City of Bowie, MD - City Code - Chapter 12

The provisions of this Chapter shall take effect and be in force from and after passage. All prior ordinances or parts of ordinances in conflict with the provisions of this Chapter are repealed as of that date.

C. Findings and purpose.

(1) The City Council finds that the further development of cable communications may result in great benefits for the people of the City. Cable technology is rapidly changing, and cable plays an essential role as part of the City's basic infrastructure. Cable television systems occupy and extensively make use of scarce and valuable public rights-of-way, in a manner different from the way in which the general public uses them, and in a manner reserved primarily for those who provide essential services to the public subject to special public interest obligations, such as utility companies. The City Council finds that public convenience, safety, and general welfare can best be served by establishing regulatory powers vested in the City Council or such persons as the City Council so designates to protect the public and to ensure that any franchise granted is operated in the public interest.

(2) The City further finds that cable systems have the capacity to provide not only entertainment and information services to the City's residents, but can provide a variety of broad and, interactive communications services to institutions and individuals.

(3) In light of the foregoing, the following goals, among others, underlie the provisions set forth in this Chapter:

(a) Cable service should be available to all City residents.

(b) A cable system should be capable of accommodating both present and reasonably foreseeable future cable-related needs of the City.

(c) A cable system should be constructed and maintained during a franchise term so that changes in technology may be integrated to the maximum extent possible into existing system facilities.

(d) A cable system should be responsive to the needs and interests of the local community, and should provide a diversity of information sources and services to the public.

(e) A cable operator should pay fair compensation to the City for the use of local public rights-of-way.

(4) All provisions set forth in this Chapter shall be construed to serve the public interest and the foregoing public purposes, and any franchise issued pursuant to this Chapter shall be construed to include the foregoing findings and public purposes as integral parts thereof.

D. Delegation of powers.

The City Council may delegate the performance of any act, duty, or obligation, or the exercise of any power, under this Chapter or any franchise agreement to any employee, officer, department or agency, except where prohibited by applicable law.

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12-2 Definitions and word usage

A. Usage - general.

For the purposes of this Chapter, the terms, phrases, words, and abbreviations set forth in subsection B of this section shall have the meanings given therein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number, and words in the singular number include the plural number; and the masculine gender includes the feminine gender. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated, words not defined herein shall be given the meaning set forth in Title 47 of the United States Code, as amended, and, if not defined therein, their common and ordinary meaning.

B. Definitions.

(1) Access channel: Any channel on a cable system set aside by a franchisee for public, educational, or governmental use.

(2) Affiliate: Any person who owns or controls, is owned or controlled by, or is under common ownership or control with a franchisee.

(3) Basic service: Any service tier that includes the retransmission of local television broadcast signals and/or public, educational, and governmental access signals.

(4) Cable act: The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et seq., as amended from time to time.

(5) Cable service:

(a) The one-way transmission to subscribers of video programming or other programming services; and

(b) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

(6) Cable system or system:

(a) A facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable television service which includes video programming and which is provided to multiple subscribers within the City, but such term does not include:

(1) A facility that serves only to retransmit the television signals of one or more television broadcast stations;

(2) A facility that serves subscribers without using any public rights-of-way;

(3) A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act, except that such facility shall be considered a cable system if such facility is used in the transmission of video programming directly to subscribers;

(4) An open video system that complies with 47 U.S.C. § 573; or

(5) Any facilities of any electric utility used solely for operating its electric utility system.

(b) Any part of a facility described in subsection B(6)(a) of this section, including, without limitation, converters.

(7) Channel: a six megahertz (mhz) frequency band, or equivalent capacity, which is capable of carrying either one standard video signal, a number of audio, digital or other non-video signals or some combination of such signals.

(8) City: The City of Bowie, Maryland, and any agency, department, or agent thereof.

(9) Commission: The City Cable Rate Regulation Commission.

(10) Complaints: Statements from any subscriber, former subscriber, or other City resident expressing concern or dissatisfaction with any aspect of the cable system or the franchisee’s operations, including, without limitation, statements relating to employee courtesy.

(11) Converter: An electronic device which may serve as an interface between a system and a subscriber's television receiver or other terminal equipment, and which may perform a variety of functions, including signal security, descrambling, electronic polling, frequency conversion and channel selection.

(12) Council: The governing body of the City.

(13) Customer: Same as "subscriber."

(14) Educational access channel or educational channel: Any channel on a cable system set aside by a franchisee for educational use.

(15) Fair market value: The price that a willing buyer would pay to a willing seller.

(16) FCC: The Federal Communications Commission, its designee, or any successor governmental entity thereto.

(17) Force majeure: Severe or unusual weather conditions, strike, labor disturbance, lockout, war or act of war (whether an actual declaration of war is made or not), insurrection, riot, act of public enemy, action or inaction of any government instrumentality or public utility including condemnation, accidents for which franchisee is not primarily responsible, fire, flood, or other act of god, sabotage or other events to the extent that such causes or other events are beyond the reasonable control of the franchisee, and only to the extent that any such event affects franchisee’s capacity to perform.

(18) Franchise: A non-exclusive authorization granted pursuant to this chapter to construct, operate, and maintain a cable system along the public rights-of-way to provide cable service within all or a specified area of the City. Any such authorization, in whatever form granted, shall not mean or include any general license or permit required for the privilege of transacting and carrying on a business within the City as required by the ordinances and laws of the City, or for attaching devices to poles or other structures, whether owned by the City or a private entity, or for excavating or performing other work in or along public rights-of-way.

(19) Franchise agreement: A contract entered into pursuant to this Chapter between the City and a franchisee that sets forth, subject to this Chapter, the terms and conditions under which a franchise will be granted and exercised.

(20) Franchise area: The area of the City that a franchisee is authorized or required to serve by its franchise agreement.

(21) Franchisee: A natural person, partnership, domestic or foreign corporation, association, joint venture, or organization of any kind that has been granted a franchise by the City.

(22) Governmental access channel or governmental channel: Any channel on a cable system set aside by a franchisee for government use.

(23) Gross revenues: Any and all cash, credits, property or other consideration of any kind or nature that constitute revenue in accordance with generally accepted accounting principles and that arise from or are attributable to, or in any way derived directly or indirectly by a franchisee or its affiliates, or by any other entity that is a cable operator of the franchisee's system to provide cable services except as hereinafter specifically excluded, and including, without limitation, to the extent derived from the operation of a franchisee's cable system to provide cable services in the City, monthly fees collected from subscribers from any basic, optional, premium, per-channel, per-program services, or cable programming service; installation, disconnection, reconnection, and change-in-service fees; fees, payments, or other consideration received from programmers for carriage of programming on franchisee's cable system; revenues from rentals or sales of converters or other equipment; studio rental; fees from third party unaffiliated programmers for leased access programming; production equipment, rental fee and personal fees, advertising revenues, net of normal agency commissions; revenues from the sale or carriage of other cable services; revenues from leased channel fees; late fees and administrative fees; fees, payments, or other consideration received from programmers for carriage of programming on the system; revenues from internet access services, revenues from home shopping and bank-at-home channels; and revenues from the sale of cable guides.

Gross revenues shall not include any taxes on services furnished by a franchisee which are imposed directly on any subscriber or user by the community or another governmental unit and which are collected by the franchisee on behalf of said governmental unit. A franchise fee is not such a tax.

Gross revenues shall not include (i) any consideration paid by the county to a franchisee for an institutional network ("i-net"), or any expense reimbursement paid by the county or its agents, or by peg users, to the franchisee; (ii) any compensation awarded to a franchisee based on the county's condemnation of property of the franchisee; (iii) any uncollected receipts (i.e., "bad debt"), provided, however, that all or any part of any such actual bad debt that is written off but subsequently collected shall be included in gross revenues in the period collected. Any amounts includable as gross revenues that are received by an affiliate or any other entity that is a cable operator of franchisee's cable system shall not be counted as gross revenues to the extent that such amounts are also received directly by the franchisee, to ensure that no such revenue is counted twice.

(24) Installation: The connection of system services to subscribers' television receivers or other subscriber-owned or provided terminal equipment.

(25) Leased access channel or commercial access channel: Any channel on a cable system designated or dedicated for use by a person unaffiliated with the franchisee.

(26) Net profit: The amount remaining after deducting from gross revenues all of the actual, direct and indirect, expenses associated with operating the cable system, including the franchise fee, interest, depreciation, and federal or state income taxes.

(27) Normal business hours: Those hours during which most similar businesses in the community are open to serve customers, including some evening hours at least one night per week and/or some weekend hours.

(28) Normal operating conditions: Those service conditions that are within the control of a franchisee. Conditions that are not within the control of a franchisee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe weather conditions. Conditions that are ordinarily within the control of a franchisee 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 a cable system.

(29) OVS: An open video system that complies with 47 U.S.C. § 653, as amended.

(30) Peg: Public, educational and governmental.

(31) Person: An individual, partnership, association, joint stock company, organization, corporation, or any lawful successor thereto or transferee thereof, but such term does not include the City.

(32) Programmer: Any person or entity that produces or otherwise provides program material or information for transmission by video, audio, digital or other signals, either live or from recorded traces or other storage media, to users or subscribers by means of a cable system.

(33) Public access channel: Any channel on a cable system set aside by a franchisee for use by the general public, including groups and individuals, and which is available for such use on a non-discriminatory basis.

(34) Public rights-of-way: The surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway, easement, or similar property within the City, which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining a cable system. No reference herein, or in any franchise agreement, to a "public right-of-way" shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a franchisee shall be deemed to gain only those rights to use as are properly in the city and as the City may have the undisputed right and power to give.

(35) Public service corporation: Any non-profit, tax exempt organization that has as its primary purpose the provision of services of education, health, civic, charitable, or similar nature on a city-wide basis.

(36) Security fund: A performance bond, letter of credit, or cash deposit, or any or all of these, to the extent required by a franchise agreement.

(37) Service interruption: Loss of picture or sound on one or more cable channels, as described in FCC regulations as of December 1, 1998.

(38) Subscriber: Any person who legally receives any service delivered over a cable system.

(39) Transfer: Any transaction in which:

(a) Any ownership or other right, title, or interest cognizable under FCC regulations of more than ten percent (10%) in a publicly-traded corporation controlling a franchisee, its cable system, or any person that is a cable operator of the cable system (or in the franchisee itself, if it is a publicly-traded corporation) is transferred, sold, assigned, leased, or sublet, directly or indirectly, to an entity that does not presently control the franchisee; or

(b) Any ownership or other right, title, or interest cognizable under FCC regulations of twenty percent (20%) or more in an entity other than a publicly-traded corporation controlling a franchisee, its cable system, or any person that is a cable operator of the cable system (or in the franchisee itself, if it is an entity other than publicly-traded corporation) is transferred, sold, assigned, leased, or sublet, directly or indirectly, to an entity that does not presently control the franchisee; or

(c) There is any transfer of control of a franchisee; or

(d) A franchise is transferred to another entity; or

(e) Any change or substitution occurs in the managing general partners of a franchisee, where applicable; or

(f) A franchisee, or its corporate parents at any level, enter into any transaction that materially increases the debt that is to be borne by the system directly or indirectly, in a manner that creates a risk of an adverse effect on system rates or services.

"Transfer" shall not include transactions in which a franchisee is reorganized within another corporation owned, owning, or commonly controlled with the franchisee, if such transaction does not materially affect the ultimate control of the franchisee or the sources and amounts of funds available to the franchisee. The term “control” for purposes of this definition means the legal or practical ability to exert actual working control over the affairs of the franchisee, either directly or indirectly, whether by contractual agreement, majority ownership interest, any lesser ownership interest, or in any other manner.

(40) User: A person or organization using a channel or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.

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12-3 Grant of franchise

A. Grant.

(1) The City may grant one or more cable franchises, and each such franchise shall be awarded in accordance with and subject to the provisions of this Chapter.

(2) Franchises shall be granted by action of the Council pursuant to applicable law.

(3) No person may construct or operate a cable system without a franchise granted by the City. No person may be granted a franchise unless such person has entered into a franchise agreement with the City pursuant to this Chapter.

(4) The definition of "cable system" contained in Section 12-2 of this Chapter shall not be deemed to circumscribe or limit the valid authority of the City to regulate or franchise the activities of any other communications system or provider of communications services to the full extent permitted by law.

(5) Notwithstanding the definition of "cable system" contained in Section 12-2 of this Chapter, any franchise agreement shall define the services any franchisee is authorized to use the public rights-of-way to provide and that agreement shall supercede any inference to the contrary which may arise from the definition of “cable system" contained in Section 12-2 of this Chapter.

B. Term of franchise.

No franchise shall be granted for a period of more than fifteen (15) years, except that a franchisee may apply for renewal or extension pursuant to applicable law.

C. Franchise characteristics.

(1) A franchise authorizes use of public rights-of-way for installing cables, wires, lines, optical fiber, underground conduit, and other devices necessary and appurtenant to the operation of a cable system to provide cable service within a franchise area, but does not expressly or implicitly authorize a franchisee to provide service to, or install a cable system on, private property without owner consent (except for use of compatible easements pursuant to § 621 of the Cable Act, 47 U.S.C. § 541(a)(2) and common law), or to use publicly or privately owned conduits without a separate agreement with the owners.

(2) A franchise shall constitute both a right and an obligation to provide the cable services regulated by the provisions of this Chapter and the franchise agreement.

(3) A franchise is non-exclusive and will not explicitly or implicitly preclude the issuance of other franchises to operate cable systems within the City; affect the City's right to authorize use of public rights-of-way by other persons to operate cable systems or for other purposes as it determines appropriate; or affect the City's right to itself construct, operate, or maintain a cable system, with or without a franchise.

(4) All privileges prescribed by a franchise shall be subordinate to (without limitation) the City's use and any prior lawful occupancy of the public rights-of-way

(5) The City reserves the right to designate where a franchisee's facilities are to be placed within the public rights-of-way and to resolve any disputes among users of the public rights-of-way.

D. Franchisee subject to other laws, police power.

(1) A franchisee shall at all times be subject to and shall comply with all applicable federal, state, and local laws. A franchisee shall at all times be subject to all lawful exercise of the police power of the City, including all rights the City may have under 47 U.S.C. § 552. Nothing in a franchise agreement shall be deemed to waive the requirements of the various codes and ordinances of the City regarding permits, fees to be paid, or manner of construction.

(2) No course of dealing between a franchisee and the City, or any delay on the part of the City in exercising any rights hereunder, or any acquiescence by the City in the actions of a franchisee that are in contravention of such rights (except to the extent such rights are expressly waived by the City) shall operate as a waiver of any such rights of the City.

(3) The City may, from time to time, issue such reasonable rules and regulations concerning cable systems as are consistent with applicable law.

E. Interpretation of franchise terms.

(1) The provisions of this Chapter and any franchise agreement will be liberally construed in favor of the City in order to effectuate their purposes and objectives and to promote the public interest.

(2) Subject to federal law or regulation, a franchise agreement will be governed by and construed in accordance with the laws of the State of Maryland.

F. Operation of a cable system without a franchise.

(1) Effect.

Any person who occupies the public rights-of-way of the City for the purpose of operating or constructing a cable system or an OVS and who does not hold a valid franchise (or other authority allowing such entity to be in the public rights-of-way to provide video services) from the City shall nonetheless, to the extent allowable by law, be subject to all provisions of this Chapter, including but not limited to its provisions regarding construction and technical standards and franchise fees.

(2) Remedy.

Any person who occupies the public rights-of-way of the City for the purpose of operating or constructing a cable system or an OVS and who does not hold a valid franchise shall apply for a franchise within thirty (30) days of receipt of a written notice by the City that a franchise agreement is required. The City may, in its discretion, require such person to remove such person's property and restore the area to a condition satisfactory to the City within a reasonable time period, as the City shall determine; remove the property itself and restore the area to a satisfactory condition and charge the person the costs therefor; and/or take any other action it is entitled to take under applicable law, including filing for and seeking damages under trespass. In no event shall a franchise be created unless it is issued by action of the City Council and subject to a written franchise agreement.

G. Acts at franchisee's expense.

Any act that a franchisee is or may be required to perform under this Chapter, a franchise agreement, or applicable law, including but not limited to removal, replacement, or modification of the installation of any of its facilities and restoration to City standards and specifications of any damage or disturbance caused to the public rights-of-way as a result of its operations or construction on its behalf, shall be performed at the franchisee's expense, unless expressly provided to the contrary in this Chapter, the franchise agreement, or applicable law.

H. Eminent domain.

Nothing in this Chapter shall be deemed or construed to impair or affect, in any way or to any extent, the City's rights of eminent domain to the extent to which they may apply to any public utility or cable system.

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12-4 Franchise applications.

A. Application required.

(1) A written application shall be filed with the city for grant of an initial franchise or modification of a franchise agreement pursuant to 47 U.S.C. § 545.

(2) To be acceptable for filing, a signed original of the application shall be submitted together with twelve (12) copies. The application must be accompanied by any required application filing fee, conform to any applicable request for proposals, and contain all required information. All applications shall include the names and addresses of persons authorized to act on behalf of all applicants with respect to the application.

(3) All applications accepted for filing shall be made available by the City for public inspection.

B. Application for grant of an initial franchise.

(1) A person may apply for an initial franchise by submitting an application containing the information required in subsection (c) of this section. Upon receipt of such an application, the City may either:

(a) Evaluate the application pursuant to subsection B(3), conducting such investigations as it deems necessary; or

(b) Issue a request for proposals ("RFP"), after conducting, if necessary, a proceeding to identify the future cable-related needs and interests of the community. Any such RFP shall be mailed to the person requesting its issuance and made available to any other interested party. The RFP may contain a proposed franchise agreement.

(2) An applicant shall respond to an RFP by filing an application within the time directed by the City, providing the information and material set forth in subsection (c) of this section. The procedures, instructions, and requirements set forth in the RFP shall be followed by each applicant. Any applicant that has already filed materials pursuant to subsection B(1) of this section need not refile the same materials with its RFP response, but must amplify its application to include any additional or different materials required by the RFP. The City or its designee may seek additional information from any applicant and establish deadlines for the submission of such information.

(3) In evaluating an application for a franchise, the City shall consider, among other things, the following factors:

(a) Whether, and the extent to which, the applicant has substantially complied with the applicable law and the material terms of any existing cable franchise for the City;

(b) Whether the quality of the applicant's service under any existing franchise in the City, including signal quality, response to customer complaints, billing practices, and the like, has been reasonable in light of the needs and interests of the communities served;

(c) Whether the applicant has the financial, technical, and legal qualifications to provide cable service;

(d) Whether the application satisfies any minimum requirements established by the City and is otherwise reasonable and likely to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests;

(e) Whether, to the extent not considered under subsection B(3)(d) of this section, the applicant will provide adequate peg access channel capacity, facilities, or financial support;

(f) Whether issuance of a franchise is warranted in the public interest, considering the immediate and future effect on the public rights-of-way and private property that would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way; the effect of granting a franchise on the ability of cable to meet the cable-related needs and interests of the community; and the comparative superiority or inferiority of competing applications.

(g) Whether, and to what extent, granting the application will have effects on competition in the delivery of cable service in the City.

(h) Whether an applicant has filed materially misleading information in its application or has intentionally withheld information that the applicant lawfully is required to provide.

(4) The City shall provide an opportunity to an applicant to show that it would be inappropriate to deny it a franchise by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of cable systems.

(5) If the City finds that it is in the public interest to issue a franchise, considering without limitation the factors set forth in subsection B(3) of this section, and subject to the applicant's entry into an appropriate franchise agreement, it shall issue a franchise.

(6) If the City does not find that it is in the public interest to issue a franchise, considering without limitation the factors set forth in subsection B(3) of this section, it shall deny the franchise application, in which event the City shall issue a written decision explaining why the franchise was denied.

(7) Prior to deciding whether or not to issue a franchise, the City may hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. The City also may grant or deny a request for a franchise based on its review of an application without further proceedings and may reject any application that is incomplete or fails to respond to an RFP.

(8) This Chapter is not intended and shall not be interpreted to grant any party standing to challenge the denial of an application or the issuance of a franchise unless such standing is necessary to enforce a party’s rights under its franchise agreement or applicable law.

C. Contents of application.

An RFP for the grant of an initial franchise shall require, and any such application shall contain, at a minimum, the following information:

(1) Name and address of the applicant and identification of the ownership and control of the applicant, including: The names and addresses of the ten (10) largest holders of an ownership interest in the applicant and affiliates of the applicant, and all persons with five (5) percent or more ownership interest in the applicant and its affiliates; the persons who control the applicant and its affiliates; all officers and directors of the applicant and its affiliates; and any other business affiliation and cable system ownership interest of each named person.

(2) A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including identification of key personnel.

(3) A demonstration of the applicant's legal qualifications to construct and/or operate the proposed cable system, including but not limited to representations, and factual documentation supporting such representations, regarding each of the following items:

(a) Whether an applicant has had previous requests for a franchise denied by the City or other franchising authorities.

(b) Whether the applicant has the necessary authority under Maryland law to operate a cable system.

(c) Whether the applicant has the necessary authority under federal law to hold the franchise and operate a cable system and that the applicant has, or is qualified to obtain, any necessary federal franchises or waivers required to operate the system proposed.

(d) Whether, at any time during the ten (10) years preceding the submission of the application, the applicant or any officer, director, partner or major shareholder thereof was convicted of any act or omission of such character that the applicant cannot be relied upon to deal truthfully with the City and the subscribers of the cable system, or to substantially comply with its lawful obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anticompetitive acts, fraud, racketeering, or other similar conduct.

(e) Whether any elected official of the City holds a controlling interest in the applicant or an affiliate of the applicant.

(4) A demonstration of the applicant’s financial qualifications to complete the construction and operation of the cable system proposed.

(5) A description of any prior experience in cable system ownership, construction, and operation, and identification of communities in which the applicant or any of its principals have, or have had, a cable franchise or any interest therein.

(6) Identification of the area of the City to be served by the proposed cable system, including a description of the proposed franchise area's boundaries.

(7) A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, headend, and access facilities.

(8) Where applicable, a description of the construction of the proposed system, including an estimate of plant mileage and its location; the proposed construction schedule; and a description, where appropriate, of how services will be converted from existing facilities to new facilities.

(9) A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including peg access channel capacity, facilities, or financial support to meet the community's needs and interests.

(10) If necessary, at the City's discretion, pro forma financial projections for the proposed franchise term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules.

(11) Any other information that may be reasonably necessary to demonstrate compliance with the requirements of this Chapter.

(12) Any additional information that the City may reasonably request of the applicant that is relevant to the City's consideration of the application.

(13) An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the application meets all federal and state law requirements.

(14) The City may, in its discretion and upon request of an applicant, waive in writing the provision of any of the information required by this subsection C.

D. Application for grant of a renewal franchise.

The renewal of any franchise to provide cable service shall be conducted in a manner consistent with section 626 of the Cable Act, 47 U.S.C. § 546, as from time to time amended.

E. Application for modification of a franchise.

An application for modification of a franchise agreement shall include, at minimum, the following information:

(1) The specific modification requested;

(2) The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through, inter alia, submission of financial pro formas;

(3) A statement as to whether the modification is sought pursuant to section 625 of the Cable Act, 47 U.S.C. § 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. § 545;

(4) Any other information that the applicant believes is necessary for the City to make an informed determination on the application for modification; and

(5) An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with all federal and state law requirements.

F. Public hearings.

An applicant shall be notified of any public hearings held in connection with the evaluation of its application and shall be given an opportunity to be heard. In addition, prior to the issuance of a franchise, the City shall provide for the holding of a public hearing within the proposed franchise area, following reasonable notice to the public, at which every applicant and its applications shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard.

G. Acceptance of franchise.

Following approval by the City, any franchise granted pursuant to this Chapter, and the rights, privileges and authority granted by a franchise agreement, shall take effect and be in force from and after the first date on which both the franchisee and the City have accepted and signed the franchise agreement.

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12-5 Filing fees.

A. Amount of fee.

To be acceptable for filing, any application of a type listed in subsection B of this section submitted after the effective date of this Chapter shall be accompanied by a nonrefundable filing fee of five thousand dollars ($5,000), payable to the City, to cover costs incidental to the awarding or enforcement of the franchise, as appropriate.

B. Applications for which fee is required.

(1) Application for an initial franchise or for issuance of an RFP;

(2) Application for renewal of a franchise;

(3) Application for modification of a franchise agreement;

(4) Application for approval of a transfer.

C. Reimbursement of expenses, payments not deemed franchise fees.

To the extent consistent with applicable law:

(1) The City may require the franchisee, or, where applicable, a transferor or transferee, to reimburse the City for its reasonable out-of-pocket expenses in considering the application, including consultants' fees;

(2) No payments made hereunder shall be considered a franchise fee, but shall be deemed to fall within one or more of the exceptions in 47 U.S.C. § 542(g)(2).

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12-6 Provision of cable service

A. Availability of cable service.

A franchisee shall construct and operate its system so as to provide service, if requested, to all residences within City boundaries as they exist on the date of the franchise agreement. With respect to residences in areas of the City annexed thereafter, a franchisee shall construct and operate its systems so as to provide service to all parts of its franchise area having a density of at least twenty (20) residences per mile of system. In addition, all areas which reach such density at any time during the franchise term shall be provided service upon reaching the minimum density.

B. Line extension requirement.

(1) Except as federal law may otherwise require, and subject to the universal service and minimum density requirements specified in subsection A of this section, a franchisee shall, upon request:

(a) Extend its trunk and distribution system to any subscriber located within two hundred fifty feet of a main distribution cable located in the public rights-of-way at its standard installation charge, unless the franchisee demonstrates to the City’s satisfaction that extraordinary circumstances exist; and

(b) Extend its trunk and distribution system to any potential subscriber outside the two hundred fifty foot limit, provided that the franchisee may charge the potential subscriber for the cost of the actual length of the installed drop, or the shortest distance to the point where the franchisee would be required to extend its distribution system, whichever is shorter, except where the franchisee has demonstrated to the City’s satisfaction that extraordinary circumstances exist.

(2) In areas where the minimum density requirement is not met, or where extraordinary circumstances exist, a franchisee shall, upon request, extend its cable system to a potential subscriber, provided that the subscriber shall pay the additional extension costs.

C. Cost sharing.

(1) "Additional extension costs" as used in subsection B(2) of this section shall mean a subscriber's pro rata share of a franchisee's total construction costs at the actual density of affected potential subscribers, less the total construction costs that the franchisee would incur if it were extending its system to make service available to the same number of potential subscribers at a density of twenty (20) residences per mile.

(2) "Total construction costs" are defined for purposes of this subsection as the actual turnkey cost to construct the entire extension including electronics, pole make-ready charges, and labor, but not the cost of the house drop.

D. Continuity of service

(1) It is the right of all subscribers in the franchise area to receive all available services from a franchisee, as those services become available, as long as their financial and other obligations to the franchisee are satisfied.

(2) A franchisee shall ensure that all subscribers receive continuous uninterrupted service. At the City's request, a franchisee shall, as trustee for its successor in interest, operate its system for a temporary period (the "transition period") following the termination, sale, or transfer of its franchise as necessary to maintain service to subscribers, and shall cooperate with the City to assure an orderly transition from it to another franchisee.

(3) During such transition period, a franchisee shall not sell any of the system assets, nor make any physical, material, administrative or operational change that would tend to reduce the quality of service to subscribers, decrease the system's income, or materially increase expenses without the express permission, in writing, of the City.

(4) The City may seek legal and/or equitable relief to enforce the provisions of this section.

(5) The transition period shall be no longer than the reasonable period required to ensure that cable service will be available to subscribers, and shall not be longer than thirty-six (36) months, unless extended by the City for good cause. During the transition period, a franchisee will continue to be obligated to comply with the terms and conditions of the agreement and applicable laws and regulations.

(6) If a franchisee abandons its system during the franchise term, or fails to operate its system in accordance with the terms of its franchise agreement during any transition period, the City, at its option, may operate the system, designate another entity to operate the system temporarily until the franchisee restores service under conditions acceptable to the City or until the franchise is revoked and a new franchisee selected by the City is providing service, or obtain an injunction requiring the franchisee to continue operations. If the City is required to operate or designate another entity to operate the cable system, the franchisee shall reimburse the City or its designee for all reasonable costs and damages incurred that are in excess of the revenues from the cable system.

(7) A franchisee shall forfeit its rights to notice and hearing, and the City Council may by resolution declare the franchisee’s franchise immediately terminated, in addition to any other relief or remedies the City may have under its franchise agreement, this Chapter, or other applicable law, if:

(a) The franchisee fails to provide cable service in accordance with its franchise over a substantial portion of the franchise area for ninety-six (96) consecutive hours, unless the City authorizes a longer interruption of service or the failure is due to force majeure as characterized in its franchise agreement; or

(b) The franchisee, for any period, willfully and without cause refuses to provide cable service in accordance with its franchise over a substantial portion of the franchise area.

(8) The franchisee shall provide, without charge within the franchise territory, one service outlet to each fire station, public school building, police station, public library, and other such buildings used for municipal purposes as may be designated by the City; provided, however, that, if it is necessary to extend the franchisee's trunk or feeder lines more than one thousand (1,000) feet solely to provide service to any such school or public building, the city shall have the option either of paying the franchisee's direct costs for the portion in excess of one thousand (1,000) feet, or of releasing the franchisee from the obligation to provide service to such building. Furthermore, the franchisee shall be permitted to recover, from any public building owner entitled to free service the direct cost of installing, when requested to do so, more than one outlet, or concealed inside wiring, or a service outlet requiring more than two hundred fifty (250) feet of drop cable.

(9) No charge shall be made to the City or any board, bureau or department of the City, or any municipal government for use of the government access channels.

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12-7 Design and construction

A. System construction schedule.

Every franchise agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the cable system.

B. Construction procedures.

(1) A franchisee shall construct, operate and maintain its cable system in strict compliance with all applicable laws, ordinances, rules and regulations, including but not limited to the national electrical safety code and the national fire protection association national electrical code, as such may be amended from time to time.

(2) The system, and all parts thereof, shall be subject to the right of periodic inspection by the City.

(3) No construction, reconstruction, installation, or relocation of the system or any part thereof within the public rights-of-way shall be commenced until all applicable written permits have been obtained from the proper City officials. In any permit so issued, such officials may impose such conditions and regulations as a condition of the granting of the permit as are necessary for the purpose of protecting any structures in the public rights-of-way and for the proper restoration of such public rights-of-way and structures, and for the protection of the public and the continuity of pedestrian and vehicular traffic.

(4) A franchisee shall, by a time specified by the City, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the City by reason of traffic conditions; public safety; public right-of-way construction; public right-of way maintenance or repair (including resurfacing or widening); change of public right-of-way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned communications system, public work or improvement or any government-owned utility; public-right-of-way vacation; or for any other purpose where the convenience of the City would be served thereby; provided, however, that a franchisee shall, in all such cases, have the privilege of abandoning any property in place, after obtaining permission from the City, such permission to be given or withheld in the City's sole discretion.

(5) If any removal, relaying, or relocation is required to accommodate the construction, operation, or repair of the facilities of another person that is authorized to use the public rights-of-way, a franchisee shall, after reasonable advance written notice, take action to effect the necessary changes requested by the responsible entity. The City may resolve disputes as to responsibility for costs associated with the removal, relaying, or relocation of facilities as among entities authorized to install facilities in the public rights-of-way if the parties are unable to do so themselves, and if the matter is not governed by a valid contract between the parties or a state or federal law or regulation.

(6) In the event of an emergency, or where a cable system creates or is contributing to an imminent danger to health, safety, or property, the City may remove, relay, or relocate any or all parts of that cable system without prior notice.

(7) A franchisee shall, on the request of any person holding a building moving permit issued by Prince George's County or the City, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same, and a franchisee shall have the authority to require such payment in advance, except in the case where the requesting person is the City, in which case no such payment shall be required. A franchisee shall be given notice not less than seventy-two (72) hours in advance to arrange for such temporary wire changes.

(8) A franchisee shall participate in any "miss utility" program active in its franchise area with regard to giving and receiving notice of the location of facilities and excavations.

(9) Wherever all electrical and telephone utility wiring is located underground, either at the time of initial construction or subsequently, at the direction of Prince George's County or the City, the television cable shall also be located underground at no expense to the City. If the facilities of either the electric or the telephone utility are aerial, the television facilities may be located underground at the request of a property owner, provided that the difference in cost of the installation shall be paid by the property owner making the request to the franchisee.

(10) The franchisee shall utilize existing poles, conduits and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits or other facilities whether on public property or on privately-owned property until the written approval of the city is obtained. However, no location of any pole or wire-holding structure of the franchisee shall be a vested interest and such poles or structures shall be removed or modified by the franchisee at its own expense whenever the City Department of Public Works determines that the public convenience would be enhanced thereby.

(11) The franchisee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and direction of the city. Trimming of trees on private property shall require written consent of the property owner. All trimming or trees performed by the franchisee shall be done in accordance with the guidelines of the National Arborist Association.

(12) Notwithstanding any other provision of this subsection, a franchisee shall take all necessary steps to avoid damage to any trees, streets, and public or private driveways and any public right-of-way and whenever construction activity creates a risk, however, slight, of such damage, a city engineer shall monitor such activity and may direct the franchisee to take whatever actions the engineer deems necessary to avoid such damage. Wherever necessary to protect and preserve trees, streets, or public or private driveways from damage, franchisee shall use standard or conventional boring techniques for laying cable.

C. Restoration.

Any and all public rights-of-way, public property or private property that is disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance or construction of a cable system shall be repaired, replaced and restored, as appropriate, in substantially the same condition and in a good workmanlike, timely manner, in accordance with the standards for such work set by the City. With respect to damage or disturbances to public rights-of-way, public property, or private property, all repairs and restoration shall be performed in accordance with any applicable State, County or City law or regulation. All repairs, replacements and restoration shall be undertaken within no more than ten (10) days after the damage is incurred, and shall be completed within thirty (30) days to the extent reasonably possible. A franchisee shall guarantee and maintain such restoration for at least one year against defective materials or workmanship or cuts or cracks in pavement surfaces or until such time as pavement is overlaid, whichever is longer.

D. Use of public property.

(1) Should the grades or lines of the public rights-of-way that the franchisee is authorized by a franchise to use and occupy be changed at any time during the term of a franchise, the franchisee shall, if necessary, relocate or change its system so as to conform with the new grades or lines at no cost or expense to the City.

(2) Any alteration to the water mains, sewerage or drainage system or to any City, County, State or other public structures in the public rights-of-way required on account of the presence of a franchisee's system in the public rights-of-way shall be made at the sole cost and expense of the franchisee. During any work of construction, operation or maintenance work on a system, the franchisee shall also protect any and all existing structures belonging to the City or to any other person. All work performed by the franchisee shall be done in the manner prescribed by the City or other officials having jurisdiction therein.

E. Interference with public projects.

Nothing in this chapter or any franchise agreement shall be in preference or hindrance to the right of the City and any board, authority, commission or public service corporation to perform or carry on any public works or public improvements of any description, and should a franchisee's system in any way interfere with the construction, maintenance or repair of such public works or public improvements, the franchisee shall protect or relocate its system, or part thereof, as reasonably directed by any city official, board, authority, commission or public service corporation.

F. Addressing two-way capacity.

A franchise shall address the cable system's two-way capacity and shall include provisions regarding nonvoice return communication.

G. Standby power equipment.

(1) Franchisee shall maintain in constant readiness equipment capable of providing standby power for the cable television system.

(2) Said equipment shall be constructed so as to revert automatically to a standby mode when alternating current power returns.

(3) The franchisee shall comply with all utility and other safety regulations to prevent a standby generator from powering a “dead” utility line so as to cause injury to any person.

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12-8 Test and performance monitoring

A. Performance tests required.

Unless otherwise provided in a cable operator's franchise agreement, not later than ninety (90) calendar days after any new or substantially rebuilt portion of the system is made available for service to subscribers, technical performance tests shall be conducted by the franchisee to demonstrate full compliance with the technical standards of the fcc. Such tests shall be performed by, or under the supervision of, a qualified registered professional engineer or an engineer with proper training and experience. A copy of the report shall be submitted to the City, describing test results, instrumentation, calibration, and test procedures, and the qualifications of the engineer responsible for the tests.

B. Dystem monitor test points required.

System monitor test points shall be established at or near the output of the last amplifier in the longest feeder line, at or near the trunk line extremities, at not fewer than eight (8) widely scattered locations. Testing shall be carried out pursuant to fcc regulations.

C. Additional tests required.

At any time after commencement of service to subscribers, the City may require additional tests, full or partial repeat tests, different test procedures, or tests involving a specific subscriber's terminal. Requests for such additional tests will be made on the basis of complaints received or other evidence indicating an unresolved controversy or significant noncompliance, and such tests will be limited to the particular matter in controversy. The City will endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to the franchisee or to the subscriber.

D. Performance test report.

A copy of the annual performance tests report required by the FCC shall be simultaneously submitted to the City.

E. Consultants authorized.

The City shall have the right to employ qualified consultants if necessary or desirable to assist in the administration of this, or any other section of this Chapter.

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12-9 Channels and facilities for public, educational and governmental use.

A. Management of channels.

The City may designate one (1) or more entities, including a non-profit access management corporation, to perform any or all of the following functions:

(1) To manage any necessary scheduling or allocation of capacity on the institutional network; and/or

(2) On the city's behalf, to program any public, educational, or governmental access channel. Educational and public access channels shall not be managed by the same entity, provided, however, that until such entities have been designated, the City shall be responsible for these functions.

B. Public access programming rules.

For any public access channel, the entity managing such channel shall establish (i) rules that prohibit the presentation of any advertising material designed to promote the sale of commercial products or services (including advertising by or on behalf of candidates for public office), lottery information, and obscene matter; (ii) rules requiring first-come, nondiscriminatory access; and (iii) rules permitting public inspection of the complete record of the names and addresses of all persons and groups requesting access time. Such a record shall be retained for a period of two (2) years.

C. Use of access channels.

Peg access channel(s) shall be for the noncommercial use of the City and shall be available at no expense to the City and to peg access users.

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12-10 Consumer protection.

A. General provisions.

A franchisee must satisfy the customer service standards set forth in this section. In addition, the franchisee shall at all times satisfy any additional or stricter requirements established by FCC regulations, or other applicable federal, state, or local law or regulation, as the same may be amended from time to time.

B. Construction of Chapter.

(1) Nothing in this Chapter may be construed to prevent or prohibit the City from the following:

(a) Agreeing with a franchisee on customer service requirements that exceed the standards set forth in this Chapter;

(b) Enforcing, through the end of a franchise term, pre-existing customer service requirements that exceed the standards set forth in this Chapter and are contained in current franchise agreements;

(c) Enacting or enforcing any customer service or consumer protection laws or regulations; or

(d) Waiving, for good cause, requirements established in this section.

(2) Nothing in this Chapter in any way relieves a franchisee of its obligation to comply with other applicable consumer protection laws and its franchise agreement.

C. Installations, connections, and other franchisee services.

(1) Installation of drops.

A subscriber's preference as to the point of entry into a residence shall be observed whenever feasible. Runs in building interiors shall be as unobtrusive as possible. A franchisee shall use due care in the process of installation and shall repair any damage to a subscriber's property caused by said installation. Such restoration shall be undertaken within thirty (30) days after the damage is incurred and shall be completed as soon as reasonably possible thereafter.

(2) Location of drops.

In locations where a franchisee's system must be underground, drops must be placed underground as well. In all cases where new developments and subdivisions are to be constructed and to be served in whole or in part by underground power and telephone utilities, the owner or developer of such areas shall provide reasonable notice to the franchisee of the availability of trenches, backfill and specifications of all necessary substructures in order that the franchisee may install all necessary cable facilities. In no event shall such location of cable facilities underground be at any cost or expense to the City.

(3) Time for extension/installation.

Where a franchisee is required under section 12-6 of this Chapter to provide service to a person that resides within two hundred fifty (250) feet from the franchisee’s distribution system, the franchisee must provide such service within seven business days of the person's request. If the person resides more than one hundred twenty-five (125) feet from the franchisee's distribution system, the City may waive this seven-day requirement upon a showing of good cause by the franchisee and provided the franchisee specifies the time period within which service will be provided. This standard shall be met 95% of the time, measured on a quarterly basis.

(4) Antennas and antenna switches.

A franchisee shall adhere to FCC regulations regarding antenna switches. A franchisee shall not, as a condition to providing cable service, require any subscriber or potential subscriber to remove any existing antenna structures for the receipt of over-the-air television signals.

(5) Delinquent accounts.

A franchisee shall use its best efforts to collect on delinquent subscriber accounts before terminating service. In all cases, the franchisee shall provide the customer with at least ten (10) working days written notice prior to disconnection.

(6) Notice of construction activity.

The franchisee shall notify the general public and the City prior to commencing any proposed construction that will significantly disturb or disrupt public property or public right rights-of-way, or have the potential to present a danger or affect the safety of the public generally. Where possible, the franchisee shall publicize proposed construction work at least one week prior to commencement of that work by notifying those residents and others in the immediate vicinity of where work is to be done and most likely to be affected by the work in at least one of the following ways: by telephone, in person, by mail, by distribution of door hangers or flyers to residences, by publication in local newspapers, or in any other manner reasonably calculated to provide adequate notice. Notice to affected persons must include the name and local telephone number of a franchisee representative who is qualified to answer questions concerning proposed construction. In addition, before entering any person's property for proposed construction work in connection with the rebuild for the system upgrade of franchisee's cable system, the franchisee must have permission of the property owner and shall contact the property owner or (in the case of residential property) the resident at least two (2) days in advance, when possible.

D. Telephone and office availability.

(1) Each franchisee shall maintain offices within the City of Bowie at locations convenient to subscribers or as specified in its franchise agreement, that shall be open during normal business hours to allow subscribers to request service, pay bills, and conduct other business.

(2) Each franchisee shall maintain at least one local, toll-free or collect call telephone access line which will be available to subscribers twenty-four (24) hours a day, seven (7) days a week. Trained representatives of a franchisee shall be available to respond to subscriber telephone inquiries during normal business hours.

(3) Each franchisee shall be subject to the following standards, except that such franchisee shall not be subject to penalty as long as it meets such standards under normal operating conditions at least ninety (90) percent of the time, measured quarterly.

(a) Telephone answering time shall not exceed thirty (30) seconds, and the time to transfer the call to a customer service representative (including hold time) shall not exceed an additional thirty (30) seconds.

(b) A customer will receive a busy signal less than three percent (3%) of the time.

(c) When the business office is closed, an answering service where a person receives and records service complaints and inquiries shall be employed. Inquiries received after hours must be responded to by a trained representative of a franchisee on the next business day. To the extent possible, the after-hours answering service shall comply with the same telephone answer time standard set forth in this section.

(4) In any case, at all times a franchisee shall provide an answering machine so that callers will have the option to leave messages.

(5) A franchisee must hire sufficient competent customer service representatives and repair technicians so that it can adequately respond to customer inquiries, complaints, and requests for service in its office, over the phone, and at a subscriber's residence; provide prompt and effective service to subscribers; and, as a rule, complete repairs within a subscriber's home upon a single visit.

E. Scheduling and completing service.

Under normal operating conditions, each of the following standards shall be met by all franchisees at least ninety-five (95%) percent of the time, as measured on a quarterly basis:

(1) Prompt service.

Excluding conditions beyond the control of the franchisee, repairs and maintenance for service interruptions must begin promptly and in no event later than twenty-four (24) hours after the subscriber reports the problem to the franchisee or its representative or the interruption or need for repairs otherwise becomes known to the franchisee. All such work must be completed within three (3) days from the date of the initial request, except installation requests, provided that a franchisee shall complete the work in the shortest time possible where, for reasons beyond the franchisee's control, the work could not be completed in those time periods even with the exercise of all due diligence; the failure of a franchisee to hire sufficient staff or to properly train its staff shall not justify a franchisee's failure to comply with this provision.

(2) Service times.

A franchisee shall perform service calls, installations, and disconnects at least during normal business hours. In addition, maintenance service capability enabling the prompt location and correction of major system malfunctions shall be available Monday through Friday from the end of normal business hours until 12:30 a.m., and from 8:00 a.m. until 12:30 a.m. on Saturdays, Sundays, and Holidays.

(3) Appointments.

The appointment window for installations, service calls, and other installation activities shall be during normal business hours, either at a specific time or within a specified period of no longer than two (2) hours duration, or such greater duration as the City may authorize. Where a subscriber cannot conveniently arrange for a service call or installation during normal business hours, a franchisee shall also schedule service and installation calls outside normal business hours for the express convenience of the subscriber.

(4) Cancellations.

A franchisee may not cancel an appointment with a subscriber after the close of business on the business day preceding the appointment. If a franchisee's representative will be late for a scheduled appointment with a subscriber or will not be able to keep the appointment, the franchisee shall contact the subscriber, and reschedule the appointment, as necessary, at a time which is convenient for the subscriber.

(5) Emergency maintenance.

A franchisee shall keep an emergency system maintenance and repair staff, capable of responding to and repairing system malfunctions or interruptions, on a twenty-four (24) hour basis.

(6) Other inquiries.

Under normal operating conditions, billing inquiries and requests for service, repair, and maintenance not involving service interruptions must be acknowledged by a trained customer service representative within twenty-four (24) hours, or prior to the end of the next business day, whichever is earlier. A franchisee shall respond to all other inquiries within five (5) business days of the inquiry or complaint.

(7) Missed appointments.

If a subscriber experiences a missed appointment due to the fault of a franchisee, the franchisee shall credit the subscriber's account in the amount of twenty (20) dollars for each missed appointment, or grant the subscriber such other equivalent remedy as the subscriber and franchisee may agree upon. The credit or compensation required by this subsection is in addition to any other penalties or liquidated damages to which the franchisee may be subject.

(8) Pickup and replacement of equipment.

Upon subscriber request, a franchisee shall arrange for pickup and/or replacement of converters or other franchisee equipment at the subscriber's address or by a satisfactory equivalent (such as the provision of a postage-prepaid mailer). At a subscriber's request, a franchisee shall make such pickup or replacement at the same time as any disconnection or other related service call, so as to avoid an additional visit. If a franchisee charges a fee for such pickup or replacement, such fee shall be clearly disclosed at the time of the subscriber's request.

F. Interruptions of service.

(1) A franchisee shall, when practicable, schedule and conduct maintenance on its cable system so that interruption of service is minimized and occurs during periods of minimum subscriber use of the cable system. The franchisee shall provide reasonable prior notice to subscribers and the City before interrupting service for planned maintenance or construction, except where such interruption is expected to be one hour or less in duration. Such notice shall be provided by methods reasonably calculated to give subscribers actual notice of the planned interruption.

(2) A franchisee may intentionally interrupt service on the cable system after 7:00 a.m. and before 1:00 a.m. only with good cause and for the shortest time possible and, except in emergency situations, only after publishing notice of service interruption at least twenty-four (24) hours in advance of the service interruption. Service may be intentionally interrupted between 1:00 a.m. and 7:00 a.m. for routine testing, maintenance, and repair, without notification, on any night except Friday, Saturday, or Sunday, or the night preceding a Holiday.

G. Notice to subscribers.

(1) Unless otherwise provided for herein, a franchisee shall provide the following materials to each subscriber at the time cable service is installed, at least annually thereafter, and at any time upon request. Copies of all such materials provided to subscribers shall also be provided to the City.

(a) A written description of products and services offered, including a schedule of rates and charges, a list of channel positions, and a description of programming services, options, and conditions;

(b) A written description of the franchisee's installation and service maintenance policies, delinquent subscriber disconnect and reconnect procedures, and any other of its policies applicable to its subscribers;

(c) Written instructions on how to use the cable service;

(d) Written instructions for placing a service call;

(e) A written description of the franchisee's billing and complaint procedures, including the address and telephone number of the City office responsible for receiving subscriber complaints;

(f) A copy of the service contract, if any (at installation or on request, but need not be provided annually);

(g) Notice regarding subscribers' privacy rights pursuant to 47 U.S.C. § 551;

(h) Notice of the availability of universal remote controls and other compatible equipment (a list of which, specifying brands and models, shall be provided to any subscriber upon request).

(2) Subscribers will be notified of any changes in rates, programming services or channel positions, and any significant changes in any other information required to be provided by this section, as soon as possible in writing, unless such notice is waived by operation of applicable law. Notice must be given to subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the cable operator. Notwithstanding the above, a cable operator shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee, or any other fee, tax, assessment, or charge of any kind imposed by any federal agency, state, or franchising authority on the transaction between the operator and the subscriber.

(3) AAll franchisee promotional materials, announcements, and advertising of residential cable service to subscribers and the general public, in which price information is listed in any manner, shall clearly and accurately disclose price terms. In the case of pay-per-view or pay-per-event programming, all promotional materials must clearly and accurately disclose price terms and in the case of telephone orders, a franchisee shall take appropriate steps to ensure that price terms are clearly and accurately disclosed to potential customers before the order is accepted.

(4) Copies of all notices provided to subscribers under these customer service standards, as well as all promotional or special offers made to subscribers, and of any agreements used with subscribers, shall be filed promptly with the city.

H. Billing.

(1) Bills shall be clear, concise, and understandable. Bills must be fully itemized with itemizations including, but not limited to, basic service, cable programming service, and premium service charges and all equipment charges. Bills shall clearly delineate all activity during the billing period, including optional charges, rebates, and credits.

(2) Refund checks to subscribers shall be issued promptly, but no later than the later of:

(a) The subscriber's next billing cycle, or thirty (30) days, following resolution of the refund request, whichever is earlier; or

(b) The return of all equipment supplied by the franchisee, if service is terminated.

(3) Credits for service shall be issued no later than the subscriber's next billing cycle following the determination that a credit is warranted.

(4) A franchisee's first billing statement after a new installation or service change shall be prorated as appropriate and shall reflect any security deposit.

(5) Late fees will not be assessed for payments after the due date until forty-five (45) days after the beginning of the service period for which the payment is to be rendered. In addition, subscribers will receive the benefit of any change in the late fee amount, and of any increases in the time allowed before assessment of late fees, that may result from litigation over late fees pending as of the effective date of this Chapter.

(6) A franchisee must notify the subscriber that he or she can remit payment in person at the franchisee's business office and inform the subscriber of the address of that office.

(7) Subscribers shall not be charged a late fee or otherwise penalized for any failure by a franchisee, including failure to timely or correctly bill the subscriber, or failure to properly credit the subscriber for a payment timely made.

(8) A subscriber who asks a franchisee for credit for an outage shall receive credit for the actual time period of the outage as a pro rata fraction of the monthly charges for any outage lasting between two (2) and six (6) hours, without reference to the time the subscriber contacts the franchisee. A subscriber shall receive credit for one full day’s monthly charges for any outage of between six (6) and twenty-four (24) hours, whether or not the subscriber reports such an outages, if the franchisee becomes aware of such outages, either through reports by subscribers or otherwise. Each franchisee shall place a message in subscribers’ bills at least quarterly, explaining how to report an outage, how to obtain a credit, and under what conditions credits are available. A franchisee shall also establish a mechanism by which subscribers may reliably and immediately contact the franchisee by telephone and report an outage for credit purposes, either by ensuring that they can reliably and immediately reach a live person or by another method (for example, by leaving a voice message or entering the subscriber’s telephone number). Upon receiving such reports, the franchisee shall promptly contact the subscriber to confirm that the report has been received, and apply the credit to the subscriber’s bill unless the franchisee reasonably concludes that the subscriber’s report is false.

(9) Franchisee shall respond to all written billing complaints from subscribers within thirty (30) days.

I. Disconnection/downgrades.

(1) A subscriber may terminate service at any time.

(2) A franchisee shall promptly disconnect or downgrade any subscriber’s service at such subscriber’s request. No period of notice prior to voluntary termination or downgrade of service may be required of subscribers by any franchisee. So long as the subscriber returns, or permits the franchisee to retrieve, any equipment necessary to receive a service within five (5) business days of the disconnection, no charge may be imposed by any franchisee for any cable service delivered after the date of the disconnect request.

(3) A subscriber may be asked, but not required, to disconnect a franchisee's equipment and return it to the business office.

(4) Any funds due a subscriber on disconnected accounts shall be refunded after any equipment provided by the franchisee has been recovered from the customer’s premises by the franchisee. The refund must be made within thirty (30) days or by the end of the next billing cycle, whichever is earlier, from the date disconnection was requested (or, if later, the date on which any customer premises equipment provided by the franchisee is returned).

(5) If a subscriber fails to pay a monthly subscriber fee or other fee or charge, a franchisee may disconnect the subscriber's service; however, such disconnection shall not be effected until at least forty-five (45) days after the bill is due, plus at least ten (10) days' advance written notice to the subscriber of the franchisee’s intent to disconnect the subscriber’s service, but in no event before the date when the franchisee would be entitled to charge a late fee. If the subscriber pays all amounts due, including late charges, before the date scheduled for disconnection, the franchisee shall not disconnect service. After disconnection, upon payment by the subscriber in full of all proper fees or charges, including the payment of the reconnection charge, if any, the franchisee shall promptly reinstate service.

(6) A franchisee may immediately disconnect a subscriber’s service if the subscriber is damaging or destroying the franchisee's cable system or equipment. After disconnection, the franchisee shall restore service if the subscriber provides adequate assurance that he or she has ceased the practices that led to disconnection and has paid all proper fees and charges, including any reconnection fees and amounts owed the franchisee for damage to its cable system or equipment.

(7) A franchisee may also disconnect service to a subscriber who causes signal leakage in excess of federal limits. A franchisee may disconnect a subscriber’s service without notice to the subscriber where signal leakage is detected originating from the subscriber's premises in excess of federal limits, provided that the franchisee shall immediately notify the subscriber of the problem and, once the problem is corrected, reconnect the subscriber.

(8) The disposition of cable home wiring in residential single-family homes shall be governed by FCC rules regarding cable home wiring as of December 1, 1998.

(9) A franchisee shall reconnect service to customers wishing restoration of service, provided such a customer shall first satisfy any previous obligations owed.

J. Changes in service.

(1) At the time a franchisee alters the service it provides to a class of subscribers, it must provide notice to each subscriber thirty (30) days in advance, which notice shall explain the substance and full effect of the alteration and provide the subscriber the right to opt to receive any combination of services thereafter offered by franchisee.

(2) No charge may be made for any service or product that the subscriber has not affirmatively indicated he or she wishes to receive.

K. Program blocking option.

A franchisee shall make available to any subscriber, upon request, the option of blocking the video or audio portion of any channel or channels of programming entering the subscriber's home. The control option described herein shall be made available when any cable service is provided, or reasonably soon thereafter.

L. Enforcement.

(1) A franchisee shall keep such records as are necessary to show compliance with these customer service standards and fcc customer service standards.

(2) The city shall have the right to observe and inspect a franchisee's customer service procedures.

(3) Except as prohibited by federal law, a franchisee shall be subject to penalties, forfeitures and any other remedies or sanctions available under federal, state or local law, including without limitation this Chapter and a franchisee's franchise with the City, if it fails to comply with the standards herein.

(4) A franchisee shall not be subject to penalties or liquidated damages as a result of any violations of these customer service standards that are due to force majeure as characterized in its franchise agreement.

M. Anticompetitive acts prohibited

(1) No franchisee or ovs operator shall demand the exclusive right to provide cable service to a person or location as a condition of extending cable service or a cable system. This provision is not intended and shall not be interpreted;

(a) To prohibit voluntary exclusive agreements to provide cable service;

(b) To create any private cause of action for any person; or;

(c) To prohibit exclusive agreements permitted by federal law.

(2) No franchisee or OVS operator shall engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which is to hinder significantly or to prevent any multichannel video programming distributor, as defined in federal law, from providing cable service or services similar to cable service in the City. This provision does not apply to methods, acts or practices allowed by federal or state law. Any allegation that a franchisee has engaged in methods, acts or practices that would be prohibited by this paragraph will be considered by the city only after exhaustion of federal remedies. This paragraph is not intended to create a private cause of action.

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12-11 Rate regulation; enforcement of consumer protection, customer service standards

A. Legal authority.

(1) The commission shall enforce the rate regulations promulgated by the FCC in 47 CFR 76.922, et seq., for the establishment of initial basic cable service and associated equipment rates and for basic cable service and associated equipment rate increases. The commission shall further enforce the provisions of this Chapter and any franchise agreement issued pursuant thereto with respect to customer service and consumer protection standards.

(2) With regard to the cable programming service tier, as defined by the Cable Act, and the FCC rules and regulations, and over which the Commission is not empowered to exercise rate regulation, the cable operator shall give notice to the Commission of any change in rates for the cable programming service tier or tiers, any change in the charge for equipment required to receive the tier or tiers, and any changes in the nature of the services provided, including the program services included in the tier or tiers, any change in the charge for equipment required to receive the tier or tiers, and any changes in the nature of the services provided including the program services included in the tier or tiers. The cable operator shall provide such notice thirty (30) days before the changes are to become effective.

B. Submission.

The franchisee shall submit all rate filings on the proper federal forms. All Commission rate proceedings shall be consistent with the rules and regulations promulgated by the FCC.

C. Notice.

Following the receipt by the Commission of the franchisee's request for review of its existing rates for the basic service tier and associated equipment costs, or the franchisee's request for a proposed increase in these rates, or following the receipt by the Commission of information indicating that a violation of any customer service or consumer protection standards imposed by this Chapter or by any franchise agreement issued pursuant to this Chapter may have occurred, the Commission shall hold a public hearing prior to making a final decision on the request for rate review. The public hearing shall be held to provide the franchisee and all other interested persons an opportunity to be heard concerning the request. The Commission shall have the public hearing notice setting forth the time and place of said hearing published, at least once, in a newspaper of general circulation in the city and on the government access channel no less than ten (10) days prior to the date of the hearing. The Commission shall send by certified mail a copy of the public hearing notice to the franchisee at least ten (10) days prior to the date of the hearing.

D. Effective date of rates; tolling orders.

The existing rates will remain in effect or the proposed rates, as appropriate, will become effective after thirty (30) days from the date of receipt of the request, provided, however, that, if the Commission is unable to reach a decision, based upon the material submitted by the franchisee, it may toll the thirty (30) day deadline by issuing a brief written order within the thirty (30) day period explaining that it needs additional time to request and/or consider additional information or to consider the comments from interested persons. The Commission may request an additional ninety (90) days in cases not involving cost-of-service showings, or an additional one hundred fifty (150) days in cases involving cost-of-service showings. The proposed rates shall go into effect or existing rates will remain in effect, as appropriate, at the end of the ninety (90) or one hundred fifty (150) day period, subject to refunds, if the Commission issues a subsequent written decision disapproving any portion of such rates. In order to issue such refunds, the Commission must issue a brief written order to the franchisee by the end of the ninety (90) or one hundred fifty (150) day period, directing the franchisee to keep an accurate account of all amounts received by reason of the rate in issue and on whose behalf such amounts were paid. The maximum one hundred eighty (180) day period may be extended by mutual agreement of the Commission and the franchisee.

E. Proceedings.

(1) Any proceeding conducted by the Commission under this section shall provide a reasonable opportunity for consideration of the views of any interested party, including but not limited to, the City Council or its designee, Bowie Cable CATV Advisory Committee, the franchisee or cable operator, subscribers and residents of the franchise area.

(2) The Commission may require such additional testimony or evidence including technical data as it deems necessary to its determination.

(3) The Commission shall conduct its proceedings in accordance with rules and regulations adopted by the commission. The Commission shall maintain a record of all testimony, evidence and written submissions in its proceedings.

(4) The Commission may exercise all powers under the laws of evidence applicable to administrative proceedings under the laws of the State of Maryland to discover any information relevant to the rate regulation proceeding, including, but not limited to, subpoena, interrogatories, production of documents and deposition.

(5) The Commission may require the attendance as a witness of one or more representatives of the cable operator.

The Commission shall have authority to administer oaths and affirmations; issue subpoenas; examine witnesses; rule upon questions of evidence; take or cause depositions to be taken; and issue notices and orders, take actions and make decisions or recommendations in conformity with this law.

F. Additional information; confidentiality.

In addition to any material or evidence submitted by any party at the hearing, the Commission may require a franchisee to submit any additional information it reasonably deems necessary to its decision. A franchisee, upon submitting information required to be produced in the course of a rate proceeding, may request that such information not be made routinely available for public inspection. The franchisee must identify information it claims is confidential and explain why it is confidential. If the request for confidentiality is denied, the franchisee has five (5) working, days to seek a review of that decision from the FCC.

G. Schedule of fees and charges.

A franchisee shall publish and make available to each potential subscriber a schedule of all applicable fees and charges for providing cable television service and must notify subscribers that basic cable service is available.

H. Waiver, reduction or suspension of fees.

A franchisee may, at its own discretion, waive, reduce, or suspend connection fees for specific or indeterminate periods and/or monthly service fees for periods not to exceed thirty (30) days for promotional purposes, where allowed by federal regulations. The franchisee shall not, with regard to fees, discriminate or grant any preference or advantage to any person, provided, however, that the franchisee may establish a uniform bulk discount rate structure for basic cable service and associated equipment provided to ten (10) or more dwelling units within an apartment building, condominium, garden apartment, or, townhouse complex under common ownership, or to ten (10) or more room units within hotels and motels, or to commercial establishments engaged in the sale of television receivers. The franchisee may offer reasonable discounts to senior citizens or other economically disadvantaged group discounts.

I. Decision of the Commission.

Upon completion of the rate proceedings, the Commission shall with reasonably promptness adopt a written decision. All changes in subscriber fees shall be determined by the Commission in accordance with the federal regulations.

J. Remedies.

In addition to any other penalties contained in this Chapter, the Commission may:

(1) Order the franchisee to implement a reduction in basic service tier or associated equipment rates where necessary to bring rates into compliance with the federal standards;

(2) Prescribe a reasonable rate for the basic service tier or associated equipment after it determines that a proposed rate is unreasonable;

(3) Order the franchisee to refund to subscribers that portion of previously paid rates determined to be in excess of the permitted tier charge or above the actual cost of equipment, unless the franchisee has submitted a cost-of-service showing which justifies the rate charged as reasonable. The Commission shall give the franchisee notice and an opportunity to comment prior to ordering the franchisee to refund previously paid rates. The franchisee's liability for refunds is limited to a one (1) year period, except that a franchisee that fails to comply with a valid rate order shall be liable for refunds commencing from the effective date of such order until such time as it complies with such order;

(4) Impose fines or monetary forfeitures, in accordance with section 12-15 of this Chapter on a franchisee that does not comply with a rate decision or refund order.

K. Nondiscrimination.

(1) Subject to applicable law, a franchisee shall establish rates that are nondiscriminatory within the same general class of subscribers and which must be applied fairly and uniformly to all subscribers in the franchisee area for all services. Nothing contained herein shall prohibit a franchisee from offering, by way of illustration and not limitation; (a) discounts to senior citizens or economically disadvantaged groups; (b) discounts to commercial and multiple family dwelling, subscribers billed on a bulk basis; (c) promotional discounts; or (d) reduced installation rates for subscribers who have multiple services.

(2) The provisions of this section shall apply to all rates, whether or not they are otherwise subject to rate regulation, except to the extent specifically prohibited by law.

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12-12 Franchise fee

A. Finding.

The City finds that public rights-of-way of the City to be used by a franchisee for the operation of a cable system are valuable public property acquired and maintained by the City. The City further finds that the grant of a franchise to use public rights-of-way is a valuable property right without which a franchisee would be required to invest substantial capital.

B. Payment of franchise fee.

Each franchisee shall pay a franchise fee of five (5) percent of gross revenues.

C. Method of payment.

The franchisee shall file with the City, within thirty (30) days after the expiration of each of the franchisee's fiscal quarters, a financial statement clearly showing the gross revenues received by the franchisee during the preceding quarter. The quarterly portion of the franchise fee shall be payable to the City at the time such statement is filed.

D. Not a tax or in lieu of any other tax or fee.

(1) Payment of the franchise fee shall not be considered a tax or in lieu of other taxes or fees of general applicability imposed by the City. The franchise fee is in addition to all other taxes and payments that a franchisee may be required to pay under its franchise agreement or any federal, state, or local law, and to any other tax, fee, or assessment imposed by utilities and cable operators for use of their services, facilities, or equipment, including any applicable amusement taxes, except to the extent that such fees, taxes, or assessments must be treated as a franchise fee under Section 642 of the Cable Act, 47 U.S.C. § 522.

(2) No franchisee may designate the franchise fee as a tax in any communication to a subscriber.

E. Late payments.

In the event any franchise fee payment or recomputation amount is not made on or before the required date, the franchisee shall pay additional compensation and interest charges computed from such due date, at an annual rate equal to the commercial prime interest rate of the city's primary depository bank during the period such unpaid amount is owed, in addition to any applicable penalties or liquidated damages.

F. Audit.

(1) The City shall have the right to inspect records, to require a franchisee to provide copies of records at the franchisee's expense, and to audit and to recompute any amounts determined to be payable, whether the records are held by the franchisee, an affiliate, or any other entity that collects or receives funds related to the franchisee's operation in the City, including, but not limited to, any entity that sells advertising on the franchisee's behalf, for a period of five years from the date a payment was made or, if no payment was made, from the date on which the City believes payment was owed, after which time all payments are final.

(2) A franchisee shall be responsible for providing to the City all records necessary to confirm the accurate payment of franchise fees, without regard to who holds such re