The Louisville Media Reform Community

CHAPTER 116: COMMUNICATION AND CABLE TELEVISION SERVICES

Section

Rate Provisions

116.01 Scope and applicability

116.02 Rate filing

116.03 Rate filing review

116.04 Rate order

Regulations for Cable Communication System

116.15 Purpose

116.16 Definitions

116.17 Reserved

116.18 Director of Public Works

116.19 Franchise term

116.20 Significance of franchise

116.21 Partial listing of rights reserved to the Metro Government

116.22 Application for a franchise

116.23 Acceptance and effective date of franchise

116.24 Indemnity

116.25 Franchise consideration

116.26 Franchise territory

116.27 Time schedule after franchise is granted

116.28 Installation and extension of service

116.29 Service to customers

116.30 System design

116.31 Privacy

116.32 Performance measurement

116.33 Interconnection

116.34 Emergencies

116.35 Rates

116.36 Police powers

116.37 Transfer and assignments

116.38 Abandonment

116.39 Conditions of street occupancy

116.40 Arrangements by franchisee with others

116.41 Reports

116.42 Bonds

116.43 Review, renewal, termination and cancellation

116.44 Complaints

116.45 Revocation of franchise

116.46 Foreclosure-receivership

116.47 Books and records of the franchise

116.48 New developments

116.49 Time of essence

116.50 Franchisee not to contest validity of franchise or ordinance

116.51 Violations

Communication Services Franchise

116.70 General provisions

116.71 Communications services

116.72 Rights-of-way management and facilities requirements

116.73 Miscellaneous

116.74 Transitional provisions

116.75 Private communications facilities

116.76 Liabilities and penalties

116.77 Remedies not exclusive

116.98 Severability

116.99 Penalty

RATE PROVISIONS

§ 116.01 SCOPE AND APPLICABILITY.

This ordinance governs the regulation of rates for basic service and equipment within Louisville Metro for any franchisee, which has been notified that the Louisville/Jefferson County Metro Government ("Metro Government") or its predecessors has been certified to regulate basic service and equipment rates; and the Metro Government has adopted regulations governing basic service and equipment rates. The provisions set forth below are intended to be consistent with all Federal Communications Commission (FCC) regulations governing the regulation of basic service rates and equipment, and the Metro Government will regulate and interpret its rules so that they are consistent with FCC regulations, as if those regulations were set forth herein. If any provision of these regulations shall, to any extent, be held to be invalid, unenforceable, or preempted by Federal law or regulation, the remainder hereof shall be valid in all other respects and continue to be effective. For purposes of these provisions, the term "basic service" or "basic cable service" has the same meaning as the term "basic service" at 47 C.F.R. § 76.901 and the term "equipment" refers to all equipment and services subject to regulation under 47 C.F.R. § 76.923.

(1994 Jeff. Code, § 116.01) (Jeff. Ord. 6-1994, adopted and effective 3-8-1994; Lou. Metro Am. Ord. No. 133-2003, approved 7-25-2003)

§ 116.02 RATE FILING.

Every rate filing must be submitted to the Mayor of the Metro Government with a copy to the Office of the Metro Council Clerk. Such filings must contain all information and supporting documentation as provided in FCC regulations and any other information as may be required by the Metro Government, as described further herein. After review, the Mayor shall provide the rate filing submission material to the Louisville Metro Cable Television Commission for review.

(1994 Jeff. Code, § 116.02) (Jeff. Ord. 6-1994, adopted and effective 3-8-1994; Jeff. Am. Ord. 18-2000, adopted and effective 6-27-2000; Lou. Metro Am. Ord. No. 133-2003, approved 7-25-2003)

§ 116.03 RATE FILING REVIEW.

(A) The Metro Council hereby designates and authorizes the Louisville Metro Cable Television Commission to act on its behalf in providing notice to the public of rate filings and inviting public comment thereon, to conduct hearings and to undertake review of the filing materials, and such other related actions as it deems fit, and to make recommendations to the Metro Council, consistent with FCC regulations, whether to approve in whole or in part, deny in wholeor in part, or toll in whole or in part, the basic service and equipment rates proposed in the filings. However, the Metro Council retains the final authority regarding approval, denial, modifying or tolling of all such rate filings.

(B) The Cable Television Commission may adopt such rules and procedures, as it deems appropriate, consistent with applicable FCC regulations, in carrying out its rate review responsibility.

(C) In connection with such regulation, the Cable Television Commission will ensure a reasonable opportunity for consideration of views of interested parties.

(1994 Jeff. Code, § 116.03) (Jeff. Ord. 6-1994, adopted and effective 3-8-1994; Jeff. Am. Ord. 18-2000, adopted and effective 6-27-2000; Lou. Metro Am. Ord. No. 133-2003, approved 7-25-2003)

§ 116.04 RATE ORDER.

Any rate order of the Metro Council shall be effective on its adoption, unless otherwise specifically directed or required by law (noting that tolling orders must be effective immediately). Each rate order shall be released to the public and the franchisee.

(1994 Jeff. Code, § 116.04) (Jeff. Ord. 6-1994, adopted and effective 3-8-1994; Lou. Metro Am. Ord. No. 133-2003, approved 7-25-2003)

REGULATIONS FOR CABLE COMMUNICATION SYSTEM

§ 116.15 PURPOSE.

The purpose of this ordinance is:

(A) To regulate the erection, construction, reconstruction, operation, maintenance, dismantling, testing, repair and use of a cable communications system in, upon, along, across, above, over, under or in any manner connected with the streets, public ways or public places within the Metro Government Area, as now or in the future may exist;

(B) To provide for payment of a fee and other valuable consideration to the Metro Government for the privilege of constructing and operating a cable communications system;

(C) To provide for the regulation by the Metro Government of rates to be charged to subscribers;

(D) To provide for the development of a cable communications system as a community communications system and for other public purposes; and

(E) To provide remedies and prescribe penalties for the violation of this ordinance.

(1994 Jeff. Code, § 116.15) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.16 DEFINITIONS.

For the purpose of this ordinance and any ordinance and agreement awarding a franchise in accordance herewith, the following terms, phrases, words, abbreviations and their derivations shall have the meaning given herein unless otherwise specifically provided in this ordinance, unless the context clearly indicates otherwise or unless such meaning would be inconsistent with the manifest intent of the Metro Government. When not inconsistent with the context, words used in the plural number include the singular number, and words in the singular number include the plural number. Further, the word “shall” is always mandatory and not merely directory.

ANNUAL GROSS RECEIPTS. Any and all compensation, revenue, and other consideration, derived directly or indirectly, in any form whatever, by a franchisee, its affiliates, subsidiaries, parents, from, or in connection with, the operation of a cable communications system in the Metro Government Area, with no deductions whatsoever.

APPLICANT. The natural person, partnership, domestic or foreign corporation, association, joint venture, or organization of any kind which applies for a franchise to be granted under this ordinance.

CABLE COMMUNICATIONS SYSTEM. Any facility that, in whole or in part, receives directly or indirectly, and amplifies or otherwise modifies signals which transmit non-broadcast services, and/or programming broadcast or furnished by one or more television or radio stations or similar facility and distributes such signals by wire or cable to subscribing members of the public who pay for such service. Such definition shall not include any similar facility that serves only the residents of one or more apartment or condominium dwelling under common ownership, control or management, or otherwise, and commercial establishments located on the premises of such an apartment house or condominium dwelling.

CATV. A community antennae cable communications system, composed of, without limitation, antenna, cables, wires, lines, towers, wave guides, laser beams, or any other conductors, converters, equipment or facilities, designed, constructed or wired for the purpose of producing. receiving, amplifying and distributing coaxial cable audio and/or visual radio, television, electronics or electrical signals to and from persons, subscribers, and locations in the Metro Government Areas.

CERTIFICATE OF COMPLIANCE. Approval required by the FCC in order for a franchisee to begin operation within the metropolitan area.

METRO CLERK. The Clerk of the Metro Government.

COMMISSION. The Metro Telecommunications Commission.

CONVERTER. An interface device which may be furnished to subscribers in order that non-standard television channels carried on the cable communications system may be received on a conventional home television receiver, or to prevent interference from strong broadcast signals.

MAYOR. The Mayor of the Metro Government.

DIRECTOR OF PUBLIC WORKS. The Director of Public Works of the metropolitan area, or his/her designee, or the Director, or designee, of any successor agency to Public Works.

FAIR MARKET VALUE. The price that a willing buyer under no compulsion to buy would pay to a willing seller under no compulsion to sell.

FCC. The Federal Communications Commission as that agency is presently constituted by the Communications Act of 1934 as amended, or any successor agency.

METRO GOVERNMENT. The Louisville/Jefferson County Metro Government.

FRANCHISE. The non-exclusive rights granted hereunder to construct and operate a cable communications system along the streets, alleys, and public ways in the Metro Government Area, or within specified areas in Jefferson County, and is not intended to include any license or permit required for the privilege of transacting and carrying on a business within the Metro Government, as may be required by any other ordinances or laws of the Metro Government, or the Commonwealth of Kentucky.

FRANCHISEE. The natural person, partnership, domestic or foreign corporation, association, joint venture, or organization of any kind, and the lawful successor, transferee, or assignee of same, granted a franchise by the Metro Government under this ordinance.

METRO GOVERNMENT AREA. The corporate limits of the Louisville/Jefferson County Metro Government.

PERSON. Any individual, partnership, association, corporation, joint venture, legal entity or organization of any kind.

SERVICE. All communications, maintenance, repair and installation services provided by the franchisee, including the delivery of broadcast signals and programming covered by the regular monthly charge paid by all subscribers, including such standard type of service that is normally furnished by CATV franchisees for a regular monthly as are furnished as a part of the cable communications system in the way of two way, return-path services.

STATE. The Commonwealth of Kentucky.

STREET. The surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, or other public right-of-way including public utility easements or right-of-way and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Metro Government which shall entitle Metro Government and the franchisee to the use thereof for the purpose of installing operating, repairing, and maintaining the franchisee's cable communications system. STREET shall also mean any easement now or hereafter held by the Metro Government for the purpose of public travel and shall include other easements or rights-of-way as shall be now held or hereafter held by the Metro Government, which shall within their proper use and meaning entitle the Metro Government and the franchisee to the use thereof for the purposes of installing or transmitting cable communications transmissions over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, compliances, attachments, and other property as may be ordinarily necessary and pertinent to a cable communications system.

SUBSCRIBER. Any person who contracts the purchase, orally or in writing of any service as may be provided by a franchisee's cable communications system.

SUBSTANTIAL COMPLETION. That point at which sufficient distribution facilities have been installed by the franchisee so as to provide service to at least 90% of the dwelling units in the franchise territory as described in § 116.26.

(1994 Jeff. Code, § 116.16) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 15-1979, adopted and effective 7-10-1979; Jeff. Am. Ord. 18-2000, adopted and effective 6-27-2000)

§ 116.17 RESERVED.

§ 116.18 DIRECTOR OF PUBLIC WORKS / DESIGNEE.

The Director of Public Works or his/her designee shall have the general duties of administering the Commission, scheduling matters before the Commission, maintaining records, and any other such duties as may be assigned to him/her by the Commission or the Metro Government as may be required by law. He/she shall keep the Metro Government fully informed on all aspects of the cable communications system and the franchisee or franchisees hereunder.

(1994 Jeff. Code, § 116.18) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 15-1979, adopted and effective 7-10-1979; Jeff. Am. Ord. 7-1982, adopted and effective 3-2-1982; Jeff. Am. Ord. 18-2000, adopted and effective 6-27-2000)

§ 116.19 FRANCHISE TERM.

Franchises shall be for a period of 15 years from the date of issuance. Such franchise shall designate and be conditioned upon the acceptance by a franchisee of all of the terms of this ordinance and any amendments properly made thereto.

(1994 Jeff. Code, § 116.19) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.20 SIGNIFICANCE OF FRANCHISE.

(A) Any franchise granted hereafter by the Metro Government shall not be exclusive and the Metro Government reserves the right to grant a similar franchise to any other persons or entities at any time.

(B) No privilege or exemption shall be inferred from the granting of any franchise unless it is specifically prescribed.

(C) Any franchise granted hereunder shall give to the franchisee the right and privilege to construct, erect, operate, modify and maintain in, upon, along, above, over and under the streets, alleys and public places of the Metro Government Area, such towers, antennae, cables, electronic equipment and other network appurtenances necessary for the operation of a cable communications system in the Metro Government Area; provided, however, that the exercise of such right and privilege shall not interfere with the use of such streets, alleys and public places by the Metro Government and such others as are permitted by the Metro Government to use same, and the Metro Government may demand the removal of the foregoing as have been constructed by or under contract with a franchisee at such time as the Metro Government believes that same are interfering with the use of the said streets, alleys or public places.

(D) Any franchise granted hereunder shall be a privilege to be held for the benefit of the public.

(E) Prior approval of the Metro Government shall be required and obtained where ownership or control of more than 10% of the right of control of any franchisee is acquired, disposed of or transferred by a person or group of persons acting in concert. Transfer from a subsidiary to a parent corporation, or vice versa, shall not be considered as a change of control.

(F) Nothing in this ordinance shall be deemed to prohibit the mortgage or the pledge of the network or any part thereof or a leasing by a franchisee from another person of said network or part thereof for financing purposes or otherwise. However, any such mortgage, pledge or lease shall be subject to the rights of the Metro Government under this ordinance, a franchise granted hereunder, and all other applicable laws.

(G) Any franchise granted hereunder shall not relieve the franchisee of its obligation to obtain necessary pole or conduit use agreements as are necessary.

(H) The award of any franchise hereunder shall not impart to the franchisee any right of ownership of streets or Metro Government-owned property.

(I) Any franchise granted hereunder shall be binding upon the franchisee, its successors, lessees or assignees.

(J) A franchisee, at its expense, shall comply with all applicable laws, orders, ordinances and regulations of federal, state and Metro Government or municipal authorities including those established to protect historic districts and/or designated landmark sites.

(1994 Jeff. Code, § 116.20) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.21 PARTIAL LISTING OF RIGHTS RESERVED TO THE METRO GOVERNMENT.

(A) The Metro Government reserves such rights and powers which under applicable federal or state law or regulations, the Metro Government must reserve and maintain. Franchisee agrees to comply with any action or requirements of the Metro Government in the exercise of such rights and powers which either have been or shall subsequent to the grant of said franchise be enacted or established.

(B) The Metro Government may designate and transfer its obligations and duties under the franchise to any elected official, officer, employee, department, agent, board or Commission of the Metro Government and a franchisee shall recognize the authority of any such transferee.

(C) The Metro Government may inspect all construction or installation work performed pursuant to the franchise grant under this ordinance.

(D) Neither the granting of any franchise hereafter nor any provisions hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the Metro Government.

(1994 Jeff. Code, § 116.21) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.22 APPLICATION FOR A FRANCHISE.

Applications for an original franchise grant hereunder shall be filed with the Metro Clerk, and shall contain the following written information and provisions:

(A) Bid bond and filing fee. Applications shall be subject to the requirements of § 116.42 and shall be accompanied by a non-refundable filing fee of $5,000 payable to the Metro Government.

(B) Name and address of applicant. The name and business address of the applicant, date of application and signature of applicant or appropriate corporate officer(s).

(C) Description of proposed operation. A general description of the applicants proposed operation, including, but not limited to: business hours, operating staff, maintenance procedures, management and marketing staff complement and procedures, rules of operation for public access, a statement of services to be provided, and a description of the system design as required by § 116.30(B).

(D) Special services. A statement setting forth a description of any automated services proposed as well as a description of the production facilities to be made available by the franchisee for public, municipal, and educational access channels.

(E) Programming assistance. A statement explaining any assistance, in terms of personnel, equipment or capacity, to be designated for the programming or programming assistance for the public, educational and governmental access channels.

(F) Rates. A statement of the applicant's proposed rates in conformity with this ordinance.

(G) Applicant organization.

(1) If the applicant is an individual, partnership, or unincorporated association, it shall state the names and addresses of all persons (including corporations) having a proprietary or equitable interest in and to the applicant's business operation, and in and to the prospective franchise if awarded. The term equitable interest shall include all assignments for value, as well as all contingent assignments of any right or privilege under the prospective franchise, and shall also include any benefit, payment, or emolument whatsoever resulting from the grant of a franchise under this ordinance.

(2) If the applicant is a non-public corporation, the application shall state, additionally, the names and addresses of the officers, directors, and shareholders of the said corporation, together with the number of shares held by each shareholder.

(3) If the applicant is a publicly held corporation, as defined by the rules and regulations of the Securities and Exchange Commission, the statement shall contain the states in which incorporated and/or qualified to do business, the names and addresses of the officers and directors of the corporation, the names and addresses and number of shares owned of all stockholders both nominal and beneficial, owning 3% or more of the outstanding stock of the applicant.

(4) A full disclosure of the ownership of the facilities to be used in rendering the service.

(H) Intra-company relationships. A statement describing all intra-company relationships of the applicant, including parent, subsidiary or affiliated companies.

(I) Agreements and understandings. A statement setting forth all agreements and understandings, whether written or oral, existing between the applicant and any other person, firm, group or corporation with respect to any franchise awarded hereunder and the conduct of the operation thereof existing at the time the application is made.

(J) Financial statements. Audited financial statements for the applicant's two latest fiscal years unless applicant has not been in existence for at least two years, in which case applicant shall furnish audited financial statements for such lesser period of time covering the period that the applicant has been in existence. If the applicant is a partnership, audited financial statements shall include copies of the Federal Partnership Income Tax return for its latest two fiscal years or such lesser period of time that said partnership has been in existence.

(K) Financial projection. An estimated ten-year operations proforma which shall include the initial and continuing plant investment, annual profit and loss statements detailing income and expenses, annual balance sheets, and. annual levels of subscriber penetration. Such projections shall also specify the estimated average profit or loss anticipated by the applicant for the first ten-year operations period, and shall specify the computations and criteria used to provide such estimate, such as number of homes adopted and effective, miles of cable construction, and anticipated inflation rate.

(L) Financial support. Suitable written evidence from a recognized financing institution addressed both to the applicant and to the Metro Government advising that the applicant's planned operation has been analyzed by the institution and that the financing institution is prepared to make the required funds available to applicant if it is awarded a franchise. If the planned operation is to be internally financed, a corporate board resolution or statement from a qualified officer of the applicant shall be supplied authorizing the obtainment and expenditure of such funds as are required to construct, install and operate the cable communications system contemplated hereunder.

(M) Technical description. A technical description of the type of network proposed by the applicant, including, but not limited to, network configuration (i.e. hub), network capacity, two way operation capability and service to be provided, and a description of the studio or studios, studio equipment, planned hours of operation and hours of availability, if any, that same will be made available to governmental, public and/or educational institutions or agencies.

(N) Engineering statement. A statement from the applicant's senior technical staff member, or consultant, advising that he/she has reviewed this ordinance and that the applicant's planned network and operations thereof wild meet all the requirements set forth herein.

(O) Existing franchises. A statement of existing franchises held by the applicant indicating, with particularity, when the franchises were issued and when the systems were constructed together with the name, and address and phone number of a responsible governmental official knowledgeable of the applicant in each such franchise area.

(P) Convictions. A statement as to whether the applicant or any of its officers or directors or holders of three percent or more of its voting stock or bonded indebtedness has in the past ten years been convicted of any crime which in any way is related to the operation and performance of a cable communications system or in any way relates to the applicant's ability or competency to perform its obligations under this ordinance.

(Q) Operating experience. A statement detailing the prior CATV experience of the applicant including that of the applicant's officers, management and staff to be associated with the proposed operation.

(R) Franchise renewal information. If an application is for renewal of a franchise, the proposal must include, in addition to the information required in § 116.22(A) through (O):

(1) A summary of the technical, financial and programming history of the network since the granting of the original franchise.

(2) A statement and timetable that outlines all proposed changes, expansion or improvements in the network as to services, programming or technical specifications during the forthcoming 15-year period.

(S) Additional requirements. Fifteen copies of the application shall be filed. Supplementary, additional or other information that the applicant deems reasonable for consideration may be submitted at the same time as its application but must be separately bound and submitted in the above number of copies. The Metro Government may, at its discretion, consider such additional information as part of the application.

(T) Supplementation to applications. The Metro Government reserves the right to require such supplementary, additional or other information that it deems reasonably necessary for its determinations.

(1994 Jeff. Code, § 116.22) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.23 ACCEPTANCE AND EFFECTIVE DATE OF FRANCHISE.

(A) Any franchise granted hereunder, together with the rights, privileges and authority granted thereby, shall take effect and be in force from and after the effective date of an ordinance awarding a franchise hereunder, provided that on or before said date the franchisee shall:

(1) File with the Metro Government an unconditional acceptance of the franchise grant and enter into and execute such contracts and documents as required by the Metro Government consistent with the terms and provisions of this ordinance and such other terms and provisions as were negotiated by the franchisee and the Metro Government consistent with the application of the franchisee.

(2) File certificate of insurance as set forth in § 116.24(A)(3).

(3) File such bond or bonds as required in § 116.42.

(4) Reimburse the Metro Government for the costs of publication of this ordinance and the ordinance awarding the franchise.

(5) Advise the Metro Government in writing of the franchisee's location and its address for mail and official notifications from the Metro Government.

(6) Pay to the Metro Government an advance franchise fee of $50,000 to be credited against sums due under § 116.25.

(B) In the event the franchisee fails to comply in full with § 116.23(A), then it shall be conclusively considered that the franchisee has abandoned its application and rights to such grant and award of the franchise, and any such rights that the franchisee may have acquired under the ordinance shall immediately terminate, and the franchisee shall have no right, privilege or authority whatsoever under this ordinance. In the event the franchisee has paid the initial franchise fee of $50,000 as contemplated in § 116.23(A), such shall be refunded to the franchisee if the franchisee has otherwise complied with § 116.23(A)(4). If it has not, the aforesaid costs of publication shall be deducted and the balance refunded.

(C) The franchisee shall have no recourse whatsoever against the Metro Government for or on account of any loss, cost, expense or damage arising out of any provisions or requirements of this ordinance and/or the ordinance awarding the franchise or any amendments there to or rules or regulations thereunder.

(D) The franchisee by acceptance of any franchise awarded hereunder, acknowledges that it has relied upon its own investigation and understanding of the power and authority of the Metro Government to grant such a franchise.

(E) The franchisee, by acceptance of any franchise awarded hereunder, acknowledges that it has thoroughly examined and is familiar with the terms and conditions of this ordinance, the ordinance awarding the franchise, and such other contracts and documents entered into by the franchisee relative to the franchise.

(F) The franchisee by acceptance of any franchise awarded hereunder acknowledges and agrees that the matters contained in the franchisee's application for franchise or supplements thereto, shall be incorporated into the ordinance awarding the franchise as though set out verbatim and shall thereafter be considered an integral part of such ordinance in all communications, correspondence, filings or applications with all appropriate regulatory agencies, including the FCC.

(1994 Jeff. Code, § 116.23) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.24 INDEMNITY.

(A) Franchisee shall at his sole cost and expense, fully indemnify, defend, and save harmless the Metro Government, its officers, boards, commissions, and employees against any and all claims, suits, actions, liability, and judgments for damage or penalty arising out of or derivative of this ordinance, the franchise awarded hereunder, and/or the construction, installation, operation, acquisition, maintenance or advertising of any cable communications system.

(1) Same shall include, but shall not be limited to, damages arising out of copyright infringement and all other claims, suits, actions or liability, whether or not any act of complained of was authorized, allowed, or prohibited by the franchise.

(2) A franchisee shall pay and by its acceptance of the franchise, specifically agrees that it will pay all expenses incurred by the Metro Government in defending itself with regard to all damages and penalties mentioned above. These expenses shall include, but not be limited to, all out-of-pocket expenses such as attorney fees and all other costs of litigation and shall also include the reasonable value of any services rendered by the Jefferson County Attorney or his assistants or any employee of the Metro Government.

(3) Immediately upon the effective date of the ordinance awarding a franchise under this ordinance, the franchisee shall file with the Metro Clerk and maintain on file throughout the term of this franchise a liability insurance policy issued by a company duly authorized to do business in the Commonwealth and acceptable to the Metro Government, insuring Metro Government and its Metro Council/Mayor, with respect to the construction, installation, operation and maintenance of the system:

(a) For bodily injury, including death, in the minimum amount of $1,000,000 for any one person, and the minimum amount of $5,000,000 for any one accident.

(b) For property damage in the minimum amount of $3,000,000; and

(c) For damages resulting from any liability of any nature including copyright infringement, that may arise from or be occasioned by any matter contained in or resulting from the transmission of any communication over the cable communications system, in the minimum amount of $5,000,000. The Metro Government reserves the right to make reasonable increases in the amount of insurance coverage herein at anytime. Nothing herein is intended as a limitation on the extent of any legal liability of the franchisee.

(1994 Jeff. Code, § 116.24) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.25 FRANCHISE CONSIDERATION.

(A) The franchise fee shall be no less than 5% of gross revenues, provided, however, that if the FCC imposes restrictions on the Metro Government's use of proceeds from a 5% fee, the franchise fee shall be not less than the maximum fee which the FCC will approve without restriction on the use of the proceeds but in no event, less than 3%. Such payment shall be in addition to any other payment owed to the Metro Government by the franchisee and shall not be construed as payment in lieu of personal or real property taxes levied by state, Metro Government, or local authorities. A franchisee shall file with the Director of Public Works or his designee within 30 days after the expiration of each quarter year ending on January 1, April 1, July 1, and October 1 during the period the franchise shall be in force, a financial statement showing in detail the gross annual receipts as defined herein of the franchisee during the preceding quarter. It shall be the duty of the franchisee to pay to the Metro Government, at the time for filing such statement, the sum hereinabove prescribed. A franchisee shall also file within 90 days following the conclusion of each fiscal year of the franchisee an annual report prepared and audited by an independent Certified Public Accountant acceptable to the Metro Government showing the yearly total gross receipts and payments to the Metro Government and any further relevant financial information in regard to the company as may be required by the Metro Government.

(B) A additional consideration to that which is provided in § 116.25(A), the Metro Government shall have a first option to purchase the cable communications system for its fair market value at the expiration of the term of any franchise or agreement or ordinance awarding a franchise in accordance herewith.

(C) In the event the franchise should be terminated or forfeited prior to the end of the 15-year term, the franchisee shall immediately submit to the Director of Public Works a financial statement prepared as before required, showing the gross receipts of the franchisee for the elapsed since the last period it paid to the Metro Government the required percentage of gross annual receipts, and the franchisee shall pay to the Metro Government not later than 30 days following the termination of the franchise, a like percentage of such gross receipts and any other sums legally due and owing to the Metro Government.

(D) In the event that any statement and/or payment is not made on or before the applicable date fixed in § 116.25(A) and (B), interest on such payments shall apply from such date at the current prime interest rate.

(E) The Metro Government shall have the right to inspect a franchisee's records showing the gross receipts from which its franchise payments are computed and shall have the right of audit and recomputation of any and all amounts paid under the franchise. No acceptance of any payment by the Metro Government shall be construed as a release of or an accord or satisfaction of any claim the Metro Government might have for further or additional sums payable under the terms of this ordinance or for any other performance or obligation of a franchisee hereunder.

(F) Payments of compensation made by a franchisee to the Metro Government pursuant to the provisions of this ordinance shall not be considered in the nature of a tax, but shall be in addition to any and all taxes which are now or hereafter required to be paid by any law of the United States, the State of Kentucky, or the Metro Government.

(G) Sales taxes or any other taxes which are collected from subscribers by a franchisee and are to be remitted to a governmental agency, shall be deducted from the annual gross revenues.

(H) The percentages designated in this ordinance may be amended no more than once each calendar year by the Metro Government. Any such amendments shall be consistent with increased costs of regulation and supervision by the Metro Government, and applicable rules of the FCC and other regulatory agencies, provided, however, that should the FCC or other governmental agency cease to regulate the amount of percentage sums payable hereunder, then in that event the Metro Government and any franchisee shall have the right to immediately renegotiate the sum and manner of calculation of franchise payments payable hereunder, and continuation of the franchise grant hereunder shall be conditioned upon and subject to agreement on sane between the Metro Government and any franchisee.

(1994 Jeff. Code, § 116.25) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 15-1979, adopted and effective 7-10-1979; Jeff. Am. Ord. 18-1979, adopted and effective 7-24-1979)

§ 116.26 FRANCHISE TERRITORY.

(A) Any ordinance awarding a franchise to operate a cable communications system in accordance herewith shall apply to its operation throughout all of the Metro Government Area as now or in the future may exist, but including such incorporated areas as may choose to be included in the cable communications system.

(B) The franchisee shall endeavor to offer cable communications service to all residents of the Metro Government Area. To the extent that the franchisee intends not to provide service to any specific area, streets building or other location, the franchisee shall designate same and clearly indicate in its application for a franchise in accordance herewith the technical or economic reason for its inability to provide service in the enumerated locations.

(C) The franchisee is not required under this ordinance or any contract granted hereunder to extend its facilities to any area unless there exists in that area a potential of at least 35 subscribers per mile of trunk cable system. When the potential of 35 subscribers per mile does not exist, the company may make a charge at actual cost, including labor and material for cable extension, for service in this portion of the system.

(1994 Jeff. Code, § 116.26) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.27 TIME SCHEDULE AFTER FRANCHISE IS GRANTED.

The franchisee shall adhere to the following time schedules:

(A) Within 60 days after the effective date of the ordinance awarding the franchise, the franchisee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility joint use attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of CATV systems, or their associated microwave transmission facilities.

(B) The company agrees to comply with all of the procedural requirements of the FCC. The franchisee shall notify all necessary parties, including the FCC, within 30 days following the effective date of the ordinance awarding a franchise hereunder of its intent to operate a cable communications system and shall begin construction within 60 days after action by the FCC, a Certificate of Compliance, or operation of law, shall authorize the provision of CATV services in the Metro Government Area. If for any reason the franchisee has not notified all parties within the 30 days, then the franchise shall be considered null and void.

(C) Within 12 months after the effective date of the ordinance awarding the franchise hereunder, the franchisee shall have in place and in operation no less than 100 miles of cable plant.

(D) Within 36 months after the effective date of the ordinance awarding the franchise hereunder, the franchisee shall have achieved substantial completion of construction. However, the date to substantially complete construction shall be extended by the number of days of delay of the franchisee caused by strikes, lockouts, fire, unusual delay in the transportation, unavoidable casualty or such other delay authorized by the Metro Government.

(1994 Jeff. Code, § 116.27) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.28 INSTALLATION AND EXTENSION OF SERVICE.

(A) The franchisee shall extend cable to new developments and subdivisions and to other areas, including, but not limited to, blocks or streets, simultaneously with the installation of electric power and telephone utility facilities, provided same is contiguous to any part of the installed CATV system.

(B) In all cases where new developments and subdivisions are to be constructed and to be served in whole or in part by both underground power and telephone utilities, the owner or developer of such areas shall provide the franchisee the trench, backfill and all necessary substructures for cables in order that the franchisee may install all necessary electronic cable communications facilities. In no event shall such undergrounding be at any cost or expense to the metropolitan area.

(C) Failure to install cable in accordance with the construction timetable as provided in § 116.27, or to extend cable within 90 days of a subscriber's request for service to new developments, subdivisions or other areas in instances controlled by § 116.28(A) and (B) shall constitute a violation of this ordinance and a material breach of any agreement awarding a franchise in accordance herewith and shall subject the franchisee to all the penalties and remedies prescribed in this ordinance as well as all other remedies, both legal and equitable, which are available to Metro Government.

(D) Cable communications service shall be made available to all individual dwellings, residences, Including apartments, condominiums, cooperative or associate buildings, institutions, organizations, businesses and all other entities within the designated franchise area as the same now or in the future may exist.

(E) Installation and service fees for the first television set of any subscriber shall be uniform for all entities listed in § 116.28(D). Installation or subscriber use of cable communications system service which involve retransmission of the cable signal to multiple reception points within a structure shall be negotiated separately by the franchisee and the owner of the structure or the subscriber. Service to condominium buildings shall be on such conditions as the governing body of the tenants in common may provide and as are agreed upon by the franchisee. Neither the franchisee nor the Metro Government shall be responsible or liable for any failure to provide cable communications service to a lessee or condominium owner whose lessor or governing body refuses the installation of such service. The provision of cable communications services to any multiple dwelling structure shall not be conditioned upon the purchase by the owner, lessor or governing body of such structure of any service of the franchisee or any person designated by it.

(F) Residential installation, including multiple drops shall be offered as the feeder line passes the dwelling unit.

(G) All of the franchisee's cable equipment shall be removed within a reasonable time, such time not to exceed one month from a subscriber's property at the subscriber's written request.

(1) Where such removal interferes with the provision of cable communications services to another subscriber, it shall be the obligation of the subscriber so affected to secure a legal agreement which will enable the franchisee to provide the subscriber the cable communications service the subscriber desires.

(2) Where attachment to or use of a non- subscriber's property is necessary for the provision of cable communications services to a subscriber, it shall be the obligation of such subscriber to secure a legal agreement which will enable the franchisee to provide the service the subscriber desires.

(H) Nothing in this ordinance shall be construed as a representation, promise or guarantee by the Metro Government that any permit or other authorization required under any Metro Government regulation for construction or installation of a cable communications system shall be issued.

(1994 Jeff. Code, § 116.28) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.29 SERVICE TO CUSTOMERS.

(A) The cable communications system shall be designed for operation 24 hours per day and shall endure service interruptions only for good cause and for a reasonable time as determined by the Director of Public Works. Permissible interruptions of service shall be for the shortest possible time.

(B) The franchisee shall maintain an office in the Metro Government which shall be open to the general public during normal business hours.

(C) The franchisee shall have a publicly listed telephone number.

(1) The franchisee shall employ an operator or maintain a telephone answering device 24 hours per day, each day of the year to receive subscriber complaints.

(a) A log shall be kept by the franchise listing each subscriber complaint or request for repair received and the disposition thereof.

(b) Said log shall be available for inspection by the Director of Public Works, his designated representative or the Commission upon reasonable notice.

(D) The franchisee shall maintain a maintenance and repair service capable of responding to subscriber complaints or requests for repairs within 24 hours after the receipt of the complaint or request. If the franchisee or any of its shareholders owning at least three WP of its stock, or any subsidiary, parent or affiliated corporation of the franchisee engages in the business or activity of selling, leasing, repairing, dismantling or installing television or radio receivers, or accessories for such receivers, cameras, audio or video tape machines, video tapes, microphones, control boxes, modulators, or other equipment utilized by users or subscribers in the operation of any cable communications system, the franchisee shall not condition cable communications service or the continuation thereof or usage of cable communications facility on a subscriber's purchase of or failure to purchase any of such services or equipment.

(E) In the event that its service to subscribers is interrupted for 48 or more consecutive hours, except for acts of God, riots or a state of emergency declared by the President of the United States, the Governor of the Commonwealth of Kentucky or the Mayor, the franchisee shall grant affected subscribers a pro rata credit or rebate for the full duration of the interruption. In the event that any interruption of subscriber service is prolonged beyond any unreasonable period, such period being not less than 48 hours and as further determined by the Director of Public Works, the procedure in § 116.43(E) may be instituted. An unreasonable interruption of subscriber services shall be deemed a violation of this ordinance and a material breach of any agreement awarding a franchise in accordance herewith and shall subject the franchisee to all of the penalties and remedies prescribed in the agreement as well as all other remedies, both legal and equitable, which are available to the Metro Government.

(F) The franchisee shall not deny or delay service or use of cable communications facility or otherwise discriminate against subscribers or uses on the basis of age, race, creed, color, sex, national origin, or marital status.

(G) The franchisee shall maintain in constant readiness equipment capable of providing standby powering for the headend, transportation and trunk amplifiers for a minimum of four hours.

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

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

(1994 Jeff. Code, § 116.29) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 15-1979, adopted and effective 7-10-1979)

§ 116.30 SYSTEM DESIGN.

(A) The franchisee shall install a first quality cable system, using equipment designed by a major supplier of CATV equipment.

(1) All necessary return path, amplifiers and/or amplifier modules shall provide maximum two way service capability, and shall be installed at the time of initial construction.

(2) The number of channels to be provided and their use shall be described in the franchise proposal.

(1994 Jeff. Code, § 116.30) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.30 SYSTEM DESIGN.

(A) The franchisee shall install a first quality cable system, using equipment designed by a major supplier of CATV equipment.

(1) All necessary return path, amplifiers and/or amplifier modules shall provide maximum two way service capability, and shall be installed at the time of initial construction.

(2) The number of channels to be provided and their use shall be described in the franchise proposal.

(1994 Jeff. Code, § 116.30) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.31 PRIVACY.

The franchisee shall strictly observe the privacy and property rights of subscribers. The subscriber's rights of privacy shall be protected at all times by the franchisee. Individual subscriber preferences, viewing habits, beliefs, philosophy, creeds, religions or political beliefs shall not be revealed to any person, agency, governmental unit, police department or investigating agency unless upon the authority of a court of law or upon prior voluntary valid written authorization of the subscriber, which shall not in any event be required as a condition of receiving service.

(A) Without the authorization described herein, neither the franchisee nor any other person shall in any manner activate, utilize or otherwise operate any channel from a subscriber's location.

(B) Every subscriber shall have the absolute right to deactivate the return path from the subscriber's receiver at the franchisee's sole cost.

(C) The franchisee shall not tabulate any test results, nor permit the use of its cable communications system for such tabulation, which would reveal the commercial product preferences or opinions of subscribers, members of their families or their invitees, licensees or employees.

(D) Violation of any provision of this section of this ordinance shall be considered a material breach of this ordinance and any agreement or ordinance awarding a franchise in accordance herewith and shall subject the franchisee to all penalties and remedies prescribed in this ordinance as well as all other legal or equitable remedies available to the Metro Government.

(E) Each compilation, publication, tabulation or other dissemination of each piece of information made or permitted to be made in violation of this ordinance shall be considered a separate violation of this ordinance.

(F) A subscriber may at any time evoke any authorization previously made, by delivering to the franchisee in writing a substantial indication of his intent to so revoke. Any such revocation shall be effective on receipt by the franchisee.

(1994 Jeff. Code, § 116.31) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979) Penalty, see § 116.99

§ 116.32 PERFORMANCE MEASUREMENT.

(A) Test procedures used in verification of performance shall be in accordance with good engineering practice and shall be fully described in an attachment to the annual report filed with the Metro Government.

(B) The Metro Government reserves the right to require additional tests.

(1994 Jeff. Code, § 116.32) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.33 INTERCONNECTION.

(A) Nothing in this ordinance shall be construed so as to prohibit the franchisee from interconnecting its network with other similar networks either in the Metro Government Area or in other municipalities, counties or states or countries. Any applicable revenues derived therefrom shall be equitably allocated in the calculation of annual gross subscriber revenues.

(1994 Jeff. Code, § 116.33) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.34 EMERGENCIES.

(A) In the event of an emergency or disaster, a franchisee shall upon request of the Mayor, make available its facilities to the Metro Government or to the state or federal government, at no cost for emergency use during the period of such emergency or disaster and shall provide such personnel as necessary to properly operate the system under the circumstances.

(B) A franchisee shall incorporate into its facilities the capability for an emergency override alert whereby the Metro Government, in times of crisis, may be able to introduce a bulletin on all channels simultaneously.

(C) If at any time, in case of fire or disaster in the Metro Government, it shall become necessary in the reasonable judgment of the Mayor, to cut or move any of the wires, cables, amplifiers, or other appurtenances to the network of the franchisee, such cutting or moving may be done and any repairs rendered necessary thereby shall be made by the franchisee, at its sole expense provided that such repairs are not necessitated by a negligent act of the Metro Government in which case, cost for repairs shall be borne by the Metro Government.

(1994 Jeff. Code, § 116.34) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.35 RATES.

(A) The Metro Government shall not regulate the rates or charges of the franchisee prior to December 29, 1986; provided that franchisee shall not increase its present $9.95 full basic service rate beyond $11.95 prior to December 29, 1986 and further provided that franchisee shall not increase its monthly rate for pay television prior to July 1, 1986.

(B) The franchisee shall file with the Metro Cable Communications Commission on December 31 each year a full schedule of all subscriber and user rates and all other charges made in connection with the operation of the cable communications system.

(1994 Jeff. Code, § 116.35) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 50-1985, adopted and effective 11-26-1985)

Cross-reference:
For provisions concerning rates, see §§ 116.01 through 116.04

§ 116.36 POLICE POWERS.

Nothing in this ordinance or in any agreement or ordinance in accordance herewith shall be construed as an abrogation by the Metro Government of any of its police powers.

(1994 Jeff. Code, § 116.36) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.37 TRANSFER AND ASSIGNMENTS.

(A) The franchisee shall not transfer, assign, sell, lease or dispose of, its interest in any franchise or ordinance or agreement awarding a franchise in accordance herewith or in its cable communications system without the prior written authorization of the Metro Government. A merger or consolidation shall be deemed a transfer or assignment.

(B) During the term of any franchise, the franchisee shall not sell, transfer, assign, lease, dispose of, exchange or release of more thin three per centum of the ownership of its cable communications system to a person, (hereinafter proposed transferee) without the prior written authorization of the Metro Government.

(1) In seeking said prior written authorization required under this Ordinance, the franchisee shall have the responsibility:

(a) To show to the satisfaction of the Metro Government whether the proposed transferee, which in the case of a corporation, shall include all officers, directors, employees and all persons having a legal or equitable interest in three per centum, or more of its voting stock, or any of the proposed transferee's principals:

1. Has ever been convicted of a crime involving moral turpitude, including, but not limited to, criminal fraud, or is presently under an indictment charging such a crime;

2. Has ever had a judgment in an action for fraud, deceit or misrepresentation entered against it, her, him, or them by any court of competent jurisdiction;

3. Has pending any legal claim or law suit arising out of or involving a cable communications system.

(b) To establish to the satisfaction of the Metro Government the financial solvency of the proposed transferee by submitting all current financial data for the proposed transferee which the franchisee was required to submit in its application for a franchise in accordance herewith, and such other financial data as the Metro Government may request.

(c) To establish to the satisfaction of the Metro Government that the financial standing of the proposed transferee is such that the proposed transferee shall be able to maintain and operate the cable communications system for the remaining term of the franchise.

(C) Any proposed transferee shall execute an agreement, in the form and containing the conditions approved by the Jefferson County Attorney, that it will assume and be bound by all of the provisions, terms and conditions of this ordinance and any agreement or ordinance in accordance herewith and all applicable federal, state and local laws and further that it shall be primarily liable and obligated under said documents without, however, relieving the franchisee from its obligations to the metropolitan area under said document.

(D) No transfer under § 116.37(A) or (B) shall be made within 13 months of the termination date of the term of franchise agreement.

(E) Nothing in any approval by the Metro Government of any transfer or assignment of any ownership interest pursuant to § 116.37(A) and (B) shall be construed to waive or release any rights of the Metro Government in and to the streets, public ways and public places of the Metro Government or as a release of any of the Metro Government's police powers.

(F) The occurrence of my event which constitute either grounds for entry or an Order for Relief under the United States Bankruptcy Code, or placement of the franchisee into receivership, or the issuance of any order to the franchisee or any of its stockholders by a government agency or court of competent jurisdiction to divest any interest related to the cable communications system hereunder, or the entry of any judgment against the franchisee which, in the opinion of the Metro Government impairs the franchisee's credit, shall be deemed an unauthorized transfer and assignment under the provisions of this ordinance and shall:

(1) Be deemed a material breach and default of any agreement or ordinance awarding a franchise in accordance herewith; and

(2) Subject the franchisee to all penalties and remedies prescribed in the agreement and to all other remedies, legal and equitable which are available to the Metro Government.

(G) The occurrence of an unauthorized transfer or assignment may, at the option of the Metro Government, terminate any agreement and franchise and accelerate all of the obligations and rights thereunder including, inter alia, the right of the Metro Government to purchase the cable communications system at book value or to award a franchise to another person. The franchisee shall notify the Director of Public Works of my occurrence which constitutes an unauthorized transfer under the provisions of § 116.37(F) and of the entry of any judgment against it within 24 hours of such occurrence.

(H) From and after any of the occurrences enumerated in § 116.37(F), the franchisee shall not make, execute or enter into any deed, deed of trust, mortgage, contract, conditional sale contract or any loan, lease, pledge, sale, pole agreement or any other agreement or hypothecation concerning any of the facilities or property, real or personal, of the cable communications system without the written approval of the Metro Government.

(1994 Jeff. Code, § 116.37) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 15-1979, adopted and effective 7-10-1979)

§ 116.38 ABANDONMENT.

In the event that the use of any part of the system is discontinued for any reason by any franchisee for a continuous period of 12 months, or in the event such system or property has been installed in any street or public place without complying with requirements of this ordinance, or the rights granted hereunder have been terminated, cancelled or have expired, the franchisee shall promptly remove from the streets and public places all such property and poles of such system, other than any which the Metro Government may permit to be abandoned in place. In the event of such removal, the franchisee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the Metro Government. Any property of a franchisee to be abandoned in place, shall be abandoned in such manner as the Metro Government may prescribe. Upon a permanent abandonment of the property of a franchisee in place, the franchisee shall submit to the Metro Government an instrument to be approved by the Metro Government, transferring to the Metro Government the ownership of such property.

(1994 Jeff. Code, § 116.38) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.39 CONDITIONS OF STREET OCCUPANCY.

(A) All transmissions and distributions structures, lines and equipment erected by the franchisee within the Metro Government shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of said streets, alleys or other public places. The cable communications system shall be constructed and operated in compliance with all adopted local and national construction, fire, and safety codes.

(B) The installation of the cable communications system shall be in accordance with all applicable laws, codes, ordinances, rules and regulations of the Commonwealth of Kentucky and the Metro Government affecting electrical installations and buildings, now or hereafter in effect.

(C) Except when absolutely necessary to service a subscriber and not simply because it shall be more convenient, economical, or profitable for the franchisee to so operate, and then only when expressly permitted in writing by the Director of Public Works, under such conditions as he shall prescribe for the public welfare, the franchisee shall not erect or authorize or permit others to erect any poles or other facilities within the streets of the Metro Government Area for the conduct of its cable communications system, but shall use the existing poles and other equipment of the appropriate electrical power and telephone or other utility companies under such terms and agreements as the franchisee shall negotiate with these companies. The franchisee shall use its best efforts to insure that the terms and agreements between the franchisee and any utility company are concluded in a reasonable time with no unnecessary delay.

(D) Should the franchisee be required to place any lines or other equipment on any boulevard, parkway, or other property under control of the Metropolitan Parks and Recreation Board, the manner of placement and location thereof shall be subject to the control of said board.

(E) The franchisee may trim trees which infringe upon easements, rights-of-way, or streets of the Metro Government to present the trees from coming in contact with the cable communications system.

(F) The franchisee shall at its expense, protect, support, temporarily disconnect, relocate or remove any property of the franchisee located on streets, public places, rights-of-way and easements of the Metro Government Area, when required by the Metro Government because of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by the Metro Government or the Commonwealth of Kentucky. If the franchisee fails to do so, the Metro Government or the Commonwealth of Kentucky may cause the necessary work to be completed and the franchisee shall pay the cost thereof within ten days of receipt of an itemized account of such coat.

(G) Whenever the Metro Government or the Commonwealth of Kentucky shall require the relocation or reinstallation of any property of the franchisee in any of the streets or public places of the Metro Government Area, it shall be the obligation of the franchisee upon notice of such requirement to immediately remove and relocate or reinstall said property as may be reasonably necessary at the sole cost of the franchisee.

(H) Whenever, in any place within the Metro Government Area, all or any part of the electric or telephone utilities shall be located underground, it shall be the obligation of the franchisee to locate or to cause its property to be located underground within such places. If the electric or telephone utilities shall be located underground, in any place within the Metro Government Area after the franchisee shall have previously installed its property, nevertheless, the franchisee shall, at the same time or immediately thereafter, remove and relocate its property also underground in such places. If the franchisee shall in any case be unable, for operational reasons only, to locate or relocate any part of its property underground, then in that event the Director of Public Works, upon being satisfied as to the facts thereof and subject to the concurrence of the Metro Government, may permit such property to remain above the crowd even though other facilities may be placed underground in the area. However, any such permission shall be upon such conditions as the Metro Government may require for the public welfare. Any facilities of the franchisee placed underground at the property owner's request, in an area there electric and telephone facilities are aerial, shall be installed with the additional expense paid by the property owner.

(I) In the case of disturbance of any street caused by the franchisee, the franchisee shall, at its own cost and expense and in a manner approved by the Director of Public Works, replace and restore such street, in such a condition as before the work involving such disturbance was done.

(J) The franchisee shall upon request temporarily raise or lower its wires to permit the moving of buildings or other things. The expense of such temporary removal or raising or lowering of the wires shall be paid by the person requesting the same and the franchisee shall have the authority to require such payment in advance. The franchisee shall be given not less than 72 hours advance notice to arrange for such temporary wire changes.

(1994 Jeff. Code, § 116.39) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 15-1979, adopted and effective 7-10-1979)

§ 116.40 ARRANGEMENTS BY FRANCHISEE WITH OTHERS.

There is hereby granted to the franchisee authority to lease, rent, or in any other manner obtain the use of towers, poles, lines, cables, and other equipment and facilities from any and all holders of public licenses and utilities within the Metro Government, including, but not limited to, the South Central Bell Telephone Company and Louisville Gas and Electric Company, and in each instance the franchisee shall make its own contractual arrangements with such entity in order to obtain the use of towers, poles, lines, cables and other facilities and shill report their arrangements to the Director of Public Works.

(1994 Jeff. Code, § 116.40) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 15-1979, adopted and effective 7-10-1979)

§ 116.41 REPORTS.

(A) On or before the anniversary data of each year during the term of any agreement awarding a franchise in accordance herewith, the franchisee shall submit a written report to the Metro Government, by filing same with the Director of Public Works, including, but not limited to, the following information:

(1) A summary of the previous year's or, in the case of the initial reporting year, the initial year's activities in development of the cable communications system, including, but not limited to, services begun or discontinued, total number of subscribers, subscribers added or discontinued during the reporting year, and user participation;

(2) A financial statement including a statement of income, revenues, operating expenses, value of plant, annual capital expenditures, depreciation with an attached depreciation schedule, interest paid, taxes paid, historic and pro forms balance sheets and a statement of sources and applications of funds, covering all years since the beginning of the franchise;

(3) A current statement of costs of construction by component categories:

(4) A projected income statement, balance sheet, statement of sources and application of funds and statement of projected construction for the next two years;

(5) A reconciliation between previously projected construction and/or financial estimates as the case may be and actual results;

(6) A summary of complaints, identifying the matter and nature of complaints and their disposition;

(7) A list of officers and members of the Board of Directors of the franchisee, and its parent, subsidiary, or affiliate corporations, if any;

(8) A list of stockholders holding three per centum or more of the voting stock of the franchisee, or its parent, subsidiary and affiliate corporations, if any;

(9) A copy of its annual report sand those of its parent, subsidiary and affiliate corporations;

(10) Such other information or reports as the Metro Government or the Director of Public Works may request.

(11) All reports required under this ordinance shall be available for public inspection in the Office of the Director of Public Works during normal business hours.

(12) The franchisee shall file with the Metro Government a copy of any document it files with the FCC or with any other regulatory agency pertaining to the cable communications system owned and/or operated by the franchisee pursuant to any agreement or ordinance in accordance herewith. To the extent that such documents contain, to the satisfaction of the Director of Public Works, the information required by other reports hereunder, the executive Director may suspend the requirements to file such other reports with the Metro Government so as to avoid duplicate and the administrative costs attendant thereto.

(13) It shall be unlawful for the franchisee to refuse, fail or neglect to file the reports required under this ordinance. The refusal, failure, or neglect of the franchisee to file any of the reports required under this ordinance or as the Director of Public Works may direct, shall be deemed a violation of this ordinance and shall subject the franchisee to the provisions of § 116.43(E) and shall be deemed a material breach of any agreement or ordinance awarding a franchise in accordance herewith and shall subject the franchisee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Metro Government.

(14) Any material misrepresentation made knowingly by the franchisee in any report required under this ordinance shall subject the franchisee to the provisions of § 116.43(E) an shall subject the franchisee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Metro Government.

(15) The Director of Public Works shall review all items filed or required to be filed hereunder, and shall distill and condense same and thereafter report to the Metro Government concerning same, including therewith his/her comments, analysis and recommendations.

(1994 Jeff. Code, § 116.41) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 15-1979, adopted and effective 7-10-1979)

§ 116.42 BONDS.

(A) All persons submitting an application for a franchise in accordance herewith shall file with their applications bonds solely for the protection of the Metro Government with a surety company or trust company or companies as surety or sureties as follows:

(1) A bid bond in the amount of $1,000,000 which shall indemnify the Metro Government up to the full amount of said bond from any damages or losses arising out of the failure of the person selected to be the franchisee to accept the franchise and execute a franchise agreement in conformity with this ordinance and such persons proposal hereunder; and

(2) A construction bond in the amount of $3,000,000 to be effective from the franchise hereunder, and thereafter until the cable communications system referred to therein is certified completed by the Metro Government architect and an independent electrical engineer to be employed by the Metro Government for such purpose.

(B) The bond required under § 116.42(A)(2), shall indemnify the Metro Government in its own right and as trustee, for subscribers up to the full amount of said bond from any damages or losses arising out of the failure of the franchisee to faithfully perform and satisfactorily complete construction of the cable communications system in accordance with this ordinance and any agreement and ordinance in connection herewith, including, but not limited to, the cost of removal of any construction.

(C) (1) The franchisee shall also execute, deliver and file on the date of execution of said agreement and the effective date of an ordinance awarding a franchise hereunder an additional bond as follows:

(2) A bond in the amount of $2,000,000 with corporate surety subject to the approval of the Metro Government, to be effective from the date of the execution of the said agreement and the effective date of the ordinance awarding a franchise hereunder until after 1 year after the cable communications system referred to therein is certified completed by the Metro Government architect and an independent electrical engineer to be employed by the Metro Government for such purpose. Said bond shall contain a clause substantially to the effect that: Every person who, whether as subcontractor, or otherwise, has furnished material or supplied or performed labor in the prosecution of the work under this contract, and who has not been paid therefor, may sue on said additional bond and prosecute the same to final judgement for such sum, or sums, as may be justly due it, and have execution thereon; provided, however, that the Metro Government shall not be liable for the payment of any costs or expense of such suit. The bond shall contain a further provision that suit shall not be entered thereon after one year after the cable communications system is certified completed as set forth herein.

(D) All persons submitting an application for a franchise in accordance herewith shall file with their application a bond with corporate surety in the amount of $1,000,000, to be effective upon the execution of the said franchise agreement and the effective date of the ordinance awarding a franchise hereunder, and conditioned that in the event that the franchisee fails to comply with any provision of this ordinance or agreement or ordinance awarding a franchise in accordance herewith, then there shall be recoverable jointly and severally from the principals and surety any and all damages suffered or incurred by the Metro Government or by any subscriber as a result thereof, including, but not limited to, costs of any action or proceeding, and including the full amount of any compensation, indemnification, cost of removal or abandonment of any property or other costs which may be in default, up to the full principal amount of such bond, and the said condition shall be a continuing obligation during the entire term of any agreement or ordinance or ordinances awarding a franchise in accordance herewith and thereafter until the franchisee shall have satisfied in full any and all obligations to the Metro Government which arise out of or pertain to same.

(E) None of the provisions of this ordinance nor any bond accepted by the Metro Government pursuant hereto, nor any damages recovered by the Metro Government thereunder, shall be construed to excuse the faithful performance by or limit the liability of the franchisee under this ordinance or any agreement or ordinance awarding a franchise in accordance herewith or for damages either to the full amount of said bond or otherwise.

(1994 Jeff. Code, § 116.42) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.43 REVIEW, RENEWAL, TERMINATION AND CANCELLATION.

(A) To provide for technological changes in the state of the art of cable communications, to facilitate renewal procedures, to promote the maximum degree of flexibility in the cable communications system and to achieve a continuing, advanced, modern system for the Metro Government Area, the Metro Government, and the franchisee shall comply with the following review provisions:

(1) The Director of Public Works shall hold a scheduled review session within 30 days of the second anniversary date of the execution of the franchise agreement and/or ordinance awarding a franchise hereunder. Subsequent review sessions shall be scheduled by the Director of Public Works at two year intervals thereafter. All such review sessions shall be open to the public and notice shall be given by advertisement in a newspaper of general circulation at least one week before each session. In addition, the franchisee shall announce the date and time of each such session on each of at least five days immediately preceding each session at a minimum of six regularly scheduled intervals daily.

(2) Either the Metro Government or the franchisee may select additional topics for discussion at any regular or special review session.

(3) Any topic proposed for discussion at any regular or special review session by a resident of the Metro Government Area and supported by a petition bearing the signature of 100 Metro Government residents, shall be included in the list of topics for discussion.

(B) The procedure for considering the renewal or termination of any franchise or agreement or ordinance awarding a franchise in accordance herewith shall be as follows:

(1) Twelve months prior to the expiration of the term of any franchise or agreement or ordinance awarding a franchise in accordance herewith:

(a) The Director of Public Works shall review the provisions of this ordinance and shall make recommendations, if any, to the Metro Government for its amendment.

(b) The Director of Public Works shall proceed to determine whether the franchisee has performed its obligations under this ordinance and the agreement or ordinance awarding a franchise in accordance herewith. In making this determination, the Director of Public Works shall consider several factors including, but not limited to, the following:

1. Technical development and performance of the franchisee's cable communications system;

2. Programming;

3. Additional services offered by the franchisee;

4. Rates;

5. All obligations of the franchisee as prescribed by this ordinance or the Agreement awarding a franchise in accordance herewith, including, but not limited to, programming, equipment and personnel available to users for all forms of community communications:

6. Cable industry performance nationwide;

7. Comments from residents and representatives of community organizations submitted in a manner to be determined by the Director of Public Works.

(c) The Director of Public Works shall make recommendations to the Metro Government as to the franchisee's eligibility for renewal of the franchise and agreement and ordinance awarding the franchise in accordance herewith in no less than four nor more than ten months from the date of the Director of Public Works's first consideration on of said renewal as provided in § 116.43(B)(1). The Director of Public Works in the recommendation shall address the following matters:

a. Renewal of the franchise and

agreement awarding a franchise in accordance herewith;

b. Changes to the agreement; and

c. Amendments to the ordinance.

(C) After review of the Director of Public Works' recommendations and such recommendations as the Metro Government may solicit from the Telecommunications Committee, the Metro Government shall, after hearing, take such action as it deems appropriate, which may include any of the following:

(1) The Metro Government may renew the franchise and agreement and ordinance awarding a franchise in accordance herewith upon conditions as it may direct;

(2) The Metro Council may authorize the Mayor to exercise the Metro Government's option provided in § 116.25 to purchase the cable communications system from the franchisee;

(3) The Metro Government may authorize the franchise to transfer the cable communications system in accordance with § 116.37;

(4) The Metro Government may solicit proposals for and execute a new agreement awarding a franchise in accordance with this ordinance and any amendments hereto; or

(5) The Metro Government may determine not to authorize the award of any further franchise, and thereupon may direct the franchisee to dismantle its cable communications system.

(6) If the franchisee determines not to renew the agreement awarding a franchise in accordance herewith, the Metro Government shall proceed to follow one of the courses of action under § 116.43(C)(2) through (6).

(D) In the event that the Metro Government exercises its option provided in § 116.25, to purchase the cable communications system at the expiration of the term of the franchise and agreement and ordinance awarding a franchise, the purchase price to be paid by the Metro Government shall be the fair market value of all facilities and property, real and personal, of the franchisee on the date of the expiration of the term of the franchise and the agreement and ordinance awarding the franchise, but shall not include any amount for valuation of goodwill or any right or license acquired under any franchise granted hereunder. Upon the exercise of this option by the Metro Government and its service of an official notice of such action upon the franchise, and upon payment of the purchase price, the franchisee shall immediately transfer to the Metro Government possession and title to all facilities and property, real and personal, of the cable communications system, free from any and all liens and encumbrances not agreed to be assumed by the Metro Government in lieu of some portion of the purchase price set forth above; and the franchisee shall execute such warranty deeds or other instruments of conveyance to the Metro Government as shall be necessary for this purpose. The franchisee shall make it a condition of each contract entered into by it with reference to its operations under this franchise that the contract shall be subject to the exercise of this option by the Metro Government and that the Metro Government shall have the right to succeed to all privileges and obligations thereof upon the exercise of such option.

(E) Termination.

(1) The Metro Government may terminate any Agreement awarding a franchise in accordance herewith in the event of the violation of any provision hereof or of any rule or regulation promulgated pursuant here to or of any applicable federal, state, or local law, or the breach or other failure, refusal or neglect by the franchisee to perform its obligations under the terms and conditions of the ordinance or of any ordinance or agreement awarding a franchise in accordance herewith, except when such violation, breach, failure, refusal or neglect is caused by any of the following:

(a) Act of God;

(b) Riot;

(c) An emergency declared by the President of the United States of America, the Governor of the Commonwealth of Kentucky or the Mayor; or

(d) A condition beyond the control of the franchisee.

(2) In the event that the Metro Government determines that the franchisee has violated any provision of this chapter, any rule or regulation promulgated pursuant hereto, any applicable federal, state or local law, or any term of an agreement or ordinance awarding a franchise, except as noted in § 116.43(E)(1)(a) through (d), the Metro Government shall make a written demand on the franchisee that it comply with the law or said agreement or ordinance. If the violation, breach, failure, refusal or neglect is not remedied to the satisfaction of the Metro Government within 30 days following such demand, the Metro Government shall determine whether or not, in its sole discretion, such violation, breach, failure, refusal, or neglect by the franchisee was excusable or inexcusable as provided in § 116.43(E)(1)(a) through (d).

(a) If the Metro Government determines such violation, breach, failure, refusal or neglect by the franchisee was excusable as provided in § 116.43(E)(1)(a) through (d), the Metro Government shall direct the franchisee to correct or remedy the same within such additional time, in such manner and upon such terms and conditions as the Metro Government may direct.

(b) If the Metro Government determines such violation, breach, failure, refusal, or neglect by the franchisee was inexcusable as provided in § 116.43(E)(1)(a) through (d), then the Metro Government shall declare this ordinance, the franchise agreement or ordinance awarding a franchise in accordance herewith breached, terminated, and of no further force and effect. This action shall be taken by ordinance.

(c) Termination shall in no way limit the rights of the country, or any remedies, legal or equitable, available to the Metro Government.

(3) If the Metro Government declares the said agreement breached pursuant to § 116.43(E)(1)(a) through (d), the Metro Government may pursue any remedies available to it pursuant to this ordinance or to the said franchise agreement or ordinance or any other remedy, legal or equitable, available to the Metro Government. In addition, the Metro Government may take action listed in § 116.43(C)(2) through (6).

(F) If any franchise is cancelled by reason of the default of the franchisee, the Metro Government may exercise its option to purchase any portion of the cable communications system then connected in any manner with the streets, public ways, public places, or other property of the Metro Government, at a cost not to exceed its then book value less any amount for any damages incurred by the Metro Government in connection with such cancellation. Damages incurred by the Metro Government shall include, but shall not be limited to, any payment made by the Metro Government authorizing or directing the continued operation of the system.

(G) In the event that the franchisee dismantles or terminates the cable communications system or is required by any provision of this ordinance to dismantle or terminate the cable communications system, the franchisee shall at the Metro Government's direction, restore any property, public or private, to the condition in which it existed prior to the erection or construction of the system, including any improvements made to such property subsequent to the construction of the system. Restoration of Metro Government property, including, but not limited to streets, shall be in accordance with the directions and specifications of the Metro Government and all applicable laws. The franchisee, at the option and direction of the Metro Government, shall restore the same at its expense.

(1994 Jeff. Code, § 116.43) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 15-1979, adopted and effective 7-10-1979; Jeff. Am. Ord. 18-2000, adopted and effective 6-27-2000)

§ 116.44 COMPLAINTS.

Any complaint by any person respecting operations of a cable communications system shall be filed in writing with the Director of Public Works. The Director of Public Works shall review and investigate such complaints, and shall keep a record thereof as well as a record of the disposition thereof, and shall include same in his reports to the Metro Government. The Director of Public Works shall devise the necessary procedure to handle complaints and be authorized to discuss same with representatives of a franchisee. Complaints which are not resolved to the mutual satisfaction of the complainant and the franchisee shall be reported to the Metro Government by the Director of Public Works if, in his opinion, such is of a nature as reflecting on the ability or willingness of the franchisee to comply with the terms of this ordinance and the terms of any ordinance or Agreement awarding a franchise hereunder. The Metro Government may consider such unresolved complaint and may take any action it deems proper under the terms of this ordinance, including §§ 116.43 and 116.45.

(1994 Jeff. Code, § 116.44) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 15-1979, adopted and effective 7-10-1979)

§ 116.45 REVOCATION OF FRANCHISE.

Any franchise issued hereunder may, after hearing be revoked, altered, or suspended by the Metro Government as it deems necessary on any of the following grounds:

(A) For willful false or misleading statement in, or material omissions from, any application;

(B) For failure to file and maintain the bonds required under this ordinance;

(C) For repeated failure, as determined by the Metro Government to maintain signal quality;

(D) For any sale, lease, assignment, or other transfer of its permit without consent of the Metro Government;

(E) For an inability to provide CATV service to subscribers at the rates authorized by the Metro Government;

(F) For failure to properly provide service to subscribers or to the Metro Government; and

(G) For violation of the terms of its franchise or the agreement or ordinance awarding same or of this ordinance as stated herein. In addition to all other rights and powers reserved or pertaining to the Metro Government, the Metro Government reserves as an additional and as a separate and distinct remedy the right to revoke the franchise and all rights and privileges of the franchisee thereunder in any of the following events or for any of the following reasons:

(1) The franchisee shall by act or omission fail to comply with any term or condition of this ordinance and shall within 30 days following written demand by the Metro Government to effect such compliance fail or refuse to do so; or

(2) Any provision of this ordinance shall be finally adjudged by a court of law invalid or unenforceable and the Metro Government further finds that such provision constitutes at that time a consideration material to the continuance of the franchise herein granted; or

(3) The franchisee becomes insolvent; unable, unwilling or fails to pay its debts as such debts become due; or a custodian, receiver, trustee or agent appointed or authorized to do so, is appointed or takes charge of less than substantially all or substantially all of the property of a franchisee for the purpose of enforcing any lien, whether judicial, execution or otherwise; is the subject debtor of an Order for Relief entered by a Bankruptcy Court; or all or part of a franchisee's facilities be sold under an instrument to secure a debt and are not redeemed by franchisee within 30 days from said sale; or

(4) The franchisee attempts to or practices any fraud or deceit in its conduct or relations under the franchise.

(H) No such revocation shall be effective unless or until the Metro Government shall have adopted an ordinance setting forth the cause and reasons for the revocation and the effective date thereof, which ordinance shall not be adopted without 30 days prior notice thereof to the franchised and a full opportunity offered to the franchisee to be heard upon the proposed adoption of said ordinance. The franchisee shall not be declared in default or be subject to any sanction under any provision of this Contract in any case in which the performance of any such provision is prevented for reasons beyond its control.

(1994 Jeff. Code, § 116.45) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.46 FORECLOSURE-RECEIVERSHIP.

(A) Upon the foreclosure or other judicial sale of all or a substantial part of the cable communication system, or upon the termination of any lease covering all or a substantial part of the system, the franchise shall notify the Director of Public Works of such facility and such notification shall be treated as a notification that a change in control of the franchisee has taken place and the provisions of this ordinance governing the consent of the Metro Government to such change in control of the franchisee shall apply.

(B) The Metro Government shall have the right to cancel this franchise 120 days after the appointment of a receiver, or trustee, to take over and conduct the business of the franchisee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:

(1) Within 120 days after his election of appointment, such receiver or trustee shall have fully complied with all of the provisions of this ordinance and the agreement and ordinance awarding a franchise hereunder, and remedied all defaults thereunder; and

(2) Such receiver or trustee, within said 120 days shall have executed an agreement, duly approved by the court having jurisdiction over same, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this ordinance and the agreement and ordinance awarding a franchise hereunder.

(1994 Jeff. Code, § 116.46) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 15-1979, adopted and effective 7-10-1979)

§ 116.47 BOOKS AND RECORDS OF THE FRANCHISE.

(A) The franchisee shall maintain an office in the Metro Government Area for so long as it continue to operate the cable communications system or any portion thereof and hereby designates such offices as the place where all notices, directions, orders, and requests may be served or delivered under this ordinance. The Metro Government shall be notified of the location of such office or any change thereof.

(B) The franchisee shall keep complete and accurate books of account and records of its business and operations in connection with any franchise granted under this ordinance.

(C) The Metro Government, its representatives, its Director of Public Works or the Telecommunications Commission shall have access to all books of account and records of the franchisee for the purpose of ascertaining the correctness of any and all reports and may examine its officers and employees in respect thereto.

(D) Any false entry in the books of account or record submitted to Metro Government, its representatives, its Director of Public Works or the Telecommunications Commission, or false statements in reports to the Metro Government, its representatives, its Director of Public Works or the Telecommunications Commission as to material fact, knowingly made by the franchisee, shall constitute a breach of a material provision of this ordinance and any franchise agreement or ordinance hereunder, for which the remedies provided in this ordinance may be invoked.

(1994 Jeff. Code, § 116.47) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979; Jeff. Am. Ord. 15-1979, adopted and effective 7-10-1979; Jeff. Am. Ord. 18-2000, adopted and effective 6-27-2000)

§ 116.48 NEW DEVELOPMENTS.

It shall be the policy of the Metro Government to liberally amend any franchise of its own volition or upon application of a franchisee, after public hearing, when necessary to require or enable a franchisee to take advantage of any developments in the field of transmission of television and radio signals which would afford the franchisee an opportunity to more effectively, if efficiently or economically serve its customers so that at all times the cable communications system shall be no less advanced than any other system of comparable size, excepting only systems which are experimental, pilot or demonstration.

(1994 Jeff. Code, § 116.48) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.49 TIME OF ESSENCE.

Whenever this ordinance, or any ordinance or agreement awarding a franchise hereunder, shall set forth any time for any act to be performed by or on behalf of a franchisee, such time shall be deemed of the essence, and any failure of a franchisee to perform within the time set forth shall constitute a material breach of the terms of this ordinance and shall entitle the Metro Government to invoke all penalties and remedies prescribed in this ordinance as well as all other legal or equitable remedies available to the Metro Government.

(1994 Jeff. Code, § 116.49) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.50 FRANCHISEE NOT TO CONTEST VALIDITY OF FRANCHISE OR ORDINANCE.

By acceptance of any franchise hereunder a franchisee covenants and agrees that it will not at any time or in any manner or proceeding set up any term or condition of this ordinance or of any ordinance or agreement awarding a franchise hereunder as unreasonable, arbitrary, voidable or void, or that the Metro Government had not the power or authority to make such term, or condition, but shall be required to accept the validity of same in their entirety.

(1994 Jeff. Code, § 116.50) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979)

§ 116.51 VIOLATIONS.

(A) It shall be unlawful for any person to establish, operate or to carry on the business of distributing to any persons in the Metro Government Area, any television, radio, or non-broadcast signals by means of a cable communications system unless a franchise therefor has first been obtained from the Metro Government, and unless such franchise is in full force and effect.

(B) It shall be unlawful for any person to construct, install or maintain within any public street in the Metro Government Area, equipment or facilities for distributing any television, radio or non-broadcast signals through a cable communications system, unless a franchise authorizing such use of such street or property or area has first been obtained from the Metro Government, and unless such franchise is in full force and effect.

(C) It shall be unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable communications system within the unincorporated areas of the Metro Government Area, for the purpose of taking or receiving television signals, radio signals, pictures, programs, sound, or other non-broadcast signals.

(D) It shall be unlawful for any person, firm or corporation to make any unauthorized connection whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable communications system within the Metro Government Area, for the purpose of enabling himself or others to receive any television signal, radio signal, picture, programs, sound, or other signals without payment to the owner of said system.

(E) It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure any cables, wire, or equipment used in any cable communications system.

(1994 Jeff. Code, § 116.51) (Jeff. Ord. 11-1979, adopted and effective 5-24-1979) Penalty, see § 116.99

COMMUNICATION SERVICES FRANCHISE

§ 116.70 GENERAL PROVISIONS.

(A) Declaration of findings. Louisville Metro hereby declares as a legislative finding that the rights-of-way within Jefferson Louisville Metro:

(1) Are a unique and physically limited resource;

(2) Are critical to the travel and transport of persons and property in Louisville Metro ;

(3) Are intended for public uses and must be managed and controlled consistent with that intent;

(4) Can be partially occupied by the facilities of utilities and public service entities, to the enhancement of the health, welfare, and general economic well being of Louisville Metro and its citizens; and

(5) Should be subject to specific additional regulations imposed in a competitively neutral and non-discretionary manner as established by this Ordinance to ensure coordination of users, maximize availablespace, and facilitate entry of a maximum number of providers of communications and other services in the public interest.

(B) Title. This Ordinance may be referred to and cited as the "Communications Services Franchise Ordinance".

(C) Applicability. The requirements of this Ordinance shall apply to the full extent of the terms herein and shall be limited in scope or application only to the extent as may be required by applicable federal or state law, including such changes in applicable law as may be hereinafter enacted. No provisions of this Ordinance shall be disregarded pursuant to this subsection except on express application to and determination by Louisville Metro to such effect based on the specific factual circumstances demonstrated. The provisions of this Ordinance shall be deemed incorporated in each Commu