Brewer City Ordinance Chap. 6 - Art. 1 Sec. 101, Art. 2 CHAPTER 6. City of Brewer Cable Television Ordinance ARTICLE 1. Article 1 GENERAL PROVISIONS Section 100. Title. This Ordinance shall be known and may becited as the "City of Brewer Cable Television Ordinance.” Section 101. Purpose. The City of Brewer finds that thedevelopment of cable television systems has the potential ofgreatly benefiting and having a positive impact on the people ofBrewer. Cable technology is rapidly changing, and cable isexpected to play an essential role as part of the City's basisinfrastructure. Cable television systems extensively make use ofscarce and valuable public rights-of-way, in a manner differentfrom the way in which the general public uses them, and in amanner reserved primarily for those that provide services to thepublic, such as utility companies. The City finds that publicconvenience, safety, and general welfare can best be served byvesting regulatory powers in the City or such Persons as the Cityso designates to protect the public and to ensure that anyfranchise granted is operated in the public interest. In lightof the foregoing, the following goals and the State policies setforth at 30-A M.R.S.A. 3008 (1), among others, underlie theprovisions set forth in this Ordinance: a. Cable should be available to as many City residents aspossible. b. A cable system should be capable of accommodating boththe present and reasonably foreseeable future cable-related needsof the community, to the extent economically feasible. c. A cable system should be constructed and maintainedduring a franchise term so that changes in technology may beintegrated to the maximum extent that is economically feasibleinto existing system facilities. d. A cable system should be responsive to the needs andinterests of the local community. The City intends that all provisions set forth in thisOrdinance be construed to serve the public interest and theforegoing public purposes, and that any franchise issued pursuant Brewer City Ordinance Chap. 6 - Art. 2 Sec. 202.1 - 202.6 to this Ordinance be construed to include the foregoing findingsand public purposes as integral parts thereof. Article #2 DEFINITIONS AND WORD USAGE For the purposes of this Ordinance, the following terms, phrases, words, and abbreviations shall have the meanings givenherein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include thefuture tense; words in the plural number include the singularnumber, and words in the singular number include the pluralnumber; and the masculine gender includes the feminine gender. The words "shall" and "will" are mandatory, and "may" ispermissive. Unless otherwise expressly stated, words not definedherein shall be given the meaning set forth in Title 47 U.S.C. 521 et seq., as amended, and, if not defined therein, theircommon and ordinary meaning. Section 202.1 Affiliate. Any person who owns or controls, isowned or controlled by, or is under common ownership or controlwith a grantee. Section 202.2 Basic Cable Service. Any service tier thatincludes the retransmission of local television broadcast signals. Section 202.3 Cable Act. The Cable Communications Policy Act of1984, 47 U.S.C. 521 et seg., as amended by the Cable Competitionand Consumer Protection Act of 1992, the Telecommunications Actof 1996, and as it may be further amended from time to time. Section 202.4 Cable Programming Service. Any video programmingprovided over a cable system, regardless of service tier, including installation or rental of equipment used for thereceipt of such video programming, other than (a) videoprogramming carried on the basic cable service tier; and (b) video programming offered on a per-channel, or per-program basis. Section 202.5 Cable Service. This term shall have the meaninggiven it by the Cable Act, as amended. Section 202.6 Cable System or System. A facility consisting ofa set of closed transmission paths and associated signalgeneration, reception, and control equipment that is designed toprovide cable television service which includes video programmingand which is provided to multiple Subscribers within the City, but such term does not include (i) a facility that serves only to retransmit the televisionsignals of one or more television broadcast stations; Brewer City Ordinance Chap. 6 - Art. 2 Sec. 202.7 – 202.11 (ii) a facility that serves subscribers without using anypublic right-of-way; (iii) a facility of a common carrier which is subject, inwhole or in part, to the provisions of Title II of theCommunications Act of 1934, except that such facility shall beconsidered a cable system to the extent such facility is used inthe transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactiveon-demand services; (iv) an open video system that complies with federal law; or (v) any facilities of any electric utility used solely foroperating its electric utility system. A reference to a cable system refers to any part thereof, including, without limitation, facilities located in the interior of a subscriber's residence or other premises. Section 202.7 City. The City of Brewer, Maine, and any agency, department, or agent thereof. Section 202.8 FCC. The Federal Communications Commission, itsdesignee, or any successor governmental entity thereto. Section 202.9 Franchise. The non-exclusive authorization granted in accordance with this Ordinance to construct, operate, and maintain a cable system along the public rights-of-way withinthe City. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for theprivilege of transacting and carrying on a business within theCity as required by the ordinances and laws of the City, or forattaching devices to poles or other structures, whether owned bythe City or a private entity, or for excavating or performingother work in or along public rights-of-way. Section 202.10 Franchise Agreement. A contract entered into in accordance with the provisions of this Ordinance between the Cityand a grantee that sets forth, subject to applicable state andfederal law, the terms and conditions under which a franchisewill be exercised. Section 202.11 Franchise Area. The term "franchise area" for anyfranchise granted under this Ordinance shall mean the whole ofthe City of Brewer. All new or renewal franchise agreementsgranted under this Ordinance shall require the grantee, within areasonable period after the effective date of the franchiseagreement, to extend service to all areas of the City that meetdensity requirements to be set out in the franchise agreement. No franchise or renewal franchise approved under this Ordinance Brewer City Ordinance Chap. 6 - Art. 2 Sec. 202.11 – 202.13 shall contain density requirements that are less restrictive thanthe density requirements of franchise agreements with othergrantees that are then in force. Section 202.12 Grantee. Person(s), partnerships, domestic orforeign corporations, associations, joint venture(s), or otherlegal entities, which has or have been granted a cable televisionfranchise by the City. Section 202.13 Gross Revenues. Those items within the scope ofthe term "gross revenues" as used in the Cable Act, as amended, including any and all cash, credits, or other consideration ofany kind or nature received directly or indirectly by a grantee, an affiliate of a grantee, or any person in which a grantee has afive percent (5%) or greater financial interest, or by any otherentity that is a cable operator of a cable system arising from, attributable to, or in any way derived from the operation of agrantee's cable system to provide cable service, including thefacilities associated therewith. Gross revenues include, but arenot limited to, monthly fees charged subscribers for any basic, optional, premium, per-channel, or per-program service; installation, disconnection, reconnection, and change-in-servicefees; leased channel fees; late fees; payments, or otherconsideration received from programmers for carriage ofprogramming on the system; revenues from converter rentals orsales; advertising revenues; barter; revenues from programguides; and revenues from home shopping channels. "Gross Revenues" do not include reimbursed expenses unless the expenseis separately claimed. Gross revenues earned on a system-widebasis shall be allocated to the City on the basis of the ratio ofthe subscribers in the City to the total subscribers in all thefranchising authorities served by the City. Gross revenues shall be the basis for computing the franchise fee under thisOrdinance. Gross Revenues shall not include: (i) to the extent consistent with generally acceptedaccounting principles, actual bad debt write-offs, provided, however, that all or part of any such actual bad debt that iswritten off but subsequently collected shall be included in grossrevenues in the period collected; (ii) the value of free cable services provided to grantee'semployees or to the City; (iii) revenues received by an affiliate from the grantee onwhich the grantee has already paid the franchise fee; (iv) any taxes on services furnished by a grantee, which are Brewer City Ordinance Chap. 6 - Art. 2 Sec. 202.14 – 202.19 imposed directly on any subscriber or user by the state, City, orother governmental unit and which are collected by a grantee onbehalf of said governmental unit; and (v)revenues from theprovision of telecommunications services. Section 202.14 Person. An individual, partnership, association, joint stock company, organization, corporation, or any lawfulsuccessor thereto or transferee thereof, but such term does notinclude the City. Section 202.15 Public Right-of-Way. The surface, the air spaceabove the surface, and the area below the surface of any publicstreet, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway, easement, or similarproperty in which the City now or hereafter holds any propertyinterest, or may lawfully grant the use of, which, consistentwith the purposes for which it was dedicated, may be used for thepurpose 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 orguarantee by the City that its interest or other right to controlthe use of such property is sufficient to permit its use for suchpurposes, and a grantee shall be deemed to gain only those rightsto use as are properly in the City and as the City may have theundisputed right and power to give. Section 202.16 Sale. Any sale, exchange, or barter transaction. Section 202.17 Service Tier. A package of two or more cableservices for which a separate charge is made by the grantee, other than a package of premium and pay-per-view services thatmay also be sold on a true a la carte basis. Section 202.18 Subscriber. Any person who legally receives cableservice, whether or not a fee is paid for such service. Section 202.19 Transfer. Any transaction in which (i) an ownership or other interest in a grantee, its cablesystem, or any person that is a cable operator of the cablesystem is transferred from one person or group of persons toanother person or group of persons so that control of a granteeis transferred; or (ii) the rights or obligations held by a grantee under afranchise agreement are transferred or assigned to another personor group of persons. Control for these purposes means workingcontrol, in whatever manner exercised. By way of illustrationand not limitation, the addition, deletion, or other change of Brewer City Ordinance Chap. 6 - Art. 2 & 3 Sec. 202.20 - 304 any general partner of a grantee, any person who owns or controlsa grantee, or a cable operator of a cable system is such a changeof control. Section 202.20 User. A person or organization utilizing achannel or equipment and facilities for purposes of producing ortransmitting material, as contrasted with the receipt thereof inthe capacity of a subscriber. Section 202.21 Any terms, phrases and words not defined hereinshall have the generally accepted meaning or definitionpromulgated in WEBSTER’S NEW WORLD COLLEGE DICTIONARY, ThirdEdition, Copyright 1997, a copy of which is on file in the BrewerCity Clerk’s office. Article #3 GRANT OF FRANCHISE Section 300. Grant of Franchise. The City may grant one ormore cable television franchises, and each such franchise shallbe awarded in accordance with and subject to the provisions ofthis Ordinance. In no event shall this Ordinance be considered a contract between the City and a grantee. Section 301. Franchise Required. No person may construct oroperate a cable system without a franchise granted by the Cityunless otherwise authorized by law, and no person may be granteda franchise without having entered into a franchise agreementwith the City pursuant to this Ordinance. Section 302 Franchise Characteristics. 302.1 Authority Granted by Franchise. A franchise authorizes use of public rights-of-way for installing cables, wires, lines, optical fiber, underground conduit, and otherdevices necessary and appurtenant to the operation of a cablesystem within a franchise area, but does not expressly orimplicitly authorize a grantee to provide service to, or installa cable system on private property without owner consent (exceptfor use of compatible easements pursuant to Section 621 of theCable Act, 47 U.S.C. 541(a)(2), or to use publicly or privatelyowned conduits without a separate agreement with the owners. Section 303. Term of Franchise. The term of a franchise may notexceed fifteen (15) years. Section 304. Non-exclusivity. A franchise is nonexclusive and will not explicitly or implicitly precludes the issuance of otherfranchises to operate cable systems within the City, affect theCity's right to authorize use of public rights-of-way by otherpersons to operate cable systems or for other purposes as it Brewer City Ordinance Chap. 6 - Art. 3 Sec. 305 - 309 determines appropriate; or affect the City's right to itselfconstruct, operate, or maintain a cable system, with or without afranchise. Section 305. Franchise Agreement Constitutes a Contract. Once a franchise agreement has been accepted and executed by the Cityand a grantee, such franchise agreement shall constitute acontract between the grantee and the City, and the terms, conditions, and provisions of such franchise agreement, subjectto the Ordinance in effect as of the effective date of such franchise agreement and all other duly enacted and applicablelaws, shall define the rights and obligations of the grantee andthe City relating to the franchise. Nothing in this Ordinance ora franchise agreement shall be deemed a waiver of or restrictionon the City's police powers, or a waiver of any of the terms ofany City Ordinance regarding the use or management of the publicrights-of-way or intended to protect the public's safety. Section 306 Use of Public Rights-of-Way. All privilegesprescribed by a franchise shall be subordinate to any priorlawful occupancy of the public rights-of-way, and the Cityreserves the right to reasonably designate where a grantee'sfacilities are to be placed within the public rights-of-way. The rights and privileges granted pursuant to a franchise shall notbe in preference or hindrance to the right of the City, or othergovernmental agency, improvement district or other authorityhaving jurisdiction, to perform or carry on any public works orpublic improvement, and should a cable system in any wayinterfere with the construction, maintenance, or repair of suchpublic works or improvements, the grantee shall promptly, at itsown expense, protect or relocate its system or part thereof, asdirected by the City or other authority having jurisdiction. Section 307. Franchise Personal to Grantee. A franchise shall be a privilege that is in the public trust and personal to theoriginal grantee. No transfer of a franchise shall occur without the prior consent of the City and unless application is made bythe grantee and City approval obtained, pursuant to thisOrdinance and the franchise agreement; which approval shall notbe unreasonably withheld, provided, however, that the grantee maymake assignments of collateral to a lender upon reasonable priornotice to the City. No such assignment of collateral shall bedeemed to permit any person to avoid any obligations under thisOrdinance or a franchise agreement. Section 308. Exclusive Contracts Unenforceable. A franchise holder may not enter into or enforce any exclusive contract witha subscriber as a condition of providing or continuing service. Section 309. Grantee Subject to Other Laws, Police Power. Brewer City Ordinance Chap. 6 - Art. 3 Sec. 309.1 - 311 Section 309.1. Compliance with Laws. A grantee shall at all times besubject to and shall comply with all applicable federal, state, and locallaws. A grantee shall at all times be subject to all lawful exercise ofthe police power of the City, including all rights the City may have under47 U.S.C. 552. Section 309.2. No Waiver of City Rights. No course of dealing between agrantee and the City, nor any delay on the part of the City in exercisingany rights hereunder, shall operate as a waiver of any such rights of theCity or acquiescence in the actions of a grantee in contravention of rightsexcept to the extent expressly waived by the City or expressly provided forin a franchise agreement, or other applicable laws, rules or regulations. Section 309.3 City Has Maximum Regulatory Authority. The City shall havethe maximum plenary authority to regulate cable systems, grantees, andfranchises as may now or hereafter be lawfully permissible; except whererights are expressly waived by a franchise agreement, they are reserved, whether expressly enumerated or not. Section 310. Interpretation of Franchise-Terms. Section 310.1. Provision to City's Benefit Controlling. In the event of a conflict between this Ordinance as effective on the effective date of a franchise agreement and that franchise agreement, the terms of thisOrdinance as effective on the effective date of that franchise agreementshall control, except as otherwise provided in a franchise agreement. Section 310.2 Liberal Construction. To the extent permitted bylaw, the provisions of this Ordinance and a franchise agreementwill be liberally construed in favor of the City in order toeffectuate their purposes and objectives and to promote thepublic interest, except as otherwise provided in a franchiseagreement. Section 310.3. Governing Law. Except as to matters that aregoverned solely by federal law or regulation, a franchiseagreement will be governed by and construed in accordance withthe laws of the State of Maine. Section 311. Operation of a Cable System Without a Franchise. Any person who occupies public rights-of-way for the purpose ofoperating or constructing a cable system and who does not hold avalid franchise from the City shall be subject to all provisionsof this Ordinance, including but not limited to its provisionsregarding construction and technical standards and franchisefees. In its discretion, the City at any time may require suchperson to enter into a franchise agreement within thirty (30) days of receipt of a written notice by the City that a franchiseagreement is required; require such person to remove its propertyand restore the area to a condition satisfactory to the City Brewer City Ordinance Chap. 6 - Art. 3 & 4 Sec. 312 – 400.2 within such time period; remove the property itself and restorethe area to a satisfactory condition and charge the person thecosts thereof; and/or take any other action it is entitled totake under applicable law, including filing for and seekingdamages under trespass. In no event shall a franchise be created unless it is issued by action of the City and subject to afranchise agreement. Section 312. Right of Condemnation Reserved. Nothing in thisOrdinance or any franchise agreement shall limit any right theCity may have to acquire by eminent domain or otherwise anyproperty of grantee. Section 313. Acts at Grantee's Expense. Any act that a granteeis or may be required to perform under this Ordinance, afranchise agreement, or applicable law shall be performed at thegrantee's expense, unless expressly provided to the contrary inthis Ordinance, the franchise agreement, or applicable law. Article #4 APPLICATIONS FOR GRANT, RENEWAL, OR MODIFICATION OFFRANCHISES Section 400. Written Application. Section 400.1. Application Requirement. A written applicationshall be filed with the City for: (i) grant of an initial franchise; (ii) renewal of a franchise under 47 U.S.C. 546(a)(9); or (iii) modification of a franchise agreement pursuant to thisOrdinance or a franchise agreement. An applicant shalldemonstrate in its application compliance with all requirementsof this Ordinance, any existing franchise agreement held by theapplicant and all applicable laws. Section 400.2. Acceptability for Filing. To be acceptable forfiling, a signed original of the application shall be submittedtogether with twelve (12) copies. The City Manager, or his designee, may, in combination withneighboring communities, establish a joint application procedure, provided that any such procedure conforms to the standards ofthis Ordinance. The application must be accompanied by therequired application-filing fee as set forth in Article 4.6, conform to any applicable request for proposals, and contain allrequired information. All applications shall include the namesand addresses of persons authorized to act on behalf of theapplicant with respect to the application. Brewer City Ordinance Chap. 6 - Art. 4 Sec. 400.3 – 401.2 Section 400.3. Applications Available for Public Inspection. All applications accepted for filing shall be made available by theCity for public inspection in the office of the City Clerk duringnormal business hours. Section 400.4. City May Waive. The City may waive any of theprovisions of this Section by a City Council Order or Resolution, where application of the rule would cause manifest injustice, except for those provisions required by state or federal law. Any waiver granted shall explain the basis for the waiver andshall not unduly discriminate against any applicant. Section 401. Franchise, Other Than a Cable Act Renewal Franchise. Section 401.1. Application. A person may apply for an initialfranchise by submitting an application containing the informationrequired in Section 403 of this Article and requesting anevaluation of that application pursuant to Section 4.2.2.of thisArticle. Prior to evaluating that application, the City shallconduct such reasonable investigations as are necessary todetermine whether the application satisfies the standards setforth in Section 401.2 of this Article and may seek additionalapplications. Section 401.2 Factors in Evaluation for Franchise or Renewal of Existing Franchise. In evaluating an application for afranchise, the City shall consider, among other things, thefollowing factors: a. Whether the applicant has substantially compliedwith the applicable law and the material terms of any existingcable franchise from the City. b. Whether the quality of the applicant's serviceunder an existing franchise from the City, including signalquality, response to customer complaints, billing practices, andthe like, has been reasonable in light of the needs and interestsof the communities served. c. Whether the applicant has the financial, technical, and legal qualifications to provide cable service. d. Whether the application satisfies any minimumrequirements established by the City and is otherwise reasonableto meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs andinterests. e. Whether, to the extent not considered as part ofArticle 4.2.2e, the applicant will provide adequate public, Brewer City Ordinance Chap. 6 - Art. 4 Sec. 401.3 -402 educational, and governmental access channel capacity, facilities, or financial support, consistent with community needsand interests. f. Whether issuance of a franchise is warranted in the public interest considering the immediate and future effecton the public rights-of-way and private property that would beused by the cable system, including the extent to whichinstallation or maintenance as planned would require replacementof property or involve disruption of property, public services, or use of the public rights-of-way; the effect of granting afranchise on the ability of the applicant and its proposedfacilities to meet the cable-related needs and interests of the community. g. Whether the applicant or an affiliate of theapplicant owns or controls any other cable system in the City, orwhether grant of the application may eliminate or reducecompetition in the delivery of cable service in the City. Section 401.3. City Determination. If the City finds that it isin the public interest to issue a franchise after considering thefactors set forth above, and subject to the applicant's entryinto an appropriate franchise agreement, it shall issue afranchise. If the City denies a franchise, it will issue within30 days a written decision explaining why the franchise wasdenied. Prior to deciding whether or not to issue a franchise, the City may hold one or more public hearings or implement otherprocedures under which comments from the public on an applicantmay be received. The City also may grant or deny a request for afranchise based on its review of an application without furtherproceedings and may reject any application that is incomplete. This Ordinance is not intended and shall not be interpreted togrant any applicant or existing grantee standing to challenge theissuance of a franchise to another, except as provided byapplicable State or Federal laws or regulations. Section 401.4 Joint Review. The City may elect to delegatereview of an application to a consortium of local governments ora formally constituted inter-local body of which the City is amember. Any such entity shall review the application in accordancewith the standards of Section 401.2 and make a recommendation to the City. In such a case, the City Council shall review therecommendation of the designated body and approve or reject it inaccordance with the terms of Section 401.3. Section 402. Application for Grant of a Cable Act RenewalFranchise. Applications for renewal under the Cable Act shall be Brewer City Ordinance Chap. 6 - Art. 4 Sec. 402.1 received and reviewed in a manner consistent with Section 626 of the Cable Act, 47 U.S.C. 546. If neither a grantee nor the City activates in a timelymanner or can activate the renewal process set forth in 47 U.S.C. 546(a)(g) (including, for example, if the provisions arerepealed), and except as to applications submitted pursuant to 47 U.S.C. 546(h), the provisions of Article 4, Sections 401 through 401.2 shall apply and a renewal request shall be treated the sameas any other request for a franchise. The following requirementsshall apply to renewal requests properly submitted pursuant tothe Cable Act: Section 402.1. Issuance of a Request For a Proposal (RFP). If the provisions of 47 U.S.C. 546(a)-(g) are properly invoked, theCity may issue an RFP after conducting a proceeding to review theapplicant's past performance and to identify future cable-relatedcommunity needs and interests. The City Manager, or the CityManager’s designee, shall establish deadlines and procedures forresponding to the RFP, may seek additional information fromapplicant, and shall establish deadlines for the submission ofthat additional information. Following receipt of theapplication responding to the RFP (and such additionalinformation as may be provided in response to requests), the Citywill determine that the franchise should be renewed, or make apreliminary assessment that the franchise should not be renewed. That determination shall be in accordance with the time limits established by the Cable Act. The preliminary determinationshall be made by Order. If the City determines that theFranchise should not be renewed, and the applicant that submittedthe renewal application notifies the City, either in its RFPresponse or within ten (10) working days of the preliminaryassessment, that it wishes to pursue any rights to anadministrative proceeding it has under the Cable Act, then theCity shall commence an administrative proceeding after providingprompt public notice thereof, in accordance with the Cable Act. If the City decides preliminarily to grant renewal, it shallprepare a final franchise agreement that incorporates, asappropriate, the commitments made by the applicant in the renewalapplication. If the applicant accepts the franchise agreement, and the City ratifies the final agreement, the franchise shall berenewed. If the franchise agreement is not so accepted and ratifiedwithin the time limits established by 47 U.S.C. 546(c)(1), renewal shall be deemed preliminarily denied, and anadministrative proceeding commenced if the applicant thatsubmitted the renewal application requests it within ten (10) days of the expiration of the time limit established by 47 U.S.C. 546(c)(1). Brewer City Ordinance Chap. 6 - Art. 4 Sec. 402.2 Section 402.2. Administrative Hearing. If an administrative hearing is commenced pursuant to 47 U.S.C. 546 (c), theapplicant's renewal application shall be evaluated consideringsuch matters as may be considered consistent with federal law. The following procedures shall apply: a. The City Council shall, by order, appoint anAdministrative Hearing Officer or Officers (referred to hereafteras "Hearing Officer"). The City Council may appoint itself asHearing Officer. b. The Hearing Officer shall establish a schedule forproceeding, which allows for documentary discovery andinterrogatory responses, production of evidence, and cross- examination of witnesses. Depositions shall not be permittedunless the party requesting the deposition shows that documentarydiscovery and interrogatory responses will not provide it anadequate opportunity to require the production of evidencenecessary to present its case. The Hearing Officer shall havethe authority to require the production of evidence as theinterests of justice may require, including to require theproduction of evidence by the applicant that submitted therenewal application and any entity that owns or controls or isowned or controlled by such applicant directly or indirectly TheHearing Officer may issue protective orders to the extentpermitted under applicable State law. Any Order may be enforcedby a court of competent jurisdiction or by imposing appropriatesanctions in the administrative hearing. c. The Hearing Officer may conduct a pre-hearingconference and establish appropriate pre-hearing procedures. Intervention by non-parties is not authorized except to theextent permitted by the Cable Act. d. The Hearing Officer may require the City and theapplicant to submit prepared testimony prior to the hearing. Unless the parties agree otherwise, the applicant shall presentevidence first, and the City shall present evidence second. e. Any reports or the transcript or summary of anyproceedings conducted pursuant to 47 U.S.C. 546(a) shall forpurposes of the administrative hearing be regarded no differentlythan any other evidence. The City and the applicant must beafforded full procedural protection regarding evidence related tothese proceedings, including the right to refute any evidenceintroduced in those proceedings or sought to be introduced by theother party. Both shall have the opportunity to submitadditional evidence related to issues raised in the proceedingconducted pursuant to 47 U.S.C. 546(a). Brewer City Ordinance Chap. 6 - Art. 4 Sec. 402.3 - 403.1 f. Following completion of any hearing, the HearingOfficer shall require the parties to submit proposed findings offact with respect to the matters that the City is entitled toconsider in determining whether renewal should be granted. Based on the record of the hearing, the Hearing Officer shall thenprepare written findings with respect to those matters, andsubmit those findings to the City Council and to the parties(unless the Hearing Officer is the City Council, in which casethe written findings shall constitute the final decision of theCity, if permitted by applicable laws or rules. If the Hearing Officer is not the City Council, the partiesshall have thirty (30) days from the date the findings aresubmitted to the City Council to file exceptions to thosefindings. The City Council shall thereafter issue a writtendecision granting or denying the application for renewal, consistent with the requirements of the Cable Act and based onthe record of such proceeding. A copy of that decision of theCity Council shall be provided to the applicant. g. The proceeding shall be conducted with due speed. h. In conducting the proceeding, and except asinconsistent with the foregoing, the Hearing Officer will followthe Maine Administrative Procedures Act or the successor statutes thereto unless otherwise governed by federal law or regulations. The Hearing Officer may request that the City Council adoptadditional procedures and requirements as necessary in theinterest of justice. Section 402.3. Informal Renewal Applications. This Article does not prohibit any grantee from submitting an informal renewalapplication pursuant to 47 U.S.C. 546(h), which application maybe granted or denied in accordance with the provisions of 47 U.S.C. 546(h). Section 402.4. Consistency With Cable Act. The provisions ofthis Ordinance shall be read and applied so that they areconsistent with Section 626 of the Cable Act, 47 U.S.C. 546. Section 403. Contents of applications. If issued by the City, anRFP for the grant of a renewal franchise under 47 U.S.C. 546(c) shall require, and any application for an initial or renewal franchise (other than an application submitted pursuant to 47 U.S.C. 546(h)) shall contain, at a minimum, the followinginformation: Section 403.1. Identification of Applicant and Its Ownership andControl. Name and address of the applicant and identificationof the ownership and control of the applicant, including: the Brewer City Ordinance Chap. 6 - Art. 4 Sec. 403.2 – 403.3 names and addresses of the ten (10) largest holders of anownership interest in the applicant and controlling affiliates ofthe applicant, and all persons with five (5%) percent or moreownership interest in the applicant and its affiliates; thepersons who control the applicant and its affiliates; allofficers and directors of the applicant and its affiliates; andany other business affiliation and cable system ownershipinterest of each named person. Section 403.2. Statement of Applicant's Technical Ability. A demonstration of the applicant's technical ability to constructand/or operate the proposed Cable System, includingidentification of key personnel. Section 403.3. Statement of Applicant's Qualifications. A demonstration of the applicant's legal qualifications toconstruct and/or operate the proposed cable system, including butnot limited to a demonstration that the applicant meets thefollowing criteria: a. The applicant must not have submitted anapplication for an initial or renewal franchise to the City, which was denied on the ground that the applicant failed topropose a system meeting the cable-related needs and interests ofthe community, or as to which any challenges to suchlicensing decision were finally resolved adversely to theapplicant, within one (1) year preceding the submission of theapplication. b. The applicant must not have had any cabletelevision franchise validly revoked by any licensing authoritywithin three (3) years preceding the submission of theapplication. c. The applicant must have the necessary authorityunder Maine law to operate a cable system within Maine. d. The applicant shall not be issued a franchise ifit may not hold the franchise as a matter of federal law. An applicant must have, or show that it is qualified to obtain, anynecessary federal approvals or waivers required to operate theSystem proposed. e. The applicant shall not be issued a franchise if, at any time during the ten (10) years preceding the submission ofthe application, the applicant was convicted of any act oromission of such character that the applicant cannot be reliedupon to deal truthfully with the City and the subscribers of thecable system, or to substantially comply with its lawfulobligations under applicable law, including obligations under Brewer City Ordinance Chap. 6 - Art. 4 Sec. 403.4 – 403.8 consumer protection laws and laws prohibiting anticompetitiveacts, fraud, racketeering, or other similar conduct. f. The applicant shall not be issued a franchise ifit files materially misleading information in its application orintentionally withholds information that the applicant lawfullyis required to provide. g. The applicant shall not be issued a franchise ifan elected official of the City holds a controlling interest inthe applicant or an affiliate of the applicant. Notwithstanding the foregoing, the City shall provide anopportunity to an applicant to show that it would beinappropriate to deny it a franchise under Article 4, Section 403.4 (b) or (e), by virtue of the particular circumstancessurrounding the matter and the steps taken by the applicant tocure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or theremoteness of the matter from the operation of cable televisionsystems. Section 403.4. Statement of Applicant's Financial Qualifications. A statement prepared by a certified public accountant regardingthe applicant's financial ability to complete the constructionand operation of the cable system proposed. Section 403.5. Description of Prior Experience. A description ofthe applicant's prior experience in cable system ownership, construction, and operation, and identification of communities inwhich the applicant or any of its principals have, or have had, acable franchise or license or any interest therein, providedthat, an applicant that holds a franchise for the City and isseeking renewal of that franchise need only provide thisinformation for other communities where its franchise was scheduled to expire in the two (2) calendar years prior to andafter its application was submitted. Section 403.6. Identification of Area To Be Served. Identification of the area of the City to be served by theproposed cable system, including a description of the proposedfranchise area's boundaries. All grantees shall be bound andrequired to serve the same areas within the City. Section 403.7. Description of Physical Facilities. A detailed description of the physical facilities proposed, includingchannel capacity, technical design, performance characteristics, head-end, and access facilities. Section 403.8. Description of Construction of Proposed System. Brewer City Ordinance Chap. 6 - Art. 4 Sec. 403.9 – 403.15 Where applicable, a description of the construction of theproposed system, including an estimate of plant mileage and itslocation, the proposed construction schedule, a description, where appropriate, of how services will be converted fromexisting facilities to new facilities, and information on theavailability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement ofexisting facilities. Section 403.9. Proposed Rate Structure. The proposed ratestructure, including projected charges for each service tier, installation, converters, and other equipment or services. Section 403.10. Demonstration of How Future Community Needs andInterests Will Be Met. A demonstration of how the applicant willreasonably meet the future cablerelated needs and interests ofthe community, including descriptions of how the applicant willmeet the needs described in any recent community needs assessmentconducted by or for the City, and how the applicant will provideadequate public, educational, and governmental access channelcapacity, facilities, or financial support to meet thecommunity's needs and interests. The City Manager or hisdesignee may, in coordination with neighboring communities, establish procedures for conducting a joint needs assessment. Section 403.11. Pro Forma Financial Projections. Pro forma financial projections for the proposed franchise term, includinga statement of projected income, and a schedule of plannedcapital additions, with all significant assumptions explained innotes or supporting schedules. Section 403.12. Identification of Area of Overbuild. If the applicant proposes to provide cable service to an area alreadyserved by an existing cable grantee, the identification of thearea where the overbuild would occur, the potential subscriberdensity in the are that would encompass the overbuild, and theability of the public rights-of-way and other property that wouldbe used by the applicant to accommodate an additional System. Section 403.13. Other Information. Any other information as maybe reasonably necessary to demonstrate compliance with therequirements of this Ordinance. Section 403.14. Information Requested by City. Information that the City may reasonably request of the applicant that is relevantto the City's consideration of the application. Section 403.15. Certification of Accuracy. An affidavit or declaration of the applicant or authorized officer certifying thetruth and accuracy of the information in the application, Brewer City Ordinance Chap. 6 - Art. 4 Sec. 404 - 405 acknowledging the enforceability of application commitments, andcertifying that the application meets all federal and state lawrequirements. Section 404. Application for Modification of a Franchise. An application for modification of a franchise agreement shallinclude, at minimum, the following information: a. The specific modification requested; b. The justification for the requestedmodification, including the impact of the requested modificationon subscribers, and the financial impact on the applicant if themodification is approved or disapproved, demonstrated through, inter alias, submission of financial pro formas; c. A statement whether the modification is soughtpursuant to Section 625 of the Cable Act, 47 U.S.C. 545, and, ifso, a demonstration that the requested modification meets thestandards set forth in 47 U.S.C. 545; d. Any other information that the applicant believesis necessary for the City to make an informed determination onthe application for modification; and e. An affidavit or declaration of the applicant orauthorized officer certifying the truth and accuracy of theinformation in the application, and certifying that theapplication is consistent with all federal and state lawrequirements. Section 405. Filing Fees. To be acceptable for filing, anapplication submitted after the effective date of this Ordinanceshall be accompanied by a filing fee in the following amount tocover costs incidental to the awarding or enforcement of thefranchise, as appropriate: a. For an initial franchise: $ 500.00 b. For renewal of a franchise: $ 500.00 c. For modification of a franchise agreement: $ 500.00 The City may also elect to share the costs of reviewing anapplication with other communities served by the system of whichan existing or proposed cable system in the City is a part. In that case, the filing fees shown above shall not apply, and shallbe replaced with combined filing fees for all communities withwhom the City is sharing expenses. The combined filing feesshall be Seven Thousand ($7,000) Dollars for an initial grant or Brewer City Ordinance Chap. 6 - Art. 4 & 5 Sec. 406 - 501 a modification, and Seven Thousand ($7,000) Dollars for arenewal. Combined filing fees shall be prorated among theparticipating communities on the basis of the number of residentsin each community as of the most recent U.S. Census, or allocatedaccording to some other mutually agreeable method. Application fees for franchise renewals may be increased asnecessary to recover the City's additional cost of conducting anyhearings required under 47 U.S.C. 546(a) through (g), if thegrantee has invoked that procedure in its renewal application. Section 406. Public Hearings. An applicant shall be notified inwriting at least ten (10) calendar days in advance of any publichearings held in connection with the evaluation of itsapplication and shall be given an opportunity to be heard. In addition, prior to the issuance of a franchise, the City shallprovide for the holding of a public hearing within the proposedfranchise area, following reasonable notice to the public, whichevery applicant and its applications shall be examined and thepublic and all interested parties afforded a reasonableopportunity to be heard. Reasonable notice to the public shallinclude causing notice of the time and place of such hearing tobe published in a newspaper of general circulation in theproposed franchise area once a week for two consecutive weeks. The first publication shall be not less than fourteen (14) daysbefore the day of the hearing. Nothing herein shall be deemed toprevent or limit communities in which the applicant has requestedgrant or renewal of a franchise from holding joint publichearings in a location reasonable accessible to residents of eachcommunity which is the subject thereof. Article #5 INSURANCE AND INDEMNITY Section 501. Insurance Required. A grantee shall maintain, andby its acceptance of a franchise specifically agrees that it willmaintain, throughout the entire length of the franchise period, such insurance as will protect the City and elected officials, employees and agents from any claims that may arise directly orindirectly or result from its acceptance of the franchise or itsactivities under the franchise, whether such activities areperformed by the grantee, or by anyone for whose acts the Granteemay be liable, including, but not limited to, the following: a. Workers' compensation, including disabilitybenefits and any other legally required employee benefits, meeting all statutory amounts; b. Property insurance, all risk, replacement cost Brewer City Ordinance Chap. 6 - Art. 5 Sec. 502 – 505.1 basis, on all of the grantee's assets; c. General liability insurance, in the followingminimum amounts: Bodily injury or death Primary insurance $1,000,000 per person $1,000,000 per occurrence Umbrella insurance $5,000,000 Property damage $1,000,000 The City may review these amounts no more than once a year and may requirereasonable adjustments to them consistent with the public interest. The franchise agreement may specify the procedures to be followed in the eventthat the grantee objects to an increase in a policy limit and the partiesare unable to agree on a mutually acceptable amount. Section 502. Qualifications of Sureties. All insurance policies shall bewith sureties qualified to do business in the State of Maine, with an A orbetter rating of insurance by Best's Key Rating Guide, Property/CasualtyEdition, and in a form acceptable to the City. Section 503. Evidence of Insurance. A grantee shall keep onfile with the City current certificates of insurance. A grantee shallprovide the City with copies of all insurance policies in effect during thefranchise period upon the written request of the City. Section 504.Additional Insureds; Prior Notice of Policy Cancellation. All general liability insurance policies shall name the City, electedofficials, officers, boards, commissions, commissioners, agents, andemployees as additional insureds and shall further provide that anycancellation or reduction in coverage shall not be effective unless thirty (30) days' prior written notice thereof has been given to the City. A grantee shall not cancel any required insurance policy without submissionof proof that the Grantee has obtained alternative insurance satisfactoryto the City, which complies with this Ordinance. Section 505. Indemnification. Section 505.1. Indemnification for Damages and Equitable Relief. A grantee shall, at its sole cost and expense, indemnify, holdharmless, and defend the City, its inhabitants, electedofficials, officers, boards, commissions, commissioners, agents, and employees, against any and all claims, suits, causes ofaction, proceedings, and judgments for damages or equitablerelief arising out of the construction, maintenance, or operationof its cable system; copyright infringements or a failure by thegrantee to secure consents from the owners, authorizeddistributors, or grantees of programs to be delivered by thecable system; the conduct of the grantee's business in the City; Brewer City Ordinance Chap. 6 - Art. 5 & 6 Sec. 505.2 - 600 or in any way arising out of the grantee's enjoyment or exerciseof a franchise granted hereunder, regardless of whether the actor omission complained of is authorized, allowed, or prohibitedby this Ordinance or a franchise agreement. Section 505.2. Indemnification for Cable Act Claims. A granteeshall, at its sole cost and expense, fully indemnify, defend, andhold harmless the City, and in its capacity as such, theofficers, agents, and employees thereof, from and against any andall claims, suits, actions, liability, and judgments for damagesor otherwise subject to Section 638 of the Cable Act, 47 U.S.C. 558, arising out of or alleged to arise out of the installation, construction, operation, or maintenance of its system, includingbut not limited to any claim against the grantee for invasion ofthe right of privacy, defamation of any person, firm orcorporation, or the violation or infringement of any copyright, trade mark, trade name, service mark, or patent, or of any otherright of any person, firm or corporation. This indemnity doesnot apply to programming carried on any channel set aside forpublic, educational, or government use, or channels leasedpursuant to 47 U.S.C. 532, unless the grantee was in anyrespect engaged in determining the editorial content of theprogram, or adopts a policy of prescreening programming for thepurported purpose of banning indecent or obscene programming. Section 505.3. Attorneys Fees. The indemnity provision includes, but is not limited to, the City's reasonable attorneys' feesincurred in defending against any such claim, suit, action orproceeding. Section 506. No Limit of Liability. Neither the provisions ofthis Article nor any damages recovered by the City shall beconstrued to limit the liability of a grantee for damages underany franchise issued hereunder. Section 507. No Recourse. Without limiting such immunities as itmay have under applicable law, the City shall not be liable tothe grantee for any damages or loss that the Grantee may sufferas the result of the City's exercise of its lawful authoritypursuant to this Ordinance, a franchise agreement, or otherapplicable law. Article #6 PERFORMANCE BOND Section 600. Requirement of Bond. Prior to any construction, rebuild or upgrade of the cable system requiring work in thepublic rights-of-way other than installation of aerial facilitiesand utility poles, a grantee shall establish in the City's favoran irrevocable performance bond in an amount specified in thefranchise agreement or otherwise determined as reasonable by Brewer City Ordinance Chap. 6 - Art. 6 Sec. 601 - 603 municipal officers as necessary to ensure the grantee's faithfulperformance of the construction, upgrade, or other work. The amount of such performance bond shall not exceed the lesser often (10%) percent of the total cost of the work being done in thepublic right-of-way other than installation of aerial facilitiesand utility poles, or Fifty Thousand Dollars ($50,000.00). Section 601. Recovery Under Performance Bond. In the event that a grantee subject to such a performance bond fails to completethe cable system construction, upgrade, or other work in thepublic rights-of-way in a safe, timely (subject to the forcemajeure provision of Article 17, Section 1701), and competentmanner in accordance with the provisions of a franchiseagreement, there shall be recoverable, jointly and severally fromthe principal and surety of the bond, any damages or losssuffered by the City as a result, including the full amount ofany compensation, indemnification, or cost of removal orabandonment of any property of the grantee, or the cost ofcompleting or repairing the system construction, upgrade, orother work in the public rights-of-way, plus a reasonableallowance for attorneys' fees, up to the full amount of the bond. The City may also recover against the bond any amount recoverableagainst the security fund required under Article #7, Sections 700 -706 of this Ordinance, where such amount exceeds that availableunder the security fund. Section 602. Elimination or Reduction of Bond. Any performancebond shall remain in place for one (1) full year after completionto the satisfaction of the City of the work in the public right- of-way. Section 603. New Bond for New Project. The City may subsequentlyrequire a new bond, for any subsequent construction, or otherwork in the public rights-of-way other than installation ofaerial facilities and utility poles, whose cost exceeds an amountspecified in a franchise agreement. In the event a grantee failsto complete the work secured by such a new performance bond in asafe, timely and competent manner, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, includingthe full amount of any compensation, indemnification, or cost ofremoval or abandonment of any property of the grantee, or thecost of completing or repairing the system construction, upgrade, or other work in the public rights-of-way, plus a reasonableallowance for attorneys, fees, up to the full amount of the bond. The City may also recover against the bond any amountrecoverable against the security fund required under Article #7of this Ordinance, where such amount exceeds that available underthe security fund. In any event, the total amount of the bond Brewer City Ordinance Chap. 6 - Art. 6 & 7 Sec. 604 - 700 shall not exceed the lesser ten (10%) percent of the cost of the work being done in the public right-of-way, or Fifty Thousand Dollars ($50,000.00), Section 604. Issuance of Bond; Notice of Cancellation Required. Any performance bond shall be issued by a surety qualified to do business in the State of Maine, and having an A-1 or better rating of insurance in Best's Key Rating Guide, Property/ Casualty Edition; shall be subject to the approval of the City; and shall contain the following endorsement: "This bond may not be canceled, or allowed to lapse, until sixty (60) days after notice to the City, by certified mail, returnreceipt requested, of a written notice from the issuer of thebond of intent to cancel or not to renew." Section 605. Forfeiture. The total amount of any outstandingbond shall be forfeited in favor of the City in the event that: a. The grantee abandons the cable system or any partthereof at any time during the term of the franchise; or b. The grantee fails to purchase and maintain insuranceas required by Article 5, Sections 501 - 504 hereof; or c. The franchise is revoked as provided inArticle 8, Section 801 hereof. Article #7 SECURITY FUND Section 700. Establishment of Security Fund. (a) A franchise agreement may provide that, prior tothe franchise's becoming effective, the grantee shall post withthe City a cash security deposit to be used as a security fund toensure the grantee's faithful performance of and compliance withall provisions of this Ordinance, the franchise agreement, andother applicable laws, and compliance with all orders, permits, and directions of the City or any agency thereof havingjurisdiction over the grantee's acts or defaults under thefranchise, and the payment by the grantee of any claims, liens, fees, or taxes due the City which arise by reason of theconstruction, operation or maintenance of the System. The amount of any security fund shall be specified in a franchise agreement. (b) In lieu of a cash security fund, a grantee mayagree to file and maintain with the City an irrevocable letter ofcredit with a bank having an office in the State of Maine in theamount specified in the preceding paragraph to serve the samepurposes as set forth therein. Said letter of credit shall remainin effect for the full term of the franchise plus an additional Brewer City Ordinance Chap. 6 - Art. 7 Sec. 701.1 - 703 six (6) months thereafter. The grantee and its surety shall bejointly and severally liable under the terms of the letter ofcredit for the grantee's failure to enforce its faithfulperformance of and compliance with all provisions of thisOrdinance, the franchise agreement, and other applicable law, andcompliance with all orders, permits, and directions of the City, and the payment by the grantee of any claims, liens, fees, ortaxes due the City which arise by reason of the construction, operation, or maintenance of the system. The letter of credit shall provide for thirty (30) days' prior written notice to theCity of any intention on the part of the grantee to cancel, failto renew, or otherwise materially alter its terms. Neither the filing of a letter of credit with the City, nor the receipt ofany damages recovered by the City thereunder, shall be construedto excuse faithful performance by the grantee or limit the liability of the grantee under the terms of its franchise fordamages, either to the full amount of the letter of credit orotherwise. Section 701.1. Use of Fund. If a grantee fails to make timelypayment to the City of any amount due as a result of franchiserequirements, fails to make timely payment to the City of anyamounts due under a franchise agreement or applicable law, failsto make timely payment to the City of any taxes lawfully due, orfails to compensate the City for any damages, costs, or expensesthe City suffers or incurs by reason of any act or omission ofthe Grantee in connection with its franchise agreement, the Citymay withdraw the amount thereof from the security fund. To invoke the provisions of this Article, the City shall give thegrantee written notice of the default in the grantee'sperformance. If within thirty (30) calendar days following suchwritten notice from the City to the grantee, the grantee has notremedied the default to the satisfaction of the City, the Citymay proceed to withdraw the amount in question from the securityfund, provided that, if by its nature the default cannot beremedied within thirty (30) days and the grantee hasdemonstrated to the satisfaction of the City that it is making acontinuing good faith effort to remedy the default, the Cityshall not draw on the security fund. Section 702. Notification. Within ten (10) business days of awithdrawal from the security fund, the City shall mail, bycertified mail, return receipt requested, written notification ofthe amount, date, and purpose of such withdrawal to the grantee. Section 703. Inadequate Fund Balance. If at the time of a withdrawal from the security fund by the City, the amount of thefund is insufficient to provide the total payment towards whichthe withdrawal is directed, the balance of such payment shallcontinue as the obligation of the grantee to the City until it is Brewer City Ordinance Chap. 6 - Art. 7 & 8 Sec. 704 - 800 paid. Section 704. Replenishment. No later than thirty (30) days aftermailing of notification to the grantee by certified mail, returnreceipt requested, of a withdrawal under the security fund, thegrantee shall deliver to the City for deposit in the securityfund an amount equal to the amount so withdrawn. Failure to make timely delivery of such amount to the City shall constitute amaterial violation of the Franchise. Section 705. Disposition. Upon termination of the franchiseunder conditions other than those stipulating forfeiture of thesecurity fund, the balance then remaining in the security fundshall be withdrawn by the City and paid to the grantee withinninety (90) days of such termination, provided that there is thenno outstanding material default on the part of the grantee. Section 706. Grantor Rights. The rights reserved to the Citywith respect to Articles #5, #6, and #7 of this Ordinance are inaddition to all other rights of the City, whether reserved bythis Ordinance or authorized by other law or a franchiseagreement, and no action, proceeding, or exercise of a right withrespect to such sections shall affect any other right the Citymay have. Article #8 REMEDIES Section 800. Available Remedies. In addition to any otherremedies available at law or equity, the City may pursue thefollowing remedies in the event a grantee or any other personviolates this Ordinance, its franchise agreement, or applicablestate or federal law. a. Seek a determination from a court of competentjurisdiction that a provision of this Ordinance has beenviolated. If such a violation is found to exist by the Court the minimum fine imposed shall be Fifty Dollars ($50.00) and themaximum fine imposed per violation shall be Two Hundred FiftyDollars ($250.00). Each day the violation is found to existshall constitute a separate violation for which the above- indicated fine may be assessed. Any violation found to exist onthe day of trial may be found, at a minimum, to have existed fromthe filing date of the complaint until the day of trial and thefine assessed accordingly, unless grantee affirmatively provesthat said violation did not exist during any part of or all ofthe aforementioned time period. If the grantee is found by theCourt to have been adjudicated in violation of any provision ofthis Ordinance on more than one (1) occasion within two (2) years, whether or not a violation of the same provision of thisOrdinance, the minimum fine per violation shall be One Hundred($100.00) Dollars and the maximum fine per violation shall be Brewer City Ordinance Chap. 6 - Art. 8 Sec. 801 – 801.3 Five Hundred ($500.00) Dollars. b. Seek legal or equitable relief from any court ofcompetent jurisdiction. c. Apply any remedy provided for in a FranchiseAgreement, including enforcing provisions, if any. Section 801. Revocation or Termination of Franchise. Section 801.1. City Right to Revoke Franchise. The City shallhave the right to revoke the franchise for a grantee'ssubstantial failure to construct or operate the cable system asrequired by this Ordinance or a franchise agreement, fordefrauding or attempting to defraud the City or subscribers, ifthe grantee is declared bankrupt, or for any other materialviolation of this Ordinance or material breach of a franchise agreement. To invoke the provisions of this Article, the Cityshall give the grantee written notice of the default in itsperformance. If within thirty (30) calendar days following such writtennotice from the City to the grantee, the grantee has not takencorrective action or corrective action is not being actively andexpeditiously pursued to the satisfaction of the City, the Citymay give written notice to the grantee of its intent to revokethe franchise, stating its reasons; provided that no opportunityto cure shall be provided where the grantee has defrauded orattempted to defraud the City or its subscribers, or in the eventthe grantee is declared bankrupt. In the case of a fraud or attempted fraud, the franchise may be revoked after the hearingrequired under Article #8, Section 801.2; revocation forbankruptcy shall be governed by Article #8, Section 801.3. Article 801.2 Public Hearing. Prior to revoking a franchise, theCity shall hold a public hearing, on thirty (30) calendar days'written notice, at which time the grantee and the public shall begiven an opportunity to be heard. Following the public hearing, the City may determine to revoke the franchise based on theinformation presented at the hearing, and other information ofrecord. If the City determines to revoke a franchise, it shallissue a written decision setting forth the reasons for itsdecision. A copy of such decision shall be transmitted to thegrantee. Section 801.3. Revocation After Assignment for Benefit ofCreditors or Appointment of Receiver or Trustee. To the extent provided by law, any franchise may, at the option of the Cityfollowing a public hearing, be revoked one hundred twenty (120) Brewer City Ordinance Chap. 6 - Art. 8 Sec. 801.4 calendar days after an assignment for the benefit of creditors orthe appointment of a receiver or trustee to take over thebusiness of the grantee, whether in a receivership, reorganization, bankruptcy assignment for the benefit ofcreditors, or other action or proceeding, unless within that onehundred twenty (120) day period: a. Such assignment, receivership, or trusteeship hasbeen vacated; or b. Such assignee, receiver, or trustee has fullycomplied with the material terms and conditions of this Ordinanceand a franchise agreement and has executed an agreement, approvedby a court of competent jurisdiction, assuming and agreeing to bebound by the terms and conditions of this Ordinance and afranchise agreement, and such other conditions as may beestablished or as are required under Article #13.0 of thisOrdinance. c. In the event of foreclosure or other judicial saleof any of the facilities, equipment, or property of a grantee, the City may revoke the franchise, following a public hearingbefore the City, by serving notice on the grantee and thesuccessful bidder at the sale, in which event the franchise andall rights and privileges of the franchise will be revoked andwill terminate thirty (30) calendar days after serving suchnotice, unless the City has approved the transfer of thefranchise to the successful bidder, and the successful bidder hascovenanted and agreed with the City to assume and be bound by theterms and conditions of the franchise agreement and thisOrdinance, and such other conditions as may be established or asare required pursuant to Article 9 of this Ordinance. Section 801.4. Procedures on Revocation, Abandonment, andTermination. If the City revokes a franchise, or if for anyother reason a grantee abandons, terminates, or fails to operateor maintain service to its subscribers, the following proceduresand rights are effective: a. The City may require the former grantee to removeits facilities and equipment located in the public rights-of-wayand on public premises at the former grantee's expense. If the former grantee fails to do so within a reasonable period of time, the City may have the removal done at the former grantee's and/orsurety's expense. The foregoing provisions shall not apply if, within three (3) months after expiration, termination orrevocation of the franchise, the grantee obtains certificationfrom the Federal Communications Commission to operate an openvideo system or any other federal or state certification toprovide telecommunications services. Brewer City Ordinance Chap. 6 - Art. 8 Sec. 801.5 - 803 b. In the event of revocation, the City, by writtenorder, may acquire ownership of the cable system at not less thanfair market value, determined on the basis of the cable systemvalued as a going concern, but with no value allocated to thefranchise itself, as specified at 47 U.S.C. 547(a)(1). c. If a cable system is abandoned by a grantee or thefranchise otherwise terminates, the ownership of all portions ofthe cable system in the public rights-of-way shall revert to theCity and the City may sell, assign, or transfer all or part ofthe assets of the system. If a grantee abandons a portion of its system, the ownershipof the abandoned portions of the cable system in the publicrights-of-way shall revert to the City and the City may sell, assign or transfer the abandoned facilities. A cable system or aportion thereof shall be deemed "abandoned" if a grantee (i) gives the City written notice of its decision to abandonthe system or the portion in question; or (ii) fails to provide cable service to subscribers served bythe system or the relevant portion thereof on a continuous basisfor a period of thirty (30) consecutive calendar days or more. Section 801.5. Forfeiture for Failure to Comply With FranchiseObligation. Notwithstanding any other provision of thisOrdinance other than the force majeure clause of Article #17, Section 1701, where the City has issued a franchise specificallyconditioned in the franchise agreement on the completion ofconstruction, System upgrade, or other specific obligation by aspecified date, failure of the grantee to complete suchconstruction or upgrade, or to comply with such other specificobligations as required, will result in the automatic forfeitureof the franchise without further action by the City where it isso provided in the franchise agreement, unless the City, at itsdiscretion and for good cause demonstrated by the grantee, grantsan extension of time. Section 802. Obligation of Compliance. The City's exercise ofone remedy or a grantee's payment of liquidated damages orpenalties shall not relieve a grantee of its obligations tocomply with its franchise. In addition, the City may exerciseany rights it has at law or equity. Section 803. Relation to Insurance and Indemnity Requirements. Recovery by the City of any amounts under insurance, theperformance bond, the security fund or letter of credit, orotherwise does not limit a grantee's duty to indemnify the Cityin any way; nor shall such recovery relieve a grantee of its Brewer City Ordinance Chap. 6 - Art. 9 Sec. 900 - 902 obligations under a franchise, limit the amounts owed to theCity, or in any respect prevent the City from exercising anyother right or remedy it may have; provided that this sectionshall not be interpreted as permitting the City to recover twicefor the same damage. In addition, any civil fine imposedpursuant to Section 8.1(a) or other applicable law shall not betreated as a recovery for purposes of this section. Article #9 TRANSFERS Section 900. City Approval Required. No transfer shall occur without prior approval of the City; provided, however, that nosuch approval shall be required for transfers resulting from thetransfer of ownership interests between existing holders ofownership interests in a grantee, where such holders were alsoholders of ownership interests in the grantee at the time of theoriginal grant of the franchise to the grantee. Section 901. An application for a transfer shall providecomplete information on the proposed transaction, includingdetails on the legal, financial, technical, and otherqualifications of the transferee, and on the potential impact ofthe transfer on subscriber rates and services. At a minimum, theinformation required under federal law and in Article #4, Sections 403.1 through 403.5, 403.10 through 403.12, 403.10through 403.14, and Section 403.16 of this Ordinance shall beprovided with respect to the proposed transferee. Section 902. Determination by City. In making a determination asto whether to grant, deny, or grant subject to conditions anapplication for a transfer of a franchise, the City shall notunreasonably withhold its consent, but shall first consider (i) the legal, financial, and technical qualifications ofthe transferee to operate the System; (ii) whether the incumbent cable operator is in compliancewith its franchise agreement and this Ordinance and, if not, theproposed transferee's commitment to cure such noncompliance; (iii) whether the transferee owns or controls any othercable system in the City, or whether operation by the transfereemay eliminate or reduce competition in the delivery of CableService in the City; and (iv) whether operation by the transferee or approval of thetransfer would adversely affect subscribers, the City's interestunder this ordinance, the franchise agreement, or other Brewer City Ordinance Chap. 6 - Art. 9 & 10 Sec. 903 – 1000.2 applicable law, or make it less likely that the future cable- related needs and interests of the community would be satisfiedat a reasonable cost. The City reserves the right to review thepurchase price of any transfer or assignment of a cable system. To the extent permitted by applicable law, any negotiated salevalue, which the City deems unreasonable will not be consideredin the rate base for any subsequent request forrate increases. Section 903. Transferee's Agreement. No application for atransfer of a franchise shall be granted unless the transfereeagrees in writing that it will abide by and accept all terms ofthis Ordinance and the franchise agreement, and that it willassume the obligations, liabilities, and responsibility for allacts and omissions, known and unknown, of the previous granteeunder this Ordinance and the franchise agreement for allpurposes, including renewal, unless the City, in its solediscretion, expressly waives this requirement in whole or inpart. Section 904. Approval Does Not Constitute Waiver. Approval bythe City of a transfer of a franchise shall not constitute awaiver or release of any of the rights of the City under thisOrdinance or a franchise agreement, whether arising before orafter the date of the transfer. Section 905. Processing Fee. As a condition of considering atransfer, the City may impose a fee on the transferee to coverits estimated out-of-pocket expenses in considering theapplication for transfer of a franchise. Any amount collected inexcess of the estimated amount shall be returned to the transferee. Article #10 FRANCHISE FEE Section 1000.1. Finding. The City finds that the publicrights-of-way of the City, County, and State to be used by agrantee for the operation of a cable system are valuable publicproperty acquired and maintained by the county, state, and Cityat great expense to the taxpayers. The City further finds thatthe grant of a franchise to use public rights-of-way is avaluable property right without which a grantee would be requiredto invest substantial capital. Section 1000.2. Payment to City. As compensation for use of thepublic rights-of-way and in light of the scope of any franchise, in addition to providing channels, facilities and other supportfor public, educational and governmental use of the cable system, a grantee shall pay the City a franchise fee. Brewer City Ordinance Chap. 6 - Art. 10 Sec. 1000.3 The amount of the fee shall be specified in a franchiseagreement. The franchise fee shall be paid annually, providedthat provisions for more frequent payments may be specified in afranchise agreement. At least once a year the grantee shallprovide the City a report setting forth the total of grossrevenues for the year or other period in question and identifyingthe amount of revenues attributable to each category of grossrevenues received by the grantee, including non subscriber grossrevenues, and the number of subscribers receiving each categoryof cable service offered by the grantee. Section 1000.3. City Right to Request Audit. The City shallhave the right to retain an independent auditor to (i) audit the records of a grantee to verify the computationof amounts payable under this Ordinance or a franchise agreement; and (ii) recompute any amounts determined to be payable underthis Ordinance or a franchise agreement, whether the records areheld by the grantee, an affiliate, or any other entity thatcollects or receives funds related to the grantee's operation inthe City, including, by way of illustration and not limitation, any entity that sells advertising on the grantee's behalf. The grantee shall be responsible for all reasonable costs associatedwith any such audit, including the auditor's fees, as a costincidental to the enforcement of the franchise, and shall have nocontrol over the identity or selection of the auditor. The Cityshall have sole discretion in selecting the auditor and shall notbe responsible for any costs associated with the audit. The Cityshall have the right to review the auditor's report andmethodology, including the right to obtain an explanation of allof the auditor's assumptions and calculations, and the right tochallenge and request changes to any such assumptions andcalculations. The City shall not, however, be permitted to obtain copiesof documents received by the auditor, with the exception ofdocuments voluntarily provided by the grantee to the City, orsubject to copying by the City pursuant to Article #15 Section1500. The Grantee shall be responsible for providing all suchrecords to the auditor, without regard to by whom they are held. The records shall be maintained for at least three (3) years. Any additional amounts due to the City as a result of an auditshall be paid within thirty (30) days following written notice tothe grantee by the City of the underpayment, which notice shallinclude a copy of the audit report. The City may exercise itsaudit right no more frequently than once per year, and only uponwritten notice to the grantee. Brewer City Ordinance Chap. 6 - Art. 10 Sec. 1000.3.1 – 1101.3 Section 1000.3.1. Maintenance of Records. A grantee shallmaintain its fiscal and financial records and have all relevant fiscal and financial records maintained by others on its behalfin such a manner as to enable the City to (i) determine the cost of assets of the grantee which areused in providing services within the City for purposes ofassessing any personal property or other taxes and for purposesof verifying any filings that may be made in connection with anycost of service proceedings, and (ii) to determine gross revenues. For purposes of assessingstate and local taxes, the cost of assets shall be determined inaccordance with any applicable provision of state law. For purposes of any cost of service proceedings, and for purposes ofassessing state and local taxes if state law does not provide amethod, the cost of assets shall be determined in accordance withFederal Communications Commission rules pertaining to cost ofservice proceedings. Article #11 CONSTRUCTION PROVISIONS Section 1100. System Construction Schedule. Every franchiseagreement shall specify the construction schedule that will applyto any required construction, upgrade, or rebuild of the cablesystem. Section 1101. Construction Standards. Section 1101.1. Construction Shall Be In Accordance With All Applicable Laws. The construction, operation, maintenance, andrepair of a cable system shall be in accordance with allapplicable sections of the Occupational Safety an Health Act of1970, as amended, the National Electrical Safety Code, theNational Electric Code, other applicable federal, state, or locallaws and regulations that may apply to the operation, construction, maintenance, or repair of a cable system, including, without limitation, local zoning and constructioncodes, and laws and accepted industry practices, all as hereaftermay be amended or adopted. Section 1101.2. Wires To Cause Minimum Inconvenience. All wires, cable lines, and other transmission lines, equipment, andstructures shall be installed and located to cause minimum interference with the rights and convenience of property owners. Section 1101.3. Installation of Equipment To Be of PermanentNature. All installation of electronic equipment shall be of apermanent nature, using durable components. Brewer City Ordinance Chap. 6 - Art. 11 Sec. 1101.4 – 1101.9 Section 1101.4. Antennae. Without limiting the foregoing, to theextent applicable, antennae and their supporting structures(towers) shall be painted, lighted, erected, and maintained inaccordance with all applicable rules and regulations of theFederal Aviation Administration and all other applicable state orlocal laws, codes, and regulations, all as hereafter may beamended or adopted. Section 1101.5. Good Engineering Practices. Without limiting theforegoing, all of a grantee's plant and equipment, including, butnot limited to, the antennae site, head-end and distributionsystem, towers, house connections, structures, poles, wires, cable, coaxial cable, fiber optic cable, fixtures, andapparatuses shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained, andoperated in accordance with good engineering practices, performedby experienced and properly trained maintenance and constructionpersonnel so as not to endanger or interfere with improvementsthe City shall deem appropriate to make or to interfere in anymanner with the public rights-of-way or legal rights of anyproperty owner or to unnecessarily hinder or obstruct pedestrianor vehicular traffic. Section 1101.6. Safety Practices. All safety practices requiredby law shall be used during construction, maintenance, and repairof a cable system. A grantee shall at all times employreasonable care and shall install and maintain in use commonlyaccepted methods and devices preventing failures and accidentsthat are likely to cause damage, injury, or nuisance to thepublic. Section 1101.7. No Interference With Other Utilities. A granteeshall not place facilities, equipment, or fixtures where theywill interfere with any gas, electric, telephone, water, sewer, or other utility facilities, or obstruct or hinder in any mannerthe various utilities serving the residents of the City of theiruse of any public rights-of-way. Section 1101.8. Repair of Rights-of-Way. Any and all publicrights-of-way, public property, or private property that isdisturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance, or constructionof a system or otherwise, including installation, repair, maintenance or replacement of a grantee's equipment shall bepromptly repaired by the grantee. Section 1101.9. Removal of System Due To Conditions in Rights-of- Way. A grantee shall, by a time specified by the City, protect, support, temporarily disconnect, relocate, or remove any of itsproperty when required by the City by reason of traffic Brewer City Ordinance Chap. 6 - Art. 11 Sec. 1101.10 – 1101.13 conditions; public safety; public right-of-way construction; public right-of-way maintenance or repair (including resurfacingor widening); change of public right-of-way grade; construction, installation or repair of sewers, drains, water pipes, powerlines, signal lines, tracks, or any other type of government- owned communications system, public work or improvement or anygovernment-owned utility; public right-of way vacation; or forany other purpose where the convenience of the City would beserved thereby; provided, however, that the grantee shall, in allsuch cases, have the privilege of abandoning any property inplace. Section 1101.10. Removal by City Due To Emergency. In the event of an emergency, or where a cable system creates or iscontributing to an imminent danger to health, safety, orproperty, the City may remove, relay, or relocate that portion ofthe cable system. Unless the nature of the emergency or dangeris such that immediate action is necessary to preserve life orproperty or to prevent physical harm to any individual, the Cityshall provide telephonic notice to the grantee prior to removing, relaying or relocating any portion of a grantee's cable system. Section 1101.11. Raising or Lowering Wires To Permit Moving ofBuildings. A grantee shall, on the request of any person holdinga building-moving permit issued by the City, temporarily raise orlower its wires to permit the moving of buildings. The expenseof such temporary removal or raising or lowering of wires shallbe paid by the person requesting same, and the grantee shall havethe authority to require such payment in advance, except in thecase where the requesting person is the City, in which case nosuch payment shall be required. The grantee shall be givenreasonable advance notice to arrange for such temporary wirechanges, as provided in 35-A M.R.S.A. Section 2516. Section 1101.12. Authority To Trim Trees. A grantee shall havethe authority to trim trees that overhang a public right-of-wayof the City so as to prevent the branches of such trees fromcoming in contact with the wires, cables and equipment of thegrantee. Except in emergencies, a grantee shall notify the Cityat least one (1) business day prior to performing any suchtrimming. At the option of the City, such trimming may be doneby the City or under the City's supervision and direction, at theexpense of the grantee. Section 1101.13. Use of Existing Utility Facilities. A granteeshall use, with the owner's permission, existing undergroundconduits of overhead utility facilities whenever feasible and maynot erect poles or support equipment in public rights-of-waywithout the express permission of the City. Copies of agreementsfor use of conduits or other facilities shall be filed with the Brewer City Ordinance Chap. 6 - Art. 11 Sec. 1101.14 – 1101.17 City as required by a franchise agreement or upon the City'swritten request. Section 1101.14. Undergrounding of Cable. (a) In public rights-of-way or other places where electricaland telephone utility wiring is located underground, either atthe time of initial construction of a cable system or at any timethereafter, a grantee's cable system also shall be locatedunderground. (b) Between a public right-of-way and a subscriber'sresidence, if either electric or telephone utility wiring isaerial, a grantee may install aerial cable except where aproperty owner or resident requests underground installation andagrees to bear the additional cost of such installation over andabove the cost of aerial installation. Where existingsubdivision approvals, deed covenants, municipal zoning or otherlegal restrictions require underground location of utilities, grantee's cable shall be located underground, and the subscribershall bear the additional cost of such installation on their property as a condition of receiving cable service. Section 1101.15. City Use of Grantee's Poles. The City shallhave the right to install and maintain free of charge upon thepoles owned by a grantee any wire and pole fixtures that do notmaterially interfere with the cable system operations of thegrantee. Section 1101.16. City Approval of Construction. Prior to erection of any towers, poles, or conduits or the construction, upgrade, or rebuild of a cable system authorized under thisordinance or a franchise agreement, a grantee shall first submitto the City and other designated parties for approval a concisedescription of the cable system proposed to be erected orinstalled, including engineering drawings, if required, togetherwith a map and plans indicating the proposed location of all suchfacilities. No erection or installation of any tower, pole, underground conduit, or fixture or any rebuilding or upgrading ofa cable system shall be commenced by any person until the granteehas obtained all building permits, street operating permits orother approvals required by the City under any Ordinance, regulation or procedure generally applicable to such activities. Section 1101.17. Contractors and Subcontractors. Anycontractor or subcontractor used for work or construction, installation, operation, maintenance, or repair of systemequipment must be properly licensed under laws of the State andall applicable local Ordinances. The grantee must ensure thosecontractors, subcontractors and all employees who will perform Brewer City Ordinance Chap. 6 - Art. 11 Sec. 1102 – 1103.2 work for it are trained and experienced. Each contractor and subcontractor must perform work incompliance with all applicable provision of law and a franchiseagreement, and the grantee shall implement a quality controlprogram to ensure that the work is so performed. Section 1102. Publicizing Proposed Construction Work. Except inemergencies or to restore outages, grantee shall publicizeproposed construction work prior to commencement of that work bycausing written notice of such construction work to be deliveredto the City and by notifying those persons most likely to beaffected by the work in at least two (2) of the following ways: by telephone, in person, by mail, by distribution of flyers toresidences, by publication in local newspapers, or in any othermanner reasonably calculated to provide adequate notice, including use of local informational channels. Whenever practicable, such notice shall be given at least one (1) weekprior to commencement of the work concerned. Section 1103. Continuity of Service. Section 1103.1. Subscriber Right. It is the right of allsubscribers in a grantee's franchise area to receive all servicesthat a grantee is then providing under the terms of a validfranchise as long as their financial and other obligations to thegrantee are satisfied; provided, however, that to the extent agrantee's agreements with its programming providers prohibit thegrantee from providing certain cable services to nonresidentialsubscribers, the grantee may exclude such services from itsofferings to nonresidential Subscribers. Section 1103.2. Assurance of Continuous Uninterrupted Service. A grantee shall ensure that all subscribers receive continuousuninterrupted service. To this end, grantee shall: (a) In the event of a sale or transfer of its franchise, cooperate with the City to assure an orderly transition from itto another grantee and take all steps necessary to maintainservice to subscribers until the sale or transfer has been completed; (b) not abandon service to the entire City without havinggiven twelve (12) months' prior notice to the City; and (c) notabandon service to any portion of the City (excepting terminationof service to individual subscribers as otherwise permitted) without having given six (6) months' prior written notice to theCity. Following such notice, the grantee shall continue to beobligated to comply with the terms and conditions of itsfranchise agreement and applicable laws and regulations and shall Brewer City Ordinance Chap. 6 - Art. 11 & 12 Sec. 1103.3 - 1200 cooperate with the City to assure an orderly transition from itto another grantee. Section 1103.3. Abandonment of System. If a grantee abandons itssystem during the franchise term, or fails to operate its systemin accordance with Article #11 of this Ordinance during anytransition period, the City, at its option, may operate thesystem, designate another entity to operate the systemtemporarily until the grantee restores service under conditionsacceptable to the City or until the franchise is revoked and anew grantee selected by the City is providing service, or obtainan injunction requiring the grantee to continue operations. Ifthe City is required to operate or designate another entity tooperate the cable system, the grantee shall reimburse the City orits designee for all reasonable costs and damages incurred thatare in excess of the revenues from the cable system. In addition, any abandonment of a system shall be subject to all ofthe provisions of 30-A M.R.S.A. 3008(3)(B). Section 1103.4. Injunctive Relief. The City shall be entitled toinjunctive relief under the preceding paragraph if: a. The grantee fails to provide cable service inaccordance with its franchise over a substantial portion of thefranchise area for ninety-six (96) consecutive hours, unless theCity authorizes a longer interruption of service or as permittedpursuant to the force measure clause of Article #17, Section1701; or b. The grantee, for any period, willfully and withoutcause refuses to provide cable service in accordance with itsfranchise over a substantial portion of the franchise area. Article #12 SYSTEM FACILITIES, EQUIPMENT, AND SERVICES In addition to satisfying such requirements as may beestablished through the application process, every cable systemshall be subject to the following conditions, except asprohibited by federal law: Section 1200. Provision of Service. Each franchise agreementshall contain a line extension policy that shall govern agrantee's obligation to extend service. Unless otherwise specified in a franchise agreement, after cable service has beenestablished by activating trunk distribution cable for an areaspecified in a franchise agreement, a grantee shall provide cableservice to any household requesting cable service within thatarea, including each multiple dwelling unit in that area, exceptfor multiple dwelling units to which it cannot legally obtain Brewer City Ordinance Chap. 6 - Art. 12 Sec. 1201 - 1203 access. In providing services to multiple dwelling units, agrantee shall comply with all applicable provisions of Title 14 M.R.S.A. §6041. Section 1201. Full Video Service to Municipal Buildings; Facilities and Equipment. A franchise agreement may require agrantee to install, at no charge, at least one (1) service outletat all municipal buildings within the franchise area that can bereached by a standard drop, and may provide that the granteeshall charge only its time and material costs for any additionalservice outlets to such facilities. A franchise agreement may also require a grantee to providebasic cable service and the lowest tier of cable programmingservices to such buildings free of charge. Finally, a franchiseagreement may provide that such service outlets shall be capableof providing the full range of non-cable electronic data andtelecommunication services provided by a grantee, and may requireother facilities and equipment and channel capacity in accordancewith the Cable Act, at rates and terms set out in the franchiseagreement. Section 1202 Technical Standards. Section 1202.1. FCC Standards. Any cable system within the Cityshall meet or exceed the technical standards set forth in 47 C.F.R. 76.601 and any other applicable technical standards, including any such standards as hereafter may be amended oradopted by the City in a manner consistent with federal law. Section 1202.2. Facilities Shall Not Interfere With Others' Signals or Facilities. A grantee shall not design, install, oroperate its facilities in a manner that will interfere with thesignals of any broadcast station, the facilities of any publicutility, the cable system of another grantee, or individual ormaster antennae used for receiving television or other broadcastsignals. Section 1203. Proof of Performance Tests. At the times specifiedin a franchise agreement or as required by Federal CommunicationCommission rules, a grantee shall perform proof of performancetests, and such other tests as may be specified in a franchiseagreement, designed to demonstrate compliance with thisOrdinance, the franchise agreement, and Federal CommunicationCommission requirements. The grantee shall provide the resultsof proof of performance tests promptly to the City, upon theCity's written request. The City shall have the right to inspectthe cable system during and after its construction to ensurecompliance with this Ordinance, the applicable franchiseagreement, and applicable provisions of local, state and federal Brewer City Ordinance Chap. 6 - Art. 13 Sec. 1300 - 1300.2 law, and may require the grantee to perform additional testsbased on the City's investigation of cable system performance oron subscriber complaints. Article #13 CONSUMER PROTECTION PROVISIONS Section 1300. Telephone and Office Availability. Section 1300.1. Office; Hours of Operation; Telephone. Each grantee shall maintain an office at a location reasonablyconvenient to Subscribers that shall be open at least fifty (50) hours each week, including, during the hours of 8:30 a.m. to 5 p.m. Monday through Friday and 8:30 a.m. to 12 p.m. Saturdayexclusive of all State and Federal holidays, to allow subscribersto request service and conduct other business. Each granteeshall ensure that its office shall meet all applicable accessrequirements of the Maine Human Rights Act and the Americans withDisabilities Act, and all other applicable federal and state lawsand regulations. Each grantee shall perform service calls, installations, anddisconnects during at least the hours for which its office isopen for business, provided that a grantee shall respond tooutages twenty-four (24) hours a day, seven (7) days a week. Each grantee shall establish a publicly listed toll-freetelephone number, and shall either ensure that its telephoneservice has TTY and TDD capabilities, or contract with a thirdparty to provide grantee with such services. The phone must beanswered by customer service representatives at least during thehours for which the grantee's office is open for business, forthe purpose of receiving requests for service, inquiries, andcomplaints from subscribers; after those hours a grantee shallarrange for the phone to be answered so that customers canregister complaints and report service problems on a twenty-four (24) hour per day, seven (7) day per week basis, and so that theGrantee can respond to service outages as required herein. Section 1300.2. Telephone Answering Time. Telephoneanswering time shall not exceed thirty (30) seconds or four (4) rings, and the time to transfer the call to a customer servicerepresentative (including hold time) shall not exceed anadditional thirty (30) seconds. This standard shall be met ninety (90%) percent of the time, measured quarterly. When the business office is closed, an answering machine or servicecapable of receiving and recording service complaints andinquiries shall be employed. Any after-hours answering serviceused shall comply with the same telephone answer time standardset forth in this Article. If required by its franchiseagreement, a grantee shall supply statistical data to verify ithas met the standards set forth herein. Brewer City Ordinance Chap. 6 - Art. 13 Sec. 1300.3 – 1301.5 Section 1300.3. Staff. A grantee must hire sufficient staff so that it can adequately respond to customer inquires, complaints, and requests for service in its office, over the phone, and at the subscriber's residence. Section 1301. Scheduling Work. Section 1301.1. All appointments for service, installation, ordisconnection shall be specified by date. Each grantee shalloffer a choice of morning, afternoon, or all-day appointmentopportunities. If at any time an installer or technicianbelieves it impossible to make a scheduled appointment time, anattempt to contact the customer will be made prior to the time ofappointment and the appointment rescheduled. Section 1301.2. Missed Appointments. Subscribers who experiencea missed installation appointment due to the fault of a granteeshall receive standard installation free of charge. If the installation was to have been provided free of charge, or forother appointments, the subscriber shall receive one (1) month ofthe subscribed to service tier free of charge, or a credit ofTwenty ($20.00) Dollars, whichever is greater. Section 1301.3. Mobility-Limited Customers. With regard tomobility-limited customers, upon subscriber request, each granteeshall arrange for pickup and/or replacement of converters orother grantee equipment at the Subscriber's address or by asatisfactory equivalent (such as the provision of a postage- prepaid mailer). Section 1301.4. Acknowledgment of and Response to CustomerRequests. Requests for service, repair, and maintenance must beacknowledged by a grantee within twenty-four (24) hours, or priorto the end of the next business day. A grantee shall respond toall other inquiries (except billing inquiries) within five (5) business days of the inquiry or complaint. A grantee shallacknowledge receipt of billing inquiries within five (5) days andprovide a detailed response within thirty (30) days. Section 1301.5. Completion of Work. Repairs and maintenance forservice interruptions and other repairs not requiring in-unitwork must be initiated within twenty-four (24) hours and must becompleted within sixty-two (62) hours. All other requests forservice must be completed within three (3) days from the date ofthe initial request, except installation requests, provided thata grantee shall complete the work in the shortest time possiblewhere, for reasons beyond the grantee's control, the work couldnot be completed in those time periods even with the exercise ofall due diligence; the failure of a grantee to hire sufficientstaff or to properly train its staff shall not justify a Brewer City Ordinance Chap. 6 - Art. 13 Sec. 1301.6 –1302.3 grantee's failure to comply with this provision. Except asfederal law requires, no charge shall be made to the subscriberfor this service, except for the cost of repairs to the grantee'sequipment or facilities where it can be documented that theequipment or facility was damaged by a subscriber. Section 1301.6. Work Standards. The standards of Articles 1301.4 and 1301.5 of this Article shall be met ninety-five (95) percentof the time, measured on a quarterly basis. Section 1302. Notice to Subscribers. Section 1302.1. Provision of Information to Subscribers. A grantee shall provide each subscriber at the time cable serviceis installed, and at least annually thereafter, writteninstructions for placing a service call, filing a complaint, orrequesting an adjustment. Each grantee shall also provide a notice informingsubscribers of how to communicate their views and complaints tothe cable company, the proper municipal official and the StateAttorney General; stating the responsibility of the StateAttorney General to receive consumer complaints concerningmatters other than channel selection and rates; and stating thepolicy regarding and method by which subscribers may requestrebates or pro-rata credits as provided in this Ordinance orapplicable federal or state law or regulation. In addition, allgrantees shall provide subscribers to their services a scheduleof rates and charges, a copy of the service contract, delinquentsubscriber disconnect and reconnect procedures, and a descriptionof any other of the grantee's policies in connection with itssubscribers. Copies of these notices shall be provided to theCity. A grantee shall provide the City and each subscriber atleast thirty (30) days advance notice of any significant changesin any of the information required by this Section. Section 1302.2. Disclosure of Price Terms. All granteepromotional materials, announcements, and advertising ofresidential cable services to subscribers and the general public, where price information is listed in any manner, shall clearlyand accurately disclose price terms. In the case of pay-per-viewor pay-per-event programming, all promotional materials mustclearly and accurately disclose price terms and in the case oftelephone orders, a grantee shall take appropriate steps toensure that the customer service representatives clearly andaccurately disclose price terms to potential customers in advanceof taking the order. Section 1302.3. Public File. Each grantee shall maintain apublic file containing all notices provided to subscribers under Brewer City Ordinance Chap. 6 - Art. 13 Sec. 1303 – 1304.5 these customer service standards, as well as all writtenpromotional offers made to subscribers by the grantee. Material in the file shall be retained for at least one (1) year after thelater of the date of mailing or public announcement of theinformation contained in a notice. Section 1303. Interruptions of Service. A grantee mayintentionally interrupt service on the cable system only for goodcause and for the shortest time possible and, except in emergencysituations, only after a minimum of forty-eight (48) hours priornotice to subscribers and the City of the anticipated serviceinterruption; provided, however, that planned maintenance thatdoes not require more than two (2) hours, interruption of serviceand that occurs between the hours of 12:00 a.m. and 6:00 a.m. shall not require such notice to subscribers, and notice to theCity may be given no less than twenty-four (24) hours prior tothe anticipated service interruption. Section 1304. Billing. Section 1304.1. Pro-ration of First Billing Statement. A grantee's first billing statement after a new installation orservice change shall be prorated as appropriate and shall reflectany security deposit, made or given by the subscriber to thegrantee. Section 1304.2. Itemization. A grantee's billing statementmust itemize each category of service and equipment provided tothe Subscriber and state clearly the charge therefor. Section 1304.3. Payment Due Date. A grantee's billing statementmust show a specific payment due date not earlier than ten (10) days after the date the statement is mailed. Any balance notreceived within thirty (30) days after the due date may beassessed a late fee not exceeding one and one-half percent (1.5%) of the amount due or any higher amount allowed by State law. The late fee shall appear on the following month's billing statement. Section 1304.4. In Person Payments. A grantee must notify thesubscriber that he or she can remit payment in person at thegrantee's office in the greater Brewer area and inform thesubscriber of the address of that office. Section 1304.5. No Late Fees for Failures by Grantee. subscribers shall not be charged a late fee or otherwisepenalized for any failure by a grantee, including a failure totimely or correctly bill the subscriber, or failure to properlycredit the subscriber for a payment timely made. Brewer City Ordinance Chap. 6 - Art. 13 Sec. 1304.6 – 1305.4 Section 1304.6. Credit for Lack or Impairment of Service. Uponrequest, the account of any subscriber shall be credited aprorated share of the monthly charge for the service if saidsubscriber is without service or if service is substantiallyimpaired for any reason for a period exceeding six (6) hoursduring any twenty-four (24) hour period, except where it can bedocumented that a subscriber seeks a refund for an outage orimpairment which that subscriber caused, or in the case of aplanned outage occurring between the hours of 12:00 midnight and 6:00 a.m. of which the subscriber had prior notice. Section 1305. Disconnection/Downgrades. Section 1305.1. Subscriber Termination. A subscriber mayterminate service at any time. Section 1305.2. Prompt Disconnection or Request; Charges. A grantee shall promptly disconnect or downgrade any subscriber whoso requests from the grantee's cable system, unless thesubscriber unreasonably hinders access by the grantee toequipment of the grantee or the subscriber's premises to whichthe grantee must have access to complete the requesteddisconnection. No period of notice prior to voluntarytermination or downgrade of service may be required ofsubscribers by any grantee. No charge may be imposed for anyvoluntary disconnection, and downgrade charges must comply withthe requirements of federal law. So long as the subscriber returns equipment necessary toreceive a service within five (5) business days of thedisconnection, no charge may be imposed by any grantee for anycable services delivered after the date of the request todisconnect. Section 1305.3. Subscriber Return of Equipment. A subscriber maybe asked, but not required, to disconnect a grantee's equipmentand return it to the business office; provided that if asubscriber requests that a grantee pick up the equipment, thesubscriber shall provide reasonable access to the subscriber'spremises during grantee's business hours to allow the grantee toretrieve the equipment. Section 1305.4. Refund of Security Deposit. Any security depositand/or other funds due the subscriber shall be refunded ondisconnected accounts after the converter has been recovered bythe grantee. The refund process shall take a maximum of thirty (30) days or the next billing cycle from the date disconnectionwas completed as required herein to the date the customerreceives the refund. Brewer City Ordinance Chap. 6 - Art. 13 Sec. 1305.5 - 1306 Section 1305.5. Disconnection for Failure To Pay Fee. If a subscriber fails to pay a monthly subscriber or other fee orcharge, a grantee may disconnect the subscriber's service outlet; however, such disconnection shall not be effected until at leastforty-five (45) days after the due date of the monthly subscriberfee or other charge and, after ten (10) days' advance writtennotice of intent to disconnect is given to the subscriber inquestion. If the subscriber pays all amounts due, including latecharges before the date scheduled for disconnection, the granteeshall not disconnect service. Subject to Article #13, Section1305.2 of this Ordinance, after disconnection, upon payment bythe subscriber in full of all proper fees or charges, includingthe payment of the reconnection charge, if any, grantee shallpromptly reinstate service. Section 1305.6. Disconnection for Damage System or Equipment. A grantee may immediately disconnect a subscriber if the subscriberis damaging or destroying the grantee's cable system orequipment. After disconnection, the grantee shall restoreservice after the subscriber provides adequate assurance that ithas ceased the practices that led to disconnection, and paid allproper fees and charges, including reconnect fees, a reasonablesecurity deposit, and amounts owed the grantee for damage to itscable system or equipment. Section 1305.7. Disconnection for Signal Leakage. A grantee mayalso disconnect a subscriber that in any way, intentionally orotherwise, causes signal leakage in excess of federal limits. It may do so in accordance with federal rules and requirements or, if the subscriber fails to take steps to correct the problem. It may also do so without notice in the event of a danger to thepublic safety, provided that the grantee shall immediately notifythe subscriber of the problem and, once the problem is corrected, reconnect the subscriber without charge. Section 1305.8. Removal of Grantee Property. Except as federallaw may otherwise provide, if a subscriber terminates service, agrantee may offer the subscriber the opportunity to acquire anywiring located on the premises that is the property of grantee atreplacement cost. If the subscriber declines to purchase thewiring, the grantee must remove its property from thesubscriber's premises within seven (7) days, if requested by thesubscriber. If a grantee fails to remove the wiring in thatperiod, the grantee shall make no further attempt to remove thewiring or restrict its use. Section 1306. Changes in Service. In addition to rights reservedby the City, subscribers shall have rights with respect toalterations in service. The grantee may not alter the servicebeing provided to a class of subscribers (including by retiering, Brewer City Ordinance Chap. 6 - Art. 13 Sec. 1307 - 1308 restructuring or otherwise) without the express permission ofeach subscriber, unless it complies with this Ordinance. At the time the grantee alters the service it provides to a class ofsubscribers, it must provide each subscriber thirty (30) days'notice, explain the substance and full effect of the alteration, and provide the subscriber the right within the thirty (30) dayperiod following notice to opt to receive any combination ofservices offered by grantee. Except as federal law otherwiseprovides, subscribers may not be required to pay any charge(other than properly noticed rates), including an upgrade ordowngrade charge, in order to receive the services selected. No charge may be made for any service or product for which there isa separate charge that a subscriber has not affirmativelyindicated it wishes to receive. Payment of the regular monthlybill does not in and of itself constitute such an affirmative indication. Section 1307. Deposits. A grantee may require a reasonable, nondiscriminatory deposit on equipment provided to subscribers. Deposits shall be placed in an interest-bearing account, and thegrantee shall return the deposit, plus interest earned to thedate repayment is made to the subscriber. Interest will be calculated at the prevailing commercial savings rate on all latepayments. Section 1308. Recording Subscriber Complaints. A grantee shallmaintain a record of subscribed complaints in accordance with 30A M.R.S.A. 3010(4): a. Every franchisee shall keep a record or log of allwritten complaints received regarding quality of service, equipment malfunctions, billing procedure, employee attitude andsimilar matters. These records shall be maintained for a periodof two (2) years. b. The record shall contain the following informationfor each complaint received: (1) Date, time and nature of the complaint; (2) Name, address and telephone number of the person complaining; (3) Investigation of the complaint; (4) Manner and time of resolution of the complaint; (5) If the complaint regards equipmentmalfunction or the quality of reception, a report indicating corrective stepstaken, with the nature of the problem stated; and Brewer City Ordinance Chap. 6 - Art. 13 & 14 Sec. 1309 – 1402.1 (6) Consistent with subscriber privacyprovisions contained in the Cable Act and applicable Federal Communications Commission regulations, every grantee shall make the logs orrecords of complaints available to any authorized agent of anyfranchising authority having a franchise with that grantee or anyauthorized agent of a municipality considering a franchise withthat grantee upon request during normal business hours for on- site review. Section 1309. Remedies for Violators. In addition to the remedies set forth elsewhere in this ordinance and in the franchise agreement, subscribers shall have available theremedies provided by 30-A M.R.S.A. 3010(7). Article #14 RATE REGULATION Section 1400. City May Regulate Rates. The City may regulate allrates and charges except to the extent it is prohibited fromdoing so by law, and if the City does exercise its rateregulatory authority, no rate or charge may be imposed orincreased without the prior approval of the City except suchrates and charges that the City is prohibited from regulating. Subject to the foregoing, any change made without prior approvalis an illegal change, and a grantee is prohibited from requestingor requiring a subscriber to pay an illegal rate as a conditionof providing service. This section shall not be construed to mean that any grantee has consented or will consent to subjectitself to rate regulation. Section 1401. Authority to Adopt Regulations. All rates that are subject to regulation by the City must be reasonable. The Citymay adopt such regulations, procedures, and standards, as itdeems necessary to implement rate regulation and may regulaterates by amendment to this Ordinance, by a separate Resolution orOrdinance, by amendment to a franchise agreement, or in any otherlawful manner. This Section shall not be construed to mean that any grantee has consented or will consent to subject itself torate regulation. Section 1402. Rate Change. Section 1402.1. Advance Notice of Rate Changes. At least thirty (30) days prior to implementing any increases in rates, orchanges in channel positions, programming, or service terms orconditions, a grantee shall provide the City and each Subscriberwith written notice describing any such changes it plans to makeand the proposed effective dates for the changes. A grantee shall not be required to provide thirty (30) days, Brewer City Ordinance Chap. 6 - Art. 14 & 15 Sec. 1402.2 – 1500 notice of rate decreases or temporary promotional offers thatresult in lower rates for subscribers, provided that it has giventhe City notice of such decreases and offers prior toimplementation. Section 1402.2. Explanation of Rate Changes. In addition to the required notice, before it alters services or service terms orconditions, a grantee must provide a reasonably simple and clearwritten notice explaining the substance and full effect of thealteration, including the effect on rates and service options andthe effect of the change on the use of other consumer electronicequipment. Such written notice shall be provided to the City atleast thirty (30) days, and to Subscribers at least thirty (30) days, before the change. Section 1402.3. Changes Made Without Required Notice Invalid. Any change made without the required thirty (30) days' noticeshall be of no force or effect, and a grantee shall be obligatedto refund any increased amount collected without the requiredthirty (30) days, notice, and to restore service to the priorexisting status, at least until the required notice is provided. This section shall not limit the right of a grantee to implementany rate decreases or temporary promotional offers that result inlower rates for Subscribers immediately upon providing writtennotice of these rate changes to the City. This section shall not be interpreted to limit the City's right to exercise its rateregulation authority under Article 14, Section 1400 of thisOrdinance, the availability of remedies under applicable laws orregulations, or rights under the customer service standards setforth in Article 13 of this Ordinance. Article #15 RECORDS AND REPORTS Section 1500. Open Books and Records. The City shall have theright to inspect and copy at any time after reasonable noticeduring normal business hours at a grantee's local office, allmaterials and records of the grantee relevant to the City'smanagement of the public rights-of-way and regulation of customerservice and consumer affairs including all maps, plans, servicecomplaint logs, performance test results, records of requests forservice, computer records, codes, programs, and discs or otherstorage media and other like material which the City reasonablydeems appropriate in order to monitor compliance with the termsof this Ordinance, a franchise agreement, or applicable law. A grantee shall make available to the City, to the best of itsability, the same types of materials which the City deemsrelevant and which are held by an affiliate, a cable operator ofthe cable system, and any contractor, subcontractor or any personholding any form of management contract for the cable system. Brewer City Ordinance Chap. 6 - Art. 15 Sec. 1501- 1501.1 The grantee is responsible for collecting, to the best ofits ability, such requested information and producing it at itsoffices in the greater Brewer area, and as part of itsapplication it must affirm that it can and will do so. The Cityshall preserve the confidentiality on proprietary businessinformation of a grantee or another party provided to the City bythe grantee, to the extent permissible under Maine law. To that end, the grantee shall clearly identify any proprietarybusiness information that it believes to be entitled to confidential treatment, so that the City may establishappropriate safeguards against improper disclosure. The Cityshall also have the right to inspect at any time after reasonablenotice during normal business hours at a grantee's local officeall materials relevant to the financial condition of the grantee, including all books, records, receipts, contracts, financialstatements, computer records, codes, programs, and discs or otherstorage media and other like material which the City reasonablydeems appropriate in order to monitor compliance with the termsof this Ordinance, a franchise agreement, or applicable law. A grantee shall make available for inspection by the City, to thebest of its ability, the same types of materials that the Citydeems relevant and that are held by an affiliate, a cableoperator of the cable system, and any contractor, subcontractoror any person holding any form of management contract for thecable system. The grantee is responsible for collecting, to thebest of its ability, such requested information and producing itat its offices in the greater Brewer area, and as part of itsapplication it must affirm that it can and will do so. The Cityshall preserve the confidentiality of proprietary businessinformation of a grantee provided for inspection by the City bythe grantee, to the extent permissible under Maine law. To that end, the grantee shall clearly identify any proprietary businessinformation that it believes to be entitled to confidential treatment, so that the City may establish appropriate safeguardsagainst improper disclosure. Section 1501. Required Reports. A grantee shall file thefollowing Section 15.2.1 Annual Construction Report with the Cityin a form acceptable to the City. An annual report setting forththe physical miles of plant construction and plant in operationduring the fiscal year shall be submitted to the City. Such report also shall contain any revisions to the System "as built" maps filed with the City. The annual report shall be provided atthe time specified in the franchise agreement. Section 1501.1. Notices Instituting Civil or CriminalProceedings. A grantee shall provide the City with copies of anynotice of deficiency, forfeiture, or other document issued by anystate or federal agency instituting any investigation or civil orcriminal proceeding regarding the cable system, the grantee, or Brewer City Ordinance Chap. 6 - Art. 15 Sec. 1501.2 –1502.2 any affiliate of the grantee, to the extent the same may affector bear on operations in the City. A notice that an affiliate that has a management contractfor the cable system was not in compliance with FederalCommunications Commission EEO requirements within the work unitserving the City would be deemed to affect or bear on operationsin the City. This material shall be submitted to the City at thetime it is filed or within five (5) days of the date it isreceived. Section 1501.2. Bankruptcy Declarations. Any request forprotection under bankruptcy laws, or any judgment related to adeclaration of bankruptcy by the grantee or by any partnership orcorporation that owns or controls the grantee directly orindirectly. This material shall be submitted to the City at thetime it is filed or within five (5) days of the date it isreceived. Section 1502. Reports To Be Provided on Request. Section 1502.1. Reports Required by Federal CommunicationsCommission. Upon the City's written request, a grantee shalldeliver to the City copies of all reports required by the FederalCommunications Commission, including, but not limited to, anyproof of performance tests and results, Equal EmploymentOpportunity reports, and all petitions, pleadings, notices, andapplications regarding the cable system, or a group of cablesystems of which the grantee's cable system is a part, submittedor received by the grantee, an affiliate, or any other person onthe behalf of the Grantee, either to or from the FederalCommunications Commission, or any other federal or stateregulatory commission or agency having jurisdiction over anymatter affecting operation of the grantee's system, for the timeperiod specified in the City's request. Section 1502.2. Financial Reports. The City may request thefollowing financial reports for the franchise area once percalendar year: a. An ownership report, indicating all persons who atany time during the preceding year did control or benefit from aninterest in the franchise of five percent (5%) or more. b. An annual income statement showing subscriberrevenue from each category of service and every source of nonsubscriber revenue. c. A current annual statement of all capitalexpenditures, including the cost of construction and ofequipment, used or placed within the City. Brewer City Ordinance Chap. 6 - Art. 15 Sec. 1502.3 – 1504.1 d. An annual list of officers and members of the board of directors of the grantee and any affiliates. e. An organizational chart showing what corporationsor partnerships with more than a five (5%) percent interest ownthe grantee, and the nature of that ownership interest (limitedpartner, general partner, preferred shareholder, etc.); andshowing the same information for each corporation or partnershipso identified and so on until the ultimate corporate andpartnership interests are identified. f. An annual report of each entity identified inArticle 15, Section 1502.2(e) of this Ordinance which issues anannual report. Section 1502.3. System and Operational Reports. The followingsystem and operational reports shall be submitted annually uponrequest of the City: a. An annual summary of the previous year'sactivities including, but not limited to, subscriber totals foreach category of service offered, including number of pay unitssold, new services offered, and the amount collected annuallyfrom other users of the system and the character and extent ofthe service rendered thereto. b. An annual projection of system and service plansfor the future. Section 1503. Additional Reports. The grantee shall prepare andfurnish to the City, at a time reasonably prescribed by the City, such additional reports with respect to its operation, affairs, transactions, or property as the City may reasonably deemnecessary and appropriate to the performance of any of therights, functions, or duties of the City in connection with thisOrdinance or the franchise agreement. Section 1504. Records Required. Section 1504.1. Records To Be Maintained. A grantee shall at alltimes maintain and shall deliver to the City upon request, thefollowing records: a. Records of all complaints maintained pursuant toArticle #13, Section 1308of this Ordinance. b. A full and complete set of plans, records, and "asbuilt" maps showing the exact location of all system equipmentinstalled or in use in the City, exclusive of subscriber servicedrops. Brewer City Ordinance Chap. 6 - Art. 15 Sec. 1504.2 - 1506 c. Records of outages, indicating date, duration, area, and the estimated number of subscribers affected, type ofoutage, and cause. d. Records of service calls for repair andmaintenance indicating the date and time service was required, the date of acknowledgment and date and time service wasscheduled (if it was scheduled), and the date and time servicewas provided, and (if different) the date and time the problemwas solved. e. Records of installation/ reconnection and requestsfor service extension, indicating date of request, date ofacknowledgment, and the date and time service was extended. Section 1504.2. Additional Information. The City may request anda grantee shall promptly provide additional information, reports, records, and documents as may be reasonably required from time totime for the performance by the City of any of its rights, functions, or duties in conversations with this Ordinance or afranchise agreement. Section 1505. Performance Evaluation. Section 1501.1. City Discretion To Hold Public Sessions. The City may, at its discretion, hold scheduled performance evaluation sessions. All such evaluation sessions shall be open to the public. Section 1505.2. Announcement of Sessions. All evaluation sessions shall be open to the public and announced in a newspaper of general circulation. Section 1505.3. Discussion Topics. Topics that may be discussedat any scheduled or special evaluation session may include, butare not limited to, system performance and construction, granteecompliance with this Ordinance and a franchise agreement, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, if applicable, franchise fees, penalties, free or discountedservices, applications of new technologies, judicial and FederalCommunications Commission filings, and line extensions. Section 1505.4. Grantee Cooperation. During the review andevaluation by the City, a grantee shall fully cooperate with theCity and shall provide such information and documents as the Citymay need to reasonably perform its review. Section 1506. Voluminous Materials. If the books, records, mapsor plans, or other requested documents are too voluminous, or for Brewer City Ordinance Chap. 6 - Art. 15 & 16 Sec. 1507 – 1600.3 security reasons cannot be copied and moved, then a grantee mayrequest that the inspection take place at some other location, provided that (i) the grantee must make necessary arrangementsfor copying documents selected by the City after review; and (ii) the grantee must pay reasonable travel and additional copyingexpenses incurred by the City in inspecting those documents orhaving those documents inspected by its designee, if done outsidethe greater Brewer area. Section 1507. Retention of Records; Relation to Privacy Rights. Each grantee shall take all steps required, if any, to ensurethat it is able to provide the City all information which must beprovided or may be requested under this Ordinance or a franchiseagreement, including by providing appropriating subscriberprivacy notice. Nothing in this Ordinance shall be read torequire a grantee to violate 47 U.S.C. 551. Each grantee shallbe responsible for blacking out any data that federal or statelaw prevents it from providing to the City. Article #16 RIGHTS OF INDIVIDUALS PROTECTED. Section 1600. Discriminatory Practices Prohibited. Section 1600.1. Discrimination Prohibited. A grantee shall notdeny service, deny access, or otherwise discriminate againstsubscribers, programmers, or residents of the City on the basisof race, color, religion, national origin, sex, age, physicalhandicap, or on any other basis prohibited by federal or statelaw. This provision is not intended to require a grantee toprovide any equipment or service free of charge to anysubscriber, unless such equipment or service is provided free ina manner that discriminates among subscribers in a manner that isprohibited by state or federal law, or unless the provision offree equipment or service is required by state or federal law. Section 1600.2. Discrimination for Exercise of Right Prohibited. A grantee shall not discriminate among persons or take anyretaliatory action against a person because of that person'sexercise of any right it may have under federal, state, or locallaw, nor may the grantee require a person to waive such rights asa condition of taking service. Section 1600.3. Differential Rates Based on Subscriber Income Prohibited. A grantee shall not deny access or levy differentrates and charges on the residents of any particular geographicalarea because of the income of the residents of that geographicalarea. Brewer City Ordinance Chap. 6 - Art. 16 Sec. 1600.4 – 1602.2 Section 1600.4. Rate Preferences Prohibited. Except to theextent the City may not enforce such a requirement, a grantee isprohibited from discriminating in its rates or charges or fromgranting undue preferences to any subscriber, potentialsubscriber, or group of subscribers or potential subscribers, provided, however, that a grantee may offer temporary, bona fidepromotional discounts in order to attract or maintainsubscribers, so long as such discounts are offered on a nondiscriminatory basis to similar classes of subscribers throughoutthe City; a grantee may offer discounts for the elderly, thehandicapped, or the economically disadvantaged, and such otherdiscounts as it is expressly entitled to provide under federallaw, if such discounts are applied in a uniform and consistentmanner, and a grantee may enter into bulk service agreements withmultiple dwelling unit owners, if the rates under such agreementsare established and applied in a uniform and consistent manner. A grantee shall comply at all times with all applicable federal, state, and City laws, and all executive and administrative ordersrelating to non-discrimination. Section 1601. Equal Employment Opportunity. A grantee shall notrefuse to employ, discharge from employment, or discriminateagainst any person in compensation or in terms, conditions, orprivileges of employment because of race, color, religion, national origin, sex, age, or any other basis prohibited byfederal or state law. A grantee shall comply with all federal, state, and local laws and regulations governing equal employmentopportunities. Section 1602. Subscriber Privacy. Section 1602.1. Grantee Shall Protect Subscriber Privacy. A grantee shall at all times protect the privacy of all subscriberspursuant to the provisions of Section 631 of the Cable Act, 47 U.S.C. Section 551, and 30-A M.R.S.A. 3010(6-A). A grantee shall not condition subscriber service on thesubscriber's grant of permission to disclose information, whichpursuant to federal or state law, cannot be disclosed without thesubscriber's explicit consent. Section 1602.2. Selling Subscriber Information Prohibited. Neither a grantee nor its agents or employees shall, without theprior and specific written authorization of the subscriberinvolved, sell or otherwise make available for commercialpurposes the names, addresses, or telephone numbers of anysubscriber or subscribers, or any information that identifies theindividual viewing habits of any subscriber or subscribers. Brewer City Ordinance Chap. 6 - Art. 17 Sec. 1700 – 1703.4 Article #17 MISCELLANEOUS PROVISIONS Section 1700. Compliance With Laws. A grantee shall comply withall applicable federal, state, and local laws and regulations asthey become effective, unless otherwise stated. Section 1701. Force Majeure. A grantee shall not be deemed indefault with provisions of its franchise where performance wasrendered impossible by war or riots, civil disturbances, floods, or other natural catastrophes beyond the grantee's control, and afranchise shall not be revoked or a grantee penalized for suchnoncompliance, provided that the grantee takes immediate anddiligent steps to bring itself back into compliance and to complyas soon as possible under the circumstances with its franchisewithout unduly endangering the health, safety, and integrity ofthe grantee's employees or property, or the health, safety, andintegrity of the public, public rights-of-way, public property, or private property. Section 1702. Connections to System; Use of Antennae. Section 1702.1 Subscriber Right to Attach Devices. Subscribers shall have the right to attach devices to a grantee's system toallow them to transmit signals or services for which they havepaid to VCR's receivers, and other terminals provided that suchterminals are located within the subscriber's premises, andprovided that such transmissions do not result in interferencewith the operations of grantee's system, or violations of signalleakage compliance standards. Subscribers also shall have the right to use their own legally acquired remote control devicesand tuners, and other similar equipment, and a grantee shallprovide information to consumers, which will allow them to adjustsuch devices so that they may be used with the grantee's system. Section 1702.2. Requiring Disconnection of Antennae Prohibited. A grantee shall not, as a condition of providing service, requirea subscriber or potential subscriber to remove any existingantenna, or disconnect an antenna except at the express directionof the subscriber or potential subscriber, or prohibit ordiscourage a subscriber from installing an antenna switch, provided that such equipment and installations are consistentwith applicable codes. Section 1703.4. Calculation of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter, orpayment is required hereunder and a period of time or durationfor the fulfillment of doing thereof is prescribed and is fixedherein, the time shall be computed so as to exclude the first andinclude the last day of the prescribed or fixed period ofduration time. Brewer City Ordinance Chap. 6 - Art. 17 Sec. 1704 - 1705 Section 1704. Severability. If any term, condition, or provisionof this Ordinance shall, to any extent, be held to be invalid orunenforceable, the remainder hereof shall be valid in all otherrespects and continue to be effective. In the event of a subsequent change in applicable law so that the provision whichhad been held invalid is no longer invalid, said provision shallthereupon return to full force and effect without further actionby the City and shall thereafter be binding on the grantee andthe City. Section 1705. Captions. The captions and headings of thisOrdinance are for convenience and reference purposes only andshall not affect in any way the meaning and interpretation of any provisions of this Ordinance.