AN ORDINANCE GRANTING A CITY FRANCHISE TO ARKANSAS VALLEY CABLE INC., A KANSAS CORPORATION OF BLUE RAPIDS, KANSAS FOR THE RIGHT TO ERECT, MAINTAIN AND OPERATE A COMMUNITY ANTENNA TELEVISION SYSTEM OR CABLE TV SYSTEM IN THE CITY OF MOUNT HOPE, KANSAS, AND SUBSEQUENT ADDITIONS THERETO.
Section 1. Definitions. The following terms, phrases and words as used in this franchise shall, unless the context plainly requires otherwise, have the following meanings:
(a) Community Antenna Television System or Cable TV System shall mean a facility which receives and amplifies audio and visual signals by electrical impulses and distributes such signals to subscribing members of the public for a fixed or periodic fee employing wires or cables passing under, along and upon the streets, avenues, sidewalks, alleys, bridges and highways and other public places, including property of which the city has an easement or right of way, and including facilities which in addition to providing such reception, amplification and distribution are also used to originate and distribute programs or other communication services or materials to such subscribers.
(b) Commercial Subscriber shall mean a person who contracts to receive the signals amplified and distributed by or locally originated and distributed by the company and carried consistent with the CATV rules of the FCC, to provide service to television sets or otherwise exhibits programs to customers or the general public.
(c) Company shall mean the person that is awarded this franchise by the issuing authority to construct and operate a cable TV system in accordance with the provisions of applicable law within the city.
(d) FCC shall mean the Federal Communications Commission as presently constituted by the United States Congress or any successor agency.
(e) Issuing Authority shall mean the city acting by and through its duly elected city council.
(f) Person shall mean any person, firm, partnership, corporation, association and/or any legal entity.
(g) Public Highways shall mean streets, avenues, highways, sidewalks, alleys, bridges or any other property to which the issuing authority does grant a franchise for the use thereof.
(h) Subscriber shall mean a person who contracts to receive the signals, amplified and distributed by or locally originated and distributed by the company and carried consistent with the CATV rules of the FCC to an individual dwelling unit.
Section 2. Authorization Granted. (a) In consideration of the faithful performance and observance of the conditions and reservations herein specified, Arkansas Valley Cable, Inc., under the laws of the State of Kansas and having its registered offices and place of business at Blue Rapids, Kansas, its successors, lessees and assigns, is hereby granted the right to erect, maintain and operate television, radio and music transmission and distribution facilities and additions thereto (and other electronic facilities) under, over, along, across and upon the streets, avenues, sidewalks, alleys and other public places in the City of Mount Hope, Kansas, (hereinafter referred to as the city), and subsequent additions thereto for the purposes of transmitting and distribution community and closed circuit television, radio and music impulses and other electronic impulses, signals and services in accordance with the laws and regulations of the United States of America of the State of Kansas, and this ordinance for a period of 20 years for and after the effective date of this ordinance unless sooner terminated as herein provided.
(b) This ordinance is granted after a full, open and public hearing upon prior notice and opportunity given to all interested parties to be heard and upon careful consideration of eh grantee’s qualifications, including its legal, financial and technical qualifications, the adequacy and feasibility of its construction, maintenance and operation arrangements and the moral character and reputation of its officers and its stockholders.
Section 3. FCC Provisions. This ordinance is issued in accordance with eh provisions required by Section 76.31 of the Rules of the FCC. Such provisions are intended to affect full compliance with the section.
Any modifications of the provisions of Section 76.31 of the rules of the FCC resulting from amendment by the FCC shall be incorporated into this franchise within one year of the adoption of such modification or at the time of a franchise renewal whichever occurs first.
Section 4. Terms and Conditions of Operation. The authorization herein granted is conditioned upon compliance with the following terms and conditions:
(a) That notwithstanding any grant or authority herein elsewhere made, it is expressly understood that the joint use of and existing poles in place owned by the city, Southwestern Bell Telephone Company or others is anticipated. The company shall have the power to erect, locate or relocate any of its towers, pole or poles at any place within the city. The company shall not made use of any towers, pole or poles anywhere within the city which may be owned by the city or by another with whom the city may now or hereafter have a joint user contract which is by reference made a part hereof without compensation by prior agreement with the owner of the towers or poles. In the event of the joint use of existing poles or of poles hereafter to be erected, either by the city or by another under a joint use agreement by the city for the privilege of affixing its cables, amplifiers, conduits and other facilities to such poles, the company shall pay the sums in the manner following, to-wit:
(1) No charge shall be made to the company for such use for the first year from the date construction shall end.
(2) $1 per pole per annum, due and payable on August 1, 1983, for the following year, and annually thereafter.
(b) It is the stated intention of the city that all holders of public licenses and franchises within the corporate limits of the city shall cooperate with the company in the construction, maintenance and operation of its system.
(c) Wires and cables shall be installed underground where all utilities are presently underground and all installations by the company of poles and cables, and all other facilities relative to its operation shall comply with all existing ordinances and regulations and will conform with standards of the National Electrical Code.
(d) The cable TV system shall be installed and maintained in accordance with accepted standards of the industry to the effect that subscribers will receive the highest accepted service.
(e) The cable TV system shall be capable of delivering NTSC color and monochrome signals to standard EIA television receivers, both color and monochrome, and FM radio receivers without attachments except those attachments that would be required to make more than 12 VHF channels receivable. The signals shall be distributed to the receiving sets of individual subscribers without noticeable degradation of color fidelity, picture intelligence, audio distortion or cross channel interference.
(f) The company shall transmit over the cable TV system within the city, the signals of all television stations whose carriage may be required by the FCC. The company shall also transmit the signals of such additional stations as in the opinion of the company best service the interest of subscribers and which may be carried under current FCC rule.
(g) The city shall have the approval rights over all construction plans, and all towers, poles or other equipment erected by the company shall be at locations designated or approved by the governing body of the city.
(h) Any subscriber who desires service but is more than 150 feet from the closest feeder line shall be charged the full cost of expansion needed to gain service.
Section 5. Utility Company Agreements. The company may enter into an agreement with any person or corporation, including telephone company and other utility companies now authorized to erect poles, overhead wires or cables and underground wires or cables for the purpose of sharing these facilities subject to all existing and future ordinances and regulations of the city.
Section 6. Installation and Maintenance Required. (a) All structures, lines and equipment erected by the company within the city shall be located as to cause minimum interference with the use of streets, avenues, sidewalks, alleys, bridges and highways, easements and other public ways and places, and with consideration to the convenience of property owners, and the company shall comply with all reasonable, proper and lawful ordinances of the city now or hereafter in force.
(b) In case the company requires disturbance of pavement, sidewalks, driveway or other surface, it shall at its own expense and in a manner approved by the city, replace and restore the same in as good conditions as before the work was commenced.
(c) In the event the city shall lawfully elect to alter or change any street, avenue, sidewalk, alley, bridge, highway, easement or other public way requiring the relocation of the facilities of the company, the company upon reasonable notice by the city shall remove and relocate its facilities at its own expense and as directed by the city.
(d) The company shall, when necessary, on the request of any person holding an appropriate permit issued by the city, temporarily raise or lower its lines to prevent the moving of any building or other structure. The actual and necessary expense of such temporary removal shall be paid by the person requesting the same and the company shall have the right to require such payment in advance of such temporary removal. The company shall be given at least 48 hours advance notice exclusive of Saturdays, Sundays and holidays to arrange for such temporary removal.
(e) All poles, lines, structures and other facilities of the company in, under, over, along, across and upon the streets, avenues, sidewalks, alleys, bridges and highways, easements and other public grounds or places within the city shall be kept by the company at all times in a safe and sound condition.
Section 7. Not Deemed Public Utility. (a) The company shall at all times during the terms hereof be subject to all lawful exercises of police power by the city and to the reasonable regulations as the city shall hereafter provide by ordinance and regulation, provided however, that eh company is not deemed a public utility except as otherwise provided by the laws of the State of Kansas.
(b) Whenever it is necessary to shut-off or interrupt service for the purpose of making repairs, installations or adjustments, the company shall do so at such times as shall cause the least amount of inconvenience to its customers and the city.
Section 8. Nonexclusive Franchise. The authorization granted by this ordinance is a nonexclusive franchise.
Section 9. Franchise Fee. In consideration of the rights, privileges and franchise hereby granted, and as compensation to the city for the use of its public ways and places by the company, and in lieu of all occupation and license taxes, the company shall annually pay the city on the first day of January of each year during the life of this ordinance a sum equal to one-half of one percent of its gross basic subscriber revenues until subscribers reach 60 percent penetration, at which time the company shall pay annually one percent of its gross basic subscriber revenues from monthly service rates charged its customers in the city and its environs for the preceding calendar year provided, however, that connection and construction charges paid to secure the company’s services or for installation of facilities shall be excluded from the term subscriber revenues. At the time provided herein for such payment, the company shall submit to the city an annual account of its business operation within the city for the preceding year together with all necessary information for the computation of such payment and the books and records of the company shall be available for audit and inspection by the city at any reasonable time within three years after the expiration of any calendar year.
Section 10. Term of Franchise Renewal. This authorization shall be for a period of 20 years from approval of this ordinance and it is not subject to automatic renewal. This franchise may be renewed by the company, its successors and assigns by written agreement between the company and the city, but only after the city has reviewed the operation of the company and is otherwise satisfied that such operation and all the provisions hereof have been fully or substantially complied with.
Section 11. Assignments. The authorization granted by this ordinance shall not be transferred or assigned by the company without approval of the issuing authority which shall not unreasonably withhold such approval.
Section 12. Indemnification and Insurance. The company shall indemnify, protect, defend and save harmless the city from and against lessee and physical damage to property made under the workman’s compensation law which may arise out of or be caused by the erection, maintenance, presence or use or removal of attachments on poles by the company within the city, or by any act of the company, its agents or employees. The company shall carry insurance to protect the city from and against all claims, demands, actions and/or judgments in such amounts as the city deems adequate, proof thereof shall be presented to the city annually and prior to construction or initial installation of the systems.
Section 13. Collection of Compensation from Subscribers. the company shall have the right to charge and collect compensation from all subscribers to whom it shall furnish service, but the company shall not as to rates, charges, service, facilities or in any other respects make or grant any preference or any advantage to any person, or subject any person to any prejudice or disadvantage and provided further that this provision shall not be deemed to prohibit the establishment of graduated scale of charges and classified rates schedules to which any customer coming within such scale of charges or classification shall be entitled. Rates shall be the same for all classifications of customers which are served by the company from identical facilities. A schedule for initial hook-up and monthly charge rates shall be certified to and approved by the governing body of the city prior to the company’s commencing operation of the system shall be certified to and approved by the governing body of the city prior to the company’s commencing operation of the system.
Section 14. Trimming of Trees. The company shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, and public ways and city property in the city at its own expense according to good forestry practices so as to prevent the branches of such trees from being in contact with the wires and cables of the company.
Section 15. Map Required. The city may by ordinance require the company to file a map showing and describing the exact location of all of its facilities within the city’s streets, alleys and public ways including underground cables and equipment. A map shall be provided to the city showing all existing facilities after completion of the system.
Section 16. Sale or Assignment of Franchise. This franchise may be sold, transferred, leased, assigned or otherwise disposed of by the grantee, upon filing with the city clerk a written notice of its intention to do so at least 60 days before the date of such sale, transfer, lease, assignment or other disposition, subject to Section 11.
Section 17. Expanded Service. The company shall offer such expanded services as are practicable and as it deems feasible.
Section 18. Default. Should the company at any time fail to comply with any terms and provisions of this ordinance within a reasonable time after receiving written notice sent by certified United States mail, return receipt requested, from the city setting forth such violation or default, then the authorization may be terminated by the city upon 30 days written notice thereof sent by certified United States mail, return receipt requested, directing the company to correct such violation or show cause why such violation should not be corrected at a public hearing held not less than 30 days from the date of service of such written notice. Continued violation of any of the provisions of this franchise after the hearing herein provided shall cause for the company to cease its operations and remove any and all wires, cables, poles or other property installed by it pursuant to this authorization. Continued violations of the city franchise provisions may be enjoined by the district court.
Section 19. Severability. If any provision, section, subsection, sentence, clause, phrase or other portion of this ordinance or the application thereof to any person or circumstance is held to be unconstitutional, illegal or in conflict by a court of competent jurisdiction, or by any federal agency including the FCC, such finding shall not invalidate the remaining portions of the ordinance.
Section 20. Company’s Responsibilities. It shall be the duty of the company to maintain the system in such a manner as to provide high quality service to the public. The company shall:
(a) Provide a service number to subscribers.
(b) Make service calls in a prompt and reasonable manner.
(c) Perform all construction, maintenance and installations in a good and workmanlike manner.
(d) Maintain equipment, lines, poles and antenna in safe, workmanlike and nonhazardous condition.
(e) Provide representatives to attend city council meetings, upon reasonable notice by the city clerk, with authority to deal with customer complaints.