HomeMy WebLinkAbout04-11 - Ord. Relating to Franchise Requirements, Amending Chapter 12.24 Regulation Utility OccupancyORDINANCE NO. I
AN ORDINANCE OF MASON COUNTY, WASHINGTON,
RELATING TO FRANCHISE REQUIREMENTS;
REPEALING AND REENACTING CHAPTER 5.20 OF THE
OFFICIAL CODE OF MASON COUNTY RELATING TO
CABLE TELEVISION USE OF THE ROAD RIGHT-OF-
WAY; AMENDING CHAPTER 12.24 REGULATING
UTILITY OCCUPANCY AND USE OF THE ROAD RIGHT-
OF-WAY; PROVIDING FOR SEVERABILITY; AND
ESTABLISHING AN EFFECTIVE DATE
WHEREAS, the County has authority pursuant to the Cable Communications Policy Act
of 1984 (the "Cable Act") and RCW 36.55.010 to grant franchises to cable operators for the use
of the public rights of way to construct, operate, maintain and repair Cable Television Systems
within the unincorporated boundaries of the County, and
WHEREAS, the Board of County Commissioners (the "Board") finds that County road
rights-of-way are critical to the travel of persons and the transport of goods and other tangibles;
are used by the County to provide critical services to its citizens, including services to protect
public safety; and that such rights-of-way are intended for public uses and must be managed and
controlled consistent with that intent such that the installation, maintenance, and operation of
cable operator facilities does not interfere with or incommode such public uses; and
WHEREAS, the Board finds that the development of Cable Television Systems has the
potential of having great benefit and impact upon the residents of the County and that because of
the complex and rapidly changing technology associated with cable television, the public
convenience, safety and general welfare can best be served by establishing regulatory powers
which should be vested in the County or such persons as the County shall designate, and
WHEREAS on December 20, 2006, the Federal Communications Commission ("FCC")
adopted a new rule, set forth in a Report and Order and Further Notice of Proposed Rulemaking
that was released March 5, 2007 (the "Competitive Franchise Application Rule" or "CFAR"),
that among other things, provides a separate, nonexclusive process for the issuance of cable
franchises for areas currently served by another cable operator (the "Incumbent Cable
Operator"); and
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Dated August 18, 2010
WHEREAS, the CFAR provides that local franchising authorities may require
application information from an applicant for a competitive cable franchise, in addition to the
information set forth in the CFAR; and
WHEREAS, Board has determined that in order to comprehensively evaluate whether or
not to grant a competitive cable franchise, it will require certain information from competitive
cable franchise applicants in addition to the information required by the CFAR; and
WHEREAS, on November 6, 2007, the FCC released the text of its Second Report and
Order on local franchising (the "Second Order"), which became effective December 24, 2007;
and
WHEREAS the Second Order, for the most part, applied the order (other than those on
timing and build-out) to incumbent cable operators immediately, rather than only at renewal; and
WHEREAS, the Second Order makes certain parts of the CFAR applicable to Incumbent
Cable Operators who take affirmative steps to alter the existing franchise; and
WHEREAS, to ensure compliance with the CFAR and the Second Order, the County
additionally seeks to codify the process for reviewing applications for competitive cable
franchises as well as applications for renewal of an cable franchise for an Incumbent Cable
Operator, and the criteria upon which the final decision of the County will be based; and
WHEREAS, the application requirements and the processes for application review and
determination set forth in this Ordinance are intended to comply with the new FCC rules; and
WHEREAS, in light of the changes in federal law, County staff recommends repealing
and reenacting MCC chapter 5.20 and amending MCC chapter 12.24 to address these changes
and other update the cable television regulations;
NOW, THEREFORE, THE BOARD OF COMMISSIONERS OF MASON
COUNTY, WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Amendment of MCC 12.24.035(d). Section 12.24.035(d) of the Mason
County Code is hereby amended (amendments shown in legislative revisions marks) to read as
follows:
(d) Application. Every application for a new cable franchise or a new open video system
franchise, for renewal of a cable franchise or an open video system franchise, for amendment to a
cable franchise or open video system franchise, and for transfer of a cable franchise or open
video system, shall be governed by and conform to the requirements of Chapter 5.20 of the
Mason County Code. All other applications for a new franchise, renewal of a franchise,
amendment of a franchise, and for the transfer of a franchise, and every application for a new
franchise, master road use permit, or private line utility occupancy permit, or for an amendment
to a franchise, master road use permit, or private line utility occupancy permit, or for a transfer of
a franchise, master road use permit, or private line utility occupancy permit, or for a renewal of a
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Dated August 18, 2010
franchise OF master road use permit shall be on forms provided by the Mason County engineer
which application forms shall, at a minimum, contain and require the following:
(1)Identity of Authorized Parties. The names and addresses of persons authorized to
act on behalf of the operator with respect to the application and those person(s) who are
authorized to receive all notices regarding action taken pursuant to an application.
(2)Nonrefundable Application Fee. An initial nonrefundable application fee in the
amount of:
Four hundred dollars for a new franchise or new master road use permit;
Two hundred dollars for a new private line utility occupancy permit;
Three hundred dollars for a renewal of a franchise or master road use permit;
Two hundred fifty dollars for an amendment of a franchise or master road use permit;
One hundred dollars for amendment of a private line utility occupancy permit;
One hundred dollars for a transfer of a franchise or master road use permit; and
One hundred dollars for a transfer of a private line utility occupancy permit.
The purpose of the nonrefundable application fee is to reimburse the county for the costs
incurred to review and issue or deny a franchise, master road use permit, or private line utility
occupancy permit, or issue an amendment thereto, or a renewal, or a transfer. In addition to the
nonrefundable application fee, the applicant shall, as a condition of action being taken, reimburse
the county for the direct costs of third parties retained by the county when deemed by the county
engineer to be reasonable and necessary to assist the county in reviewing or responding to the
application. The County Engineer shall, at the request of the applicant, provide an itemized
accounting for the services provided that become a cost of the applicant as provided herein.
The County Engineer is directed to review the application fees on a biennial basis and
make a recommendation to the board for adjustment of the application fees. The board may
adjust the application fees from time to time by a duly adopted resolution.
(3)Identity of Applicant. Identity of the operator, the persons who exercise working
control over the operator, and the persons who control those persons to the ultimate parent.
(4)Certificate Verifying Status as Exempt Operator. If applicable, a certification of
the authorized officer of the operator stating that the operator is exempt and the reasons
therefore; provided that, if such utility facilities will be used to provide services other than those
qualifying it as an exempt operator, the applicant shall state what other services will be provided
and under what authority the applicant will be utilizing facilities located within the public rights-
of-way to provide such services.
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Dated August 18, 2010
(5)Location/Description/Purpose of Facilities. The location in the county in which
the applicant proposes to install utility facilities in the road rights-of-way, including the
approximate linear feet of overhead utility facilities, the approximate linear feet of underground
utility facilities; the type of utility facilities to be installed; and, the proposed use of the utility
facilities and type of services to be provided.
(6)Certification Verifying Truth/Accuracy. A certificate of an authorized officer of
the operator certifying the truth and accuracy of the information in the application.
Section 2. Repeal and Reenactment of Mason County Code Chapter 5.20 (Cable
Television Franchises). Chapter 5.20 of the Official Code of Mason County is hereby repealed
in its entirety and reenacted to read as follows:
5.20.010 PURPOSE.
The purpose of this chapter is to:
A.Establish local franchise requirements, in addition to those set forth in chapter 12.24 of the
Mason County Code, that concern cable and open video systems operators that use the Public
Rights-of-Way;
B.Provide for the grant of a franchise to govern cable and open video system operator's use of
and activities within the public rights-of-way to provide cable or open video services;
C.Establish a policy that promotes the availability of diverse, multimedia information resources
to the community; provides for enhancing educational opportunities throughout the community
and building a stronger community; while ensuring that the County has the authority to act to
protect the public, safety, and welfare in the face of a rapidly-changing industry that is placing
increasing demand on public resources;
D.Encourage the provision of advanced and competitive cable or open video system services on
the widest possible basis to the businesses, institutions, and residents of the County;
E.To encourage economic development, while preserving aesthetic and other community values,
and preventing proliferation of above-ground facilities
F.Ensure that all Persons providing cable or open video facilities or services within the County
comply with the ordinances, rules, and regulations of the County;
G.Ensure the ability of the County to obtain sufficient information from cable and open video
system operators subject to its jurisdiction to enable effective decisions regarding their access to
County road rights-of-way and effective management of activity in the road rights-of-way;
H.Ensure that the County can continue to fairly and responsibly protect the public health, safety,
and welfare; and
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Dated August 18, 2010
I.Enable the County to discharge its public trust consistent with rapidly evolving federal and
state regulatory policies, industry competition, and technological development.
J.Minimize unnecessary local regulation of operators and services;
K.Permit and manage reasonable access to the road rights-of-way of the county on a
competitively neutral basis;
L.Assure that the County's current and ongoing costs of granting and regulating access to and
use of the road rights-of-way are fully paid for by the persons seeking such access and causing
such costs;
5.20.020 POLICY GUIDELINES.
The administration of this chapter shall be governed by the following video programming policy
guidelines:
A.Mason County supports efforts to establish an open, competitive marketplace for video
programming services. The County promotes and encourages competition for video and video
programming services that make the latest and best technology available and keep service prices
affordable for all County residents and businesses. An integral component of this open
marketplace is the consistent application of regulations to all video programming providers and
the preservation of local authority over matters of local impact.
B.The following policy guidelines express the commitment of the County to support video
programming services and to manage its road rights-of-way proactively, while balancing the
interests and needs of the community:
1.The County will manage access to its road rights-of-way for video programming
purposes in a non-discriminatory, competitively neutral, and non-exclusive way to the extent
required by applicable law and, to the extent allowed by applicable law, to receive fair
compensation. The public interest will be protected by collecting fair, reasonable, and lawful
compensation, associated fees, taxes, administrative costs, and construction costs for use of the
Public Rights-of-Way.
2.Investments by video programming providers will be encouraged in order to enhance
economic development programs and provide jobs, opportunities, and choices for its citizens.
3. Universal access to video programming services is encouraged for all residents and
businesses.
5.20.030 DEFINITIONS.
For the purposes of this chapter 5.20 of the Mason County Code ("MCC"), the following terms,
phrases, words, and abbreviations shall have the meanings given herein unless otherwise
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Dated August 18, 2010
expressly stated. When not inconsistent with the context, words used in the present tense include
the future tense, words in the plural number include the singular number, words in the singular
number, include the plural number; and the masculine gender includes the feminine gender. The
words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly
stated, words not defined in this Chapter shall be construed consistent with MCC Title 12, and if
not defined therein, shall be construed consistent with Title 47 of the United States Code, and, if
not defined therein, their common and ordinary meaning shall apply. References to governmental
entities (whether Persons or entities) refer to those entities or their successors in authority. If
specific provisions of law referred to herein are renumbered, then the reference shall be read to
refer to the renumbered provision. References to laws, ordinances, or regulations shall be
interpreted broadly to cover government actions, however nominated, and include laws,
ordinances, and regulations now in force or hereinafter enacted or amended.
A."Affiliate" means a Person that (directly or indirectly) owns or controls, is owned or
controlled by, or is under common ownership or control with another Person.
B."Application Fee" means the charge specified in Sections 5.20.160 and designed to recover
the County's actual costs in processing applications for initial Franchises, including applications
for the Transfer thereof.
C."Basic Cable Service" means any Service Tier that includes the retransmission of local
television broadcast signals.
D."Cable Act" means the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et seq.,
as amended by the Cable Television Consumer Protection and Competition Act of 1992, as
further amended by the Telecommunications Act of 1996, as further amended from time to time.
E."Cable Operator" means any Person or group of Persons: (1) who provides Cable Service over
a Cable System and directly or through one or more Affiliates owns a significant interest in such
Cable System; or (2) who otherwise controls or is responsible for, through any arrangement, the
management and operation of such a Cable System.
F."Cable Service" means:
1.The one-way transmission to Subscribers of (a) video programming, or (b) other
programming service; and
2.Subscriber interaction, if any, which is required for the selection or use of such video
programming or other programming service.
G. "Cable System" means a facility, consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that is designed to provide Cable
Service, which includes video programming and which is provided to multiple Subscribers
within a community; but such term does not include:
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1.A facility that serves only to retransmit the television signals of one or more television
broadcast stations;
2.A facility that serves Subscribers without using any Road Rights-of-Way;
3.A facility of a common carrier which is subject, in whole or in part, to the provisions
of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such
facility shall be considered a Cable System (other than for purposes of 47 U.S.C. § 541(c)) to the
extent such facility is used in the transmission of video programming directly to Subscribers,
unless the extent of such use is solely to provide interactive on-demand services;
4.An Open Video System that complies with 47 U.S.C. § 573; or
5. Any facilities of any electric utility used solely for operating its electric utility systems.
H."County" means Mason County and all departments, divisions, and agencies thereof.
I."County Engineer" means the County Engineer or the County Engineer's designee.
J. "Franchise" refers to the authorization granted by the County to an Operator of a Cable
System, or an Open Video System under this chapter giving the Operator the non-exclusive right
to occupy the space, or use facilities upon, across, beneath, or over any Road Rights-of-Way in
the in-incorporated areas of the County, to provide a Cable Service within a Franchise Area.
Any Franchise shall be issued in the form of an ordinance, and must be accepted by the
Franchisee to become effective in the time and manner specified in the Mason County Code, or
the Franchise ordinance Such Franchise shall not include or be a substitute for:
1.Any other permit or authorization required for the privilege of transacting and carrying
on a business within the County required by the lawful ordinances of the County, for the
unincorporated areas of the County
2.Any permit, agreement, or authorization required in connection with operations on or
in Road Rights-of-Way or property, including, by way of example and not limitation, street cut
permits; or
3. Any permits or agreements for occupying any other property of the County or private
entities to which access is not specifically granted by the Franchise including, without limitation,
permits and agreements for placing devices on or in poles, conduits, other structures, or railroad
easements, whether owned by the County, or a private entity. Therefore, any Person who desires
to use such property must obtain additional approvals, Franchises, or agreements for that
purpose, as may be lawfully required by the County.
K. "Franchise Area" means the area of the County that a Franchisee is authorized to serve by the
terms of its Franchise or by operation of law.
L. "Franchisee" refers to a Person holding a Franchise granted by County ordinance
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Dated August 18, 2010
M."FCC" means the Federal Communications Commission or its successor.
N."Gross revenues" means any and all receipts and revenues received directly or indirectly from
all sources derived from the provision of cable services furnished by a Franchisee, including
franchise fees if allowable by Federal law, other than transactions related to real property
receipts by a Franchisee not including bad debt and any taxes on services furnished by a
Franchisee, imposed on any subscriber or used by any governmental unit, agency or
instrumentality and collected by a Franchisee for such entity.
0. "Open Video System" or "OVS" refers to a facility consisting of a set of transmission paths
and associated signal generation, reception, and control equipment that is designed to provide
Cable Service, which is provided to multiple Subscribers within a community, and which the
FCC or its successor has certified as compliant with Part 76 of its rules, 47 C.F.R., Part 76, as
amended from time to time. For purposes of MCC chapter 5.20, Open Video System shall be
considered the same as a Cable System, and all regulations contained in this chapter governing
Cable Systems shall apply equally to Open Video Systems to the extent consistent with
applicable law.
P."Operator" means a Cable Operator.
Q."Overhead Facilities" refers to electric utility and communications facilities located above the
surface of the ground, including the underground supports and foundations for such facilities.
R."Person" includes any individual, corporation, partnership, association, joint stock company,
trust, or any other legal entity, but not the County.
S."Programmer" refers to any Person, who creates video programming to Subscribers over a
Cable System or an Open Video System, excluding video programming delivered not for a
charge over a public, educational, or governmental ("PEG") channel.
T."Road Rights-of-Way" mean the public streets and easements which, under the Mason County
Code, County ordinances, and applicable laws the County has authority to grant Franchises,
permits, or licenses for use thereof or has regulatory authority thereover, and as may be more
specifically defined in the Franchise granting any right to or use thereof, excluding railroad
rights-of-way, airport, port, and harbor areas. Road Rights-of-Way, for the purpose of this
chapter, do not include buildings, poles, or similar facilities or property owned by or leased to
the County, including, by way of example and not limitation, structures in the Road Rights-of-
Way such as utility poles and light poles.
U."Service Tier" means a package of two or more Cable Services for which a separate charge is
made by the Franchisee, other than a package of premium and pay per-view services that is not
subject to rate regulation under the Cable Act and applicable FCC regulations because those
services are also sold on a true a la carte basis.
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Dated August 18, 2010
V."Subscriber" means the County, any government entity, or any Person who legally receives
any Cable Service from a Cable Operator delivered over that Cable Operator's Cable System.
W."Chapter," when used in the context of referring to this chapter of the Mason County Code,
shall mean this chapter 5.20 of the Mason County Code and each section and subsection thereof.
X. "Transfer" means any transaction in which:
1.All or a portion of the Cable System is sold or assigned (except a sale or assignment
that results in removal of a particular portion of the facility from the Public Rights-of-Way);
2.There is any change, acquisition, or direct or indirect Transfer of control of the
Franchisee;
3.The rights and/or obligations held by the Franchisee under the Franchise are
transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party;
or
4.The transfer of stock in a corporation so as to create a new contr oiling interest
constitutes a Transfer. The term "controlling interest" is not limited to majority stock ownership,
but includes actual working control in whatever manner exercised.
In succeeding provisions of this chapter, all these activities are referred to as Franchise Transfers.
5.20.040 FRANCHISE REQUIRED.
A.No Franchise shall be exclusive. The issuance of a Franchise shall not affect the County's
right to itself construct, operate, or repair any County owned communications facility, with or
without a Franchise.
B.Franchise requirement. An Operator of a Cable System must obtain a Franchise prior to
providing Cable Service; an Operator of an Open Video System must obtain a Franchise before
providing services via an Open Video System. No Franchise shall become effective without the
Franchisee signing an acceptance of the ordinance which grants it the Franchise.
C. Nature of grant. A Franchise shall not convey title, equitable or legal, in the Public Rights-of-
Way. The right granted is only the right to occupy those portions of the Road Rights-of-Way to
which the County has the right to grant access, for the purposes and for the period stated in the
Franchise, and, subject to the limitations in this section and elsewhere in this chapter, the right
may not be subdivided or subleased. Every Franchise shall be:
1.Deemed to include all the provisions that are required to be in a Franchise under
chapter 5.20 of the Mason County Code, as if fully set forth in the Franchise; and
2.Deemed to provide for forfeiture under the circumstances set forth under the provisions
of this chapter and any Franchise ordinance thereunder; and
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D. No reference herein, or in any Franchise, to a Road Rights-of-Way shall be deemed to be a
representation or guarantee by the County that its interest or other right to control the use of such
property is sufficient to permit its use for such purposes, and a Franchise shall be deemed to
grant no more than those rights which the County may have the undisputed right and power to
give.
5.20.050 COST RECOVERY.
A.Purpose. To ensure that the County, as far as possible, is compensated for the rights granted
and receives fair, reasonable, and lawful compensation for use of Road Rights-of-Way over
which it exercises control, or which is held in public trust; and in order that the County is
compensated for reasonable and lawful expenses arising from the use of those Public Rights-of-
Way, the County shall, pursuant to this chapter, require Persons using its Road Rights-of-Way to
provide Cable Service to pay compensation as may be permitted under applicable law.
B.Compensation for use. Every Operator of a Cable System shall pay a Franchise fee as required
by this chapter, except as provided in MCC section 5.20.050.D. Every Operator that is subject to
the exceptions in MCC section 5.20.050.D or OVS Operator that uses the rights-of-way is
subject to the condition that, should the exception ever be eliminated or modified, the Operator
or reseller shall be obligated to pay such compensation that would otherwise be required in the
absence of the exception.
C. Payments required. Except as otherwise expressly provided in this chapter, every Cable
Operator must:
1.Pay an Application Fee for the consideration of an application for issuance of an initial
Franchise, pursuant to Section 5.20.160. The County Engineer, at any time, may require the
applicant to deposit additional sums if it appears that the initial deposit or subsequent deposits
will be exhausted prior to the final action by the County relating to the consideration by the
County of an application for issuance of an initial Franchise. The applicant will not be entitled to
further consideration by the County of its requested action until such time as the additional
deposit required by the County Engineer has been deposited with the County. In the event the
amount of the deposit of an applicant is in excess of the amount of the administrative expenses of
the County related to the action requested, then the applicant shall be entitled to a return of any
such excess amount; and
2.Pay the fees required by Section 12.24.060 of Title 12 of the Mason County Code.
D. Exceptions. The franchise fees required under this chapter need not be paid if state or federal
law or the County Charter requires otherwise. This exception shall be read narrowly; an Operator
that is engaged in one line of business that is subject to this exception, shall not be excused from
paying the Franchise fee for its other lines of business. In cases subject to this exception, the
highest permissible fee shall be paid.
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E.Application to Persons that provide different types of services. The fact that a fee is paid on
one type of service provided over a Cable System, does not excuse an Operator from its duty to
pay lawful fees on other types of services provided over that facility as required by MMC
chapter 12.24. As an example, and not as a limitation of the foregoing, the operator of a
telecommunications system must pay a franchise fee under Chapter 5.20 to the extent it provides
Cable Services to Subscribers via a Cable System
F.General rules for payment of fees and assessments.
1.Unless otherwise specified in a Franchise, Franchise fees shall be paid to the County
quarterly, and not later than 45 days after the end of the quarter for which the fee or assessment
is owed.
2.No acceptance by the County of any Franchise fee shall be construed as an accord that
the amount paid is in fact the correct amount, nor shall such acceptance of such Franchise fee
payment be construed as a release of any claim the County may have for additional sums
payable.
3. The Franchise fee payment is not a payment in lieu of any tax, fee, or other
assessment, except as specifically provided in this chapter or as required by applicable law. By
way of example, and not limitation, permit fees and business license taxes are not waived and
remain applicable.
4.If payments are late, in addition to paying any applicable penalties or damages, the Person that
owes the fee shall pay interest on the amount owed at the rate of 1 percent per month or fraction
thereof compounded monthly.
5.The County may, from time to time and upon reasonable advance written notice, inspect and
audit any and all books and records reasonably necessary to detennine whether fees have been
accurately computed and paid. The Operator must make available the books and records, or
copies thereof, to the County, as provided in the Franchise agreement.
6. Notwithstanding the foregoing, in the event that a Person that is obligated to pay a fee ceases
to provide service for any reason (including as a result of a Transfer), such Person shall make a
final payment of any amounts owed to the County within ten business days of the date its
operations in the County cease, and shall provide a statement of gross revenues for the calendar
year through the date operations ceased.
5.20.060 GENERAL CONDITIONS UPON USE OF PUBLIC RIGHTS-OF-WAY.
A Franchisee shall be responsible to comply with all lawful provisions of the Mason County
Code, as amended, any administrative regulations promulgated thereunder, and any other
generally applicable laws related to the use of the Road Rights-of-Way.
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5.20.070 PROTECTION OF THE COUNTY AND RESIDENTS.
A.Indemnification. Unless otherwise approved by the County's risk manager, no Franchise or
other authorization to use the Road Rights-of-Way issued to a Cable Operator shall be valid or
effective until and unless the County obtains an adequate indemnity from such Operator in
conformance with the requirements of MCC section 12.24.100(a).
B.Insurance. Unless otherwise approved by the County's Risk Manager, no Franchise or other
authorization to use the Road Rights-of-Way issued to a Cable Op erator shall be valid or
effective until and unless the County obtains assurance that such Operator (and those acting on
its behalf) has adequate insurance in conformance with the requirements of MCC section
12.24.100(b).
C.Performance Bond. Every operator shall be required to obtain performance bonds and, if
necessary, payment bonds, to ensure the faithful performance of its responsibilities under any
Franchise, in conformance with the requirements of MCC section 12.24.100(c).
D.Security Fund. Unless reduced or waived as provided herein below, every operator shall
establish a cash security fund or provide the County Engineer an irrevocable letter of credit or a
performance bond in an amount no less than $50,000.00, to secure the payment of fees owed, to
secure any other performance promised in a Franchise, and to pay any taxes, fees, or liens owed
to the County. The County Engineer shall exercise reasonable judgment when determining the
amount of the security fund required of any individual franchisee. The letter of credit or
performance bond shall be in a form and with an institution acceptable to the County Treasurer
and the County Prosecuting Attorney. Should the County draw upon the cash security fund,
performance bond or letter of credit, it shall promptly notify the Cable Operator, and the Cable
Operator shall promptly restore the fund performance bond or the letter of credit to the full
required amount. This security fund/letter of credit/performance bond obligation may be waived
or reduced by the County Engineer, pursuant to the terms of the Franchise agreement.
5.20.080 ENFORCEMENT, REMEDIES PENALTIES..
The County Engineer is responsible for enforcing and administering MCC chapter 5.20 and the
County Engineer is authorized to give any notice required by law or under any Franchise,
including, by way of example and not limitation, a notice required under 47 U.S.C. § 546. The
County Engineer is also authorized to seek information from any Cable Operator, to establish
forms for submission of applications and other information, and to take all other actions
necessary or appropriate to the administration of this chapter or any Cable Franchise. Franchises
may only be denied, issued, or revoked by action of the County Board of Commissioners
Any Person found to have violated any of the provisions of this chapter shall be subject to the
penalties set forth at MCC 12.24.120(c). Notwithstanding the forgoing, nothing in this section
shall be construed as limiting any judicial remedies that the County or any Person may have, at
law or in equity, for enforcement of this chapter.
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5.20.090 MINIMUM CONTENTS OF EVERY CABLE FRANCHISE.
A. In addition to satisfying the other applicable requirements of this chapter and MCC Ch 12.24,
every Franchise for a Cable System shall contain the following provisions:
1.The Franchise shall provide that neither the granting of any Franchise, or any provision
thereof, shall constitute a waiver or bar to the exercise of any governmental right or power,
police power, or regulatory power of the County as may exist at the time the Franchise is issued
or thereafter be obtained.
2.The Franchise shall only authorize occupancy of the Public Rights-of-Way to provide
the services and for the purposes described in the Franchise.
3. A Franchise shall be a privilege that is held in the public trust and personal to the
original Franchisee. The Franchise shall ensure that no Transfer of the Franchise may occur,
directly or indirectly, without the prior consent of the County; except as contemplated by MCC
section 5.20.280, or as otherwise expressly provided in this chapter.
4.The Franchise shall ensure that any Person placing a Cable System in the Road Rights-of-Way
will not unlawfully discriminate in hiring, in contracting, or in the provision of services.
5.The Franchise shall be for a specified term set forth in the Franchise. No Franchise issued
under this chapter shall be for a term of longer than ten years, unless the County Board of
Commissioners determines that a longer period would be in the County's interest.
6. Such other terms as are required by law.
5.20.100 REVOCATION, REDUCTION OF TERM, OR FORFEITURE OF FRANCHISE.
A.Revocation. In addition to all other rights of the County under MCC section 12.24.120(a) or
under a cable Franchise, the County shall have the right to revoke the Franchise: (1) for
violations of material provisions of this chapter; (2) for defrauding or attempting to defraud the
County or Subscribers; (3) if the Franchisee willfully refuses to provide service to the County or
any part of the County in accordance with its Franchise.
B.Reduction of term. Where, after notice and providing the Franchisee an opportunity to be
heard, if such opportunity is timely requested by Franchisee, the County finds that any conditions
exist that would support Franchise revocation or reduction in term, the County may make an
appropriate reduction in the remaining term of the Franchise or revoke the Franchise. The
County Engineer is authorized to make a recommended decision to the County Board of
Commissioners, but any final decision to reduce the term of a franchise or to revoke the
franchise shall be made by the County Board of Commissioners.
C. Notwithstanding the foregoing, the franchise may only be revoked or reduced in term if the
Franchisee (1) was given notice of the default; and (2) 30 days to cure the default; and (3) the
Franchisee failed to cure the default, or to propose a schedule for curing the default acceptable to
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the County where it is impossible to cure the default in 30 days and where requested by the
Franchisee (4) a hearing conducted by the County Board of Commissioners where Franchisee is
afford the opportunity to present testimony and witnesses on its behalf The required notice may
be given before the County conducts the proceeding required by this paragraph. No opportunity
to cure is allowed for fraud which shall be deemed incurable.
C.Relation to insurance and indemnity requirements. Recovery by the County of any amounts
under insurance, the performance/payment bond, the letter of credit, or otherwise does not limit
the Franchisee's duty to indemnify the County in any way; nor shall such recovery relieve the
Franchisee of its obligations under the Franchise, limit the amounts owed to the County, or in
any respect prevent the County from exercising any other right or remedy it may have.
D.Effect of revocation, termination or forfeiture. Upon termination, revocation or forfeiture of a
Cable Franchise, whether by action of the County as provided above or by passage of time, the
Franchisee shall be obligated to cease using the Cable System for the purposes authorized by the
Franchise, unless mutually agreed to continue to use for the authorized purpose by the County
and Franchisee. The County may either take possession of some or all of the Franchisee's
facilities in the Road Rights-of-Way, if it is not prohibited from doing so by law, or require the
Franchisee or its bond surety to remove some or all of the Franchisee's facilities from the Road
Rights-of-Way and restore the Road Rights-of-Way to the condition specified in MCC Title 12.
Should the Franchisee neglect, refuse, or fail to remove such facility, the County may remove the
facility at the expense of the Franchisee. The obligation of the Franchisee to remove shall survive
the termination of the Franchise; provided, that this provision does not permit the County to take
possession of, or require the Franchisee to remove, any facilities that are used to provide another
service for which the Franchisee holds a valid Franchise issued by the County or other lawful
authorization.
E. Remedies cumulative. All remedies under this MCC chapters 5.20 and 12.24 and any
Franchise are cumulative unless otherwise expressly stated. The exercise of one remedy shall not
foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages
or penalties relieve a Cable Operator of its obligations to comply with its Franchise. Remedies
may be used singly or in combination; in addition, the County may exercise any rights it has at
law or equity. Recovery by the County of any amounts under insurance, the performance bond,
the security fund or letter of credit, or otherwise, does not limit a Cable Operator's duty to
indemnify the County in any way; nor shall such recovery relieve a Cable Operator of its
obligations under a Franchise, limit the amounts owed to the County, or in any respect prevent
the County from exercising any other right or remedy it may have.
5.20.110 BOOKS, RECORDS, PRIVACY AND REPORTING.
A. Each Cable Operator shall provide the County reasonable access to all books and records
directly related to the County's administration and enforcement authority pursuant to any
Franchise, this Code, or any other applicable law, in accordance with the provisions of a
Franchise agreement. The County may inspect any books and records and copy non-confidential
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books and records. The Operator's obligation includes the obligation to reasonably produce all
books and records related to revenues derived from the operation of the Cable System to the
extent that system revenues are in connection with the fees or taxes charged or burdens imposed
on the Operator under a Franchise. An Operator is responsible for obtaining or maintaining the
necessary possession or control of all such books and records related to the construction,
operation, or repair of the Cable System, so that it can produce the documents upon request.
Books and records must be maintained for a period of six years, except that: (1) any record that
is a public record must be maintained for no less than the period required by state law; and (2) a
Franchise may specify a shorter period for certain categories of voluminous books and records
where the information contained therein can be derived simply from other materials.
B.For purposes of this chapter, the terms "books and records" shall be read expansively to
include information in whatever format stored. Books and records requested shall be produced to
the County in accordance with the provisions of a Franchise agreement.
C.Without limiting the foregoing, the Operator of a Cable System shall make available to the
County the following within ten days of their receipt or (in the case of documents created by the
Operator or its Affiliate) filing:
1.Notices of deficiency or forfeiture related to the operation of the Cable System; and
2.Copies of any request for protection under bankruptcy laws, or any judgment related to
a declaration of bankruptcy by the Franchisee or by any partnership or corporation that owns or
controls the Franchisee, directly or indirectly.
D. Each Cable Operator shall take all reasonable steps required, if any, to ensure that it is able to
provide the County all information which must be provided or may be requested under this
chapter, a Franchise, or applicable law, including by providing appropriate Subscriber privacy
notices. Each Operator shall be responsible for redacting any data that applicable law prevents it
from providing to the County. Nothing in this section shall be read to require an Operator to
violate state or federal law protecting Subscriber privacy.
5.20.120 COMPLIANCE WITH LAWS/RESERVATION OF RIGHTS.
A.General. Each Franchisee shall comply with all applicable laws related to use of the Road
Right-of-Way and all other applicable laws heretofore and hereafter adopted or established
during the entire term of its Franchise.
B.Reservation of authority. The County may do all things which are necessary and convenient
in the exercise of its jurisdiction under this chapter.
C. No waiver. The failure of the County to insist on timely performance or compliance with this
chapter by any Person holding a Franchise shall not constitute a waiver of the County's right to
later insist on timely performance or compliance by that Person or any other Person holding such
a Franchise.
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D. Chapter not a contract. The County expressly reserves the right to amend this chapter from
time-to-time in the exercise of its lawful powers. Any amendment to this Chapter shall not apply
throughout the term of a Franchise where such amendment was passed subsequent to the
approval of the Franchise by the County. The provisions of this chapter shall not be construed to
create or to be a contract.
5.20.130 TRANSITIONAL PROVISIONS.
A.Persons operating without a Franchise. The Operator of any facility, the operation of which is
required to be Franchised under this chapter, shall have three months from the effective date of
this Chapter to file an application for a Franchise under this ordinance. Any Cable Operator
timely filing such an application shall not be subject to a penalty under Section 5.20.100 hereof
for failure to have such a Franchise, as long as said application remains pending; provided,
however, nothing herein shall relieve any Cable System Operator of any liability for its failure to
obtain any Franchise or other authorization required under other provisions of the Mason County
Code, and nothing herein shall prevent the County from requiring removal of any facilities
installed in violation of the Mason County Code.
B.Persons holding Franchises. Any Person holding an outstanding Franchise from the County
for a Cable System may continue to operate under the existing Franchise to the conclusion of its
present term (but not any renewal or extension thereof) with respect to those activities expressly
authorized by the Franchise; provided, however, that such Franchisee may elect at any time to
apply for a superseding Franchise under this chapter; and, provided further, that, such Person
shall be subject to the other provisions of this chapter to the extent permitted by law.
C.Persons with pending applications. Pending applications shall be subject to this chapter. A
Person with a pending application shall be provided 30 days from the effective date of this
chapter to submit additional information to comply with the requirements of this chapter
governing applications.
D.Transitional rules to be narrowly interpreted. It is the intent of the County to apply the
provisions of this chapter to Cable System Operators, except to the extent federal or state law
prevents it from doing so.
5.20.140 FRANCHISE APPLICATIONS, GENERAL.
This MCC chapter 5.20 shall be read and applied so that it is consistent with Sections 621, 625,
and 626 of the Cable Act, 47 U.S.C. §§ 541, 545, and 546 to the extent the County is required to
comply with those Cable Act sections; provided, however, that nothing herein shall be read to
incorporate those provisions into the Mason County Code, or prevent the County from
challenging their applicability or to give any entity a right or a right of action or impose any
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obligation on the County which it would not otherwise have under such federal laws. The County
may adopt procedures for conducting any proceedings required under federal law, including,
without limitation, procedures for presentation of evidence; and may also specify the person or
entity that will conduct any administrative hearing that may be required by federal law, should
the County Board of Commissioners decide that it does not wish to conduct the proceeding itself.
In any case, however, the final decision to deny or grant renewal shall remain with the County
Board of Commissioners.
5.20.150 APPLICATIONS FOR GRANT OF AN INITIAL FRANCHISE.
A. Written application.
1.A written application shall be filed with the County Engineer for the grant of an initial
Franchise. Each entity that is required to hold a Franchise must submit an application therefore to
the County Engineer in accordance with the requirements of MCC chapter 5.20. To be accepted
for filing, an applicant must file an original and three copies of a complete application for a
Franchise. An application may be filed by any Person on that Person's own initiative or in
response to a request for proposals. The County Engineer is authorized to issue requests for
proposals from time to time.
2.The County Engineer shall accept and review only those applications that include
complete responses to every requirement of MCC section 5.20.150. Submission of an application
that does not include the requisite information set forth in MCC section 5.20.150 and the
Application Fee shall not commence the time period for granting or denying any application
governed by 47 C.F.R. §76.41(d). The applicant shall submit additional or updated information
as necessary to ensure the requisite information provided is complete and accurate throughout
the County's review of the application.
B. Contents of applications. Except as expressly modified by the County for good cause or when
determined by the County Engineer to be unnecessary to the consideration of the application, a
request for proposals for a cable Franchise shall be deemed to require, and any application
submitted pursuant to this MCC section 5.20.150 shall contain, at a minimum, the following
information:
1.Identity of the applicant, including the name, address, telephone number, and web site
(if applicable); the name, address, telephone number, and e-mail address of all individual(s)
authorized to represent the applicant before the County during its consideration of the
Franchise(s) requested; management/organizational information, showing the management
structure of the applicant. A similar chart shall also be provided identifying the relationship of
the applicant to all general partners, parent corporations, subsidiaries, Affiliates, and all other
subsidiaries of parent corporations, including a brief description of each entity's relationship to
the applicant.
2.An applicant shall list all Cable Systems in which it or any Affiliate owns more than 5
percent of the system.
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3.Identification of the area of the County to be served by the proposed Cable System,
including a description of the proposed Franchise Area's boundaries.
4.Technical qualifications, planned Services and operations.
(a)The application shall describe the applicant's planned initial and proposed
Cable Services geographic area, including a map of all areas proposed to be served and proposed
dates for offering service to each area, including a description of the miles of plant to be installed
and a description of the size of equipment cabinets, shielding, and electronics that will be
installed along the plant route, the power sources that will be used and a description of the noise,
exhaust, and pollutants, if any, that will be generated by the operation of the same.
Notwithstanding these requirements, if some of the descriptive data is not available at the time of
application, a Franchise may be granted subject to conditions that the data be filed and approved
by the County before construction begins and that the Franchise will be deemed to be forfeited if
the data is not supplied and approved. The application shall additionally state whether the
applicant proposes to provide Cable Services to the entire Franchise Area, and, if so, a proposed
timetable for meeting that goal.
(b)If the applicant has or asserts existing authority to access the Public Right-of-
Way in any of the initial or proposed service areas listed in MCC subsection 5.20.150.B.4(a)
above, the applicant shall state the basis for such authority or asserted authority and attach the
relevant agreements or other documentation of such authority.
(c)The applicant shall describe with particularity its planned residential Cable
Services, including Basic Cable Services, other cable programming Service Tiers, and any
additional pay-per-view, on-demand, or digital services; and the projected rates for each category
or tier or service.
(d)The applicant shall describe with particularity its planned system technical
design, performance characteristics, headend, access (and institutional network) facilities and
equipment, upstream and downstream capacity and speed, provision for analog or digital services
or packages, distribution of fiber, planned count of households per residential node, and any
other information necessary to demonstrate that the applicant's technology will be deployed so
as to be able to successfully offer Cable Services in the proposed locations.
(e)The applicant shall describe with particularity its planned non-residential
Cable Services.
(f)The applicant shall describe its planned construction and extension or phase
schedule, as applicable, including system extension plans or policy, describing when and where
construction will begin, how it will proceed, and when it will be completed; and describe the
current status of the applicant's existing or proposed arrangements, with area utilities, including
pole attachments, vault, or conduit sharing agreements as applicable. Information shall include a
designation of the portions of the system that will be placed above ground and the portions that
will be placed underground, and the construction techniques that the Operator proposes to use in
installing the system above ground and underground; and the expected effect on Public Rights-
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of-Way usage, including information on the ability of the Road Rights-of-Way to accommodate
the proposed system, including, as appropriate given the system proposed, an estimate of the
availability of space in conduits and an estimate of the cost of any necessary rearrangement of
existing facilities. In addition, applicant shall provide a description, where appropriate, of how
services will be converted from existing facilities to new facilities, and what will be done with
existing facilities.
(g)The applicant shall describe its plan to ensure that the safety, functioning, and
appearance of property and convenience and safety of other persons not be adversely affected by
installation or construction of the applicant's fa cilities, and that property owners are justly
compensated for any damages caused by the installation, construction, operation, or removal of
the facilities.
(h)The applicant shall describe its plan to comply with the Subscriber privacy
protections set forth in 47 U.S.C. §551, and the privacy protections of any state or local statutes,
ordinances, or regulations.
5.A demonstration of how the applicant will reasonably meet the future cable-related
needs and interests of the community, as reasonably determined or established by the County.
6.A demonstration of the financial qualifications of the applicant, including at a
minimum, a statement regarding the applicant's financial ability to complete the construction to
meet the time frame proposed and to operate the Cable System proposed certified by the
applicant's chief financial officer.
7.A demonstration of the applicant's technical ability to construct and/or operate the
proposed Cable System.
8.A demonstration that the applicant is legally qualified, which proof must include a
statement from the applicant:
(a)Whether it has received, or is in a position to receive, necessary authorizations
from state and federal authorities;
(b)Whether it has not engaged in conduct (fraud, racketeering, violation of
antitrust laws, consumer protection laws, or similar laws) that allows County to conclude the
applicant cannot be relied upon to comply with requirements of Franchise, or provisions of this
chapter;
(c) Whether it or any Affiliate has been found in violation by a regulatory
authority or franchising authority of any Franchise ordinance or agreement, contract or
regulation governing a Cable System. If so, the applicant shall identify the judicial or
administrative proceeding, giving the date, name of tribunal, and result or disposition of that
proceeding;
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(d)Whether it has been found in violation by a regulatory authority of any other
type (e.g. utility) of Franchise, ordinance, agreement, permit, contract, or regulation. If so, the
applicant shall identify the judicial or administrative proceeding, giving the date, name of
tribunal, and result or disposition of that proceeding;
(e)Whether it is willing to enter into a Franchise, to pay required compensation,
and to abide by the provisions of applicable law, including those relating to the construction,
operation, or repair of its facilities, and has not entered into any agreement that would prevent it
from doing so.
9. Declaration of applicant. Each application shall be accompanied by a declaration
substantially in the form set forth below:
This application is submitted by the undersigned who has been duly authorized to
make the representations within on behalf of the applicant and certifies the
representations are true and correct.
The applicant recognizes that all representations are binding on it, that all
application commitments are enforceable, and that material misrepresentations or
omissions, or failure to adhere to any such representation may result in a denial of
an application by the County.
The applicant shall comply with all applicable local laws.
Consent is hereby given to the County and its representatives to make inquiry into
the legal, character, technical, financial, and other qualifications of the applicant
by contacting any persons or organizations named herein as references, or by any
other appropriate means.
"I certify (or declare) under penalty of perjury under the laws of the state of
Washington that the
foregoing is true and correct":
(Date and Place) (Signature)
5.20.160 INITIAL FRANCHISE APPLICATION FEES.
A. Minimum deposit. Every application for an initial Franchise shall be accompanied by an
initial minimum deposit in the amount of $5,000.00 or, in the discretion of the County Engineer,
such higher amount as may be necessary to cover the County's direct costs in processing the
application. The County shall draw upon such deposit to cover the direct cost of its
administrative expenses incurred in reviewing the franchise application, preparing a franchise
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ordinance, and taking action to grant or deny a Franchise. Any unexpended amounts shall be
reimbursed to the applicant. In the event that the deposit is depleted, the applicant shall replenish
the deposit.
B.Publication expenses. In addition, an applicant that is awarded a Franchise, shall pay to the
County a surn of money sufficient to reimburse it for all publication expenses incurred by it in
connection with the granting of a Franchise, pursuant to the provisions this chapter. Such
payment shall be made by delivery of payment to the County Treasurer within 30 days after the
County furnishes the Franchisee with a written statement of such expenses.
C.Failure to remit fees. No Franchise shall become effective until all required fees and costs are
paid.
5.20.170 OPEN RECORDS/CONFIDENTIALITY.
Unless otherwise provided by law, information submitted as part of a Franchise application is
open to public inspection and subject to the Washington Public Records Act (Chapter 42.56
RCW). It is the applicant's responsibility to be familiar with the Washington Public Records Act.
An applicant may specifically identify any information it considers proprietary by providing said
information to County in a separate envelope marked "Proprietary Information." In the event
that: (A) the County receives a request from another party to disclose any information which the
applicant has deemed proprietary, and if the County Prosecuting Attorney determines that said
information may be subject to being disclosed; or (B) the County determines that the information
should be disclosed in connection with its enforcement of any provision of this chapter, or in the
exercise of its police or regulatory powers, then the County shall notify the applicant of the
applicant's opportunity to seek a protective order from a court with appropriate jurisdiction. In
the event an action is not commenced within ten business days, the County may disclose said
information. By submitting information which the applicant deems proprietary or otherwise
exempt from disclosure, the applicant agrees to defend and hold harmless the County from any
claim for disclosure, including, but not limited to, any expenses including out-of-pocket costs
and attorneys' fees, as well as any judgment entered against the County for the attorney fees of
the party requesting disclosure.
5.20.180 REVIEW PROCESS.
A.Acceptance of application. Within ten business days of receipt of an application for an initial
Franchise, the County shall review the application to ensure all requisite information is included
in the application. If the application is not complete, the County will notify the applicant in
writing, listing the requisite information that is required to complete the application. Such
notification will also inform the applicant that the time period for granting or denying the
application set forth in 47 C.F.R. § 76.41(d) will not begin to run until such information is
received. If the application is complete, the County will notify the applicant in writing that all
requisite information has been received.
B.Staff Review. The County staff shall review all completed applications based on the review
criteria set forth herein. If, during the review of an application, staff reasonably requires
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additional information from the applicant, staff will promptly request the information from the
applicant, in writing. Such notification will also inform the applicant that the time period for
granting or denying the application set forth in 47 C.F.R. § 76.41(d) will be tolled until such
information is received by the County. After completing the review, staff shall provide an
analysis of the application to the County Board of Commissioners.
C.Franchise Negotiations. Upon acceptance of a complete application, the County shall
commence the process for negotiating a Franchise agreement with the applicant. Within the time
period set forth in 47 C.F.R. § 76.41(d), the County shall attempt to negotiate a cable Franchise
agreement with the applicant, and within that time period, schedule the application and any
proposed Franchise for public hearing, as set forth in MCC section 5.20.180 D.
D.Public Hearing. The County shall hold a public hearing before acting on an application,
affording participants a process substantially equivalent to that required by 47 U.S.C. §546(c)(2)
governing renewal of cable Franchises.
E.Review Criteria. The County may deny an application if, based on the information provided in
the application, at the public hearing, and/or any terms of a proposed Franchise agreement: (1)
the applicant does not have the financial, technical, or legal qualifications to provide Cable
Service; (2) the applicant will not provide adequate public, educational, and governmental access
channel capacity, facilities, or financial support; or (3) the applicant's proposed terms do not
comply with applicable federal, state, and local laws and regulations, including, but not limited
to, local customer service standards, or relevant existing contractual obligations of the County.
F.Grant or Denial of Franchise Application. If the County finds that it is in the public interest to
issue a Franchise considering the factors set forth above, the County may adopt a Franchise
ordinance setting forth the terms and conditions of the Franchise, which Franchise shall become
effective upon satisfaction of conditions precedent to effectiveness, and when signed and
accepted by the applicant. If the County denies a Franchise, it will cause a written explanation of
the denial to issue, which may be in any appropriate form. Without limiting its authority to deny
an application for a Franchise, the County specifically reserves the rights to reject any
application that is incomplete or fails to respond to a request for proposal. Nothing in this chapter
shall be construed in any way to limit the discretion and legislative authority of the County
Board of Commissioners in making decisions relative to the granting, denial, or renewal of a
Franchise.
5.20.190 PROCEDURE FOR CABLE FRANCHISE RENEWALS.
Renewal under Cable Act. To the extent required by federal law, requests for cable
Franchise renewal under the Cable Act will be received and reviewed in a manner
consistent with Section 626 of the Cable Act, 47 U.S.C. § 546. B. Informal applications
for renewal. Notwithstanding the provisions of Section 5.20.160, a Cable Operator may
submit a proposal for renewal of a Franchise, pursuant to 47 U.S.C. § 546(h). Such a
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proposal may be submitted at any time and the County may, after affording the public
adequate notice and opportunity for comment, grant or deny such proposal at any time
(including after proceedings have been commenced in accordance with 47 U.S.C. §
546(a)).
5.20.200 APPLICATIONS FOR MODIFICATION OF FRANCHISE.
A. An application for modification of a Franchise shall include, at minimum, the following
information:
1.The specific modification requested;
2.A statement indicating whether the modification is sought, pursuant to Section 625 of
the Cable Act, 47 U.S.C. § 545, and, if so, a demonstration that the requested modification meets
the standards set forth in 47 U.S.C. § 545;
3.Any other information that the applicant believes is necessary for the County to make
an informed determination on the application for modification; and
4.A declaration of the applicant or applicant's authorized officer certifying the truth and
accuracy of the information in the application, and certifying that the application is consistent
with the requirements of applicable law.
B. A request for modification submitted pursuant to 47 U.S.C. § 545 shall be considered in
accordance with the requirements of that section.
C. Public hearings. An applicant shall be notified of any public hearings held in connection with
the evaluation of its application and shall be given a reasonable opportunity to be heard. In
addition, prior to the issuance of a Franchise, the County shall provide for the holding of a public
hearing within the proposed Franchise Area, following notice to the public, at which each
applicant and its application shall be examined and the public and all interested parties afforded a
reasonable opportunity to be heard.
5.20.210 ADDITIONAL RULES APPLICABLE TO CABLE SYSTEMS
A Franchisee may not require a Subscriber or a building owner or manager to enter into an
exclusive contract for the provision of Cable Service as a condition of providing or continuing
service.
5.20.220 CONSTRUCTION PROVISIONS AND TECHNICAL STANDARDS.
A. System construction schedule. Every Franchise shall specify the construction schedule that
will apply to any required construction, upgrade, or rebuild of the Cable System. The schedule
shall provide for prompt completion of the project, considering the amount and type of
construction required.
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B.Use of Cable Operator's facilities. The County and the Cable Operator shall in good faith
discuss a County request to install and maintain, upon any poles owned by a Cable Operator in
the County and utilized for Franchisee's cable operations, any wire and pole fixtures that do not
unreasonably interfere with the Cable System or other operations of the Franchisee; provided,
that the Franchisee may charge the County a fair market rate for the use of such poles. Each
Cable Operator shall notify the County when and with whom it enters into an agreement for use
of its poles and conduits in the County.
C.Provision of service/quality of service. In addition to satisfying such requirements, as may be
established in a Franchise, every Cable Operator shall operate its Cable System subject to the
following conditions, except as prohibited by federal law:
1.It is the policy of the County to ensure that every Cable System provide service in the
Franchise Area, upon request, to any person or any government building consistent with
applicable law and the Franchise. The County retains the discretion to evaluate any Franchise
proposal, and impose construction and service availability requirements in a Franchise in order to
meet the needs of the community, so long as such requirements are consistent with applicable
law.
2.A Cable Operator must extend service to any person or to any government building
which requests it in the County or (if smaller) its Franchise Area within seven days of the
request, where service can be provided by activating or installing an aerial drop within 125 feet
of the structure to receive service. In cases where a potential Subscriber's structure is more than
125 feet from a Franchisee's existing cable plant, a Franchisee must still provide service, so long
as the potential Subscriber agrees to bear a share of extension or installation costs, equal to the
Franchisee's incremental cost of an extension that exceeds the 125-foot limit A Franchisee that
requires a potential Subscriber to bear a portion of installation or extension costs must prepare a
written estimate of extension costs within seven days of a request for an installation or extension
that would be subject to cost sharing.
3.A Cable System within the County shall meet or exceed the technical standards set
forth in 47 C.F.R. § 76.601-640, as amended, and all other lawful and applicable technical
standards.
4.A Cable Operator shall perform all tests necessary to demonstrate compliance with the
requirements of its Franchise and other lawful technical standards. Unless a Franchise or
applicable law provides otherwise, all tests shall be conducted in accordance with federal rules
and in accordance with the most recent edition of the Society of Cable Telecommunications
Engineers (SCTE) Recommended Practices; specifically, its Recommended Practices for Fiber
Optic Cable Construction and Testing and its Recommended Practices for Coaxial Cable
Construction and Testing, or such other manual as may be directed under FCC regulations. A
written report of any test results shall be filed with the County within seven days of a request by
the County. If a location fails to meet technical or performance specifications, the Operator,
without requirement of additional notice or request from County, shall promptly take corrective
action, and retest the locations.
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D.System maintenance and Technical Quality. Scheduled maintenance shall be performed so as
to minimize the effect of any necessary interruptions of Cable Service and a Cable Operator shall
maintain all transmission equipment as necessary to carry a quality signal from the access
facilities provided under this section or any Franchise to Subscribers. A Cable Operator shall
maintain all access channels, interconne cts, and return lines at the same or better level of
technical quality and reliability required by a Franchise and all other applicable laws, rules, and
regulations for other channels, services, and interconnects.
E.Emergency alert capability. A Cable Operator shall provide an Emergency Alert System
("EAS") and comply with all applicable federal, state, and regional emergency alert and
notification statutes, regulations, and plans, and any other requirements that may be contained
within a cable Franchise. The County may use the EAS, under procedures established between
the County and the Cable Operator, which are consistent with a Cable Operator's state and
federal EAS requirements, to transmit an emergency alert signal, including the ability to override
the audio and video on all channels throughout the County from the County's Emergency
Operations Center or other location as may be designated by the County. A Cable Operator shall
test the EAS, as required by the FCC. Upon request, the County shall be permitted to participate
in and/or witness the EAS testing, up to twice a year, on a schedule formed in consultation with a
Cable Operator. If the test indicates that the EAS is not performing properly, a Cable Operator
shall make any necessary adjustment to the EAS, and the EAS shall be retested. The County
shall permit only appropriately trained and authorized persons to operate the EAS equipment
provided, pursuant to this subsection.
F. Continuity of service. Each Franchisee shall, during the term of the Franchise, ensure that
Subscribers are able to receive continuous service. In the event the Franchise is revoked or
terminated, the Franchisee may be required to continue to provide service for a reasonable period
to assure an orderly transition of service from the Franchisee to another entity. A Franchise may
establish more particular requirements under which these obligations will be satisfied.
5.20.230 OPERATION AND REPORTING PROVISIONS.
A. Communication with regulatory agencies. If requested by the County, a Cable Operator shall
file with the County all reports required by the FCC including, without limitation, any proof of
perfoiiiiance tests and results; Equal Employment Opportunity ("EEO") reports; and all petitions,
applications, and communications of all types directly related to the Cable System, or a group of
Cable Systems of which the Cable Operator's Cable System in the County is a part, submitted or
received by the Cable Operator, an Affiliate, or any other Person on the behalf of the Operator,
either to or from the FCC, the Security and Exchange Commission, or any other federal or state
regulatory commission or agency having jurisdiction over any matter affecting operation of the
Cable System; provided, that nothing herein requires a Franchisee to produce regulatory or court
filings that are treated by the agency or court as confidential, such as Hart-Scott-Rodino Act
filings. If any such documents are available on line, in lieu of filing hard copies with the County,
the Cable Operator may direct the County to the on-line location of the information. Nothing in
this Section 5.20.240.A affects any rights the County may have to obtain books and records
under this chapter.
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B. Reports.
1. Upon written request by the County Engineer, within 45 days of the end of each
calendar quarter, a Cable Operator shall submit a report to the County containing the following
information: (a) The number of service calls (calls requiring a truck roll), received by type,
during the prior quarter; and (b) The number and type of outages known by the Operator for the
prior quarter affecting more than ten Subscribers specifying the following: the duration; the
geographical area; the number of Subscribers affected; and, if known, the cause.
2. No later than 120 days after the end of its fiscal year, a Cable Operator shall
submit a fully audited or certified revenue report from the previous calendar year for the Cable
System. Upon 120 days advanced written request from the County Engineer, a Cable Operator
may be required by the County to provide the following no later than 120 days after the end of
the Cable Operator's fiscal year
(a)A summary of the previous year's activities in the development of the Cable
System, including descriptions of services begun or discontinued and the number of Subscribers
gained or lost for each category of Cable Service;
(b)A summary of complaints for which records are required under MCC section
5.20.230.A, identifying both the number and nature of the complaints received and an
explanation of their dispositions;
(c)An ownership report, indicating all Persons who, at the time of filing, control
or own an interest in the Cable Operator of 10 percent or more;
(d)A list of officers and members of the Board of Directors of the Franchisee and
any Affiliates directly involved in the operation or the maintenance of the Cable System;
(e)An organizational chart showing all corporations or partnerships with more
than a 10 percent interest ownership in the Cable Operator, and the nature of that ownership
interest (limited partner, general partner, preferred shareholder, etc.); and showing the same
information for each corporation or partnership that holds such an interest in the corporations or
partnerships so identified, and so on, until the ultimate corporate and partnership interests are
identified;
(f)An annual report of each entity identified in MCC section 5.20.240.B.2(f),
which issues an annual report;
(g) A complete report on its plant, which shall state the physical miles of plant
construction and plant in operation during the prior calendar year categorized as aerial and
underground, identify any cases where Subscribers contributed to plant extension, and report the
results of appropriate electronic measurements to show conformity with FCC technical
standards;
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(h)A report showing the nature and type of complaints and corrective action
taken to address the complaint and
(i)Once the information required by MCC sections 5.20.240.B.2(d)-(e) has been
filed, it need be re-filed only if it changes.
C. Records required. A Cable Operator shall at all times maintain:
1.Records of all complaints received with information sufficient to allow the Operator to
prepare the reports required in this MCC section 5.20.240. The term "complaints" as used herein
and throughout this ordinance refers to complaints about any aspect of the Cable System or
Franchisee's operations, including, without limitation, complaints requiring service calls, and
complaints about employee courtesy, billing, prices, programming, outages and signal quality;
2.Records of outages known to the Cable Operator, with infoimation sufficient to allow a
Franchisee to prepare the reports required in this MCC section 5.20.240;
3.Records of service calls for repair and maintenance indicating the date and time service
was requested; the date of acknowledgment; date and time service was scheduled, if it was
scheduled; the date and time service was provided; and, if different, the date and time the
problem was solved; and
4.Records of installation/reconnection and requests for service extension, indicating date
of request, date of acknowledgment, and the date and time service was extended.
5.20.240 CONSUMER PROTECTION.
A.Rate discrimination prohibited. Except to the extent permissible by law a Cable Operator is
prohibited from discriminating in its rates or charges or from granting undue preferences to any
Subscriber, potential Subscriber, or group of Subscribers or potential Subscribers; provided,
however, that a Franchisee may offer temporary, bona fide promotional discounts in order to
attract or maintain Subscribers, so long as such discounts are offered on a non-discriminatory
basis to similar classes of Subscribers throughout the Franchise Area. A Franchisee may offer
discounts for the elderly, the disabled, or the economically disadvantaged, and such other
discounts as it is expressly entitled to provide under federal law, if such discounts are applied in
a uniform and consistent manner. A Cable Operator shall comply at all times with all applicable
federal, state, and County laws, and all executive and administrative orders relating to non-
discrimination.
B.Redlining prohibited. A Cable System Operator shall not deny access or charge different rates
to any group of Subscribers or potential Subscribers because of the income of the residents of the
local area in which such group resides.
C. Cable customer service standards. The County retains the continuing authority to enforce
provisions of federally-adopted customer service standards in accordance with applicable law or
to adopt local customer service standards, in its discretion.
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5.20.250 FRANCHISE FEE.
A Cable Operator shall pay to the County a Franchise fee in an amount equal to 5 percent of
gross revenues from Cable Services, or such other amount as may be specified in the Franchise.
5.20.260 TRANSFERS.
A.County approval required. No Transfer shall occur without prior written notice to and
approval of the County Board of Commissioners. The granting of approval for a Transfer in one
instance shall not render unnecessary approval of any subsequent Transfer.
B.Application.
1.The Franchisee shall promptly notify the County Engineer of any proposed Transfer
involving a Cable System.
2.At least 120 calendar days prior to the contemplated effective date of a Transfer
involving a Cable System, the Franchisee shall submit to the County Engineer an application for
approval of the Transfer. Such an application shall provide complete information on the
proposed transaction, including details on the legal, financial, technical, and other qualifications
of the Transferee subject to applicable law. At a minimum, the following information must be
included in the application, provided that, a Franchisee is not required to duplicate information
that it submits to the County Engineer to comply with its obligations under federal or state law:
(a)All information and forms required by FCC Form 394 and any other form that
may be promulgated under federal law, or, the equivalent of such forms if no longer required by
federal law or if Operator elects not to utilize such forms, any contracts or other documents that
relate to the proposed transaction or other documents, schedules, or exhibits that would have
been provided to the County under FCC form 394;
(b)Any shareholder reports or filings with the Securities and Exchange
Commission ("SEC") that discuss the transaction;
(c)Other information necessary to provide a complete and accurate understanding
of the financial position of the Cable System before and after the proposed Transfer; and
(d)Complete information regarding any potential impact of the Transfer on
Subscriber service.
3. For the purposes of determining whether it shall consent to a Transfer, the County, or
its agents, may inquire into the legal, financial and technical qualifications of the prospective
Transferee and necessary to determine whether the Transfer is in the public interest and should
be approved. The Franchisee and any prospective transferees shall assist the County Engineer in
any such inquiry, and if they fail to do so, the request for Transfer may be denied.
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C.Determination by County. In making a determination as to whether to grant, deny, or grant
subject to conditions an application for a Transfer of a Franchise under this MCC section
5.20.260.C, the County shall consider the legal, financial, and technical qualifications of the
transferee to operate the Cable System; and whether operation by the transferee may eliminate or
reduce competition in the delivery of Cable Service in the County. The County's consent to a
Transfer shall not be unreasonably withheld.
D.Transferee's agreement. No application for a Transfer of a Franchise, subject to this MCC
section 5.20.260, shall be granted unless the transferee agrees in writing that it will abide by and
accept all lawful terms of this chapter and the Franchise, and that it will assume the obligations,
liabilities, and responsibility for all acts and omissions, known and unknown, of the previous
Franchisee under this chapter and the Franchise for all purposes, including renewal, unless the
County, in its sole discretion, expressly waives this requirement in whole or in part.
E.Approval does not constitute waiver. Approval by the County of a Transfer of a Franchise,
pursuant to this MCC section 5.20.260, does not constitute a waiver or release of any of the
rights of the County under this chapter or a Franchise, whether arising before or after the date of
the Transfer.
F.Exception for intra-company Transfers. Notwithstanding the foregoing, a Franchise may
provide that Transfers to Affiliates of a Franchisee shall be excepted from the requirements of
MCC section 5.20.260.A-B where (1) the Affiliate is wholly owned and managed by an entity
that will guarantee the performance under a Franchise or provide other adequate assurance
acceptable to the County Engineer; and (2) the transferee Affiliate:
1.Notifies the County Engineer of the Transfer at least 60 days before it occurs and, at
that time provides the agreements and warranties required by this MCC section 5.20.260,
describes the nature of the Transfer, and submits complete information describing who will have
direct and indirect ownership and control of the Cable System after the Transfer;
2.Warrants that it has read, accepts, and agrees to be bound by each and every term of
the Franchise and related amendment, regulations, ordinances, and resolutions then in effect;
3.Agrees to assume all responsibility for all liabilities, acts, and omissions known and
unknown, of its predecessor Franchisees for all purposes, including renewal;
4.Agrees that the Transfer shall not permit it to take any position or exercise any right
which could not have been exercised by its predecessor Franchisees;
5. Warrants that the Transfer will not substantially increase the financial burdens upon or
substantially diminish the financial resources available to the Franchisee (the warranty to be
based on comparing the burdens upon and resources that will be available to the transferee
compared to its predecessors), or otherwise adversely affect the ability of the Franchisee to
perform;
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6.Warrants that the Transfer will not in any way adversely affect the County or
Subscribers (including by increasing rates);
7.Notifies the County Engineer that the Transfer is complete within five business days of
the date the Transfer is complete; and
8. Agrees that the Transfer in no way affects any evaluation of its legal, financial, or
technical qualifications that may occur under the Franchise or applicable law after the Transfer,
and does not directly or indirectly authorize any additional Transfers.
G. Exception for Financing Related Actions. Notwithstanding Sections A thru E above, a
Franchisee may, without obtaining consent of the County from time to time (a) restructure its
debt or change the ownership interests among its equity participants or its affiliates; and (b)
pledge or grant a security interest in its assests, including but not limited to the Franchise or the
equity or other ownership interests in the Franchisee to any lender to secure indebtness.
5.20.270 CONNECTIONS TO CABLE SYSTEM; USE OF ANTENNAE.
A.Subscriber right to attach. To the extent consistent with federal law, Subscribers shall have the
right to attach DVRs, receivers, and other terminal equipment to a Franchisee's Cable System.
Subscribers also shall have the right to use their own remote control devices and converters, and
other similar equipment.
B.Removal of existing antennae. A Franchisee shall not, as a condition of providing service,
require a Subscriber or potential Subscriber to remove any existing antenna, or disconnect an
antenna except at the express direction of the Subscriber or potential Subscriber, or prohibit
installation of a new antenna, provided that such antenna is connected with an appropriate device
and complies with applicable law.
5.20.280 DISCRIMINATION PROHIBITED.
A.A Cable Operator shall not discriminate among persons or the County or take any retaliatory
action against a person or the County because of that entity's exercise of any right it may have
under federal, state, or local law, nor may the Operator require a person or the County to waive
such rights as a condition of taking service.
B.A Cable Operator shall not refuse to employ, discharge from employment, or discriminate
against any person in compensation or in terms, conditions, or privileges of employment because
of race, color, creed, national origin, sex, age, disability, religion, ethnic background, or marital
status. A Cable Operator shall comply with all federal, state, and local laws and regulations
governing equal employment opportunities, as the same may be from time to time amended.
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Dated August 18, 2010
County Engineer
Approved as to form:
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5.20.290 MISCELLANEOUS
A.Captions. The captions to sections throughout this chapter are intended solely to facilitate
reading and reference to the sections and provisions of this chapter. Such captions shall not affect
the meaning or interpretation of this chapter.
B.Calculation of time. Unless otherwise indicated, when the performance or doing of any act,
duty, matter, or payment is required under this chapter or any Franchise, and a period of time or
duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time shall be
computed so as to exclude the first and include the last day of the prescribed or fixed period of
duration time.
C. Severability. Should any section, paragraph, sentence, clause or phrase of this ordinance, or its
application to any person or circumstance, be declared unconstitutional or otherwise invalid for any
reason, or should any portion of this ordinance be pre-empted by state or federal law or regulation,
such decision or pre-emption shall not affect the validity of the remaining portions of this ordinance
or its application to other persons or circumstances.
Dated this I day of Yu vAiiti , 2011.
BOARD OF COUNTY COMMISSIONERS
MASON COUNTY, WASHINGTON
First Draft Cable Television Franchise Regulations Ch. 5.20 31
Dated August 18, 2010