AUBURN - CABLE TELEVISION FRANCHISE
CHAPTER 115: CABLE TELEVISION FRANCHISE
| 115.01 Grant of franchise | |||||||||||||||||
| 115.01 GRANT OF FRANCHISE | ||
| The city grants to Auburn Cable Company, a co-partnership with an Indiana situs, and to its successors, assigns, or designees, hereinafter called the "company", the right, authority, power, and non-exclusive franchise to establish, construct, acquire, maintain, and operate a closed circuit electronic cable television system within the city to furnish and sell electronic service from the system to the inhabitants of the city and its environs; to use and to occupy the city utility poles, streets, alleys, and public easements within the corporate limits of the city for the system, including the right to enter and construct, erect, locate, relocate, use, repair, and rebuild in, on, under, over, and across the streets, alleys, and utility poles belonging to the city; and, to erect facilities owned, leased, or otherwise used by the company for the furnishing of closed circuit electronic cable television service within the city and environs thereof during the continuance of the franchise. | ||
| 115.02 REPLACEMENT OF STREETS AND SIDEWALKS | ||
| A) | Any payment, sidewalk, or curbing taken up, or any and all excavations made by the company, shall be done under the supervision and direction of the Board of Works or its representative, and shall be made and done in such a manner as to cause the least inconvenience to the inhabitants of the city and the public generally. All pavements, sidewalks, curbing, and excavations shall be replaced and repaired in as good as or better condition as before, with all convenient speed, at the expense of the company. The company shall at all times make and maintain three separate sets of complete maps, plats, and records showing the exact locations of its facilities located with the public utility poles, streets, alleys, and other public places within the city. One set shall be kept in the office of the Superintendent of Utilities, one in the office of the Street Commissioner, and one in the office of the Building Commissioner. | |
| B) | In the event that at any time during the period of this agreement the city shall lawfully elect to alter any street, alley, utility pole, or other public way, the company, upon reasonable notice by the city, shall remove, relay, or relocate its poles, wires, cables, conduits, or other fixtures at its own expense. All work done by the company on city property shall be done pursuant to city specifications now in force or hereinafter adopted. | |
| 115.03 OPERATION AND RULES FOR COMPANY | ||
| The company shall have the authority to promulgate rules, regulations, and terms and conditions of its business reasonably necessary to enable the company to exercise its rights and perform its services under this agreement and to assure the best service possible to each and all of its customers, subject to the rules and regulations set forth in the remainder of this chapter. The company shall maintain three current sets of these rules, regulations, and terms and conditions of its business, one in the office of the City Building Commissioner, one in the office of the Superintendent of Utilities, and one in the office of the Clerk-Treasurer for public inspection. | ||
| 115.04 POLES TO BE USED FOR DISTRIBUTION | ||
| A) | The poles used for the company's distribution system shall be those erected and maintained by the Auburn Electric Department of the city, when and where practicable, and may be those of the Indiana Bell Telephone Company in the event that city poles are not available and prior permission is granted from Indiana Bell Telephone Company. In addition, all agreements which need to be entered into with the telephone company shall be inspected by and approved by the Board of Works so that the agreements will be mutually satisfactory. When the use of these poles is not practicable or the mutually satisfactory agreements cannot be reached, the company shall have the right to erect and maintain its own poles, as may be necessary for the proper construction, maintenance, and continuity of the distribution system subject to the following conditions. | |
| B) | Plans for the erection of poles which are not in locations already occupied by other poles but which are necessary for the operation of the system or parts of the system shall be filed in detail and in quadruplicate with the Board of Public Works and Safety or its representatives, and they may approve the erection of poles after consideration of any special factors involved. The company shall to the best of its ability consider the desires of persons residing at the location of any proposed poles and of persons who are to receive electronic services provided by these poles. | |
| 115.05 DURATION OR TERM OF FRANCHISE |
| A) | Application for the certificate of authority must be completed and filed by the company within 30 days after the passage, approval, and adoption of this chapter. Construction must be started by the company within one year from the date of the passage, approval, and adoption of this chapter. The term of this franchise granted herein shall be 15 years from the date of the passage, approval, and adoption of this chapter. The initial consideration for this franchise shall be the sum of $2,000 to be paid to the city on or before July 1, | |
| 1974, and this sum shall apply to the fees set forth in ' 160.08. In the event that the company has not begun construction of the electronic cable television system within one year from the date of the passage, approval, and adoption of this chapter, or is not substantially completed within one year following the start of construction, the city may elect, by written notice to the company, to terminate this franchise, rescind all rights, powers, privileges, and authority herein granted, and retain all moneys paid to the city by the company. Substantially completed means that the city shall be 75% wired and service shall be available for 75% of the possible subscribers. | ||
| B) | The company shall have the right to extend the term of this franchise for an additional period of 15 years from the termination of the original term provided that: | |
| 1) | The city through its Common Council approves the performance of the company during the original term. This approval shall be pursuant to a public hearing, and notice of the hearing shall be placed in a newspaper of general circulation within the city on two separate occasions. The publications shall be at least a week apart, and the later notice shall be no less than four days prior to the hearing; | |
| 2) | The company pays to the city after the hearing and within the original term of this franchise $5,000. This sum shall apply to the fees set forth in 160.08; and, | |
| 3) | At least 2,000 persons subscribe to CATV. | |
| 115.06 PSCI OR FCC CONTROL OR OTHER FEDERAL AND STATE REGULATIONS | ||
| If at any time during the duration of this agreement the operation of closed circuit electronic distributions systems comes under the control or is governed by the regulations of the Federal Communications Commission, the Public Service Commission of Indiana, or any other state or federal agency with regulatory power over the company as it is operated, any sections of this chapter which conflict with operation under and in compliance with these regulatory bodies shall, if legally necessary at that time, be altered so as to conform to these regulations. The remainder of the agreement shall not be changed, except as necessary to comply with these regulations. | ||
| 115.07 SERVICES TO BE PROVIDED | ||
| A) The company shall at all times endeavor to provide to the people of the city entertainment which coincides with the preferences of the majority of the customers of the system and which can be reasonably and justifiably provided. This includes services provided by the television networks NBC, ABC, CBS, or their equivalents due to future change. The company agrees to maintain and to keep pace, to the best of its ability, with any technological advances which do not now exist but which may be developed during the term of this agreement. | ||
| B) | The company shall poll the opinion of their viewers by its own means to determine stations and services which will have local preferences and favor. In addition, the company must maintain a local originating facility and offices within the city, maintain a studio in the city limits, televise local sporting events, offer FM stations originating in DeKalb County, provide time and temperature service, maintain a minimum of 20 channel capacity, maintain 24-hour technical maintenance repair from a person stationed within the city limits, make a channel available for reading utility meters in the future, provide an Auburn-exchange (925) telephone, and provide cable service with a return capability to all local schools and the DeKalb High School and DeKalb Junior High School in the event that any CATV services are provided in the county. | |
| 115.08 INSTALLATION; MONTHLY FEES; COMPENSATION TO THE CITY |
| A) | The normal installation fee shall be $10. In the cases in which television sets are located in peculiar, remote, or locations quite distant from the building entry, the company shall not charge a fee greater than actual or wholesale cost plus actual labor. | |
| B) | The maximum monthly rate for the use of the closed-circuit electronic services shall not exceed $ll.40 for each customer. The rate shall not exceed $l.50 for each successive connection in the same dwelling unit. | |
| C) | Any tax, copyright fees, charges, or taxes assessed or assessable against the scheduled installations or services shall be in addition to installation fees and monthly charges. | |
| D) | Any charges for equipment improvements which are ordered by the subscriber to deliver other than conventional CATV services shall be in addition to the charges already listed. Equipment improvements shall not include maintenance of equipment previously installed. | |
| E) | The company agrees that any subscriber may discontinue service at the end of any month without penalty, the company may discontinue service for nonpayment for the service and remove its property from the premises of the subscriber. However, the company may charge a $10 reconnection fee to a subscriber who has suspended service and subsequently elects to become a subscriber. | |
| F) | For the right and privilege of receiving this franchise the company shall pay to the city an amount equal to 3% of the gross subscriber's revenues. However, in the event the Federal Communication Commission later allows their fees to be 3% of the gross total revenues, or in the event that the administrative costs to the city are found to justify an amount of 3% of the gross total revenues and this fee would be approved by the Federal Communications Commission, the franchise fee would be 3% of the gross total revenues. | |
| G) | For the right and privilege of receiving this franchise the company shall pay to the Electric Utility Department an attachment fee of $1 per pole. This application fee must accompany the application. The company shall also pay to the Electric Utility Department an amount equal to $3.25 per pole, per year, payable semiannually on January 1 and July 1 of each year and an amount equal to 1/2 of the annual charge for each city-owned pole that is used by the | |
| company for any part of the preceding six months. All charges for inspections, engineering, rearrangements, removals of the licensee's facilities from the licensor's pole, and other work performed for the licensee, shall be based upon the full cost and expense to the licensor in performing such work for the licensee. The cost to the licensor shall be determined in accordance with the regular and customary methods used by the licensor in determining its costs. The company shall file an annual verified certified public accountant audit with the city concerning the operations of the company. In the event the fees paid to the Indiana Bell Telephone Company are more than that heretofore established to be paid to the Electric Utility Department, the fees and pole rental due the Electric Utility Department, shall immediately be increased to the same amount paid to Indiana Bell Telephone Company. | ||
| 115.09 CHANGE OF RATES | ||
| The aforementioned service rates shall take effect upon the signing of this agreement and shall continue thereafter. However, the company reserves the right to establish new rates in the following manner. |
| A) | Due to the local nature of the company any changes shall be effected in the simplest manner possible. The company shall notify the Board of Works of any proposed rate changes, and shall state the reasons for these changes. The Board of Works shall conduct a public hearing by giving a legal notice thereof twice in a newspaper of general circulation within the city. Each notice shall be a week apart, and the last notice shall be no less than four days prior to this hearing. If the Board of Works desires they may approve the changes and recommend them to the Common Council which can immediately ratify the recommendation and declare and adopt the changes in effect at that time by ordinance. | |
| B) | If not, the procedures shall be as follows: The Board of Works shall designate the City Attorney, or any other representative they select, to meet with the company for the purpose of investigation and verification of the reasons for the proposed changes. The company shall make these records and files available to the Board of Works' representative to make a just and proper decision. | |
| C) | The representative of the Board of Works shall complete his investigation and report on his decision within 30 days or at the second meeting of the Board of Works following the original request for the changes by the company. They may recommend approval on the basis of his findings or may refer the request to a Board of Arbitrators consisting of five members, two to be selected by the Common Council, two to be selected by the company, and the fifth to be selected by the other four members. None shall be members of the city government or owners, partners, or employees of the cable system. This Board of Arbitrators shall render a decision for or against the rate change after 15 days from the date of their appointment to the Board. Any decision made by the Board of Arbitrators shall be in writing, shall be delivered to the company and the city promptly after the decision is made, and shall be binding on all parties concerned. All books, records, maps, and files of the company shall be made available to the Board of Arbitrators on their request. | |
| 115.10 USE OF HOOKUPS BY THE CITY | ||
| In consideration for the rights and privileges granted to the company by the city by virtue of this chapter, the company will provide free installation, use, and service to the city for use at city offices. In the event that the city expands its facilities and additional sets are required for use by the city at city offices, the company shall provide use of the system for the additional sets as may be required at no cost to the city. | ||
| 115.11 USE BY NONPROFIT ORGANIZATIONS | ||
| The company will provide free installation and free monthly service to the DeKalb Memorial Hospital and bona fide charitable organizations, churches, and schools in the city within one year from the start of construction. | ||
| 115.12 INSURANCE AND LIABILITY PROTECTION FOR THE CITY | ||
| A) | It is expressly understood and agreed by and between the company and the city that the company shall protect the city from all loss sustained by the city from any suit, judgment, execution, claim or demand resulting from negligence on the part of the company in the construction, operation, or maintenance of the electronic system within the city. The city shall notify the company within 30 days after presentation of any such claim made against the city. The company shall also protect the city from any suit, judgment, claim, or demand resulting from an alleged copyright infringement. | |
| B) | The company shall carry insurance to protect the company and the city from all claims and liability which may arise or result from or by reason of such loss, injury, or damage. The amount of this insurance shall be as follows: | |
| 1) | Property damage liability - not less than $100,000 for each accident with $100,000 for each policy period. | |
| 2) | Bodily injury or death of persons liability - not less than $100,000 as to any one person, and not less than $300,000 as to any one accident. | |
| 3) | During the actual construction of the electronic system the company shall carry insurance to protect it from all claims under any workman's compensation laws in effect that may apply. All insurance required by this chapter shall remain in force for the entire term of the franchise, and copies, with paid receipts attached thereto, shall be on file with the Clerk-Treasurer of the city. In the event that these copies and receipts are not filed with the city by the time the previous policy has expired, the Board of Works may elect to terminate this franchise. | |
| 115.13 OPERATION OF FRANCHISE |
| A) | 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 any reasonable regulation which the city shall hereafter by resolution or ordinance provide. The franchise shall be subject to and controlled by all of the provisions of the statutes of the state. | |
| B) | The company shall not during the term of this franchise engage in the business of selling or servicing television appliances. | |
| C) | The company shall not assign the franchise except to an affiliated company without the consent in writing of the Board of Public Works and Safety of the city. However, this restriction shall not apply to a bona fide assignment or mortgage of the assets and franchise of the company for the sole purpose of securing a loan from any lending institution. Further, the Board of Public Works and Safety shall not unreasonably withhold its consent from assignment of the franchise to any reputable person or company, if the assignee has the demonstrated ability and means to operate the closed circuit electronic system within the terms of the franchise. In the event that the Federal Communications Commission or the Public Service Commission of Indiana regulates the closed circuit electronic system and as a part of their regulation exclusively regulates the assignment of the franchise and permits, no consent to the transfer of the franchise by the city need be obtained. | |
| D) | The company shall provide at least once a week a complete program log in a newspaper of general circulation within the city. The log shall contain the program to be offered, the place of origin, and the channel or station number. | |
| E) | The company, upon receiving permission to begin construction, shall immediately initiate a public campaign to acquaint the local residents with the services to be provided by CATV. | |
| F) | The company will make use of technical advances and maintain a continuing effort to keep its equipment updated. | |
| G) | The company will present and execute with the Auburn Electric & Water Department a license agreement-pole attachment contract that is suitable to the Board of Public Works and Safety and which is in substantial compliance with any similar agreement executed between the company and Indiana Bell Telephone Company. | |
| H) | The company will attempt to make all repairs and give prompt service whenever needed, with a maximum four hour outage after a receipt of request for service, unless an act of God prohibits the restoration of service in that period of time. | |
| I) | The company will not be required pursuant to the terms of this franchise to internally wire the residence or structure of a user, and any existing wiring in a structure shall not be removed by the company. | |
| J) | The city has been informed that the company is composed of, among others, five partners who are either local residents or local businessmen: George Witwer, Roger Wertenberger, Norman N. Rohm, Robert D. Ball, and James McIntyre. The company represents that in the event that any of these five partners desire to terminate or liquidate their interest, their interest shall be first offered or made available to local residents or local businessmen. | |
| 115.14 COMPLAINTS | ||
| All complaints received by the company shall be kept at its local office in a file that shall be open to the public. The company will investigate and resolve all complaints regarding the quality of service, equipment malfunctions, and similar matters. The city reserves the exclusive right to terminate this franchise and rescind all rights, powers, privileges, and authority herein granted by written notice to the company, if after construction is completed, the company fails to provide adequate service under the terms of the franchise for any period of six months after notice that service is not adequate in a particular respect. | ||
| 115.15 PROVISIONS OF CHAPTER TO BIND ASSIGNEES | ||
| All provisions of this chapter shall be binding upon the company and its successors, lessees, and assigns whether expressly stated herein or not, and all the rights, privileges, authorities, powers, and grants secured herein shall be held to inure to the benefit of the company. All of the company's successors, lessees, and assigns shall be bound by the terms of this chapter as if they were the company itself and obligated to the duties, rules, and regulations described herein. | ||
| 115.16 WAIVERS AND AMENDMENTS | ||
| A) | Auburn Cable Company requests permission to change its name to DeKalb Cable Company, and the city recognizes the DeKalb Cable Company as the franchise for cable television. | |
| B) | DeKalb Cable Company notifies the city that the application for the certificate of authority was filed on or about May 21, 1974, after a delay caused by required printing and delivery of the franchise ordinance to the Federal Communications Commission. The city waives the formal requirements for filing within 30 days. | |
| C) | The city acknowledges receipt of the payment of $2,000 which is the initial consideration of this franchise, on or about June 23, 1975, waives the requirement for payment on or before July 1, l974, and recognizes the delay caused by the certification procedures of the Federal Communications Commission. | |
| D) | Because of the delay in certification procedures by the Federal Communications Commission, the initial construction date is waived. However, in consideration of this waiver, construction must be substantially completed pursuant to the terms herein above identified on or before March 2, 1976. | |
| E) | The city acknowledges receipt of notice that certain interests of previous local investors have been assigned to two remaining local investors, George Witwer and Robert Ball. | |
| F) | This chapter is hereby extended for 15 years from and beyond its original expiration date, so that the cable television franchise shall now remain in full force and effect until March 2, 2004. All other terms and conditions of this chapter shall remain in full force and effect, except as modified by the Federal Communications Commission. | |
| 115.17 PUBLIC ACCESS; PROGRAM SCHEDULING |
| A) | The Arts and Humanities Commission is charged with the responsibility of meeting with any television broadcaster to determine television program schedules through public access and/or public origination channels provided by the cable company or companies. | |
| B) | A representative of the Arts and Humanities Commission shall meet with the Common Council of the city once each month on the first meeting of each month to recommend programming schedules for the cable system for public access and public origination television. | |
| C) | The Common Council of the city shall approve, amend, modify or reject the scheduling as presented by the Arts and Humanities Commission. | |
| D) | The Common Council shall empower the Arts and Humanities Commission to present the programming schedule to the broadcast originator or the cable TV system within two calendar days of the final approval by the Common Council. | |
| E) | The Common Council is empowered to approve, on motion, the scheduling as presented by the Arts and Humanities Commission. The approval shall be subject only to unforeseen scheduling difficulties and emergency situations. | |
| F) | The television broadcaster or cable distribution company shall immediately notify the Clerk-Treasurer of the city, at such times as there may be an emergency situation or scheduling difficulties. The Clerk-Treasurer shall be empowered to make any decisions necessary to resolve the emergency or scheduling difficulties. | |
| G) | This section incorporates by reference a certain agreement entered into between the city and TV 7. | |
| H) | If TV 7 ceases to operate, then the franchised cable system in operation shall be accorded up to nine months from the date of cessation of TV 7 within which time to continue public access and public organization programming. | |