HomeMy WebLinkAboutO-2489 - Repeals and replaces Ch. 5.68, cable system regulations (5.70)"j..'',...
CITY OF MARYSVILLE
Marysville,Washington
ORDINANCE NO.24 gq
AN ORDINANCE REPEALING CHAPTER 5.68
OF THE MARYSVILLE MUNICIPAL CODE
AND ADOPTING NEW CABLE SYSTEM REGULA nONS
WHEREAS, the City wishes: (i) to promote the availability of high-quality and diverse
Cable Services to residents, the City and other public institutions; (ii) to promote the availability of
diverse information resources to the community; (iii) to promote competitive Cable Services and
rates; (iv) to take advantage of technologies; (v) to enhance educational opportunities throughout
the community and provide opportunities for building a stronger community; and (vi) to allow
flexibility to respond to changes in technology, Subscriber interests and competitive factors within
the cable television industry that will positively affect the health, welfare and well-being of the
community;
WHEREAS, the City, pursuant to applicable federal law, is authorized to grant one or more
nonexclusive Franchises to construct, operate and maintain Cable Systemswithin the City; and
WHEREAS, because of the complex and rapidly changing technology associated with
Cable Systems, the City Council further finds that the public convenience, safety and general
welfare can best be served by establishing regulatory powers that should be vested in the City.It is
further the intent of this Chapter and subsequent amendments to provide for and specify the means
to attain the best possible Cable Service to the public.It is the further intent of this Chapter to
establish regulatory provisions that permit the City to regulate Cable System Franchises to the
maximum extent permitted by federal and state law, including, but not limited to, the Cable
Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition
Act of 1992, the Telecommunications Act of 1996, applicable Federal Communications
Commission regulations and Washington law.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MARYSVILLE,
WASHINGTON DO ORDAIN AS FOLLOWS:
Section 1.Repeal.Chapter 5.68 of the Marysville Municipal Code be and hereby is repealed.
Section 2.Short Title. This Chapter shall constitute the "Cable System Regulations"of the
City of Marysville and may be referred to as such.
Section 3.Deflnitions.
For the purposes of this Chapter, the following words, terms, phrases and their derivations
have the meanings given herein. When not inconsistent with the context, words used in the present
ORDINANCE -1
,.·1'"
tense include the future tense, words in the singular number include the plural number and words in
the plural number include the singular number.
1. "Applicant" means any person or entity that applies for an initial Franchise.
2. "Cable Act" means the Cable Communications Policy Act of 1984 as amended by
the Cable Television Consumer Protection and Competition Act of 1992 and the
Telecommunications Act of 1996, and as any of them may be amended.
3. "Cable Operator" means any person or group of persons,including a Franchisee,
who provide(s) Cable Service over a Cable System and directly or through one or more affiliates
owns a significant interest in such Cable System or who otherwise control(s) or is (are)responsible
for, through any arrangement, the management and operation of such a Cable System.
4. "Cable Service" means the one-way transmission to Subscribers of video
programming or other programming service, and Subscriber interaction,if any, which is required
for the selection or use of such video programming or other programming service.
5. "Cable System" or "System" means any facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control equipment that is
designed to provide Cable Service which includes video programming and which is provided to
multiple Subscribers within a community, but such term does not include (A) a facility that serves
only to retransmit the television signals of one or more television broadcast stations; (B) a facility
that serves Subscribers without using any public Right-of-Way;(C)a facility of a common carrier
which is subject, in whole or in part, to the provisions of Title II of the federal Communications Act
(47 U.S.C. 201 et seq.), except that such facility shall be considered a Cable System (other than for
purposes of Section 62l(c)(47 U.S.C. 54l(c» to the extent such facility is used in the transmission
of video programming directly to Subscribers, unless the extent of such use is solely to provide
interactive on-demand services; (D) an open video system that complies with federal statutes; or (E)
any facilities of any electric utility used solely for operating its electric utility systems.
6. "City" means the City of Marysville, a municipal corporation of the State of
Washington, and all of the area within its boundaries, as such may change from time to time.
7. "City Council" means the Marysville City Council, or its successor, the governing
body of the City.
8."Customer Service Standards" means those customer service standards adopted by
the City Council applicable to cable operators.
9. "FCC" means the Federal Communications Commission.
10. "Franchise" means an Agreement that authorizes a person or entity to construct,
operate, maintain or reconstruct a Cable System. Upon the written acceptance by a Franchisee, the
Agreement constitutes a contract between the City and Franchisee.
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"v
II."Franchise Area" means the area within the jurisdictional boundaries of the City to
be served by a Franchisee, including any areas annexed by the City during the term of a Franchise.
12. "Franchisee" means the person, firm, corporation or entity to whom or which a
Franchise, as hereinabove defined, is granted by the City Council under this Chapter and the lawful
successor, transferee or assignee of said person, firm, corporation or entity.
13. "Right-of-Way" or "Rights-of-Way" means all of the following which have been
dedicated to the public or are hereafter dedicated to the public and maintained under public
authority or by others and are located within the City: streets, roadways, highways, avenues, lanes,
alleys,bridges, sidewalks, easements and similar public property and areas.
14. "Subscriber"means anyperson who or which elects to subscribe to, for anypurpose,
Cable Service provided by a Franchisee by means of or in connection with the Cable System and
whose premises are physically wired and lawfully activated to receive Cable Service from
Franchisee's Cable System.
Section 4.Franchise Grant.
It is unlawful to engage in or commence construction, operation, or maintenance of a Cable
System in the City without a Franchise issued under this Chapter. The City Council may, by
ordinance, issue a nonexclusive Franchise to construct, operate and maintain a Cable System within
all or any portion of the City to any person or entity, whether operating under an existing franchise
or not, who applies for authority to furnish Cable Service which complies with the terms and
conditions of this Chapter, and provided that such person or entity also agrees to comply with all of
the provisions of the Customer Service Standards and the Franchise. However, this shall not be
deemed to require the grant of a Franchise to any particular person or entity. The City Council may
restrict the number of Franchisees should it determine such a restriction would be in the public
interest.
Section 5.Franchise Purposes.
A Franchise granted by the City under the provisions of this Chapter shall:
A.Permit the Franchisee to engage in the business of operating a Cable System and
providing Cable Service within the City;
B.Permit the Franchisee to erect, install, construct, repair, reconstruct, replace and
retain wires, cables, related electronic equipment, conduits and other property in connection with
the operation of the Cable System in, on, over,under, upon, along and across Rights-of-Waywithin
the City; and
C. Set forth the obligations of the Franchiseeunder the Franchise.
ORDINANCE -3
Section 6.Nonexclusive Franchise.
Any Franchise granted pursuant to this Chapter shall be nonexclusive and not preclude the
City from grantingother or future Franchises or permits.
Section 7.Application.
A.An Applicant for an initial Franchise shall submit to the City a written application in
a format provided by the City, at the time and place specified by the City for acceptingapplications,
and accompanied by the designated application fee. An application fee in the amount of $20,000
shall accompany the application to cover costs associated with processing the application,
including, without limitation, costs of administrative review, financial, legal and technical
evaluation of the Applicant, the costs of consultants, notice and publication requirements, and
document preparation expenses. In the event such costs exceed the application fee, the Applicant
shall pay the difference to the City within thirty (30) days following receipt of an itemized
statement of such costs. Conversely,if such costs are less than the application fee, the City shall
refund the difference to the Applicant.
B. Application - Contents. An application for an initial Franchise for a Cable System
shall contain, at a minimum:
I. A statement as to the proposed Franchise and information relating to the
characteristics and location of the proposed System;
2. A resume of prior history of the Applicant, including the expertise of the
Applicant in the Cable Systemfield;
3. Information demonstrating the Applicant's legal, technical and financial
ability to construct and operatethe proposed System;
4. A list of the partners, general and limited,of the Applicant,if a partnership,
members,if a limited liability company, or the percentage of stock owned or controlled by each
stockholderhaving a fivepercent (5%) or greater interest,if a corporation;
5. A list of officers, directors and key employees of the Applicant, together
with a description ofthe background of all such persons;
6. The names and addresses of any parent entity or subsidiary of the Applicant
or any other business entity owning or controlling the Applicant in whole or in part, or owned or
controlled in whole or in part by the Applicant;
7. A proposed construction and service schedule;
8. Any other reasonableinformation that the Citymay request.
ORDINANCE -4
The City shall be allowed the opportunity to ask relevant follow-up questions and
obtain further information from whatever source. A refusal by an Applicant to cooperate or provide
requested information is sufficientgrounds for the City to deny an application.
C. Consideration of InitialFranchise.
1. Upon receipt of an application for an initial Franchise and after obtaining
any additional information the City in its sole discretion deems appropriate from any source, a
hearing shall be scheduled to allow public comment. At the hearing, the CityCouncil shall receive
public comment regardingthe following:
a. Public Benefit. Whether the public will benefit from granting a
Franchiseto the Applicant;
b. Qualifications. Whether the Applicant appears to have adequate
legal, financial and technical qualifications and capabilities to build, operate and maintain a Cable
System in the City;
c. No Conflicting Interests. Whether the Applicant has any conflicting
interests,either financialor commercial, that will be contrary tothe interests of the City;
d. Compliance with the Franchise and Local Laws. Whether the
Applicant will comply with all of the terms and conditions placed upon a Franchisee by the
Franchise, this Chapter, Customer Service Standards and other applicable local laws and
regulations;
e. Compliance with Other Requirements. Whether the Applicant will
comply with all relevant federal and state laws and regulations pertaining to the construction,
operationand maintenance of the Cable System.
D. Within sixty (60) days after the close of the hearing, the City Council shall decide
whether to grant a Franchise and on what conditions. The City Council's decision shall be based
upon the application, any additional information submitted by theApplicant or obtained by the City
from any source, and public comments. The CityCouncil may grant one (1) or more Franchises, or
may declineto grant any Franchise.
Section 8.Duration.
The term of any Franchise, and all rights, privileges, obligations and restrictions pertaining
thereto, shall be specified in the Franchise. The effectivedate of any Franchiseshall be as specified
in the Franchise.
Section 9.Franchise Territory.
Any Franchise granted hereunder shall be valid for those geographic areas specified in the
Franchise.
ORDINANCE -5
Section 10. Police Powers.
In accepting any Franchise, the Franchisee acknowledges that its rights thereunder are
subject to the police powers of the City to adopt and enforce general ordinances necessary for the
health, safety and welfare of the public and, it agrees to comply with all applicable laws enacted by
the City pursuant to such power.
Section 11. Use of Rights-of-Way.
For the purposes of operating and maintaining a System in the City, a Franchisee may place
and maintain within the Rights-of-Way such property and equipment as are necessary and
appurtenant to the operation of the Cable System. Prior to construction or alteration of the System
in the Rights-of-Way, the Franchisee shall procure all necessary permits, pay all applicable fees in
connection therewith, and comply with all applicable laws, regulations, resolutions and ordinances,
including, but not limited to, land use and zoning requirements.
Section 12.Pole or Conduit Agreements.
No Franchise shall relieve Franchisee of any of its obligations involved in obtaining pole or
conduit agreements from any department of the City, any utility company, or from others
maintaining facilities in the Rights-of-Way.
Section 13.Franchise Fees.
The Franchisee shall pay the City franchise fees in accordance with the terms of the
Franchise.
Section 14.Taxes.
Nothing in this Chapter shall limit the Franchisee's obligation to pay applicable local, state
and federal taxes.
Section 15.Other Authorizations.
Franchisee shall comply with and obtain, at its own expense, all permits, licenses and other
authorizations required by federal, state and local laws, rules, regulations and applicable resolutions
and ordinances which are now existing or hereafter lawfully adopted.
Section 16. Rules and Regulations of the City.
In addition to the inherent powers of the City to regulate and control any Franchise it issues,
the authority granted to it by the Cable Act, and those powers expressly reserved by the City, or
agreed to and provided for in a Franchise, the right and power is reserved by the City to promulgate
such additional rules and regulations as it may find necessary in the exercise of its lawful powers
and in furtherance of the terms and conditions of a Franchise and this Chapter, and as permitted by
applicable state and federal law.
ORDINANCE -6
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Section 17.Delegation of Powers.
Any right or power of the City, may be delegated by the City to any officer, employee,
department or board of the City, or to such other person or entity as the City may designate to act on
its behalf.
Section 18.Coverage.
A.Franchisee shall design, construct and maintain its Cable System to pass every
residential dwelling unit in the Franchise Area, subject to any density requirements contained
within the Franchise.
B.Commercial facilities shall be served in accordance with the provisions of the
Franchise.
Section 19.Technical Standards.
Franchisee shall construct, install, operate and maintain its Cable System in a manner
consistent with all enacted and applicable federal, state and local laws and regulations, FCC
technical standards and any other applicable standards set forth in the Franchise.
Section 20.Construction Standards.
A.All facilities constructed or operated under this Chapter shall be installed and
maintained at such places in or upon such Rights-of-Way and public places as shall not interfere
with the free passage of traffic and the free use of adjoining property, and shall conform to federal
standards, Washington requirements, and City regulations.
B.Franchisee shall be subject to any and all requirements established by the City with
regard to the placement and screening of Franchisee's facilities and equipment located in the Rights-
of-Way and on other public property. Such requirements may include, but are not limited to, the
use of landscaping to screen pedestals and cabinets and a requirement that construction be flush
with the natural grade of the surrounding area.
C. The Franchisee shall comply with any applicable ordinances, resolutions, rules,
regulations and policies of the City regarding geographic information systems mapping for users of
the Rights-of-Way, provided that all similarly situated users of the Rights-of-Way must also
accordingly comply.
Section 21.Street Cut or Repair.
The Franchisee shall guarantee the durability and structural integrity of any street cut or
repair made by it or its agents which are necessary for the construction, installation, operation,
repair or maintenance of Franchisee's facilities for the life of the street, provided that no action by a
third party materially affects the integrity of Franchisee's street cut or repair. Franchisee shall repair
or replace, at no expense to the City, any failed street cut or repair which was completed by
Franchisee or Franchisee's agent(s), as determined by the City Engineer.
ORDINANCE -7
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Section22. Safety Requirements.
The Franchisee shall, at all times, employ professional care and install,maintain and use
commonly accepted methods and devices for preventing failures and accidents whichare likelyto
cause damage,injuries,or nuisances to the public.In furtherance thereof,the Franchisee must
complywith the City'straffic control requirements,including,for example,but without limitation,
the use of signal devices,warning signs and flaggers when appropriate.All of Franchisee's
structures,cables,lines,equipment and connections in, over, under and upon the Rights-of-Way
and public ways or other places in the Franchise Area,wherever situated or located,shall at all
timesbekeptand maintained in asafe condition.
Section 23.Regulation ofRates and Charges.
TheCitymay regulate Franchisee's ratesand charges tothefullextent permitted bylaw.
Section 24. Privacy.
The Franchisee wil\ be boundby all of the provisions of applicable federal,stateand local
privacy laws.
Section25.Discriminatory Practices Prohibited.
The Franchisee shall not denyCable Service or otherwise discriminate against Subscribers
or otherson the basis of race,color,religion,national origin,sex,age,disability or other protected
classes.
Section 26.Equal Employment Opportunity.
The Franchisee shall strictly adhereto andcomplywith the equal employment opportunity
requirements offederal, stateandlocallaws.
Section 27.Reimbursement.
To the extent allowed by applicable law,theCitymayrequirea Franchisee to reimburse the
Cityfor the City's reasonable processing and review expenses in connection with a saleortransfer
of a Franchise or a changein control of a Franchise or Franchisee,including,without limitation,
costs of administrative review,financial,legal and technical evaluation of the proposed transferee
or controlling party, costs of consultants,notice and publication costs, and document preparation
expenses.In connection with the foregoing,the Citywil\ send Franchisee an itemized description
of allsuch charges,and Franchisee shallpaysuchamountwithinthirty (30)daysafterthereceipt of
such description.
Section 28. Discounts.
The City encourages Franchisee to provide special rate discounts for certain seruor
Subscribers and permanently disabled Subscribers as follows:
ORDINANCE -8
A.The eligibility for the special rate considerations set forth in this section shall be
limitedto those Subscribers who qualify as a "senior"or as "permanently disabled"underthe City's
prevailing standards and procedures and who must also be eligible for utilitydiscounts from the
City.The Subscriber must alsobe the owner-occupant of a single-family or multiple dwelling unit
residence orthe legally responsible lesseeofa rental residential dwellingor unit.
B.Franchisee is encouraged to waivethe standard installation fee for those dwellings
or units within one hundred twenty-five (125) feet of Franchisee's Cable System for those
Subscribers whoare eligible under subsection A of this section.
Section 29.Franchise Renewal.
Franchise renewals shall be conducted in accordance with applicable law. The City and
Franchisee,by mutual consent,mayenterinto renewal negotiations at anytimeduringthe term of a
Franchise.
Section 30.Franchise Revocation.
Any Franchise granted by the Citymaybe revoked duringthe period of such Franchise,as
provided in the Franchise,subjectto the procedural requirements providedfor therein.A failure by
the Franchisee to comply with any of the material provisions of this Chapter shall be deemed a
material violation ofa Franchise.
Section 31.Acceptance.
No Franchise granted pursuant to the provisions of this Chapter shall become effective
unlessanduntil theordinancegrantingthe samehasbecome effective.Within forty-five (45)days
after the adoption by the City Council of the ordinance awarding a Franchise,or within such
extended period of time asthe CityCouncilin its discretion may authorize,the Franchisee shallfile
withtheCityClerkits writtenand unconditional acceptance of the Franchise.
Section 32.Conflicts.
Wherea Franchise and this Chapter conflict,bothshallbe liberally interpreted to achieve a
common meaningor requirement.In the eventthatthisis notpossiblewithin reasonable limits,the
Franchise shall prevail.
Section 33.MiscellaneousProvisions.
A.This Chapter shall be construed in a manner consistent with all applicable federal,
stateandlocal laws,andshallapplyto any Franchise hereafter accepted bya Franchisee.
B. The captions throughout this Chapterare intended to facilitate the reading hereof
Suchcaptionsshallnotaffectthemeaningor interpretation ofanypart of this Chapter.
ORDINANCE -9
C. A Franchisee shall not be relieved of its obligations to comply with any or all of the
provisions of this Chapter by reason of any failure of the City to demand prompt compliance.
D. The provisions of this Chapter shall apply to all Cable Operators and Cable Systems
to the greatest extent permissible under applicable law.
E. This Ordinance shall be codified in the Marysville Municipal Code as Chapter 5.70
and be entitled "Cable System Regulations".
Section 34.Severability.
If any section, subsection, paragraph or provision of this Chapter is determined to be illegal,
invalid or unconstitutional by any court or agency of competent jurisdiction,such determination
shall have no effect on the validity of any other section, subsection, paragraph or provision of this
Chapter, all of which will remain in full force and effect.
~:ssED by the City Council and APPROVED by the Mayor this
.~,2003.
.,4d:J day of
CITY OF MARYSVILLE
By (Lr/uL1I4
DAVID A.WEISER, Mayor
ATIEST:
Approved as to form:
By~,tJ~
GRANT K. WEED, City Attorney
Date of Publication:t2c.:lIl be c 'I 200 3
•
Effective Date (5 days after publication):tP~h ht:1"/;.2.L?t?3,
ORDINANCE -10