Chapter 11-6 Boulder Cable Code³⁹

11-6-1 Short Title.

This chapter shall be known and may be cited as "The Boulder Cable Code."

11-6-2 Definitions and Word Usage - General.

Unless otherwise expressly stated, words not defined herein shall be given the meaning set forth in title 47 of the United States Code, chapter 5, subchapter V-A, 47 U.S.C. sections 521 et seq., as amended, and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision.

"Abandon" or "abandonment" means the surrender, relinquishment or disclaimer of property or rights to operate a cable system, evidenced by non-use for a period of at least fifteen days and lack of any significant evidence of intent to resume use.

"Access channel" means any channel on a cable system set aside by a franchisee for noncommercial public, educational, or governmental use.

"Affiliate" means any person who owns or controls, is owned or controlled by, or is under common ownership or control with a franchisee.

"Applicable law or laws" means all duly enacted and applicable federal, state and city constitutions, charters, laws, ordinances, codes, rules, regulations and orders, as the same may be adopted or amended from time to time.

"Applicant" means any person submitting an application within the meaning of this chapter.

"Application" means any proposal, submission or request to: a) construct and/or operate a cable system within the city; b) transfer a franchise; c) renew a franchise; d) modify a franchise; or e) seek any other relief from the city pursuant to this chapter or a franchise agreement. An application includes an applicant's initial proposal, submission or request, as well as any and all subsequent amendments or supplements to the proposal and relevant correspondence.

"Basic cable service" or "basic service" means any service tier that includes the retransmission of local television broadcast signals.

"Cable Act" means the Cable Communications Policy Act of 1984, 47 U.S.C. sections 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, and as further amended from time to time.

"Cable operator" has the meaning ascribed to it under the Cable Act.

"Cable service" means: a) the one-way transmission to subscribers of video programming or other programming services; and b) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

"Cable system" or "system" has the meaning ascribed to it under title VI of the Cable Act, plus all facilities and devices appurtenant thereto, including, by way of example and not limitation, distribution plant equipment boxes, poles and guys. The goal here is to bring not only the system but also equipment that may not be part of the system under federal law within the provisions dealing with the placement of the system and the obligation of the operator to maintain facilities.

"Control" means the legal or practical ability to exert actual working control, in whatever manner exercised, over the affairs of a franchisee, grantee or applicant, either directly or indirectly, whether by contractual agreement, majority ownership interest, any lesser ownership interest, or in any other manner.

"Educational access channel" means any channel on a cable system set aside for non-commercial educational use.

"Fair market value" means the price that a willing buyer would pay to a willing seller for a going concern based on the cable system valuation prevailing in the industry at the time but with no value allocated to the franchise itself.

"FCC" means the Federal Communications Commission or its designee.

"Franchise" means a non-exclusive authorization granted in accordance with this chapter to install cables, wires, lines, optical fiber, underground conduit, and other devices necessary and appurtenant to the construction, operation, maintenance and repair of a cable system along the public rights-of-way within all or a specified area of the city. Any such authorization, in whatever form granted, shall not mean or include: a) any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city; b) any permit or authorization required in connection with operations on public streets, rights-of-way, or other property, including, without limitation, permits for attaching devices to poles or other structures, whether owned by the city or a private entity, or for excavating or performing other work in or along public rights-of-way; c) agreements required for the use of conduits and poles, whether publicly or privately owned; or d) express or implicit authorization to provide service to, or install a cable system on, private property without owner consent (except for use of compatible easements pursuant to section 621(a)(2) of the Cable Act, 47 U.S.C. section 541(a)(2)).

"Franchise agreement" means a contract entered into in accordance with the provisions of the Boulder City Charter and this chapter between the city and a franchisee that sets forth, subject to the charter and this chapter, the terms and conditions under which a franchise will be exercised and also includes an interim permit agreement to the extent further provided in this chapter.

"Franchise area" means the area of the city that a franchisee is authorized to serve by its franchise agreement.

"Franchisee" means a natural person, partnership, domestic or foreign corporation, association, joint venture, or organization of any kind that has been granted a cable television franchise by the city.

"Governmental access channel" means any channel on a cable system set aside for noncommercial government use.

"Grantee" means any person granted a franchise pursuant to this chapter, but who has not yet entered into a franchise agreement with the city.

"Gross revenues" means all revenues derived by a franchisee or by another person who is a cable operator subject to a franchise fee under 47 U.S.C. section 542 or applicable law governing the provision of cable service. In the case of a franchisee, the term "gross revenues" means the gross revenues of the franchisee or any other entity that is a cable operator of such system in any way derived from the operation of a franchisee's cable system to provide cable services in the franchise area. Gross revenues include, by way of illustration and not limitation, monthly fees charged subscribers for any basic, optional, premium, per-channel, or per-program service; installation, disconnection, reconnection, and change-in-service fees; leased channel fees; late fees and administrative fees; revenues from rentals or sales of converters or other equipment; advertising revenues; revenues from program guides; and revenues from home shopping channels.

Gross revenues shall be the basis for computing the franchise fee under any franchise. Gross revenues shall not include: a) any taxes or fees on services furnished by a franchisee which are imposed directly on any subscriber or user by the state, city, or other governmental unit and which are collected by a franchisee on behalf of said governmental unit; b) programming revenues of any affiliate of a franchisee whose programming is carried on the cable system where such revenues are paid to said affiliate by the franchisee and recovered by the franchisee through charges to subscribers that are included in gross revenues; c) amounts paid to a franchisee by a subscriber but refunded to the subscriber; and d) amounts booked as revenues which are bad subscriber debt, net of any collections.

"Interim permit agreement" means an authorization granted to a person already providing cable service within the city for the sole purpose of allowing such entity to continue to operate within the city pending completion of the renewal process under the Cable Act by the city. Except where expressly provided to the contrary, every obligation of a franchisee and every provision that, by its terms, would apply to a franchise or franchise agreement under this chapter shall also be read to apply to a permittee and an interim permit agreement.

"Overbuild" means a cable system constructed to serve subscribers in an area of the city served by an existing cable system.

"PEG use" and similar formulations of this term means non-commercial educational, governmental and public use of channels on the cable system.

"Person" means an individual, partnership, association, joint stock company, organization, corporation, or any lawful successor thereto or transferee thereof, but such term does not include the city.

"Public access channel" means any channel on a cable system set aside for noncommercial use by the general public, including groups and individuals, and which is available for such use on a non-discriminatory basis.

"Public right-of-way" means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway, easement, or similar property in which the city now or hereafter holds any property interest, which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining a cable system. No reference herein, or in any franchise agreement, to a "public right-of-way" shall be deemed to be a representation or guarantee by the city that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a franchisee shall be deemed to gain only those rights to use as are properly in the city and as the city may have the undisputed right and power to give.

"Sale" means any sale or exchange or similar transaction.

"Service tier" means a package of two or more cable services for which a separate charge is made by the franchisee, other than a package of premium and pay-per-view services that is not subject to rate regulation under the Cable Act and applicable FCC regulations because those services are also sold on a true à la carte basis.

"Subscriber" means any person or entity that legally receives any service by means of or in connection with a cable system.

"Television shadow area" means that part of the city west of Broadway that cannot receive clear off-air broadcast signals from Lookout Mountain.

"Transfer" means any transaction in which: a) all or substantially all of the cable system is sold or assigned; b) there is any change, acquisition, or transfer of control of the franchisee; or c) the rights and/or obligations held by the franchisee under the franchise are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party. Lease of an insubstantial portion of the assets of a cable system shall not constitute a transfer.

"User" means a person or organization utilizing a channel or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.

Ordinance No. 7197 (2002)

11-6-3 The Franchise.

(a) Grant of Franchise: The city may grant one or more cable television franchises, and each such franchise shall be awarded in accordance with and subject to the provisions of this chapter. In no event shall this chapter be considered a contract between the city and a franchisee.

(b) Franchise Required: Except as federal law may otherwise provide, no person may construct or operate a cable system without a franchise granted by the city. No person may be granted a franchise or interim permit agreement without having entered into a franchise agreement with the city pursuant to this chapter.

(1) A franchise is non-exclusive and will not explicitly or implicitly preclude the issuance of other franchises to operate cable systems within the city or any portion thereof; affect the city's right to authorize use of public rights-of-way by other persons to operate cable systems or for other purposes as it determines appropriate; or affect the city's right to itself construct, operate, or maintain a cable system, with or without a franchise.

(2) All privileges prescribed by a franchise shall be subordinate to any prior lawful occupancy of the public rights-of-way, and the city reserves the right to reasonably designate where a franchisee's facilities are to be placed within the public rights-of-way.

(d) Franchisee Subject to Other Laws, Police Power:

(1) A franchisee shall at all times be subject to and shall comply with all applicable federal, state, and, except as specified in the franchise, local laws. Without limiting the foregoing, a franchisee shall at all times be subject to all lawful exercise of the police power of the city, including all rights the city may have under 47 U.S.C. section 552, article XX, section 6 of the Colorado Constitution, and laws governing permitting, zoning and control of streets and public rights-of-way.

(2) No course of dealing between a franchisee and the city, or any delay on the part of the city in exercising any rights under this chapter, shall operate as a waiver of any such rights of the city or acquiescence in the actions of a franchisee in contravention of rights except to the extent expressly waived by the city or expressly provided for in a franchise agreement.

(3) The city shall have the maximum plenary authority to regulate cable systems, franchisees, and franchises as may now or hereafter be lawfully permissible; except where rights are expressly waived by the city in a franchise agreement, they are reserved, whether expressly enumerated or not.

(4) However, notwithstanding the foregoing, a franchisee, by entering into a franchise, does not waive its rights to challenge the lawfulness of any city action, including, without limitation, on the ground that a particular action is an unconstitutional impairment of contractual rights.

(e) Operation of a Cable System Without a Franchise:

(1) Any person who occupies public rights-of-way for the purpose of operating or constructing a cable system and who does not hold a valid franchise from the city shall be, to the extent permitted by applicable law, subject to all provisions of this chapter including, without limitation, sections 11-6-5, "Construction Provisions," and 11-6-10, "Franchise Fee," B.R.C. 1981. In its discretion, the city at any time may require such person to enter into a franchise agreement within thirty days of receipt of a written notice by the city that a franchise agreement is required; require such person to remove its property and restore the area to a condition satisfactory to the city within such time period; remove the property itself and restore the area to a satisfactory condition and charge the person the costs therefor; require such person to pay fair compensation to the city in the form of fees or in-kind benefits; and/or take any other action it is entitled to take under applicable law, including filing for and seeking damages for trespass. In no event shall a franchise be created unless it is issued by action of the city and is memorialized in a written franchise agreement.

(2) The city may enter into an interim permit agreement if it determines that it is appropriate to do so to protect the public interest. An interim permit agreement shall be scheduled to expire three years from the date of its issuance. However, the city may extend an interim permit to remain in effect until the city completes the renewal process under the Cable Act or until the permittee enters into a franchise agreement, whichever is shortest.

(f) Acts At Franchisee's Expense: Any act that a franchisee is or may be required to perform under this chapter, a franchise agreement, or applicable law shall be performed at the franchisee's expense, unless expressly provided to the contrary in this chapter, the franchise agreement, or applicable law.

(g) Eminent Domain: Nothing herein or in any franchise shall be deemed or construed to impair or affect, in any way or to any extent, the right of the city to acquire the property of a franchisee through the exercise of the right of eminent domain, and nothing herein contained shall be construed to contract away or to modify, expand or abridge, either for a term or in perpetuity, the city's right of eminent domain.

11-6-4 Applications for Grant, Renewal or Modification of Franchises.

(a) Written Application:

(1) A written application shall be filed with the city for a) grant of an initial franchise; b) renewal of a franchise under 47 U.S.C. section 546(a)-(g); or c) modification of a franchise agreement pursuant to this chapter or a franchise agreement. The provisions of this section shall not apply to the issuance of an interim permit agreement, nor shall the issuance of an interim permit agreement be deemed to mean that the permittee is qualified to hold a franchise, or that the terms of the permit are adequate to serve the cable-related needs and interests of the city. Notwithstanding the foregoing, the issuance or acceptance of an interim permit shall not prejudice the rights of the holder set forth in 47 U.S.C. section 546 (a)-(g).

(2) To be acceptable for filing, a signed original of the application shall be submitted together with three copies. The application must be accompanied by the required application filing fee as set forth in subsection 11-6-4(f), B.R.C. 1981, conform to any applicable request for proposals, and contain all required information. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

(3) All applications accepted for filing shall be made available by the city for public inspection.

(b) Contents of Applications: A request for proposals for the grant of a franchise, including for a renewal franchise under 47 U.S.C. section 546(c), shall require, and any application submitted (other than an application submitted pursuant to 47 U.S.C. section 546(h)) shall contain, at a minimum, the following information:

(1) Name and address of the applicant and identification of the ownership and control of the applicant, including: the names and addresses of the ten largest holders of an ownership interest in the applicant and persons in the applicant's direct ownership chain and all persons with ten percent or more ownership interest in the applicant and persons in the applicant's direct ownership chain; the persons who control the applicant and persons in the applicant's direct ownership chain; and all officers and directors of the applicant and persons in the applicant's direct ownership chain;

(2) A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including identification of key personnel;

(3) A demonstration of the applicant's legal qualifications to construct and/or operate the proposed cable system, including, without limitation, a demonstration that the applicant meets the following criteria:

(A) The applicant must be willing to comply with the provisions of this chapter and applicable laws; and to comply with such requirements of a franchise agreement as the city may lawfully require;

(B) The applicant must not have submitted an application for an initial or renewal franchise to the city, which was denied (including any appeals) on the ground that the applicant failed to propose a cable system meeting the cable-related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved (including any appeals) adversely to the applicant, within three years preceding the submission of the application;

(C) The applicant shall not be issued a franchise if it may not hold the franchise as a matter of federal law. An applicant must have, or show that it is qualified to obtain, any necessary federal or state authorizations or waivers required to operate the cable system proposed;

(D) The applicant shall not be issued a franchise if, at any time during the five years preceding the submission of the application, the applicant was convicted of any act or omission of such character that the applicant cannot be relied upon to deal truthfully with the city and the subscribers of the cable system, or to substantially comply with its lawful obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anti-competitive acts, fraud, racketeering, or other similar conduct;

(E) The applicant shall not be issued a franchise if it files materially misleading information in its application or intentionally withholds information that the applicant is required to provide by law; and

(F) The applicant shall not be issued a franchise if an elected official of the city holds a controlling interest in the applicant or an affiliate of the applicant.

Notwithstanding the foregoing, the city shall provide an opportunity to an applicant to show that it would be inappropriate to deny it a franchise under subparagraph 11-6-4(b)(3)(D), B.R.C. 1981, by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, the remoteness of the matter from the operation of cable systems, or any other matter relating to the applicant's legal qualifications.

(4) A statement prepared by a certified public accountant regarding the applicant's financial ability to complete the construction and operation of the cable system proposed;

(5) A description of the applicant's prior experience in cable system ownership, construction, and operation, and identification of cities and counties in which the applicant has, or has had, a cable franchise or any interest therein, provided that an applicant that holds a franchise for the city and is seeking renewal of that franchise need only provide this information for other cities and counties where its franchise is scheduled to expire in the calendar year prior to or after its application is submitted to the city;

(6) Identification of the area of the city to be served by the proposed cable system, including a description of the proposed franchise area's boundaries;

(7) A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, headend, and access facilities;

(8) Where applicable, a description of the construction of the proposed cable system, including an estimate of plant mileage and its location; the proposed construction schedule; a description, where appropriate, of how services will be converted from existing facilities to new facilities; and information on the availability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities;

(9) If and to the extent that rates are subject to the jurisdiction of the city under applicable law, the proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services;

(10) A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of the channels, facilities and support for public, educational, and governmental use of the cable system (including institutional networks) that the applicant proposes to provide and why the applicant believes that the proposal is adequate to meet the future cable-related needs and interests of the community, taking into account the costs thereof and the potential for amortization of such costs;

(11) Pro forma financial projections for the proposed franchise term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules;

(12) If the applicant proposes to provide cable service to a television shadow area, an agreement to comply with paragraph 11-6-5(f)(6), B.R.C. 1981;

(13) Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this chapter;

(14) An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the application meets all requirements of applicable law.

(1) A person may apply for a franchise by submitting a request for issuance of a Request for Proposals ("RFP") and requesting an evaluation of its application pursuant to paragraph 11-6-4(c)(3), B.R.C. 1981. Upon receipt of a request for an RFP, the city shall, if necessary, commence a proceeding to identify the future cable-related needs and interests of the community and, upon completion of that proceeding, shall promptly issue an RFP and proposed franchise agreement, which shall be mailed to the person requesting its issuance and any existing cable system franchisee and made available to any other interested party. The applicant shall respond within the time directed by the city, providing the information and material set forth in subsection 11-6-4(b), B.R.C. 1981. The procedures, instructions, and requirements set forth in the RFP shall be followed by each applicant as if set forth and required herein. The city or its designee may seek additional information from any applicant and establish deadlines for the submission of such information. An existing franchisee shall have the right to file comments regarding any applicant and any application, which shall be treated as part of the record before the city.

(2) Notwithstanding the provisions of paragraph 11-6-4(c)(1), B.R.C. 1981, a person may apply for an initial franchise by submitting an unsolicited application containing the information required in subsection 11-6-4(b), B.R.C. 1981, and requesting an evaluation of that application pursuant to paragraph 11-6-4(c)(3), B.R.C. 1981. Prior to evaluating that application, the city may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in paragraph 11-6-4(c)(3), B.R.C. 1981, and may seek additional applications.

(3) In evaluating an application for a franchise, the city shall consider, among other things, the following factors:

(A) The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing cable franchise for the city;

(B) Whether the quality of the applicant's service under any existing franchise in the city, including signal quality, response to customer complaints, billing practices, and the like, has been reasonable in light of the needs and interests of the communities served;

(D) Whether the application satisfies any minimum requirements established by the city and is otherwise reasonable to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests;

(E) Whether, to the extent not considered as part of subparagraph 11-6-4(c)(3)(D), B.R.C. 1981, the applicant will provide adequate PEG use, capacity, facilities, and financial support;

(F) Whether issuance of a franchise is in the public interest considering the immediate and future effect on the public rights-of-way and private property that would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way; the effect of granting an overbuild franchise on the ability of any existing franchisee to meet the cable-related needs and interests of the community; and the comparative superiority or inferiority of competing applications; and

(G) Whether the approval of the application may eliminate or reduce competition in the delivery of cable service in the city.

(4) If the city finds that it is in the public interest to issue a franchise considering the factors set forth above, and subject to the applicant's negotiation of and agreement on an appropriate franchise agreement, it shall schedule a public vote on a proposed franchise. If the city denies a franchise, it will issue a written decision explaining why the franchise was denied. Prior to deciding whether or not to issue a franchise, the city may hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. The city also may grant or deny a request for a franchise based on its review of an application without further proceedings and may reject any application that is incomplete or fails to respond to an RFP.

(d) Application for Grant of a Cable Act Renewal Franchise: Applications for renewal under the Cable Act shall be received and reviewed in a manner consistent with section 626 of the Cable Act, 47 U.S.C. section 546. It is the proposal submitted by a franchisee under 47 U.S.C. section 546(b), and not the request for commencement of the renewal proceedings submitted under 47 U.S.C. section 546(a), that must contain the information required under subsection 11-6-4(b), B.R.C. 1981. If neither a franchisee nor the city activates a renewal application in a timely manner, or can activate the renewal process as set forth in 47 U.S.C. section 546(a)-(g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 U.S.C. section 546(h), the provisions of subsection 11-6-4(c), B.R.C. 1981, shall apply, and a renewal request shall be evaluated using the same criteria as any other request for a franchise. The following requirements shall apply to renewal requests properly submitted pursuant to the Cable Act:

(1) If the provisions of 47 U.S.C. section 546(a)-(g) are properly invoked, the city shall issue an RFP after conducting a proceeding to review the applicant's past performance and to identify future cable-related community needs and interests. The city shall promptly make available for review by the applicant the results of its review and ascertainment process. The city manager or the manager's designee shall establish deadlines and procedures for responding to the RFP, which deadlines may not be less than one hundred twenty days after the date of the RFP, may seek additional information from the applicant related to the city's evaluation of the proposal under applicable law, and shall establish deadlines for the submission of that additional information. Following receipt of the application responding to that RFP (and such additional information as may be provided in response to requests), the city council will determine that the franchise should be renewed, or make a preliminary assessment that the franchise should not be renewed. This determination shall be in accordance with the time limits established by the Cable Act. The preliminary determination shall be made by resolution. If the city council determines that the franchise should not be renewed, and the applicant that submitted the renewal application notifies the city, either in its RFP response or within thirty working days of the preliminary assessment, that it wishes to pursue any rights to an administrative proceeding it has under the Cable Act, then the city shall commence an administrative proceeding after providing prompt public notice thereof, in accordance with the Cable Act. If the city council decides preliminarily to grant renewal, it shall prepare a final franchise agreement that incorporates, as appropriate, the commitments made by the applicant in the renewal application. If the applicant accepts the franchise agreement, and the final agreement is ratified by the city council, the franchise shall be renewed. If the franchise agreement is not so accepted and ratified within the time limits established by 47 U.S.C. section 546(c)(1), renewal shall be deemed preliminarily denied, and an administrative proceeding commenced if the applicant that submitted the renewal application requests it within thirty business days of the expiration of the time limit established by 47 U.S.C. section 546(c)(1), unless the time limit is extended by mutual agreement of the city and the franchisee.

(2) If an administrative hearing is commenced pursuant to 47 U.S.C. section 546(c), the applicant's renewal application shall be evaluated considering such matters as may be considered consistent with federal law. The following procedures shall apply:

(A) The city council shall, by resolution, appoint an administrative hearing officer or officers (referred to hereafter as "hearing officer"). The city council may appoint itself as hearing officer.

(B) The hearing officer may conduct a pre-hearing conference and establish appropriate pre-hearing orders. Intervention by non-parties is not authorized except to the extent required by the Cable Act.

(C) The hearing officer shall require the city and the applicant to submit prepared testimony prior to the hearing. Unless the parties agree otherwise, the applicant shall present evidence first, and the city shall present evidence second.

(D) Any reports or the transcript or summary of any proceedings conducted pursuant to 47 U.S.C. section 546(a) shall be, for purposes of the administrative hearing, regarded no differently than any other evidence.

(E) The city and the franchisee shall be afforded fair opportunity for full participation in the proceeding, including the right to introduce evidence (including evidence related to issues raised in the proceeding under subsection 47 U.S.C. section 546(a)), to require the production of evidence, and to question witnesses.

(F) Following completion of any hearing, the hearing officer shall require the parties to submit proposed findings of fact with respect to the matters that the city is entitled to consider in determining whether renewal ought to be granted. Based on the record of the hearing, the hearing officer shall then prepare written findings with respect to those matters, and submit those findings and conclusions and related conclusions of law to the city council and to the parties (unless the hearing officer is the city council, in which case the written findings shall constitute the final decision of the city).

(G) If the hearing officer is not the city council, the parties shall have thirty days from the date the findings are submitted to the city council to file exceptions to those findings with the city council. The city council shall thereafter issue a written decision granting or denying the application for renewal, consistent with the requirements of the Cable Act and based on the record of such proceeding. A copy of the final decision of the city council will be promptly provided to the applicant.

(H) The proceeding shall be conducted with all deliberate speed.

(I) In conducting the proceedings, and except as inconsistent with the foregoing, the hearing officer will follow the procedures as set forth in chapter 1-3, "Quasi-Judicial Hearings," B.R.C. 1981, or the successor ordinances thereto. The hearing officer or the parties may request that the city council adopt additional procedures and requirements as necessary in the interest of justice.

(J) This section does not prohibit any franchisee from submitting an informal renewal application pursuant to 47 U.S.C. section 546(h), which application may be granted or denied in accordance with the provisions of 47 U.S.C. section 546(h). If such an informal renewal application is granted, then the steps specified in this section need not be taken, notwithstanding the provisions thereof.

(e) Application for Modification of a Franchise:

(1) An application for modification of a franchise agreement shall include, at minimum, the following information:

(A) The specific modification requested;

(B) The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through, inter alia, submission of pro forma financial statements.

(C) A statement indicating whether the modification is sought pursuant to section 625 of the Cable Act, 47 U.S.C. section 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. section 545;

(D) Any other information that the applicant believes is necessary for the city to make an informed determination on the application for modification; and

(E) An affidavit or declaration of the applicant or applicant's authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with the requirements of applicable law.

(2) A request for modification submitted pursuant to 47 U.S.C. section 545 shall be considered in accordance with the requirements of that section.

(f) Filing Fees: To be acceptable for filing, an application submitted after the effective date of this chapter shall be accompanied by a reasonable filing fee in an amount sufficient to cover reasonable costs incidental to the awarding or enforcement of the franchise. Such costs shall be established by resolution of the city council, subject to applicable law.

(g) Public Hearings: An applicant shall be notified of any public hearings held in connection with the evaluation of its application and shall be given an opportunity to be heard. In addition, prior to the issuance of a franchise, the city shall provide for the holding of a public hearing within the proposed franchise area, following reasonable notice to the public, at which each applicant and its application shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard. Reasonable notice to the public shall include causing notice of the time and place of such hearing to be published in a newspaper of general circulation in the proposed franchise area once a week for two consecutive weeks. The first publication shall be not less than fourteen days before the day of the hearing.

(h) Consistency With Cable Act: The provisions of this section shall be read and applied so that they are consistent with section 626 of the Cable Act, 47 U.S.C. section 546.

11-6-5 Construction Provisions.

(a) System Construction Schedule: Every franchise agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the cable system. The schedule shall provide for prompt completion of the project, considering the amount and type of construction required.

(b) Construction Procedures:

(1) A franchisee shall construct, operate and maintain a cable system subject to the supervision of all of the authorities of the city who have jurisdiction in such matters and in strict compliance with all laws, ordinances, rules and regulations affecting the cable system.

(2) The cable system shall be subject to the right of periodic inspection by the city. Inspections will be conducted in a manner so as not to unreasonably interfere with the operations of a cable system or the provision of service to subscribers. The city will bear its own costs associated with any independent technical tests of the cable system.

(3) No construction, reconstruction or relocation of the cable system within the public rights-of-way shall be commenced until written permits have been obtained from the proper city officials. In any permit so issued, such officials may impose such fees, conditions and regulations as a condition of the granting of the permit as are imposed on similar uses of the right-of-way.

(1) The construction, operation, maintenance, or repair of a cable system shall be in accordance with all applicable laws, including, without limitation, zoning laws, construction codes, and the City of Boulder Design and Construction Standards, as amended. A franchisee shall at all times employ reasonable care, within the meaning of applicable law, and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public.

(2) Without limiting the foregoing, all of a franchisee's cable system shall be constructed, operated and maintained in accordance with good engineering practices, performed by experienced and properly trained maintenance and construction personnel.

(3) Except in underground service areas, all parts of the cable system, including electronics, vaults, trunk, feeder and drop cable may be constructed overhead where poles now exist and electric and telephone lines are now overhead, but where either electric or telephone lines are underground, all trunk, feeder and drop cable shall be constructed underground. Whenever and wherever the poles on which a franchisee's poles are attached are no longer in use for electrical or telephone plant, all cable system facilities and plant attached to such poles shall be moved underground by the franchisee.

(4) All safety practices required by law shall be used during construction, maintenance, and repair of a cable system. A franchisee shall at all times employ reasonable care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public.

(5) A franchisee shall not place facilities, equipment, or fixtures where they will interfere with any gas, electric, telephone, telecommunications, water, sewer, or other utility facilities, or obstruct or hinder in any manner such entities' use of any public rights-of-way, and no future occupant of the right-of-way shall interfere with the use of the right-of-way by a franchisee.

(6) Any and all public rights-of-way, public property, or private property that is disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance, or construction of a cable system shall be promptly repaired by the franchisee.

(7) A franchisee shall, by a time specified by the city, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the city or any other governmental entity by reason of traffic conditions; public safety; public right-of-way construction; public right-of-way maintenance or repair (including resurfacing or widening); change of public right-of-way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned communications system, public work or improvement or any government-owned utility; public right-of-way vacation; undergrounding of adjacent electric or telephone line so that adjacent poles are no longer in use for electrical or telephone plant; or for any other purpose where the convenience of the city or such entity would be served thereby; provided, however, that:

(A) Except in the case of emergencies, the city shall provide written notice describing where the work is to be performed at least one week prior to the deadline for performing the work; a franchisee may seek an extension of the time to perform the work where it cannot be performed in a week even with the exercise of due diligence, and such request for an extension shall not be unreasonably refused; and

(B) A franchisee may abandon any property in place upon notice to the city, unless the city determines, in the exercise of its reasonable discretion exercised within sixty days of the date the city receives notice, that the safety, appearance, functioning or use of the public rights-of-way and facilities in the public rights-of-way will be adversely affected thereby.

(8) If any removal, relaying, or relocation is required to accommodate the construction, operation, or repair of the facilities of another person (other than the city) that is authorized to use the public rights-of-way, a franchisee shall, after thirty days' advance written notice, take action to effect the necessary changes requested by the responsible entity. Unless the matter is governed by a valid contract or a state or federal law or regulation, the reasonable cost of removal, relaying or relocation shall be borne by the party requesting the removal, relaying or relocation. The city may direct a franchisee to remove, relay or relocate its facilities pending resolution of a dispute as to responsibility for costs, if the person requesting removal, relaying or relocation posts security satisfactory to the city.

(9) In the event of an emergency, or where a cable system creates or is contributing to an imminent danger to health, safety, or property, while the officers of the city will make reasonable efforts to contact the franchisee, the city may remove, relay, or relocate any or all parts of that cable system without prior notice.

(10) A franchisee shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other structures. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same, and the franchisee shall have the authority to require such payment in advance. The franchisee shall be given not less than fourteen days' advance notice to arrange for such temporary wire changes.

(11) Subject to obtaining advance permission from the city manager, which shall not be unreasonably refused, a franchisee shall have the authority to trim trees that overhang a public right-of-way of the city so as to prevent the branches of such trees from coming in contact with the wires of the franchisee. At the option of the city, such trimming may be done by it or by the franchisee, but in either case, at the expense of the franchisee.

(12) Prior to erection of any towers, poles, or conduits or the construction, upgrade, or rebuild of a cable system authorized under this chapter, a franchisee shall first submit to the city and other designated parties for approval a concise description of the cable system proposed to be erected or installed, including engineering drawings, if required by the city, together with a map and plans indicating the proposed location of all such facilities. No erection or installation of any tower, pole, underground conduit, or fixture or any rebuilding or upgrading of a cable system shall be commenced by any person until approval therefor has been received from the city in accordance with standard permitting practices of the city. A franchisee is expected to use, with the owner's permission, existing underground conduits or overhead utility facilities whenever feasible.

(13) Any contractor or subcontractor used for work or construction, installation, operation, maintenance, or repair of cable system equipment must be properly licensed, and each contractor or subcontractor shall have the same obligations with respect to its work as franchisee would have under this chapter and applicable law if the work were performed by the franchisee. The franchisee must ensure that contractors, subcontractors and all employees who will perform work for it are trained and experienced. The franchisee shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with its franchise agreement and applicable law, shall be fully responsible for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor, and shall implement a quality control program to ensure that the work is properly performed. This subsection shall not be deemed to alter a franchisee's tort liability to third parties.

(d) Participation With Other Utilities and the City: A franchisee shall cooperate in the planning, locating and construction of its cable system in utility joint trenches or common duct banks with other telecommunications providers and the city. The city will provide advance notice to any franchisee when it plans to open a trench and each franchisee shall provide notice to the city when it plans to open a trench. The franchisee and the city will offer to make space available to the other, and to other persons who are subject to the same obligations, on reasonable terms, consistent with applicable law and this chapter.

(e) Underground Services Alert: Each franchisee shall be a member of the regional notification center for subsurface installations (underground services alert) and shall field mark, at its sole cost and expense, the locations of its underground cable system facilities upon notification by the city.

(f) Provision of Service/Quality of Service: In addition to satisfying such requirements as may be established through the application process, every cable system shall be subject to the following conditions, except as prohibited by federal law or where other standards are specified in a franchise agreement:

(1) After cable service has been established by activating trunk distribution cable for an area specified in a franchise agreement, a franchisee shall provide cable service to any household or commercial establishment requesting cable service in accordance with the franchise agreement within that area, including each attached dwelling unit in that area, except for attached dwelling units to which it cannot legally obtain access. Service must be provided within time limits specified in paragraph 11-6-5(f)(2), B.R.C. 1981.

(2) A franchisee must extend service to any person who requests it within ten days of the request, where service can be provided by activating or installing a drop, within ninety days where an extension of one-half a mile or less is required, and within six months when an extension of more than one-half mile is required, provided that, in cases where a franchise agreement permits a franchisee to require a potential subscriber to bear a share of extension or installation costs, and franchisee requires the potential subscriber to bear such costs, the time for extension shall be measured from the date on which the subscriber agrees to bear such costs or, if a franchisee requires prepayment of all or a portion of the estimated costs, from the date on which the prepayment is made. A franchisee that requires a potential subscriber to bear a portion of installation or extension costs must prepare a written estimate of extension costs within seven days of a request for an installation or extension that would be subject to cost-sharing.

(3) Any cable system within the city shall meet or exceed the technical standards set forth in 47 C.F.R. section 76.601 and any other applicable technical standards. Enforcement of such technical standards shall be by the FCC unless the FCC allows enforcement by the city.

(4) A franchisee shall perform all tests reasonably necessary to demonstrate compliance with the requirements of the franchise agreement and other performance standards established by applicable law. Unless a franchise agreement or applicable law provides otherwise, all tests shall be conducted in accordance with federal rules and in accordance with the most recent edition of National Cable Television Association's Recommended Practices for Measurements on Cable Television Systems, or if no recent edition exists, such other appropriate manual as the city may designate. A written report of any test results shall be filed with the city within seven days of each test. If the location fails to meet performance specifications, within a reasonable time the franchisee, without requirement of additional notice or request from city, shall take corrective action, retest the locations and advise the city of the action taken and results achieved.

(5) The city may conduct inspections of a cable system including, without limitation, the headend, construction areas and subscriber installations to assess, among other things, franchisee's compliance with its franchise agreement and applicable law. If the franchisee is notified of any violations found during course of inspections, the franchisee must bring violations into compliance within thirty days of the date on which notice of violation is given, and must submit a report to the city describing the steps taken to bring itself into compliance or must file an appeal with the city manager during the same time period. All appeals shall be decided under chapter 1-3, "Quasi-Judicial Hearings," B.R.C. 1981. Inspection does not relieve the franchisee of its obligation to build a cable system in compliance with all provisions of its franchise agreement and applicable law.

(6) Any franchise serving any portion of the city must accept equivalent obligations for franchise fees and PEG use, capacity, facilities and financial support, on a gross revenue or per subscriber basis, as the case may be.

(7) If a franchise serves a television shadow area, it must construct at least an equivalent number of miles of cable distribution plant outside of the television shadow area as it constructs inside the television shadow area and must satisfy the other obligations imposed on any other franchise or permit, other than those relating to geographical coverage, and must accept equivalent obligations for franchise fees and PEG use, capacity, facilities and financial support, on a gross revenue or per subscriber basis, as the case may be.

(g) Publicizing Proposed Construction Work: A franchisee shall publicize any substantial rebuild of its cable system at least one week prior to commencement of that work by causing written notice of such construction work to be delivered to the city and by notifying those persons within three hundred feet of the work in at least two of the following ways: by telephone, in person, by mail, by distribution of flyers to residences, by publication in local newspapers, or in any other manner reasonably calculated to provide adequate notice. In addition, before entering onto any person's property, a franchisee shall attempt to contact the property owner or (in the case of residential property) the resident at least one day in advance. If a franchisee must enter a residence or building, it must schedule an appointment at the convenience of the owner or resident.

(h) System Maintenance:

(1) A franchisee shall schedule maintenance so that activities likely to result in an interruption of service are performed during periods of minimum subscriber use of the cable system.

(2) Each franchise agreement shall provide that the franchisee will be obligated to follow maintenance practices that will ensure that its cable system is maintained in accordance with the highest industry standards.

(i) Continuity of Service: Each franchise agreement shall provide that subscribers are able to receive continuous service and that, in the event the franchise is revoked or terminated, the franchisee shall be obligated to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity.

11-6-6 Operation and Reporting Provisions.

(a) Open Books and Records:

(1) The city shall have the right upon thirty days' advance written notice to inspect and copy at any time during normal business hours at the nearest cable system office or at such location within the city as the city may designate, all books and records reasonably necessary to monitor compliance with the terms of this chapter, a franchise agreement, or applicable law, or reasonably necessary for the exercise of any right or duty of the city under the same. This right includes the right to inspect not only the books and records of a franchisee, but any such books and records held by an affiliate regardless of who holds them, an operator of the cable system, or any person holding any form of management contract for the cable system. Each franchisee shall be responsible for collecting the information and producing it. For purposes of this chapter, the terms "books and records" shall be read expansively to include information in whatever format stored.

(2) Access to a franchisee's books and records shall not be denied by a franchisee on the basis that said books and records contain proprietary information. However, all proprietary information received by the city from a franchisee and clearly marked as such shall not be publicly disclosed insofar as permitted or required to be withheld by the Colorado Public Records Act, section 24-72-204, C.R.S., and other applicable law. The city will notify franchisee if any third party seeks release of any document marked confidential, and the city will withhold release for the maximum period permitted by law to provide the franchisee the opportunity to seek court protection against the release of the requested documents.

(3) The franchisee shall maintain a file of records open to public inspection in accordance with applicable FCC rules and regulations.

(b) Communication With Regulatory Agencies: Upon request, a franchisee shall file with the city all non-confidential reports required by the FCC including, without limitation, any proof of performance tests and results and all petitions, applications, and communications of all types regarding the cable system submitted or received by the franchisee, an affiliate, or any other person on the behalf of the franchisee, either to or from the FCC, the Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction over any matter affecting operation of the franchisee's cable system. Provided that, nothing herein requires the franchisee to produce regulatory or court filings that are treated by the agency or court as confidential, such as Hart-Scott-Rodino Act filings. Nothing in this subsection affects any rights the city may have to obtain books and records under paragraph 11-6-6(a)(1), B.R.C. 1981. Franchisee shall also deliver to the city copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchise directly or indirectly. This material shall be submitted to the city at the time it is filed or within five days of the date on which it is received.

(1) No later than ninety days after the end of its fiscal year, a franchisee shall submit a written report to the city manager, which shall include:

(A) A summary of the previous year's activities in the development of the cable system, including, but not limited to, descriptions of services begun or discontinued, the number of subscribers gained or lost for each category of service, the number of pay units sold, the amount collected annually from other users of the cable system and the character and extent of the services rendered to such users;

(B) A summary of complaints, identifying both the number and nature of the complaints received and an explanation of their dispositions;

(C) A summary of the number and type of outages (an outage is a loss of sound or video on any signal, or a significant deterioration of any signal affecting two or more subscribers) known by the franchisee, specifying all details of each outage known to the franchisee and the cause thereof;

(D) A list of officers and members of the board of directors of the franchisee and its parent;

(E) A full revenue report for the cable system for the previous calendar year, signed by the chief financial officer of the franchisee;

(F) An ownership report, indicating all persons who at the time of filing control or own an interest in the franchise of ten percent or more; and

(G) A report on the cable system's technical tests and measurements.

(2) Each franchisee shall conduct an opinion survey every calendar year to identify subscriber needs and interests. The results of the survey must be submitted by August 31 of the calendar year for which the survey is being conducted.

(3) Franchisees shall deliver the following special reports:

(A) Each franchisee shall submit monthly construction reports for its cable system to the city after the franchise is awarded for any construction undertaken during the term of the franchise until such construction is complete, including any rebuild that may be specified in the franchise agreement. A franchisee must submit updated as-built system design maps to city within thirty days of the completion of system construction in any geographic area, without notation of electronic components. The city shall protect confidential commercial data from disclosure under the Colorado Public Records Act, section 24-72-204, C.R.S. The maps shall be developed on the basis of post-construction inspection by the franchisee and construction personnel to assess compliance with system design. Any departures from design must be indicated on the as-built maps, to assist the city in assessing operator compliance with its obligations under the franchise agreement. As-built maps shall also be supplied to the city in electronic form, compatible with city GIS and other data systems.

(B) A report submitted within thirty days of the end of each calendar quarter showing the number of service calls received by type during the prior quarter, and the percentage of service calls compared to the subscriber base by type of complaint.

(d) Records Required: A franchisee shall maintain for a period of at least six months:

(1) Records of complaints received in the form maintained as of the effective date of a franchise. The term "complaints" as used herein and throughout this chapter refers to complaints about any aspect of the cable system or franchisee's operations, including, without limitation, complaints about employee courtesy. Complaints recorded may not be limited to complaints requiring an employee service call;

(2) Records of outages, indicating date, duration, area, and the estimated number of subscribers affected, type of outage, and cause;

(3) Records of service calls for repair and maintenance indicating the date and time service was required, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved; and

(4) Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended.

11-6-7 Performance Evaluation.

(a) Performance Evaluation Sessions: The city may, at its discretion, but no more than biannually, hold performance evaluation sessions. All such evaluation sessions shall be open to the public, and announced in a newspaper of general circulation.

(1) Topics that may be discussed at any evaluation session may include, but are not limited to, system construction and performance, franchisee compliance with this chapter and the franchise agreement, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, franchise fees, penalties, free or discounted services, applications of new technologies, judicial and FCC filings, and line extensions.

(2) During the review and evaluation by the city, a franchisee shall reasonably cooperate with the city and shall provide such information and documents as the city may need to reasonably perform its review.

(b) Voluminous Materials: If any books, records, maps or plans, or other requested documents are too voluminous, or for security reasons cannot be copied and moved, then a franchisee may request that the inspection take place at some other location, provided that 1) the franchisee must make necessary arrangements for copying documents selected by the city after review; and 2) the franchisee must pay all travel and additional copying expenses incurred by the city in inspecting those documents or having those documents inspected by its designee.

(c) Retention of Records; Relation to Privacy Rights: Each franchisee shall take all steps required, if any, to ensure that it is able to provide the city all information which must be provided under this chapter or a franchise agreement, including, without limitation, the step of providing appropriate subscriber privacy notices. Nothing in this section shall be read to require a franchisee to violate 47 U.S.C. section 551. Each franchisee shall be responsible for redacting any data that federal law prevents it from providing to the city.

11-6-8 Consumer Protection Provisions.

The customer service standards that each franchisee must satisfy are set forth as appendix A, "Customer Service Standards," of this chapter. In addition, each franchisee shall at all times satisfy any additional or stricter requirements established by a franchise agreement and by applicable law including, without limitation, FCC customer service standards and consumer protection laws.

11-6-9 Rate Regulation.

(a) Scope and Applicability: The city reserves all rights to implement and impose regulation of a franchisee's rates and charges to the maximum extent permitted by federal law. Nothing in this chapter shall prohibit the city from regulating a franchisee's rates and charges.

(b) Changes of Rates and Charges by Franchisee: A franchisee may not change its rates and charges unless it has first given a minimum thirty calendar days' prior written notice of such change to the city and to all subscribers.

(c) Regulation of Rates for Basic Cable Service: Subpart N of 47 C.F.R., part 76 governs the regulation of rates for basic cable service and equipment within the city for any franchisee.

11-6-10 Franchise Fee.

(a) Amount of Franchise Fee: A franchisee, as compensation for the privilege granted under a franchise for the use of the public rights-of-way to construct and operate a cable system to provide cable service, shall pay to the city a franchise fee of five percent of the franchisee's gross revenues derived from the operation of its cable system to provide cable services within the franchise area.

(b) Payment of Franchise Fee: Unless otherwise specified in a franchise agreement, a franchisee shall pay the franchise fee due to the city on a quarterly basis. Payment for each quarter shall be made to the city not later than forty-five days after the end of each calendar quarter.

(c) Persons Providing Cable and Other Services or Cable Systems: Consistent with applicable law, any person providing cable service or any communications service over a cable system for which charges are assessed to subscribers but not received by a cable operator shall pay a fee equal to five percent of such person's gross revenues derived from the provision of such service over the cable system.

(d) Quarterly Statement of Gross Revenues: Unless a franchise agreement provides otherwise, a franchisee or other entity subject to a fee under this provision shall file with the city within forty-five days of the end of each calendar quarter a financial statement showing the franchisee's or such entity's gross revenues during the preceding quarter and the number of subscribers served.

(e) Acceptance of Payment Not a Release: No acceptance by the city of any franchise fee payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the city may have for additional sums payable.

(f) Franchise Fee Not in Lieu of Taxes: The franchise fee payment is not a payment in lieu of any tax, fee or other assessment.

(g) Annual Statement of Gross Revenue: A franchisee or other entity subject to a fee under this provision shall file within ninety days following the end of each of its fiscal years a statement setting forth the computation of gross revenues used to calculate the franchise fee for the preceding year and a detailed explanation of the method of computation including, without limitation, a detailed analysis of franchise fee payments made by the franchisee, or any affiliate, during the life of the franchise, showing 1) total gross revenues, by category (e.g., basic, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); 2) what, if any, deductions were made from gross revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction. The statement shall be certified by a certified public accountant or the chief financial officer of the person or persons paying the fee. The franchisee shall bear the cost of the preparation of such financial statements.

(h) City's Right to Audit Books and Records: The city may, from time to time, and upon reasonable notice, inspect and audit any and all books and records relevant to the determination of gross revenues and the computation of franchise fees due, and may recompute any amounts determined to be payable. If, as a result of the audit, the city determines that the franchisee has underpaid the franchise fees owed in an amount exceeding five percent of the franchise fees actually paid or $10,000.00, whichever is less, the reasonable cost of the audit shall be borne by the person responsible to pay the fee. The audit shall be performed in the city, and it shall be the responsibility of the person subject to the fee to have all books and records necessary to satisfactorily perform the audit readily available to the auditors.

(i) Failure to Pay Franchise Fee: In the event that a franchise fee payment is not received by the city on or before the due date set forth in subsection 11-6-10(b), B.R.C. 1981, or is underpaid, the person subject to the fee shall pay interest from the due date at an interest rate equal to three percent above the rate for three-month federal Treasury Bills at the most recent United States Treasury Department sale of such Treasury Bills occurring prior to the due date of the franchise fee payment.

(j) Final Statement of Gross Revenues: When a franchise terminates for whatever reason, the franchisee shall file with the city within ninety calendar days of the date its operations in the city cease a financial statement, certified by a certified public accountant or the franchisee's chief financial officer, showing the gross revenues received by the franchisee since the end of the previous fiscal year. Adjustments will be made at that time for franchise fees due to the date that the franchisee's operations ceased.

11-6-11 Insurance; Surety; Indemnification.

(a) Insurance Required: Throughout the entire term of the franchise, a franchisee shall maintain, and by its acceptance of a franchise specifically agrees that it will maintain, at least the following insurance coverage insuring the franchisee: worker's compensation and employer liability insurance to meet all requirements of Colorado law and comprehensive general liability insurance with respect to the construction, operation, and maintenance of the cable system, and the conduct of the franchisee's business in the city, in the minimum amounts of:

(1) $1,000,000.00 for property damage resulting from any one accident;

(2) $2,000,000.00 for personal bodily injury or death resulting from any one accident; and

(3) $2,000,000.00 for all other types of liability.

The city may review these amounts no more than once a year and may require reasonable adjustments to them consistent with maintaining the same economic protection for the city. A franchise agreement may provide that in the event that the franchisee objects to an increase in a policy limit and the parties are unable to agree on a mutually acceptable amount, the dispute shall be resolved in accordance with the dispute resolution provisions in the franchise agreement which may include, without limitation, provisions for arbitration.

(b) Qualifications of Sureties: All insurance policies shall be with sureties qualified to do business in the State of Colorado, with an A-1 or better rating of insurance by Best's Key Rating Guide, Property/Casualty Edition, and in a form approved by the city.

(c) Certificates: A franchisee shall provide to the city updated certificates of insurance reasonably acceptable to the city showing the insurance coverage available at all times.

(d) Additional Insureds; Prior Notice of Policy Cancellation: All general liability insurance policies shall name the city, its officers, boards, commissions, commissioners, agents, and employees as additional insureds and shall further provide that any cancellation or reduction in coverage shall not be effective unless thirty days' prior written notice thereof has been given to the city. A franchisee shall not cancel any required insurance policy without submission of proof that the franchisee has obtained alternative insurance satisfactory to the city which complies with this section.

(e) Insurance Constitutes Material Term: The insurance requirements set forth in this section shall constitute a material term of a franchise.

(f) Indemnification:

(1) Each franchise agreement shall contain an indemnification provision which shall provide that the franchisee shall, at its sole cost and expense, indemnify, hold harmless, and faithfully defend the city, its officials, boards, commissions, commissioners, agents, and employees, against any and all claims, suits, causes of action, proceedings, and judgments for damages or equitable relief arising out of the construction, maintenance, or operation of its cable system by the franchisee, its employees, affiliates or agents; copyright infringements or a failure by the franchisee to secure consents from the owners, authorized distributors, or franchisees of programs to be delivered by the cable system; the conduct of the franchisee's business in the city; or in any way arising out of the franchisee's enjoyment or exercise of a franchise granted hereunder, regardless of whether the act or omission complained of is authorized, allowed, or prohibited by applicable law or a franchise agreement, except in cases where liability is a) solely caused by the gross negligence of the person or persons covered by the indemnity; or b) results from programming contributed or produced by the city and transmitted over the cable system.

(2) Without limiting the foregoing, the franchisee shall, at its sole cost and expense, fully indemnify, defend, and hold harmless the city and its officials, boards, commissions, commissioners, agents, and employees, from and against any and all claims, suits, actions, liability, and judgments for damages or otherwise subject to section 638 of the Cable Act, 47 U.S.C. section 558, arising out of or alleged to arise out of the installation, construction, operation, or maintenance of its system by the franchisee, its employees, affiliates or agents, including, without limitation, any claim against the franchisee for invasion of the right of privacy, defamation of any person, firm or corporation, or the violation or infringement of any copyright, trade mark, trade name, service mark, or patent, or of any other right of any person, firm, or corporation. This indemnity does not apply to intervention by the city in regulatory proceedings brought by the franchisee or to the programming carried on any channel set aside for public, educational, or government use, or channels leased pursuant to 47 U.S.C. section 532, unless the franchisee was in any respect engaged in determining the editorial content of the program, or adopts a policy of pre-screening programming for the purported purpose of banning or regulating indecent or obscene programming, and except for programming contributed or produced by the franchisee.

(3) The indemnity provision includes, but is not limited to, the city's reasonable attorneys' fees consented to by the franchisee and payment for any labor and expenses of the city attorney's office at the going rate for legal services in Boulder County.

(g) No Limit of Liability: The provisions of this section shall not be construed to limit the liability of a franchisee for damages under any franchise issued hereunder.

(h) Relation to Insurance and Indemnity Requirements: Recovery by the city of any amounts under insurance, the security fund or letter of credit, or otherwise does not limit a franchisee's duty to indemnify the city in any way; nor shall such recovery relieve a franchisee of its obligations under a franchise, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have. Nothing herein shall be read to authorize the double recovery of damages.

11-6-12 Performance Guarantees and Remedies.

(a) Security Fund:

(1) Prior to a franchise becoming effective, the franchisee shall post with the city a cash security deposit to be used as a security fund to ensure the franchisee's faithful performance of and compliance with all provisions of this chapter, the franchise agreement, and other applicable law, and compliance with all orders, permits, and directions of the city, and the payment by the franchisee of any claims, liens, fees, or taxes due the city which arise by reason of the construction, operation, or maintenance of the cable system. The amount of the security fund shall be equal to three percent of the franchisee's projected annual average gross revenues or $100,000.00, whichever is less, unless modified by the franchise agreement.

(2) In lieu of a cash security fund, a franchisee may file and maintain with the city an irrevocable letter of credit with an acceptable surety in the amount specified in the preceding paragraph to serve the same purposes as set forth therein. Said letter of credit shall remain in effect for the full term of the franchise plus an additional six months thereafter. The letter of credit shall secure the franchisee's faithful performance and compliance with all provisions of this chapter, the franchise agreement, and other applicable law, and to comply with all orders, permits, and directions of the city, and payment of any claims, liens, fees, or taxes due the city which arise by reason of the construction, operation, or maintenance of the cable system. The letter of credit shall provide for thirty days' prior written notice to the city of any intention on the part of the franchisee to fail to renew or otherwise materially alter its terms. The city may agree to use a joint letter of credit to satisfy this obligation, by adoption thereof in a franchise agreement. Neither the filing of a letter of credit with the city, nor the receipt of any damages recovered by the city thereunder, shall be construed to excuse faithful performance by the franchisee or limit the liability of the franchisee under the terms of its franchise for damages, either to the full amount of the letter of credit or otherwise.

(3) The rights reserved to the city with respect to the security fund are in addition to all other rights of the city, whether reserved by this chapter, or authorized by other law or a franchise agreement, and no action, proceeding, or exercise of a right with respect to such security fund or letter of credit will affect any other right the city may have.

(4) The following procedures shall apply to drawing on the security fund and letter of credit:

(A) If the franchisee fails to make timely payment to the city of any amount due as a result of a franchise, fails to make timely payment to the city of any amounts due under a franchise agreement or applicable law, fails to make timely payment to the city of any taxes due, or fails to compensate the city within thirty days of written notification that such compensation is due, for any damages, costs, or expenses the city suffers or incurs by reason of any act or omission of the franchisee in connection with its franchise agreement or the enforcement of its franchise agreement after thirty days' notice to comply with any provision of the franchise or franchise agreement that the city determines can be remedied by an expenditure of the security, the city may withdraw the amount thereof, with interest and any penalties, from the security fund or from funds available under the letter of credit.

(B) Within three days of a withdrawal from the security fund or under the letter of credit, the city shall mail, by certified mail, return receipt requested, written notification of the amount, date, and purpose of such withdrawal to the franchisee.

(C) If at the time of a withdrawal from the security fund or under the letter of credit by the city, the amounts available are insufficient to provide the total payment towards which the withdrawal is directed, the balance of such payment shall continue as the obligation of the franchisee to the city until it is paid.

(D) No later than seven days after mailing of notification to the franchisee by certified mail, return receipt requested, of a withdrawal from the security fund or under the letter of credit, the franchisee shall deliver to the city for deposit in the security fund an amount equal to the amount so withdrawn or shall restore the letter of credit. Failure to make timely delivery of such amount to the city or to restore the letter of credit shall constitute a material violation of the franchise.

(E) Upon termination of the franchise, the balance then remaining in the security fund, if any, shall be withdrawn by the city and paid to the franchisee within ninety days of such termination, provided that there is then no outstanding default on the part of the franchisee, in which case the amount paid may be reduced by the amount of the outstanding default; provided that, the security fund or letter of credit shall be deemed forfeited if the franchise is revoked or the cable system is abandoned.

(b) Security Fund or Letter of Credit Constitutes Material Term: The security fund or letter of credit set forth in this section shall constitute a material term of a franchise.

(c) Remedies: In addition to any other remedies available at law or equity, the city may apply any one or a combination of the following remedies in the event a franchisee violates this chapter, its franchise agreement, or applicable law:

(1) Revoke the franchise pursuant to the procedures specified in this chapter.

(2) Impose penalties available under subsection 11-6-12(e), B.R.C. 1981, and other applicable state and local laws for violation of city ordinances.

(3) In addition to or instead of any other remedy, seek legal or equitable relief from any court of competent jurisdiction.

(4) Apply any remedy provided for in a franchise agreement, including enforcement provisions, if any.

(d) Revocation or Termination of Franchise:

(1) A franchise may be revoked by the city council for the franchisee's failure to construct, operate or maintain the cable system as required by this chapter or the franchise agreement, or for any other material violation of this chapter or material breach of the franchise agreement. If within sixty calendar days following written notice from the city to the franchisee that it is in material violation of this chapter or in material breach of the franchise agreement, the franchisee has not, to the city's satisfaction, taken corrective action or corrective action is not being actively and expeditiously pursued, the city may give written notice to the franchisee of its intent to consider revocation of the franchise, stating its reasons.

(2) Prior to revoking a franchise, the city council shall hold a public hearing, upon at least thirty calendar days' notice, at which time the franchisee and the public shall be given an opportunity to be heard. Following the public hearing the city council may determine whether to revoke the franchise based on the evidence presented at the hearing, and other evidence of record. If the city council determines to revoke a franchise, it shall issue a written decision setting forth the reasons for its decision. A copy of such decision shall be transmitted to the franchisee.

(3) To the extent permissible under federal law, any franchise may, at the option of the city following a public hearing before the city council, be revoked one hundred twenty calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding, unless within that one-hundred-twenty-day period:

(A) Such assignment, receivership or trusteeship has been vacated.

(B) Such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the franchise agreement and has executed an agreement, approved by a court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise agreement.

(e) Foreclosure: In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee used for the franchise, the city may revoke or shorten the franchise, following a public hearing before the city council, by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges of the franchise will be revoked and will terminate thirty calendar days after serving such notice, unless:

(1) The city has approved the transfer of the franchise to the successful bidder; and

(2) The successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the franchise agreement and this chapter.

(f) Procedures Upon Revocation or Abandonment of a Franchise: If the city revokes a franchise, or if, for any other reason, a franchisee abandons or fails to operate or maintain service to its subscribers as required by its franchise, the following procedures and rights are effective:

(1) The city may require the former franchisee to remove its aerial facilities and equipment at the former franchisee's expense. If the former franchisee fails to do so within a reasonable period of time, the city may have the removal done at the former franchisee's expense and may use the permit fund or letter of credit to reimburse itself for such expense;

(2) The city, by resolution of the city council, may acquire ownership or effect a transfer of the cable system at fair market value, with no value assigned to the franchise itself, and with the price adjusted downward for the harm to the city or subscribers, if any, resulting from the franchisee's breach of its franchise agreement or violation of this section and further adjusted to account for other equitable factors that may be considered consistent with 47 U.S.C. section 547; or

(3) If a cable system is abandoned by a franchisee, the city may sell, assign or transfer all or part of the assets of the cable system.

(4) The provisions herein shall be subject to and be interpreted so that they are consistent with any provisions in a franchise agreement designed to ensure continuity of service in the event a franchise is revoked or terminated, or the cable system is abandoned.

11-6-13 Arbitration.

(a) No Arbitration: No matter or dispute between the city and the franchisee relating to this chapter or a franchise agreement may be arbitrable except as specifically provided for in subsection 11-6-11(a), B.R.C. 1981, and in any franchise agreement. By agreement of the city and a franchisee, or under the specific provisions of this chapter or of a franchise agreement, any matter may be subjected to the arbitration procedures set forth in subsection 11-6-13(b), B.R.C. 1981.

(b) Arbitration Procedure: The arbitration procedure employed shall be consistent with the rules and procedures of the American Arbitration Association. The city and the franchisee will each select a qualified arbitrator. The two persons selected shall select a third qualified arbitrator, and the three arbitrators will constitute a panel whose decision is binding on the city and the franchisee. The fees of the first two arbitrators shall be paid by the party selecting such person, and the third person shall be compensated one-half by the city and one-half by the franchisee. The general costs of the proceeding shall be shared equally by the city and the franchisee.

11-6-14 Transfers.

(a) City Approval Required: No transfer shall occur without prior written notice to and approval of the city council. The franchisee's obligations under the franchise involve confidence in the franchisee, and transfer without the prior written approval of the city shall be considered to impair the city's assurance of due performance. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer.

(b) Application:

(1) The franchisee shall promptly notify the city of any proposed transfer. If any transfer should take place without prior notice to the city, the franchisee will promptly notify the city that such a transfer has occurred.

(2) Prior to the contemplated effective date of a transfer, the franchisee shall submit to the city an application for approval of the transfer. Such an application shall provide complete information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the transferee, and on the potential impact of the transfer on subscriber rates and service. At a minimum, the following information must be included in the application:

(A) All information and forms required under federal law;

(B) All information required in paragraphs 11-6-4(b)(5), (b)(11) and (b)(14), B.R.C. 1981;

(C) A detailed statement of the corporate or other business entity organization of the proposed transferee, together with an explanation of how decisions regarding the cable system will be made if the proposed transaction is approved;

(D) Any contracts, financing documents, or other documents that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein, if and to the extent that such documents exist at the time of filing, subject to a requirement of ongoing supplementation through the application process;

(E) Any publicly available shareholder reports or filings with the Securities and Exchange Commission or the Federal Trade Commission that discuss the transaction;

(F) Complete financial statements for any potential transferees for the last three years, including balance sheets, income statements, profit and loss statements, and documents detailing capital investments and operating costs;

(G) To the extent known, a detailed description of the sources and amounts of the funds to be used in the proposed transaction, indicating how the debt-equity ratio of the cable system will change in the course of the transaction; what entities will be liable for repayment of any debt incurred; what interest, payment schedule, and other terms or conditions will apply to any debt financing; any debt coverages or financial ratios any potential transferees will be required to maintain over the franchise term if the proposed transaction is approved; what financial resources would be available to the cable system under the control of the proposed transferee; whether the proposed transferee can meet debt-equity or any other required ratios without increasing rates, with any assumptions underlying that conclusion, and if not, what increases would be required and why;

(H) Any other information necessary to provide a complete and accurate understanding of the financial position of the cable system before and after the proposed transfer;

(I) Complete information regarding any potential impact of the transfer on subscriber rates and service;

(J) Any representations made in writing in connection with the transaction, about the franchisee's compliance with its franchise; and

(K) A brief summary of the proposed transferee's plans for at least the next five years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of services, and any other changes affecting or enhancing the performance of the cable system.

(3) For the purposes of determining whether it shall consent to a transfer, the city or its agents may inquire into all qualifications of the prospective transferee and such other matters as the city may deem necessary to determine whether the transfer is in the public interest and should be approved, denied, or conditioned under subsection 11-6-14(c), B.R.C. 1981. The franchisee and any prospective transferees shall assist the city in any such inquiry, and if they fail to do so, the request for transfer may be denied.

(1) In making a determination as to whether to grant, deny, or grant subject to conditions an application for a transfer of a franchise, the city shall consider the legal, financial, and technical qualifications of the transferee to operate the cable system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in compliance with its franchise agreement and this chapter and, if not, the proposed transferee's commitment to cure such noncompliance; whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the city; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the city's interest under this chapter, the franchise agreement, other applicable law, or the public interest, or make it less likely that the future cable-related needs and interests of the community would be satisfied at a reasonable cost. The city may deny an application for transfer on the basis of any of these considerations.

(2) Any transfer without the city's prior written approval shall be ineffective, and shall make this franchise subject to revocation at the city's sole discretion, and to any other remedies available under the franchise or other applicable law.

(3) Any mortgage, pledge or lease shall be subject and subordinate to the rights of the city under this chapter or other applicable law.

(d) Transferee's Agreement: No application for a transfer of a franchise shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise agreement, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee under this chapter and the franchise agreement for all purposes, including renewal, unless the city, in its sole discretion, expressly waives this requirement in whole or in part.

(e) Approval Does Not Constitute Waiver: Approval by the city of a transfer of a franchise does not constitute a waiver or release of any of the rights of the city under this chapter or a franchise agreement, whether arising before or after the date of the transfer.

11-6-15 Rights of Individuals Protected.

(a) Discriminatory Practices Prohibited Unless Permitted by Federal Law:

(1) A franchisee shall not deny service, deny access, or otherwise discriminate against subscribers, programmers, or residents of the city on the basis of race, color, religion, national origin, sex, sexual orientation, or age.

(2) A franchisee shall not discriminate among persons or take any retaliatory action against a person because of that person's exercise of any right it may have under federal, state, or local law, nor may the franchisee require a person to waive such rights as a condition of taking service.

(3) A franchisee shall not deny access or levy different rates and charges on any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides.

(4) Except to the extent the city may not enforce such a requirement, a franchisee is prohibited from discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential subscribers; provided, however, that a franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such discounts are offered on a non-discriminatory basis to similar classes of subscribers throughout the city; and a franchisee may offer discounts for the elderly, the handicapped, or the economically disadvantaged, and such other discounts as it is expressly entitled to provide under federal law, if such discounts are applied in a uniform and consistent manner. A franchisee shall comply at all times with all applicable federal, state, and city laws, and all executive and administrative orders relating to non-discrimination.

(b) Subscriber Privacy: A franchisee shall at all times protect the privacy of all subscribers pursuant to the provisions of section 631 of the Cable Act, 47 U.S.C. section 551. A franchisee shall not condition subscriber service on the subscriber's grant of permission to disclose information which, pursuant to federal or state law, cannot be disclosed without the subscriber's explicit consent.

11-6-16 Miscellaneous Provisions.

(a) Public Emergency: In the event of a major public emergency or disaster as determined by the city, a franchisee immediately shall make the entire cable system, employees, and property, as may be necessary, available for use by the city or other civil defense or governmental agency designated by the city to operate the cable system for the term of such emergency or disaster for the emergency purposes, provided that the city shall return use of the entire cable system, employees, and property to the franchisee after the emergency or disaster has ended or has been addressed.

(b) Connections to System; Use of Antennas:

(1) Subject to applicable law, subscribers shall have the right to attach devices to a franchisee's system within the subscriber's home or facility such as video cassette players or recorders, receivers, and other terminal equipment. Subscribers also shall have the right to use their own remote control devices and converters, and other similar equipment.

(2) A franchisee shall not, as a condition of providing service, require a subscriber or potential subscriber to remove any existing antenna, or disconnect an antenna except at the express direction of the subscriber or potential subscriber, provided that such antenna is connected with an appropriate device and complies with applicable law.

APPENDIX A

CUSTOMER SERVICE STANDARDS

I. POLICY

The cable operator should be permitted the option and autonomy to first resolve citizen complaints without delay and interference from the franchising authority.

Where a given complaint is not addressed by the cable operator to the citizen's satisfaction, the franchising authority should intervene. In addition, where a pattern of, or unremedied, non-compliance with the standards is identified, the franchising authority should prescribe a cure and establish a thirty-day deadline for implementation of the cure. If the non-compliance is not cured within thirty days, monetary sanctions should be imposed to encourage compliance.

These standards are intended to be of general application; however, the cable operator shall be relieved of any obligations hereunder it is unable to perform due to a region-wide natural emergency or in the event of force majeure affecting a significant portion of the franchise area. The cable operator is free to exceed these standards to the benefit of its Customers and such shall be considered performance for the purposes of these standards.

II. DEFINITIONS

When used in these customer service standards (the "standards"), the following words, phrases, and terms shall have the meanings given below.

"Adoption" shall mean the process necessary to formally enact the standards.

"Cable operator" shall mean the franchisee, as described in the franchise agreement, and the franchisee's employees, agents, contractors, or subcontractors.

"City" shall mean the City of Boulder, Colorado.

"Customer" shall mean any person who receives service of any sort from the cable operator.

"Customer Satisfaction Specialist" or "CSS" shall mean any person employed by the cable operator to assist, or provide service to, customers, whether by answering public telephone lines, writing service or installation orders, answering customers' questions, receiving and processing payments, or performing other customer service-related tasks.

"Franchising authority" shall mean the City.

"Greater Metro Cable Consortium" or "GMCC" shall mean a Colorado agency formed by intergovernmental agreement between its Members, local governmental subdivisions of the State of Colorado. The GMCC may be delegated the authority to enforce cable television franchises and cable system operations for its Member communities, and may administer any or all functions under these standards.

III. CUSTOMER SERVICE

A. Courtesy.

All employees of the cable operator shall be courteous, knowledgeable and helpful and shall provide effective and satisfactory service in all contacts with customers.

B. Accessibility.

1. The cable operator shall provide, at sites acceptable to the franchising authority, customer service centers/business offices ("service centers") such that no customer shall be located further than ten miles away from a service center. The cable operator shall always provide at least one service center within the jurisdictional boundaries of the City. Except as otherwise approved by the franchising authority, all service centers shall be open Monday through Friday from 9:00 a.m. to 6:00 p.m. and shall be fully staffed with customer service representatives offering the following services to customers who come to the service center: bill payment, equipment exchange, processing of change of service requests, and response to customer inquiries and requests. The franchising authority may approve alternatives for service centers offering lesser services at any site to which the public has general access. The cable operator shall post a sign at each service center advising customers of its hours of operation and of the addresses and telephone numbers at which to contact the franchising authority and the cable operator if the service center is not open at the times posted. The cable operator shall provide free exchanges of faulty converters at the customer's address.

2. The cable operator shall maintain local telephone access lines that shall be available twenty-four hours a day, seven days a week for service/repair requests and billing inquiries.

3. The cable operator shall have dispatchers and Boulder based technicians on call twenty-four hours a day, seven days a week, including legal holidays.

4. The cable operator shall retain sufficient customer service representatives and telephone line capacity to ensure that telephone calls to service/repair and billing inquiry lines are answered by a customer service representative within thirty seconds or less, and that any transfers are made within thirty seconds. These standards shall be met no less than ninety percent of the time measured monthly.

5. The total number of calls receiving busy signals shall not exceed three percent of the total telephone calls. This standard shall be met ninety percent or more of the time measured monthly.

C. Responsiveness.

1. Guaranteed Seven-Day Residential Installation

a. The cable operator shall complete all standard residential installations requested by customers within seven business days after the order is placed, unless a later date for installation is requested. "Standard" residential installations are those located up to one hundred twenty five feet from the existing distribution system. If the customer requests a non-standard residential installation, or the cable operator determines that a non-standard residential installation is required, the cable operator shall provide the customer in advance with a total installation cost estimate and an estimated date of completion.

b. All underground cable drops from the curb to the home shall be buried at a depth of no less than twelve inches, and within no more than one calendar week from the initial installation, or at a time mutually agreed upon between the cable operator and the customer.

2. Residential Installation and Service Appointments

a. Customers requesting installation of cable service or service to an existing installation may choose any of the following blocks of time for the installation appointment: 8:00 a.m. to 12:00 a.m.; 12:00 Noon to 4:00 p.m.; 4:00 p.m. to 8:00 p.m.; or a four-hour block of time mutually agreed upon by the customer and the cable operator. The cable operator may not cancel an appointment with a customer after 5:00 p.m. on the day before the scheduled appointment, except for appointments scheduled within twelve hours after the initial call.

b. The cable operator shall contact by telephone, mail, or in person, every customer within two weeks after installation to assure the customer's satisfaction with the work completed. All responses shall be recorded, and retained by the cable operator, and made easily available to the franchising authority upon request.

c. The cable operator shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives within the agreed upon time, and, if the customer is absent when the technician arrives, the technician leaves written notification of arrival and return time, and a copy of that notification is kept by the cable operator. In such circumstances, the cable operator shall contact the customer within forty-eight hours.

3. Residential Service Interruptions

a. In the event of system outages (loss of reception on all channels) resulting from cable operator equipment failure affecting five or more customers, the cable operator shall correct such failure within two hours after the third customer call is received.

b. All other service interruptions resulting from cable operator equipment failure shall be corrected by the cable operator by the end of the next calendar day.

c. The cable operator shall keep an accurate and comprehensive file of any and all complaints regarding the cable system or its operation of the cable system, in a manner consistent with the privacy rights of customers, and the cable operator's actions in response to those complaints. These files shall remain open to the franchising authority and the public during normal business hours. Grantee shall provide Grantor an executive summary monthly, which shall include information concerning customer complaints. A summary of service requests, identifying the number and nature of the requests and their disposition, shall also be completed by the cable operator for each month and submitted to the franchising authority by the tenth day of the succeeding month. A log of all service interruptions shall be maintained and provided to the franchising authority quarterly.

d. All service outages and interruptions for any cause beyond the control of the cable operator shall be corrected within thirty-six hours, after the conditions beyond its control have been corrected.

4. TV Reception

a. The cable operator shall provide clear television reception that meets or exceeds technical standards established by the United States Federal Communications Commission ("FCC"). The cable operator shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions shall be preceded by notice and shall occur during periods of minimum use of the system, preferably between 12:00 a.m. and 6:00 a.m.

b. If a customer experiences poor video or audio reception attributable to the cable operator's equipment, the cable operator shall repair the problem no later than the day following the customer call. If an appointment is necessary, customer may choose the same blocks of time described in section III.C.2.a. At the customer's request, the cable operator shall repair the problem at a later time convenient to the customer.

5. Problem Resolution

The cable operator's customer service representatives shall have the authority to provide credit for interrupted service or any of the other credits listed in Schedule A, to waive fees, to schedule service appointments and to change billing cycles, where appropriate. Any difficulties that cannot be resolved by the customer service representative shall be referred to the appropriate supervisor who shall contact the customer within four hours and resolve the problem within forty-eight hours or within such other time frame as is acceptable to the customer and the cable operator.

6. Billing, Credits, and Refunds

a. The cable operator shall allow at least thirty days from the beginning date of the applicable service period for payment of a customer's service bill for that period. If a customer's service bill is not paid within that period of time the cable operator may apply an administrative fee to the customer's account. If the customer's service bill is not paid within forty-five days of the beginning date of the applicable service period, the cable operator may perform a "soft" disconnect of the customer's service. If a customer's service bill is not paid within fifty-two days of the beginning date of the applicable service period, the cable operator may disconnect the customer's service, provided it has provided two weeks notice to the customer that such disconnection may result.

b. The cable operator shall issue a credit or refund to a customer within thirty days after determining the customer's entitlement to a credit or refund.

7. Treatment of Property

a. The cable operator shall keep tree trimming to a minimum; trees and shrubs or other landscaping that are damaged by the cable operator, any employee or agent during installation or construction shall be restored to their prior condition or replaced. Trees and shrubs shall not be removed without the prior permission of the owner or legal tenant of the property on which they are located. This provision shall be in addition to, and shall not supersede, any requirement in any franchise agreement.

b. The cable operator shall, at its own cost and expense, and in a manner approved by the property owner and the franchising authority, restore any property to as good condition as before the work causing such disturbance was initiated. The cable operator shall repair, replace or compensate a property owner for any damage resulting from the cable operator's installation, construction, service or repair activities.

c. Except in the case of an emergency involving public safety or service interruption to a large number of subscribers, the cable operator shall give reasonable notice to property owners or legal tenants prior to entering upon private premises, and the notice shall specify the work to be performed; provided that in the case of construction operations such notice shall be delivered or provided at least twenty-four hours prior to entry. Nothing herein shall be construed as authorizing access or entry to private property, or any other property, where such right to access or entry is not otherwise provided by law. If damage is caused by any cable operator activity, the cable operator shall reimburse the property owner one hundred percent of the cost of the damage or replace the damaged property. For the installation of pedestals or other major construction or installation projects, property owners shall also be notified by mail at least one week in advance. In the case of an emergency, the cable operator shall attempt to contact the property owner or legal tenant in person, and shall leave a door hanger notice in the event personal contact is not made.

d. The cable operator personnel shall clean all areas surrounding any work site and ensure that all cable materials have been disposed of properly.

D. Services for Customers With Disabilities.

1. For any customer with a disability, the cable operator shall at no charge deliver and pick up converters at customers' homes. In the case of a malfunctioning converter, the technician shall provide another converter, hook it up and ensure that it is working properly, and shall return the defective converter to the cable operator.

2. The cable operator shall provide TDD service with trained operators who can provide every type of assistance rendered by the cable operator's customer service representatives for any hearing-impaired customer at no charge.

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Chapter 11-6 Boulder Cable Code³⁹

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Chapter 11-6 Boulder Cable Code39

Chapter 11-6 Boulder Cable Code³⁹