This ordinance shall be known and may be cited as the "Cable Television Franchise."
§ A110-2. Definitions and word usage.
A. For the purpose of this ordinance, and when not inconsistent with the context, words used herein in the present tense include the future; words in the plural include the singular, and vice versa. The word "shall" is always mandatory. The captions supplied herein for each section are for convenience only. Said captions have no force of law, are not part of the section and are not to be used in constructing the language of the section.
B. The following terms and phrases, as used herein, shall be given the meanings set forth below:
FEDERAL COMMUNICATIONS COMMISSION OR FCC — The present federal agency of that name as constituted by the Communications Act of 1934 or any successor agency created by the United States Congress.
GRANTEE — Eastern Shore CATV, Inc., a corporation organized and existing under the laws of the State of Delaware, and it is the grantee of rights under this franchise.
GROSS SUBSCRIPTION RECEIPTS — Includes the basic monthly service charges for cable television reception service within the boundaries of the Town, but shall not include moneys received as installation charges, charges for reconnection, inspection or local, state or federal taxes relating thereto or moneys received from:
(1) Sale of advertising time on cable channels.
(2) Rental or deposits on equipment or facilities.
(3) The furnishing of special programming not covered by the basic monthly service charge.
(4) The furnishing of other communication services either by private contract or as a carrier, including, by way of example, but not limited to, leasing of channels, burglar alarm, AM or FM radio broadcast, data trans-mission information storage and retrieval and facsimile reproduction services.
(5) Any source other than directly from the carriage of television signals.
PERSON — Any individual, firm, partnership, association, corporation, company or organization of any kind.
REGULAR SUBSCRIBER SERVICES — Includes the carriage of broadcast signals and FCC mandated non-broadcast services, but shall not include ancillary or auxiliary services, which include, but are not limited to, advertising, leased channels and programming supplied on a per program or per channel basis.
TOWN — The Town of Berlin, a municipal corporation under the laws of the State of Maryland.
TOWN COUNCIL — The Town Council of the Town of Berlin or its designated representative.
§ A110-3. Grant of authority; restoration of streets.
A. There is hereby granted by the Town to the grantee the right and privilege to construct, erect, operate and maintain in, upon, along, across, above, over or under the streets, alleys, easements, public ways and public places now laid out or dedicated and all extensions thereof and additions thereto in the Town all poles, wires, cables, underground conduits, manholes and other conductors and fixtures necessary for the maintenance and operation in the Town of a cable television system for the transmission of television signals and other lawful services or signals either separately or upon or in conjunction with any public utility maintaining the same in the Town with all of the necessary and desirable appliances and appurtenances pertaining thereto. Without limiting the generality of the foregoing, this franchise and grant shall and does hereby include the right in, over and under the streets, sidewalks, alleys, public easements and public ways in the Town to install, erect, operate or in any way acquire the use of, as by leasing or licensing, all lines and equipment necessary to provide cable television signals and services and the right to make connections to subscribers and the right to repair, replace, enlarge and extend said lines, equipment and connections.
B. The rights herein granted for the purposes herein set forth shall not be exclusive, and the Town reserves the right to grant a similar use of said streets, alleys, easements, public ways and places to any person at any time during the period of this franchise.
C. In any and all events, the grantee shall return any street, sidewalk, alley, easement or public way disturbed by it to as good a state or condition as same was prior to said disturbance, to the satisfaction of the Town.
The grantee shall at all times during the term of this franchise be subject to all lawful exercise of the police power of the Town. The right is hereby reserved to the Town to adopt, in addition to the provisions herein contained and any other existing applicable ordinances, such additional applicable ordinances as it shall find necessary in the exercise of its police power, provided that such regulations shall be reasonable and not in conflict with the rights herein granted.
The grantee shall save the Town harmless from all loss sustained by the Town on account of any suit, judgment, execution, claim or demand whatsoever against the Town resulting from negligence on the part of the grantee in the construction, operation or maintenance of its cable television system in the Town, and for this purpose the grantee shall carry property damage and personal injury insurance with some responsible insurance company or companies qualified to do business in the State of Maryland. The amounts of such insurance to be carried for liability due to property damage shall be $500,000 as to any one person and $500,000 as to any one accident, and against liability due to injury to or death of persons, $500,000 as to any one person and $500,000 as to any one accident. The Town shall notify the grantee in writing of any suit filed or shall so notify the grantee of the presentation of any claim or demand in the manner and form required by Art. 57, § 18 of the Annotated Code of Maryland, made against the Town on account of any negligence as aforesaid on the part of the grantee.
§ A110-6. Complaint procedure.
The grantee shall maintain a business office and a toll-free telephone listing in the Town for the purpose of receiving inquiries and complaints from its customers and the general public. The grantee shall investigate all complaints within five days of their receipt and shall in good faith attempt to resolve them swiftly and equitably. The following town official shall be responsible for receiving and acting upon any unresolved complaints: Town Manager. Written notice of this complaint procedure, including the identity of the Town official responsible for receiving unresolved complaints, shall be given to each subscriber at the time of initial subscription to the cable system.
§ A110-7. Construction and maintenance.
A. All structures, lines and equipment erected by the grantee within the Town shall be so located as to cause minimum interference with the proper use of streets, alleys, easements and other public ways and places and to cause minimum interference with the rights of reasonable convenience of property owners, and the grantee shall comply with all reasonable, proper and lawful ordinances of the Town now or hereafter in force. Existing poles, posts, conduits and other such structures of the electric power system of the Town or of any telephone company or other public utility may be made available to the grantee for leasing or licensing upon reasonable terms and rates and shall be used to the extent practicable in order to minimize interference with travel and avoid unnecessary duplication of facilities. The Town shall actively assist the grantee to the fullest extent necessary in obtaining reasonable joint pole or conduit use agreements from the owners of existing poles or conduits.
B. In case of any disturbance by the grantee of pavement, sidewalk, driveway or other surfacing, the grantee shall, at its own cost and expense and in a manner approved by the Town, replace and restore all paving, sidewalk, driveway or other surface so disturbed in as good condition as before said work was commenced. Repairs, replacements or restoration shall be completed within 10 days.
C. In the event that at any time during the period of this franchise, the Town shall lawfully elect to alter or change any street, alley, easement or other public way requiring the relocation of the grantee’s facilities, then in such event, the grantee, upon reasonable notice by the Town, shall remove, relay and relocate the same at its own expense; provided, however, that where public funds are appropriated for such relocation pursuant to law, the grantee shall not be required to pay the costs.
D. The grantee shall, on the request of any person holding a building moving permit issued by the Town, temporarily raise or lower its lines to permit the moving of the building. The expense of such temporary removal shall be paid by the person requesting the same and the grantee shall have the authority to require such payment in advance.
E. All poles, lines, structures and other facilities of the grantee in, on, over and under the streets, sidewalks, alleys, easements and public grounds or places of the Town shall be kept by the grantee at all times in a safe and substantial condition.
F. Should any construction be necessary for the grantee to provide the cable television service contemplated under this franchise, a significant portion of such construction (at least 20%) shall be accomplished within one year after the effective date of this ordinance or, if FCC certification is required prior to implementation of the cable television service contemplated under this franchise, within one year after the effective date of the grant by the FCC of the necessary certification, Thereafter, the grantee shall equitably and reasonably proceed to complete the necessary construction at a rate of not less than 20% per year of the total construction contemplated.
A. The charges made for the installation of equipment and regular subscriber services shall be fair and reasonable, nondiscriminatory and provide a fair return for the grantee.
B. The rates for the installation of equipment and regular subscriber services are:
(1) Installation or connection (the first time service is installed or connected):
(a) Primary outlet, per living unit, $25.
(b) Additional outlet installed or connected at same time as primary outlet, each, $10.
(c) Additional outlet installed or connected at different time than primary outlet, each, $20.
(2) Reconnection (to reconnect the service at a location following disconnection either requested or for delinquent reasons), $15.
(3) Relocate (when the customer requests to have any outlets moved to a different location within the same dwelling unit), per outlet, $10.
(4) Other:
(a) Replace wall outlet or wall outlet to television set cable, or a portion of such, for reasons of customer damage or loss, $10.
(b) Extra-long inside cable to allow television set to be moved 25 feet or less (more than 25 feet requires an additional outlet), $10.
(5) Special installation charges:
(a) Aerial cable service drop greater than 150 feet, per lineal foot in excess of 150 feet, time and materials.
(b) Underground cable service drop greater than 100 feet, per lineal foot in excess of 100 feet, (maximum service drop length 250 feet), time and materials.
(c) Line extension where density is less than 50 dwelling units per mile. Initially the company will require a deposit in aid of construction from the first customer to be served on the basis of time and materials. As additional subscribers are energized on the extension, the company will follow local utility policy with regard to appropriate construction cost refunds to subscribers served.
(6) Service:
(a) Residential:
[1] Primary outlet, per dwelling unit, monthly, $6.
[2] Each additional outlet, monthly, $1.
(b) Hotel lobby, lounge, barroom, barbershop, waiting room, store, appliance dealer, etc.:
[1] Primary outlet, monthly, $15.
[2] Each additional outlet, monthly, $1.
(7) Installation, connection, reconnection charges, special installation or other charges plus two months’ service charges are required at the time the customer makes a written application for service.
(8) Five-percent discount given for a full-year payment in advance.
(9) Minimum service charge, five months.
(10) Seasonal (summer) customers are required to pay the full minimum charges plus connection charges at the time they make application for service.
C. Condominium group rates.
(1) Condominium group rates can be had for a group of dwelling units under one roof that are individually owned, with the exterior and other improvements under common ownership of all the individual owners, and having an owners’ association or similar management body consisting of individual owners and meeting the following specifications:
(a) All television outlets within the condominium complex must be energized.
(b) Year-round service only.
(c) All individual installation or connection charges must be paid.
(d) All business transactions to be made through the owners’ association.
(e) Payments for service must be made quarterly in advance (one payment from the association for the entire complex).
(2) Compute rate from the residential rate schedule and deduct 20%.
(3) Payments are due quarterly in advance.
D. Hotel-motel rate schedule:
(1) The following is the service rate schedule not including installation or connection charges:
| No. of Outlets |
Annual |
Monthly |
| 2 |
$160.80 |
$13.40 |
| 3 |
$228.00 |
$19.00 |
| 4 |
$290.40 |
$24.20 |
| 5 |
$348.00 |
$29.00 |
| 6 |
$400.80 |
$33.40 |
| 7 |
$448.80 |
$37.40 |
| 8 |
$492.00 |
$41.00 |
| 9 |
$530.40 |
$44.20 |
| 10 |
$564.00 |
$47.00 |
| 11 |
$590.40 |
$49.20 |
| 12 |
$616.80 |
$51.40 |
| 13 |
$643.20 |
$53.60 |
| 14 |
$669.60 |
$55.80 |
| 15 |
$696.00 |
$58.00 |
| 16 |
$722.40 |
$60.20 |
| 17 |
$748.80 |
$62.40 |
| 18 |
$775.20 |
$64.60 |
| 19 |
$801.60 |
$66.80 |
| 20 |
$828.00 |
$69.00 |
| 21 |
$852.00 |
$71.00 |
| 22 |
$876.00 |
$73.00 |
| 23 |
$900.00 |
$75.00 |
| 24 |
$924.00 |
$77.00 |
| 25 |
$948.00 |
$79.00 |
| 26 |
$972.00 |
$81.00 |
| 27 |
$996.00 |
$83.00 |
| 28 |
$1,020.00 |
$85.00 |
| 29 |
$1,044.00 |
$87.00 |
| 30 |
$1,068.00 |
$89.00 |
| 31 |
$1,092.00 |
$91.00 |
| 32 |
$1,116.00 |
$93.00 |
| 33 |
$1,140.00 |
$95.00 |
| 34 |
$1,164.00 |
$97.00 |
| 35 |
$1,188.00 |
$99.00 |
| 36 |
$1,212.00 |
$101.00 |
| 37 |
$1,236.00 |
$103.00 |
| 38 |
$1,260.00 |
$105.00 |
| 39 |
$1,284.00 |
$107.00 |
| 40 | $1,308.00 | $109.00 |
| 41 | $1,329.60 | $110.80 |
| 42 | $1,351.20 |
$112.60 |
| 43 |
$1,372.80 |
$114.40 |
| 44 |
$1,394.40 |
$116.20 |
| 45 |
$1,416.00 |
$118.00 |
| 46 |
$1,438.80 |
$119.90 |
| 47 |
$1,459.20 |
$121.60 |
| 48 |
$1,483.20 |
$123.60 |
| 49 |
$1,502.40 |
$125.20 |
| 50 |
$1,524.00 |
$127.00 |
| 51 |
$1,543.20 |
$128.60 |
| 52 |
$1,562.40 |
$130.20 |
| 53 |
$1,581.80 |
$131.80 |
| 54 |
$1,600.80 |
$133.40 |
| 55 |
$1,620.00 |
$135.00 |
| 56 |
$1,639.20 |
$136.60 |
| 57 |
$1,658.40 |
$138.20 |
| 58 |
$1,677.60 |
$139.80 |
| 59 |
$1,696.80 |
$141.40 |
| 60 |
$1,716.00 |
$143.00 |
| 61 |
$1,732.80 |
$144.40 |
| 62 |
$1,749.60 |
$145.00 |
| 63 |
$1,766.40 |
$147.20 |
| 64 |
$1,783.20 |
$148.60 |
| 65 |
$1,800.00 |
$150.00 |
| 66 |
$1,816.80 |
$151.40 |
| 67 |
$1,833.60 |
$152.80 |
| 68 |
$1,850.40 |
$154.20 |
| 69 |
$1,867.20 |
$155.60 |
| 70 |
$1,884.00 |
$157.00 |
| 71 |
$1,900.80 |
$158.40 |
| 72 |
$1,917.60 |
$159.80 |
| 73 |
$1,934.40 |
$161.20 |
| 74 |
$1,951.20 |
$162.60 |
| 75 |
$1,968.00 |
$164.00 |
| 76 |
$1,984.80 |
$165.40 |
| 77 |
$2,001.60 |
$166.80 |
| 78 |
$2,018.40 |
$168.20 |
| 79 |
$2.035.20 |
$169.60 |
| 80 |
$2,052.00 |
$171.00 |
| 81 |
$2,068.80 |
$172.40 |
| 82 |
$2,085.80 |
$173.80 |
| 83 |
$2,102.40 |
$175.20 |
| 84 |
$2,119.20 |
$176.60 |
| 85 |
$2,136.00 |
$178.00 |
| 86 |
$2,152.80 |
$179.40 |
| 87 |
$2,169.60 |
$180.80 |
| 88 |
$2,186.40 |
$182.20 |
| 89 |
$2,203.20 |
$183.60 |
| 90 |
$2,220.00 |
$185.00 |
| 91 |
$2,236.80 |
$186.40 |
| 92 |
$2,253.60 |
$187.80 |
| 93 |
$2,270.40 |
$189.20 |
| 94 |
$2,287.20 |
$190.60 |
| 95 |
$2,304.00 |
$192.00 |
| 96 |
$2,320.80 |
$193.40 |
| 97 |
$2,337.60 |
$194.80 |
| 98 |
$2,354.40 |
$196.20 |
| 99 |
$2,371.20 |
$197.60 |
| 100 |
$2,388.00 |
$199.00 |
(2) For all outlets over 100, add $1.40 per outlet to the one-hundred-outlet rate.
(3) Five-percent discount given for a full-year payment in advance.
E. No increase in rates charged for installation of equipment and regular subscriber services as specified above shall be made effective, except as authorized by the Town Council within 30 days after public notice of the proposed increase is given by the grantee to the Town Council and after a full, open and public proceeding held after at least one week’s advertisement of said meeting has been placed in a newspaper of general circulation in the Town and after an opportunity for all interested parties to be heard. In the event that the Town Council fails to formally act on the proposed rate increase within said thirty-day notice period, the Town shall submit to the grantee in writing its reason for failure to act. In the event the Town fails to submit in writing its reasons, the proposed increase shall be deemed approved and shall be effective at the end of said thirty-day notice period. In the event that the Town, for the reasons stated in said written notice, fails to act within the thirty-day period, it shall approve or deny the proposed increase within an additional sixty-day period and the failure to act within said additional period shall be deemed approval of the proposed increase. Approval or disapproval by the Town Council of any rate increase proposed by the grantee may be expressed by simple resolution and this ordinance need not be amended for that purpose. A request for rate increase shall not be unreasonably denied and any denial of a rate increase shall be accompanied by a written statement which shall set forth the reasons for denial. The burden of proof shall be on the grantee.
F. Rates for services other than installation of equipment and regular subscriber services shall be established and published by the grantee pursuant to the rules of the Federal Communications Commission.
§ A110-9. Applicability of other rules and laws.
This franchise is governed by and subject to all applicable rules and regulations of the Federal Communications Commission, specifically including Part 76, and by the laws of the State of Maryland. Should there be any modifications of the provisions of Section 76.31 of the Rules and Regulations of the Federal Communications Commission which must be incorporated into this franchise, the Town and grantee agree that such incorporation shall be accomplished within one year after the effective date of the FCC’s adoption of the modification or upon renewal of this franchise, whichever occurs first.
This franchise shall take effect and be in full force from and after the final passage hereof, subject to acceptance by the grantee as herein provided, and the same shall continue in full force and effect for a term of 10 years beginning with the date of such acceptance; provided, however, that should FCC certification be necessary prior to the implementation of the cable television service contemplated under this franchise, then the term shall begin upon the effective date of the grant by the FCC of the necessary certification.
The grantee shall have the right to request that this franchise be renewed for a period not to exceed 10 years. The grantee shall so notify the Town within three months prior to the expiration of this franchise. The Town shall then conduct a full, open and public renewal proceeding upon prior notice and opportunity of all interested parties to be heard. The renewal proceeding shall be held for the sole purpose of considering the performance of the grantee under this franchise and any other factors deemed relevant in determining whether the performance of the grantee has been satisfactory. Renewal shall not be unreasonably denied. If this franchise is renewed by the Town, all of the terms and provisions contained herein shall be controlling during the renewal period, except to the extent that said terms and provisions are modified by the Town or unless this franchise is superseded by a new franchise.
If the grantee should violate any of the terms, conditions or provisions of this franchise or if the grantee should fail to comply with any reasonable provisions of any ordinance of the Town regulating the use by the grantee of the streets, alleys, easements or public ways of the Town and should the grantee further continue to violate or fail to comply with the same for a period of 30 days after the grantee shall have been notified in writing by the Town to cease and desist from any such violation or failure to comply so specified, then the grantee may be deemed to have forfeited and annulled and shall thereby forfeit and annul all the rights and privileges granted by this franchise, provided that such forfeiture shall be declared only by written decision of the Town Council after an appropriate public proceeding before the Town Council affording the grantee due process and full opportunity to be heard and to respond to any such notice of violation or failure to comply, and provided further that the Town Council may, in its discretion and upon a finding of violation or failure to comply, excuse the violation or failure to comply upon a showing by the grantee of mitigating circumstances. The grantee shall have the right to appeal any finding of violation or failure to comply and any resultant forfeiture to any court of competent jurisdiction. In the event that forfeiture is imposed upon the grantee, it shall be afforded a period of six months within which to sell, transfer or convey this cable television system to a qualified purchaser at fair market value. During this six-month period, which shall run from the effective date of the final order or decision imposing forfeiture, including any appeal, the grantee shall have the right to operate this cable television system pursuant to the provisions of this franchise.
The grantee may surrender this franchise at any time upon filing with the Town Clerk of the Town of written notice of its intention to do so at least six months before the surrender date. On the surrender date specified in the notice, all of the rights and privileges and all of the obligations, duties and liabilities of the grantee in connection with this franchise shall terminate.
All of the rights and privileges and all of the obligations, duties and liabilities created by this franchise shall pass to and be binding upon the successors of the Town and the successors and assigns of the grantee, and the same shall not be assigned or transferred without the written approval of the Town Council, which approval shall not be unreasonably withheld; provided, however, that this section shall not prevent the assignment of the franchise by the grantee as security for debt without such approval, and provided further that transfers or assignments of this franchise between any parent and subsidiary corporation or between entities of which at least 50% of the beneficial ownership is held by the same person, persons or entities shall be permitted without the prior approval of the Town Council.
In consideration of the terms of this franchise, the grantee agrees to pay the Town a sum of money equal to 3% of the grantee’s gross subscription receipts per year derived from the regular subscriber services in the Town. Such annual sum shall be payable 1/2 thereof at the end of each semiannual period. The semiannual anniversary shall be the last day of June and the last day of December of each year, and each semiannual payment shall be paid within 60 days thereafter. The fee set forth herein shall be in addition to all other license fees or taxes levied upon the grantee by the Town.
§ A110-16. Receiver sale and repair prohibited.
As a condition of this franchise, the grantees agrees that it shall not engage in the business of sales or repair of television receivers owned by its subscribers nor shall it be responsible for the operating condition of said receivers; provided, however, that this section shall not apply to converters, decoders, home interactive terminals and other such devices as may be used in furnishing any programming or service via the grantee’s cable television system.
§ A110-17. Acceptance by grantee.
This ordinance when accepted by the grantee shall be and become a valid and binding contract between the Town and grantee, provided that this ordinance shall be void unless the grantee shall, within 90 days after the final passage of this ordinance, file with the Town Clerk of the Town a written acceptance of this ordinance and the franchise herein granted, agreeing that it will comply with all of the provisions and conditions hereof and that it will refrain from doing all of the things prohibited by this ordinance.
§ A110-18. Unlawful acts; penalty.
A. It shall be unlawful for any person to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of the grantee’s cable television system for the purpose of enabling himself or others to receive any television signals, radio signals, pictures, programs, sounds or any other information or intelligence transmitted over the grantee’s cable system without payment to the grantee or its lessee.
B. It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure any cable, wires or other equipment used for the distribution of television signals, radio signals, pictures, programs, sounds or any other information or intelligence transmitted over the grantee’s cable system.
C. It shall be a misdemeanor punishable by fine of not more than $100 or by imprisonment for a term not to exceed six months, or both, for any person to violate any of the provisions of this section.
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any federal or state court or administrative or government agency of competent jurisdiction, specifically including the Federal Communications Commission, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof.