............................. .. 27
SECTION 23. MAYOR AUTHORIZED TO EXECUTE JOINT POLES
AGREEMENT ............................................ ..27
SECTION 24. DELEGATION OF RESPONSIBILITY OF JOINT POLE
AGREEMENT TO WEST MEMPHIS UTILITY COMMISSION ... .. 28
SECTION 25. EXTENSION OF FRANCHISE TO INCLUDE AREAS ANNEXED . .. 28
SECTION 26. SERVICE AREA ........................................... .. 29
SECTION 27. PUBLICATION COSTS ..................................... .. 29
SECTION 28. ACTIVITIES PROHIBITED ................................. .. 29
SECTION 29. LIMITED PURPOSE ....................................... .. 30
SECTION 30. NETWORK TECHNICAL STANDARDS ...................... .. 30
SECTION 31. MEASUREMENTS ......................................... .. 31
SECTION 32. REGULATORY JURISDICTION AND PROCEDURES .......... ... 31
SECTION 33. VALIDITY AND ACCEPTANCE OF FRANCHISE ............. ... 31
SECTION 34. ADDITIONAL RIGHTS OF THE CITY IN THE FRANCHISE .... ... 32
SECTION 35. REVOCATION OF FRANCHISE ..................... ~ .. ~ . ~ . ... 33
SECTION 36. PENALTIES ............................................. ... 35
SECTION 37. SUBSCRIBERS ANTENNAS ................................ ... 37
SECTION 38. PERIODIC CUSTOMER SURVEYS ....................... ... 38
SECTION 39. PERIODIC EVALUATIONS ................................ ... 38
SECTION 40. FILING AND COMMUNICATION WITH REGULATORY
AGENCIES .............................................. ...39
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SECTION 41. FURTHER AGREEMENTS AND WAIVERS ..................... 40
SECTION 42. EQUAL OPPORTUNITY ...................................... 40
SECTION 43. SEPARABILITY ............................................. 40
SECTION 44. ORDINANCES AND RESOLUTIONS REPEALED ................ 40
SECTION 45. EMERGENCY CLAUSE ...................................... 41
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ORDINANCE NO.
AN ORDINANCE GRANTING A FRANCHISE TO TIME WARNER
COMMUNICATIONS -MID-SOUTH DIVISION, A DIVISION OF TIME
WARNER CABLE, A DIVISION OF TIME WARNER ENTERTAINMENT
COMPANY, L.P., TO CONSTRUCT, OWN, OPERATE AND MAINTAIN
A CABLE TELEVISION SYSTEM IN THE CITY OF WEST MEMPHIS,
ARKANSAS, SETTING FORTH CONDITIONS ACCOMPANYING THE
GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND
USE OF THE SYSTEM, DECLARING AN EMERGENCY AND FOR
OTHER PURPOSES.
WHEREAS, the legal, character, financial, technical and other qualifications of Time
Warner Communications -Mid-South Division, a division of Time Warner Cable, a division of
Time Warner Entertainment Company, L.P., has been approved by the franchising authority as
part of a full proceeding affording due process;
NOW, THEREFORE, BE IT 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".
SECTION 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 word "shall" is always
mandatory and not merely directory.
(1) "Additional Service" shall mean a subscriber service provided by the Grantee in
addition to Basic Service.
(2) "Affiliate" means any entity which owns or controls, or is owned or controlled
by, or is under the ownership with Grantee.
(3) "Annual Gross Revenues" shall mean all revenues received by the Grantee,
derived from, or in any way related to, the provision of cable service from all
sources whatever. Annual gross revenues shall not include (i) the revenue of the
Grantee or any other person which is received directly from the sale of any
merchandise through any Service distributed over Grantee's Cable Television
System (except that any compensation received by Grantee for the lease or use
of channel capacity, the carriage of programming, or any other services rendered
by Grantee shall be regarded as annual gross revenues); (ii) taxes imposed by law
on Subscribers which the Grantee is obligated to collect; (iii) amounts collected
by the Grantee from Subscribers on behalf of Leased or Access Channel
programmers, other than Affiliates, to the extent that said amounts are passed by
the Grantee to said programmers; (iv) any investment income earned by the
Grantee on cash or marketable securities; and (v) bad debt write offs. Annual
Gross Revenues shall include all revenues received by Grantee in payment for the
use of advertising time on the Cable Television System, except for commissions
paid to or deducted by a third party who is neither an Affiliate or subsidiary of
Grantee.
(4) "Basic Cable Television Service" means any cable television, video service tier
which includes the retransmission of local television broadcast signals.
(5) "Cable Television System" or "System" shall mean any network of cables
and/or other equipment used for the purpose of transmitting television, radio,
data, audio, and/or other signals, either analog, digital, or optical including cable
television signals, telephony and data services for sale or use by the inhabitants of
the City.
(6) "Cable Service" means (A) the one way transmission to subscribers of (i) video
programming, or (ii) other programming service, and (B) subscriber interaction,
if any, which is required for the selection or use of such video programming or
other programming service.
(7) "City" shall mean the territorial boundary of the City of West Memphis.
(8) "City Council" shall mean the City Council for the City of West Memphis, or
any legally appointed or elected successor or agency.
(9) "Commence Operation" shall mean that time and date when sufficient
distribution facilities have been installed so as to permit the offering of service to
at least twenty-five percent (25%) of the dwelling units located in the designated
franchise area(s) approved by the City for construction by the Grantee.
(10) "Data Grade" shall mean coded transmission primarily digital in nature.
(11) "Designated Franchise Area" shall mean the current geographic area of the
City of West Memphis, Arkansas, and all future areas legally annexed by the
City.
(12) "FCC" means the Federal Communications Commission or any successor
thereto, having jurisdiction over cable television or other telecommunication
signals.
(13) "Force Majeure" means a strike, acts of God, acts of public enemies, orders of
any kind of government of the United States of America or of the State or any of
their departments, agencies, political subdivisions, riots, epidemics, landslides,
lightning, earthquakes, fires, hurricanes, tornadoes, volcanic activity, storms,
floods, washouts, droughts, civil disturbances, explosions, partial or entire failure
of utilities or any other cause or event not reasonably within the control of the
disabled party.
(14) "Grantee" shall mean Time Warner Communications Mid-South Division, a
division of Time Warner Cable, a division of Time Warner Entertainment
Company, L.P., and any lawful successor or Assignee thereof.
(15) "Head End" shall mean the land, electronic processing equipment, antennas,
tower, building, and other appurtenances normally associated with, and located
at the starting point of a Cable Television System.
(16) "May" is permissive.
(17) "Normal Business Hours" means those hours during which most similar
businesses in the community are open to serve customers. In all cases, "normal
business hours" must include some evening hours at least one night per week
and/or some weekend hours.
(18) "Normal Operating Conditions". The term "normal operating conditions"
means those service conditions which are within the control of the cable
operator. Those conditions which are not within the control of the cable
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operator include, but are not limited to, natural disasters, civil disturbances,
power outages, telephone network outages, and severe or unusual weather
conditions. Those conditions which are ordinarily within the control of the cable
operator include, but are not limited to, special promotions, pay-per-view events,
rate increases, regular peak or seasonal demand periods, and maintenance or
upgrade of the cable system.
(19) "Office" the use of the title of any officer, employee or office shall mean such
officer, employee or office of the City of West Memphis unless otherwise
specifically designated.
(20) "Sale" shall include any sale, exchange or barter.
(21) "State" shall mean the State of Arkansas.
(22) "Street" shall include all streets, highways, avenues, lanes, alleys, Courts, places,
squares, curbs, sidewalks or other public ways in the City which have been or
may hereafter be dedicated and open to public use, or such other public property
so designated in any law of this State.
(23) "Subscriber" or "Customer" shall mean any person, firm, company,
corporation or association lawfully receiving service from the Grantee.
(24) "Substantially Completed" shall mean that time and date when sufficient
distribution facilities have been installed so as to permit the offering of service to
at least ninety percent (90%) of the dwelling units located in the designated
franchise area(s) approved by the City for construction by the Grantee.
(25) "Video Grade" shall mean transmission primarily analog in nature including the
picture phase of a television broadcast.
SECTION 3. GRANT OF AUTHORITY.
(A) This Franchise by the City is in the exercise of its Police Powers. There is hereby
granted by the City to the Grantee 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 extensions or additions of any of same in the City, poles, wires, cables,
underground conduits, man-holes and other signal conductors and fixtures of any sort necessary
or incident to the maintenance and operation in the City of a Cable Television System for the
reception and distribution of cable television signals, and such other communications services as
Grantee may choose to provide, 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
Grantee'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.
(B) The franchise granted hereunder by the City shall not be exclusive and the City
reserves the right to grant a similar cable television franchise at any time, provided that said other
franchise(s) shall not contain provisions that are more favorable to, or imposing lesser obligations
on, the grantee(s) thereof than are imposed on, or granted to Grantee hereunder.
(C) Applications for a franchise renewal will commence pursuant to the provisions of
47 U.S.C. 546. In addition, the City shall require:
a. A summary of the technical and financial history of the network since the
granting of the original franchise.
b. A statement and timetable that outlines all proposed changes, expansion or
improvements in the network as to services, or technical specifications
during the forthcoming five (5) year period.
c. For informational purposes only, a summary of the programming history of
the network since the franchise was granted and a statement of any
proposed changes.
SECTION 4 COMPLIANCE WITH APPLICABLE LAWS AND ORDINANCES.
(A) The Grantee shall, at all times during the life of this Franchise, be subject to all
lawful exercises of the City's police power, and to such laws of general applicability as the City
shall hereafter by Ordinance provide which do not alter the material terms of this Franchise.
(B) Any amendments of the FCC Rules and Regulations required to be incorporated
into a franchise agreement shall be so incorporated in accordance with the requirements of the
FCC. If no date is specified, then within 90 days.
(C) The Grantee shall at all times comply with all applicable laws and regulations of
the state and federal governments or any administrative agency thereof, and if in its opinion any
state or federal law or regulation shall require the Grantee to perform any service or shall prohibit
the Grantee from performing any service which conflicts with the terms of this franchise, the
Grantee shall notify the City of West Memphis of such conflict for the purpose of seeking any
necessary amendments to this franchise agreement. If the City so determines that the franchise is
in violation of such state or federal law or regulation, the City shall so notify the Grantee and shall
have the right to adopt amendments modifying the effected provisions herein so as to comply with
said State or Federal law or regulation.
SECTION 5 GRANTEE LIABILITY -INDEMNIFICATION.
(A) It is expressly understood and agreed by and between the Grantee and the City
that the Grantee 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, arising out of, but not limited to, copyright infringements, and all other
damages resulting from the construction, operation or maintenance of the system described in this
Franchise, whether or not any act or omission complained of is authorized, allowed or prohibited
by this Agreement. In the case suit shall be filed against the City, either individually or jointly
with the Grantee to recover for any claims or damages, the Grantee upon notice to it by the City,
shall defend the City against the action and in the event of a final judgment being obtained against
the City, either individually or jointly with the Grantee, solely by the reason of the acts of the
Grantee, the Grantee will pay said judgment and all costs and hold the City harmless therefrom.
The Grantee shall fully control the defense to any claim or action and any settlement or
compromise thereof.
(B) The City shall notify the Grantee's representative 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 act, negligence or contract as aforesaid on the part of the Grantee.
(C) The City shall have the right to intervene by its own counsel at its sole cost and
expenses, and the Grantee specifically agrees by his acceptance of a franchise hereunder not to
oppose such intervention by the City in any suit or proceeding to which the Grantee is a party
concerning this franchise and its terms.
(D) The Grantee shall furnish a Certificate of Insurance showing the City named as
additional insured and shall carry and pay the cost of the following liability insurance in support of
its undertaking to hold the City harmless from loss sustained on account of the negligence of the
Grantee, in at least the amounts indicated below, for injury to or death of persons and injury to or
destruction of property:
(1) $500,000.00 for personal injury to any person;
(2) $1,000,000.00 for personal injury in any one accident;
(3) $1,000,000.00 for property damage in any one accident;
(4) $2,000,000.00 for umbrella coverage;
(5) In the event that the City Council determines 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, provided that such increase is reasonable and consistent with the requirement of similar
entities doing business with the City of West Memphis.
(E) The Grantee shall comply with all provisions of the Workman's Compensation
Law of Arkansas.
(F) The Grantee shall pay and, by his acceptance of any franchise granted hereunder,
agrees that he will pay all reasonable expenses incurred by the City in defending itself with regard
to all damages and penalties mentioned in Section 5(a) above. These expenses shall include all
reasonable out-of-pocket expenses, such as consultant or attorney fees, and shall also include the
reasonable value of any services rendered by the City Attorney or his staff or any other employees
of the City.
(G) The insurance policies mentioned above shall contain an endorsement stating that
the policies are extended to cover the liability assumed by the Grantee under the terms of this
Ordinance and shall contain the additional endorsement as follows:
It is hereby understood and agreed that this policy may not be canceled, nor the
amount of coverage thereof reduced until thirty (30) days after receipt by the
Mayor of his designee by registered mail of a written notice of such intent to
cancel or reduce said coverage.
(H) All bonds, policies of insurance or certified copies thereof and written evidence
of payment of required premiums shall be filed and maintained with the Mayor or his designee
during the term of any franchise granted hereunder.
SECTION 6. SERVICE STANDARDS.
(1) Office and Telephone Availability: Knowledgeable, qualified company
representatives will be available to respond to customer telephone inquiries Monday through
Friday, between the hours of 8:00 a.m., and 5:00 p.m. Additionally, the system will establish
supplemental hours on week days and weekends that fit the needs of the community. Calls for
emergency service will be routed to operators who are available 24 hours-a-day.
Under normal operating conditions, telephone answer time, including wait time and the
time required to transfer the call, shall not exceed 30 seconds. If the call needs to be transferred,
transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than 90%
of the time as measured on a quarterly basis.
Under normal operating conditions, the customer will receive a busy signal less than 3% of
the total time. Customer service centers and bill payment locations will be open for customer
transactions Monday through Friday, from 8:00 a.m. to 5:00 p.m., unless there is a need to modify
or extend those hours on weekdays and weekends if it would fit the needs of the community.
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(2) Installation, Outages and Service Calls: Under normal operating conditions, each
of the following standards will be met no less than 95% of the time as measured on a quarterly
basis:
Standard installations will be performed within seven business days after an order has been
placed. A standard installation is one that is within 125' of the existing distribution system.
Excluding conditions beyond the control of the Grantee, the Grantee will begin working
on service interruptions (the loss of picture or sound on one or more cable channels) promptly and
in no event later than 24 hours after the interruption becomes known. All other regular service
requests will be responded to within 36 hours during the normal work week for that system. The
appointment window alternatives for installations, service calls and other installation activities will
be either a specific time or, at a maximum, a four-hour time block during normal business hours.
The system will schedule supplemental hours during which appointments can be scheduled based
on the needs of the community. The Grantee may not cancel an appointment with a customer
after the close of business on the business day prior to the scheduled appointment.
If at any time an installer or technician is running late, and will not be able to keep the
appointment as scheduled, the customer will be contacted. The appointment will be rescheduled
as necessary at a time that is convenient for the customer.
(3) Communications, Bills, and Refunds: The Grantee will provide written
information on each of the following areas at the time of installation, at least annually to all
subscribers, and at any future time upon the request of the customer:
(a) Product and Services Offered;
(b} Prices and options for programming services and conditions of subscription
to programming and other services;
(c) Installation and Service Maintenance Policies;
(d) How to Use the Service;
(e) Channel positions of programming carried on the system; and
(f) Billing and complaint procedures including the address and telephone number
of the local franchise authority's cable office.
Bills will be clear, concise and understandable. Bills must be fully itemized, with
itemizations including, but not limited to, basic and premium service charges and equipment
charges. Bills will also clearly delineate all activity during the billing period, including optional
charges, rebates and credits.
Refund checks will be issued promptly, but no later than either (A) the customer's next
billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or (B) the
return of the equipment supplied by the Grantee if service has been terminated.
Customers will be notified a minimum of thirty days in advance of any rate, channel
change, or service change provided that the change is within the control of the Grantee.
(4) The Grantee shall maintain and operate its Cable Television System in
accordance with the rules and regulations as are incorporated herein or may be promulgated by
the Federal Communications Commission, the United States Congress, or the State of Arkansas.
(5) The Grantee shall provide the City frequency spectrum for non-commercial use
of 4 MHz downstream and 4 MHz noncontiguous 500 KHZ channels upstream.
(6) The Grantee, whenever it is necessary to interrupt service over the Cable
Television System for the purpose of network maintenance, alteration or repair, shall do so at
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such time as will cause the least amount of inconvenience to its subscribers, and unless such
interruption is unforeseen and immediately necessary, it shall give reasonable notice to the
affected subscribers.
SECTION 7. GRANTEE RULES.
The Grantee 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 Grantee of its rights or as shall be reasonably necessary or incident to the
performance by the Grantee of its obligations under this Franchise, and to assure an uninterrupted
service to each and all of its customers. Provided, however, that such rules, regulations, terms
and conditions shall not be in conflict with the provisions hereof or of the 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.
SECTION 8. CONDITION OF STREET OCCUPANCY.
(1) The Grantee may enter into one or more contracts with the City of West Memphis,
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 maybe expedient and of advantage
to the Grantee in furnishing the service covered by this Franchise to its customers.
(2) The Grantee's system, poles, wires and appurtenances shall be located, erected and
maintained so that none of it shall endanger or interfere with the safety of the public, or interfere
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 Grantee shall not place poles or other fixtures where the same will interfere with
13
any gas, electric or telephone 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 in
accordance with the requirements of the West Memphis Utility Commission and any City
Ordinance and then in such manner as not to interfere 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 Grantee's plans and, if an engineer be so designated, no construction shall be commenced
without the prior approval of said engineer based upon plans submitted to him. Approval from
the City's engineer shall not be unreasonably withheld. All property shall be restored to its original
condition at the cost of the Grantee.
(5) Whenever the City shall require the relocation or reinstallation of any property of the
Grantee in or about any of the streets of the City, it shall be the obligation of the Grantee, upon
notice of such requirement, to immediately remove and relocate or reinstall such property as may
be deemed necessary by the City Engineer to meet the requirement of the City. Such relocation,
removal, or reinstallation by the Grantee shall be at the sole expense of the Grantee; unless the
City compensates any utility for such relocation, removal or reinstallation. In which case, the
grantee shall be similarly compensated.
(6) Wherever within the City the electric and telephone utilities are located underground,
it shall be the obligation of the Grantee to so locate or cause its property to be located
underground. If subsequent to the construction of the Cable Television System, the electric and
telephone utilities relocate their facilities underground, the Grantee shall in those places, and at
the same time, relocate its property underground. Facilities of the Grantee placed underground at
14
the property owner's request in an area where electric and telephone utilities are aerial, shall be
installed at cost with the additional cost of underground expense to be borne by the property
owner.
(7) Grantee shall have the authority to trim trees upon and overhanging the streets so as to
prevent damage to the Cable Television System and interruption of service. Such tree trimming
as maybe required will be done in compliance with all reasonable City requirements.
(8) In case of disturbance to a street caused by the Grantee, the Grantee shall, at its own
cost and expense and in a manner approved by the Director of Public Works and Engineer of the
City, replace and restore such street in as good a condition as before the work involving such
disturbance.
(9) The Grantee shall, on the request of any person holding a building moving permit
issued by the City, temporarily raise or lower its wires to permit the moving of such building. The
expense of such temporary removal or raising or lowering of the wires shall be paid by the person
requesting the same and the Grantee shall have the authority to require such payment in advance.
The Grantee shall be given not less than 48 hours advance notice to arrange for such temporary
wire changes. In the event of a disagreement between the Grantee and a holder of a permit, such
disagreement will be resolved by the Mayor or his designee.
(10) If at any time, in case of fire or disaster in the City, it shall become necessary in the
reasonable judgment of the Mayor or Chief of the Fire Department to cut or move any of the
wires, cables, amplifiers, appliances or appurtenances thereto of the Grantee, such cutting or
moving maybe done and any repairs rendered necessary thereby shall be made by the Grantee, at
its sole expense. Grantee's work, while in progress, shall be properly performed at all times with
t~
suitable barricades, flags, lights, flares, or other devices as required by the City Engineer to
protect all members of the public having occasion to use the portion of the streets involved, or
adjacent property thereto in accordance with current City policies and practices.
SECTION 9 RIGHT OF ACQUISITION BY THE CITY AND TRANSFER OF
OWNERSHIP OR CONTROL
(a) At the expiration of a Franchise, if it is not renewed, the City may, in lawful manner
and upon payment of fair market value, determined on the basis of the System valued as a going
concern exclusive of any value attributable to the Franchise itself, lawfully obtain, purchase,
condemn, acquire, take over and hold the System.
(b) Upon the revocation of a Franchise, the City may in lawful manner, and upon the
payment of an equitable price lawfully obtain, purchase, condemn, acquire, take over and hold the
System.
(c) A Franchise shall not be sold, assigned or transferred (including through inheritance),
either in whole or in part, nor shall title thereto, either legal or equitable, or any right or interest
therein, pass to or vest in any person or entity without full compliance with the procedure set
forth in this Section.
(d) The provisions of this Section shall apply to the sale or transfer of all or a majority of a
company's assets or shares of a stock, and to a merger (including any parent and its subsidiary
corporation), consolidation, creation of a subsidiary corporation of the parent company, or sale or
transfer of stock in a company so as to create a new controlling interest. The term "controlling
interest" as used herein is not limited to majority stock ownership, but includes actual working
control in whatever manner exercised, including the creation or transfer of decision-making
authority to a new or different board of directors.
1(
The parties to the sale or transfer shall make written request to the City for its approval of
a sale or transfer. The written request shall be accompanied by all information required by FCC
rules and shall be presented on a form as prescribed by FCC rules. Thereafter, the City shall have
120 days to act on the request or it shall be deemed granted subject to the provisions following.
If the City finds that the application is not complete, as required by FCC rules, it shall notify the
parties within 60 days of the initial filing. Such notice shall stay the running of the 120 days until
such time as the parties file a complete application in accordance with FCC rules. If the City does
not so notify the parties within the 60 days following the filing of an application, the application
shall be deemed complete and the 120 days shall run from the date said application was filed. The
City may request such additional information as it might reasonably determine to be necessary to
act on the request. Such request shall not, however, extend the 120 day period unless mutually
agreed to be all parties or such extension is expressly permitted by the FCC rules.
(e) Notwithstanding anything to the contrary in this Franchise, no prior consent by the
City shall be required for any transfer or assignment to any entity controlling, controlled by, or
under the same common control of the transferring company. However, in such transfer or
assignment, the transferring company shall remain liable for all financial obligations as required
pursuant to this ordinance, unless otherwise agreed to by the City. Such agreement to release the
transferring company shall not be withheld unreasonably and shall further be provided in all
transfers or assignments where the transferee company has a net worth of not less than $25
million as reflected by its most current audited financial statement.
SECTION 10. PAYMENTS TO CITY.
The Grantee shall quarterly pay to the City, in addition to any and all privilege licenses and
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ad valorem or other taxes hereafter levied by the City, a sum no greater than five percent (5%) of
the annual gross revenues. The City may increase the percentage from the current three percent
(3%) with ninety (90) days written notice to the Grantee. Payment shall be made forty-five (45)
days after the end of the quarter as established by the City and the Grantee.
SECTION 11. RATES AND CHARGES.
At present, certain rates charged by the Grantee are subject to City regulation. Under
current Federal law and regulations, the City has the right to regulate Basic and associated
equipment. In its rates, charges, service facilities, rules, regulations or in any other respect,
Grantee 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 Grantee shall
have the right to establish different classifications of service for residential and commercial users
to have promotional, or special use rates, and to adopt charges and rate schedules to which any
subscriber within those classifications shall be entitled.
SECTION 12 FREE CABLE TELEVISION CONNECTION AND SERVICE.
The Grantee shall furnish, upon request, one cable television video outlet for each local
school, and municipal facility within its service area and not more than five hundred (500) feet
from the Grantee's existing distribution facilities and associated distribution equipment. The
Grantee shall furnish one cable television video outlet for the West Memphis Municipal Airport
office. An initial connection to each such building will be made free of charge; internal wiring and
additional connections will be done for the cost of time and material only. In no case will there be
a monthly charge for basic or standard service to such buildings.
IA
SECTION 13. RECORDS AND REPORTS.
The City shall have access during normal business hours to all of Grantee's plans,
contracts, engineering, accounting, financial, statistical, and customer service records necessary to
ascertain the Grantee's compliance with the terms of this franchise. The following records and
reports shall be filed with an appropriate City official and shall be available in the local office of
the Grantee:
(1) Grantee Rules and Regulations. Copies of such rules, regulations, terms and
conditions adopted by the Grantee for the conduct of its business.
(2) Annual Gross Revenues. The Grantee shall file with the City reports, during the
period that the Franchise shall be in force, showing the annual gross revenues during
the preceding year, together with the appropriate sum due. Said report shall be filed
within 45 days after the franchise fee payment(s) as established between the City and
the Grantee.
(3) The Grantee will report to the Mayor or his designee quarterly on the progress of
construction until substantial completion of the system.
(4) The Grantee shall file annually with the Mayor or his designee, not later than four (4)
months after the end of its fiscal year during which it accepted a franchise hereunder
and within four (4) months after the end of each subsequent fiscal year, a copy of its
report to its stockholders, and a Gross Receipts letter certified by an officer of the
Grantee, applicable to its operations under said franchise during the fiscal year or
fraction thereof.
(S) The Grantee shall file with the Mayor or his designee within thirty (30) days of a
1~
request or on an annual basis no later than four (4) months after the end of its fiscal
year, a list of all network "down-time" received or experienced during the past year.
All such submitted data shall also include service restoral period. For the purposes of
this provision, a certified copy of a logbook reflecting all such incidents will suffice.
(6) The Grantee shall file annually, as set forth herein, with the Mayor or his designee not
later than four (4) months after the end of its fiscal year during which it accepted a
franchise hereunder and within four (4) months after the end of each subsequent fiscal
year, a copy of its FCC Certificate of Compliance to the Network Technical
Standards.
(7) The Grantee shall file annually with the Mayor or his designee not later than four (4)
months after the end of its fiscal year during which it accepted a franchise hereunder
and within four (4) months after the end of each subsequent fiscal year the following
supplemental information:
a. If anon-public corporation, a list of all current shareholders and bondholders
both of record and beneficial. If a public corporation, a list of all shareholders
who individually or as a concerted group, hold five percent (5%) or more of the
voting stock of the corporation.
b. A current list of all Grantee's officers and directors including addresses and
telephone numbers.
The names, addresses and both business and residential phone numbers of the
Network System Manager and Chief Engineer.
d. One copy of all types of subscriber and user agreements.
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e. Copies of all rules and regulations promulgated by the Grantee during the fiscal
year in the conduct of its business.
8. The Grantee shall file with the City Clerk, all reports required by this Ordinance.
SECTION 14 TERM OF FRANCHISE AND RENEWAL THEREOF.
The franchise requirements 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
period often (10) years from the date of passage of this Ordinance. However, the Franchise and
rights granted by this agreement shall be extended for one additional period of five (5) years if, at
any time prior to thirty-six (36) months before the expiration of the initial term of the franchise
granted hereunder, Grantee fully activates the remaining 200 MHz reserved for digital
programming and maintains the System at a total activated capacity of not less than 750 MHz.
The Grantee may petition the City to renew and renegotiate this franchise pursuant to applicable
law and the City shall not arbitrarily refuse to renew and renegotiate said franchise at such time.
The franchise granted herein is non-exclusive. The City reserves the right to grant additional
franchises for a system in accordance with City, State and Federal Law. In the event that the City
should grant another franchise, said franchise shall not be on terms, or conditions more favorable,
or less burdensome that those imposed herein.
SECTION 15. SYSTEM UPGRADE.
The Grantee hereby agrees to complete an upgrade of its Cable System within eighteen
(18) months from its acceptance of the Franchise as more fully outlined herein:
A. The Grantee agrees that within 18 months of the approval and grant of its Franchise,
it will complete the upgrade of the current System in the City to a bi-directional
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interactive, hybrid fiber coax (HFC) telecommunications network. The resulting
network will be constructed using fiber-to-the-node architecture and provide a
minimum bandwidth capacity of 750 MHz (115 channels), with 550 MHz initially
activated with the remaining 200 MHz reserved for additional services as they are
introduced.
B. The entire system upgrade project will be coordinated with the City and quarterly
progress reports will be provided to the City.
C. The timetable for the project is outlined from the point after the Franchise has been
granted to the Grantee:
(1) 1 - 4 months Field Preparation
Work teams will walk every foot of the current system and
provide detailed as-built maps of the current plant and projected
growth.
(2) 4 - 10 months Design and Construction Preparation
Using a sophisticated CAD system, the full network design will
be provided by the Grantee's design specialists in Shelby County.
RFPs will be issued for materials and services.
(3) 10 months Fiber Network Construction Begins
The distribution fiber rings will be completed first. The
residential construction will immediately follow.
(4) 14 months Communications Center Completed
The communications center and control facility that will provide
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the additional services will be upgraded.
(5) 16 months Residential Certification and Activation
The activation of the new network will begin on a neighborhood-
by-neighborhood basis after quality assurance certification and
compliance is completed.
(6) 18 months Project Completed
All construction and upgrade phases will be completed. All the
Subscribers in the City will have access to the new network.
D. The City reserves the right to have an independent engineer or equivalent audit
system to verify completion.
SECTION 16. CONSTRUCTION OF SYSTEM.
A. A Grantee shall commence new construction of the area as deliniated in the particular
franchise agreement within the time period required in its particular franchise
agreement and such construction shall thereafter be diligently pursued with operations
to commence within the time period as required in its particular franchise agreement.
Grantee shall rebuild its existing cable system to conform to the requirements of
Section 15A. Construction shall proceed in stages if so required in a particular
franchise agreement unless excused for one or more of the following reasons:
Failure to obtain a right or permit of the sort described above required for the
construction or installation of some necessary part of the network, but such
failure shall not excuse or relieve a Grantee or its surety under the bond unless
Grantee can show that it exerted good faith and effort to obtain such right or
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permit within the allowed time.
2. A war or other national emergency which prevents the Grantee from obtaining
materials or instrumentalities for the network or skilled personnel to operate it.
3. A strike or work stoppage affecting construction of the network, a supplier of
some component part of the network, termination or interruption of construction
by order or regulation of a Federal or State agency or Court, or any other cause
beyond a Grantee's control which, upon application by Grantee, the Council of
the City of West Memphis may accept as justification for extending the period
during which the Grantee shall commence construction of the network.
B. Within eighteen (18) months of the commencement of construction, a Grantee shall
have substantially completed construction within the meaning set forth in Section 2-
24 of this Ordinance of the area as delineated in its particular franchise agreement.
C. Material failure to comply with any of the foregoing provisions of this section within
the time specified shall be grounds for the revocation of the franchise.
D. Time shall be of the essence of any franchise granted hereunder. A Grantee shall not
be relieved of its obligations to comply promptly with any provision of this Ordinance
by the failure of the City to enforce prompt compliance.
SECTION 17. EMERGENCY WARNING SYSTEM.
The System will include an emergency warning system which will make it possible for a
designated city official to override the signal on all channels controlled by the Grantee to deliver
emergency messages. This capability will be provided at no cost to the City.
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SECTION 18. CITY CHANNEL.
In accordance with Section 19(3), the Grantee shall make available, one (1) channel for
the exclusive use of the City. The City may, in its sole discretion, adopt any rules it may
determine to be necessary for the implementation of this channel. The use of this channel shall be
at the sole discretion of the City provided, however, such use shall at all times comply with the
applicable state and federal law, and at no time shall the channel be used for commercial purposes.
The City will furnish any equipment necessary to feed programs originated by the City into the
Grantee's network.
Grantee will, upon execution of this agreement, provide a one time capital grant of
$25,000.00 to the City for the purchase of programming equipment in order to support
programming for the City Channel. The primary basis for funding by the Grantee is the
demonstrated need by the City above and beyond the franchise fee. The City demonstrated a need
to purchase certain equipment for the studio and the City Channel and the cost associated with
that equipment. Based upon the assessment by the City of the needs of the community and in
order to assist with the acquisition of production equipment, the Grantee will make this one time
grant.
SECTION 19. EXPANSION OF ACCESS CHANNELS.
After notification by the City, the Grantee will make available for future use the following:
(1) At least one (1)specially-designated, noncommercial public access channel available
on a first come, non-discriminatory basis;
(2) At least one (1) specially-designated channel for educational access;
(3) At lease one (1)specially-designated channel for local governmental uses;
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(4) Leased access made available in accordance with federal law.
Provided, however, these uses may be combined on one or more channels until such time
as additional channels become necessary in the opinion of the City Council and Mayor. The
Grantee may use such channels until such time as the City requests use for the above stated
purposes.
SECTION 20. SEPARATE SYSTEM.
The Grantee will operate the West Memphis, Arkansas system so that it reflects the
interests of the West Memphis community. The Grantee shall make every reasonable effort to
employ people who are residents of West Memphis, Arkansas. The Grantee will operate a
business office or location in West Memphis where local residents can pay bills and conduct
business with the Grantee. Nothing in this Agreement shall be construed so as to prohibit the
Grantee from interconnecting its network with other similar contiguous networks either in the
City, County, or in other Municipalities or States. However, any revenue derived therefrom shall
be proportionately allocated in the calculation of annual gross revenues.
The Grantee shall, if requested by the City, have conducted a technical and economic
feasibility study of any interconnection requested by the City, said study shall be conducted by an
independent agency to be chosen by the City. The results of said study shall be presented to the
City, and, if the study shows such interconnection to be feasible, the Grantee shall, if so instructed
by the City, accomplish said interconnection, each entity affected utilizing the same channel
assignment in the event that the study indicates technical feasibility only, the City may elect, at its
sole discretion, to arrange for compensation to be paid to the Grantee, in an amount sufficient to
assure an economic "break even" by the Grantee and so order the interconnection. In the event
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that the study fails to show technical feasibility, the Grantee shall have no further responsibility for
accomplishing the interconnection.
SECTION 21. COMPLY WITH FCC STANDARDS.
Any modification in the Federal Communications Commissions standards applicable to the
system shall be automatically incorporated in and become a part of the franchise granted to
Grantee in accordance with the requirements of the Federal Communications Commission. If no
date is specified, then within 90 days of the final adoption of any such modification by the Federal
Communications Commission..
SECTION 22 ARKANSAS PROGRAMMING.
The Grantee shall import into West Memphis, Arkansas non-network programming from
at least one (1) television station licensed to Little Rock, Arkansas, (specifically the television
station with rights to carriage of the University of Arkansas sports, as well as, news and public
affairs programming) to the extent it is legally and technically feasible to do.
SECTION 23. MAYOR AUTHORIZED TO EXECUTE JOINT POLES
AGREEMENT.
The Mayor of the City of West Memphis be and is authorized to execute on behalf of the
City of West Memphis an agreement whereby City grants a license to Grantee permitting same
corporation to attach or install its cables, wires and appliances to poles, conduit in trenches and
use the easements of the City for the purpose of furnishing broadband telecommunications system
service for delivery via cable pursuant to the franchise granted by the City. Said agreement shall
provide for Grantee to pay an annual rental fee 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;
provisions to ensure that any expenses incurred by the City of West Memphis in connection with
27
the license shall be borne by Grantee; provisions for adequate insurance and technical
requirements 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 Commission, and the attorney for said Commission.
SECTION 24 DELEGATION OF RESPONSIBILITY OF JOINT POLE
AGREEMENT TO WEST MEMPHIS UTILITY COMMISSION.
In addition to the authority granted the West Memphis Utility Commission by prior
ordinances, the Commission is hereby authorized to carry out and fully implement the agreement
between the City of West Memphis and Grantee 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 ensure that 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 behalf of the City of West Memphis in connection with the licensing of individual
poles to the licensee; to use the forms and procedures 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 25. EXTENSION OF FRANCHISE TO INCLUDE AREAS ANNEXED.
The Grantee shall within one (1) year of notification by the City, extend its Cable
Television System so as to provide service to all residents of newly annexed areas of the City not
then served by a Cable Television System where there are at least 30 dwelling units per mile of
cable plant.
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SECTION 26. SERVICE AREA.
Residents in those areas with an average density of at least thirty (30) homes per mile of
coaxial cable plant, as measured from the nearest point of usable network, shall be provided
service upon payment of the standard installation charge and applicable monthly fees; except that
installations requiring underground or aerial drops in excess of three hundred (300) feet shall be
considered anon-standard installation to be charged to the subscriber at Grantee's actual cost of
installation beyond the first 300 feet. Service to subscribers not meeting those density
requirements shall be provided on a time plus material basis, excluding the cost of the first 300
feet.
SECTION 27. PUBLICATION COSTS.
A Grantee shall assume the costs of publication of its Ordinance and any further
amendments thereto as such publication is required by law. A bill for publication costs shall be
presented to the Grantee by the appropriate City officials upon the Grantee's filing of its
acceptance of this Franchise and the said publication costs shall be paid at that time by the
Grantee.
SECTION 28. ACTIVITIES PROHIBITED.
(a) The Grantee shall not allow its cable or other operations to interfere with television
reception not served by the Grantee, nor shall the operations of the network interfere with,
obstruct or hinder in any manner, the operation of the various utilities serving the residents of the
City. The Grantee shall not perform repair service to television sets and shall not permit any of its
employees, installers or servicemen to perform such services on their own or to recommend how
or by whom such repair services should be performed.
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(b) The Grantee, during the period of the Franchise, or any of its affiliated, subsidiary,
parent organization, or officers holding five percent (5%) or more of outstanding voting stock of
Grantee, shall not, within the corporate limits of the City or within ten (10) miles in any direction,
engage in the retail sale, renting, leasing, or repairing of radio or television receivers or any
appurtenances thereof. Also, they shall not recommend how or by whom such services should be
performed.
SECTION 29. LIMITED PURPOSE.
This Franchise is granted by the Council of the City of West Memphis to the Grantee
solely for the purpose of using the easements, streets, and highways of the City to construct and
operate the Grantee's network and is not intended to convey any copyright or patent privileges
whatsoever.
SECTION 30 NETWORK TECHNICAL STANDARDS.
A. Technical Objectives and Measurements
1. The City reserves the right to:
a. Modify the objectives from time to time;
b. Require additional tests at specific terminal locations to deal with problems of the
network; and
c. Conduct its own inspections of the network on its own motion at any time during
normal business hours with reasonable advance notice. In addition, the City may add
requirements and inspections to conform to local codes and procedures and to protect
the safety and convenience of public ways.
2. Grantee shall equip itself with a copy of these rules and standards and make them
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available both to its employees and to the public at any time during normal business
hours.
3. Grantee shall file with the City, an annual Certificate of Compliance to the objectives
set forth herein. Such Certificate of Compliance shall be signed by and include a
statement of the experience and qualifications of the person or persons performing
said measurements.
4. The network shall be so designed, installed and operated so as to meet the rules and
regulations established by the FCC from time to time.
SECTION 31 MEASUREMENTS.
Network measurements shall be made in accordance with the rules and regulations
established by the FCC for Cable Television Systems from time to time.
SECTION 32. REGULATORY JURISDICTION AND PROCEDURES.
The City shall have continuing regulatory jurisdiction and supervision over the operation
of any franchise granted hereunder.
SECTION 33. VALIDITY AND ACCEPTANCE OF FRANCHISE.
A. The Grantee shall not be excused from complying with any of the terms and
conditions of the Franchise by any failure of the City upon any one or more occasions
to insist upon or to seek compliance with any such terms or conditions. The Grantee
expressly acknowledges that it accepts the Franchise relying upon its own
investigation and understanding of the power and authority of the City to grant the
Franchise. The Grantee, by acceptance, acknowledges that it has not been induced to
accept this Franchise by any understanding or promise or other statement, whether
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verbal or written by or on behalf of the City or by any other third person concerning
any terms and conditions of the Franchise not expressed herein.
The Grantee further acknowledges by acceptance of the Franchise that it has carefully
read the terms and conditions.
B. Within thirty (30) days after the passage of an ordinace granting a franchise to a
Grantee and any amendments thereto, Grantee shall file a written acceptance of the
franchise and any amendments thereto and shall also file all necessary insurance
certificates and the bond if required under the terms of its franchise. This action shall
signify the validity of the franchise and any amendments thereto.
SECTION 34 ADDITIONAL RIGHTS OF THE CITY IN THE FRANCHISE.
A. The City reserves the right during the life of any franchise granted hereunder, to
install and maintain free of charge upon the poles and conduits of the Grantee any wire and pole
fixtures necessary for municipal networks such as police and fire, on the condition that such
installation and maintenance thereof do not interfere with the operations of the Grantee.
B. The City reserves the right during the life of any franchise granted hereunder, to
inspect and supervise all construction or installation work performed subject to the provisions of
this Ordinance to ensure compliance with the terms of the Ordinance as set forth in Section 8
herein.
C. Nothing in this Agreement shall in any way or to any extent be construed to waive,
modify, or abridge the City's right of eminent domain in respect to the Grantee.
D. Any right or power in, or duty impressed upon any officer, employee, department or
board of the City shall be subject to transfer by the City Council or by law to any other officer,
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employee, department or board of the City.
E. The City shall have the First Right of Refusal to set any poles and underground
conduits required. The Grantee shall require permission from the City before constructing or
erecting any new poles or underground conduit.
F. The City reserves all rights not specifically granted herein.
SECTION 35 REVOCATION OF FRANCHISE.
A. In addition to any other right and powers which the City may have, the City reserves
as an additional separate and distinct power to the right to terminate this franchise and all rights
and privileges of the Grantee hereunder.
B. The right to terminate any franchise granted hereunder and rescind all rights and
privileges associated therewith shall be on the following grounds:
1. Substantial noncompliance by the Grantee with any material provision of this
Ordinance or of any supplemental written agreement entered into by and between the
City and the Grantee; or
2. The Grantee becomes insolvent, enters into receivership or liquidation, files an
application for bankruptcy or for composition of creditors, is unable or unwilling to
pay its debts as they mature or is in financial difficulty of sufficient consequence so as
to jeopardize the continued operation of the network; or
Substantial and wilful violation by the Grantee of any Federal Communications
Commission order or ruling or the order or ruling of any other governmental body
having jurisdiction over the Grantee unless the Grantee is lawfully contesting the
legality or applicability of such order or ruling.
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The foregoing shall not constitute a violation or failure to comply in the violation or failure to
comply occurs but is without the fault of a Grantee or occurs as a result of a Force Majeure. A
Grantee shall not be excused by mere economic hardship not by misfeasance or malfeasance of its
directors, officers or employees.
C. In the event that the City shall decide to terminate for cause a franchise granted
hereunder, it shall give the Grantee ninety (90) days written notice of its intention to terminate
and stipulate the cause. If during the ninety (90) day period the cause shall have been cured to the
satisfaction of the City, the City may, at its discretion declare the notice to be null and void. In
any event before a franchise may be terminated, the Grantee must be provided with an
opportunity to be heard before the City Council. Such hearing to be as follows:
1. The Grantee may, within fifteen (I S) days of receipt of the notice, notify the Mayor
that there is a dispute as to whether a violation or failure to comply has, in fact,
occurred. If a notice of dispute of a violation or failure to comply is provided,
imposition of the termination will be stayed until resolution of the dispute at a public
hearing by the Mayor and City Council to address the violation or failure to comply
and the dispute.
2. Unless the City Council directs otherwise, a public hearing will be held within fifteen
(15) days of the City's receipt of the Grantee's notice of dispute.
3. Public notice shall be given of the hearing and the issue(s) which will be addressed at
the hearing.
4. The Mayor and City Council shall hear and consider the issue(s) and shall hear any
person interested therein and shall determine in its discretion whether or not any
34
violation by a Grantee has occurred.
If the Mayor and City Council shall determine that a violation by a Grantee was the
fault of such Grantee and within its control, the City may, by resolution of its City
Council, declare that the franchise of such Grantee shall be terminated unless there is
compliance within such period as the board may fix. Such period shall not be less
than sixty (60) days, provided no opportunity for compliance need be granted for
fraud or misrepresentation.
6. The issue of termination shall be placed upon the agenda of the Mayor and City
Council at the expiration of the time set by it for compliance. The City then may
terminate the franchise forthwith upon finding that a Grantee has failed to achieve
compliance or may further extend the period, in its discretion.
D. Nothing shall prohibit the City from imposing lesser sanctions or censures as set forth
in Section 36 for willful or repeated violations of the material provisions of this franchise, and in
the case of continuing violations each day in which such violation continues shall be considered a
separate and distinct violation.
SECTION 36. PENALTIES.
Whenever the City finds that a Company has allegedly violated one (1) or more terms,
conditions or provisions of its Franchise or this Ordinance, a written notice shall be given to such
Company. The written notice shall describe in reasonable detail, the alleged violation so as to
afford a Company an opportunity to remedy the violation. A Company shall have thirty (30) days
after receipt of such notice to correct or present a plan of action to correct the violation before
the City may resort to the penalties as set out below. A company may, within fifteen (15) days of
35
receipt of the notice, notify the City that there is a dispute as to whether a violation or failure has,
in fact occurred. If notice of a dispute of a violation is provided, imposition of the penalties
outlined below will be stayed until resolution of the dispute at a public hearing by the City to
address the violation and the dispute. Unless the City directs otherwise, a public hearing will be
held within fifteen (15) days of the City's receipt of a Company's notice of dispute. Notice of the
public hearing shall be provided. The hearing shall be before the Mayor and City Council, or
before a person they designate. After resolution of the dispute or if there is no dispute, penalties
for violations as set out below shall be chargeable to the Company as follows, and the City may
determine the amount of the fine for other violations which are not specified in a sum not to
exceed five hundred dollars ($500.00) for each violation, with each day constituting a separate
violation.
(1) Failure to furnish, maintain, or offer all Cable Services to any potential Subscriber
within the City upon valid order of the City: Two Hundred dollars ($200.00) per day,
per violation, for each day that such failure occurs or continues;
(2) Failure to obtain or file evidence of required insurance, construction bond,
performance bond, or other required financial security: Two Hundred dollars
($200.00) per day, per violation, for each day such failure occurs or continues;
(3) Failure to provide access to data, documents, records, or reports to the City as
required by this Ordinance: Two Hundred dollars ($200.00) per day, per violation,
for each day such failure occurs or continues;
(4) Failure to comply with applicable construction, operation, or maintenance standards:
Three Hundred dollars ($300.00) per day, per violation, for each day such failure
36
occurs or continues;
(5) Failure to comply with a rate decision or refund order: Five Hundred dollars
($500.00) per day, per violation, for each day such failure occurs or continues.
(6) For any violations for non-compliance with the customer service standards of Section
6, a Company shall pay Two Hundred dollars ($200.00) per day for each day, or part
thereof, that such non-compliance continues.
(7) Failure to comply with utility locator request in accordance with rules and procedures
of Arkansas Underground Facilities Damage Prevention Act (ACA 14-271-101 et.
seq.): Fifty dollars ($50.00) per Subscriber service interruption per day.
(8) Any other violations of this Ordinance or a Franchise, but not specifically noted in
this Section, shall not exceed Five Hundred dollars ($500.00) per day, per violation.
The City may impose any or all of the above enumerated measures against a Company, which
shall be in addition to any and all other legal or equitable remedies it has under a Franchise or
under any applicable law, including the Arkansas Underground Facilities Damage Prevention Act
ACA 14-271-101, et. seq.
SECTION 37. SUBSCRIBERS ANTENNAS.
The Grantee shall not require the removal, or offer to remove any existing Subscriber's
antenna as a condition or provision of service. However, a subscriber may request in writing the
removal of any existing antenna. Such written request forms that may be developed or used by
the Grantee shall state that the removal of an antenna is not a condition of providing service and
these forms shall be subject to approval by the City before use. Also, the Grantee shall
demonstrate to the satisfaction of the City, adequate insurance protection for the removal of
37
subscriber antennas.
SECTION 38 PERIODIC CUSTOMER SURVEYS.
A. The Grantee shall upon request of the City and at times mutually agreed upon by the
parties, but no more frequent than once every three years conduct a random survey of a
representative sample of customers. Each questionnaire shall be prepared and conducted in good
faith so as to provide a reasonably reliable measure of customer satisfaction with: (1) audio and
signal quality; (2) response to customer complaints; (3) billing practices; (4) programming; and
(5) installation practices.
B. The survey shall be conducted in conformity with standard research procedures
including the use of telephone surveys conducted by an independent person in the business of
regularly conducting such surveys. The survey shall consist of a sample size of 300 customers or
such other sample size as to yield a margin of error of plus or minus six percent or less of the total
customer base.
C. The Grantee shall report the results of the survey and any steps the Grantee maybe
taking in response to the survey within sixty (60) days of the completion of the survey.
D. Notwithstanding anything to the contrary, the Grantee shall be under no obligation to
conduct a survey at any time the Grantee is deemed subject to effective competition under then
applicable state or federal law.
SECTION 39 PERIODIC EVALUATIONS.
The City recognizes that the field of cable television is a relatively new and rapidly
changing industry which may undergo many regulatory, technical, financial, marketing and legal
changes as the industry matures. Therefore, in order to provide for a maximum degree of
38
flexibility in this Franchise, and to help achieve a continued advanced and modern System, the
following evaluation provisions will apply:
A. The City may require, at its sole discretion, evaluation sessions at any time during the
term of this Franchise, provided, however, that without consent of the Grantee there shall not be
more than one evaluation session during any three year period.
B. Topics which may be discussed at any evaluation session include, but are not limited
to, rates, System and channel capacity, System performance, or other significant System
enhancements or improvements, services provided to other communities served by the same
headend, programming, access, municipal uses of cable, Subscriber complaints, judicial rulings,
FCC rulings and any other topics the City or Grantee deem relevant.
C. As a result of an evaluation session, the City or the Grantee may determine that a
change in the terms and provisions of any permit may be required or justified, or additional
services should be provided. If the change is consistent with the policy of the City, the terms of
this Franchise and the needs of the City, and implementation of such change would not
unreasonably add to the cost of providing Services without providing the opportunity to earn
revenue above such costs, the Grantee and the City will, in good faith, negotiate the terms of the
change OT the addition of services and the same shall become effective, sixty (60) days after
approval of any such amendment by both the City and the Grantee.
SECTION 40 FILING AND COMMUNICATION WITH REGULATORY
AGENCIES.
The Grantee shall simultaneously file and maintain with the Mayor or his designee, copies
of all petitions, applications, and communications relating to the franchise granted hereunder
transmitted by the Grantee to all Federal and State regulatory commissions or agencies having
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competent jurisdiction to regulate the operations of any Cable Television System authorized
hereunder.
SECTION 41. FURTHER AGREEMENTS AND WAIVERS.
A. The Grantee agrees as between the Grantee and City, that all construction, operation
and maintenance by theGrantee of any network in the City shall be, and shall be deemed and
construed in all instances and respects to be, under and pursuant to said franchise and not under
or pursuant to any other right, privilege, power, immunity or authority whatsoever.
B. The City of West Memphis has considered the legal, character, financial, technical
and other qualifications of the Grantee and all of the other applicants and the adequacy and
feasibility of its construction arrangements in a full public proceeding and has approved the
Grantee's qualifications thereunder as a part of said full public proceeding, affording due process.
SECTION 42. EOUAL OPPORTUNITY.
In its employment practices, Grantee shall not discriminate against any person on the basis
of race, color, creed, national origin, sex, age, handicap, or marital status.
SECTION 43. SEPARABILITY.
If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any
reason held invalid or unconstitutional by any Court of competent jurisdiction, 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 44. ORDINANCES AND RESOLUTIONS REPEALED.
All ordinances, resolutions or parts thereof in conflict with the provisions of this
Ordinance are hereby repealed. Ordinance No. 929 is hereby specifically repealed.
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SECTION 45. EMERGENCY CLAUSE.
It having been found and determined by the City Council of the City of West Memphis,
Arkansas, that the current cable television franchise ordinance expired on May 7, 1998, and that
cable television service cannot be provided in absence of a franchise, and an urgent and immediate
need exists to renew the cable television franchise in order to continue to provide cable television
service in West Memphis without interruption, an emergency is hereby declared, and this
ordinance being necessary for the preservation of the peace, health, safety and welfare of the
citizens of West Memphis, Arkansas, shall be in full force and effect from and after the date of its
passage and approval.
PASSED AND APPROVED this ~ day of ~u~, , 1998.
OALS, MAYOR
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SPONSORED BY: