§ 710.107. Regulation of system.
(a)
To the extent permitted by federal and state law, the City shall have continuing regulatory jurisdiction and supervision over the operation of any franchise granted hereunder and may from time to time adopt such reasonable rules as it may deem necessary for the conduct of the business contemplated hereunder, provided that any such exercise which is not of general applicability or applies exclusively to a Franchisee or to cable television systems or subscribers which contains provisions different from this Chapter shall prevail only if upon such exercise the City finds an emergency exists constituting a danger to health, safety or property, such exercise is compelled by supervening law, or has been agreed to by the parties by amendment to the Franchise Agreement.
(b)
The continuing day-to-day regulatory jurisdiction of the City shall be exercised by the Director. He shall have the following responsibilities and duties and such other responsibilities and duties as the Council may assign in accordance with law:
(1)
Establishing reasonable customer service standards as permitted by federal and state law.
(2)
The Director shall have authority to make proposals to the Franchisee and subscriber in order to facilitate the resolution of disputes or disagreements between the Franchisee and subscriber which are brought before the Director by a subscriber.
(3)
Reviewing all reports and filings submitted to the City as required hereunder and such other correspondence as may be submitted to the City concerning the operation of the system and reviewing the rules and regulations set by the Franchisee under the provision herein.
(4)
Assuring that all rates and rules pertinent to the operation of the system are communicated to the public at reasonable hours and upon reasonable request in accordance with the FCC's requirements.
(5)
Conferring and coordinating with the Franchisee on the interconnection of the City's cable system with other communications systems with respect to public, educational and governmental programming as set forth in Section 710.103(f).
(6)
Reviewing annual FCC reports regarding the technical performance of the system in order to assess whether the system is maintaining required technical standards.
(c)
Customer Service Requirements. The following requirements shall apply under Normal Operating Conditions, which means those service conditions which are within the control of the cable operator. Those conditions which are not within the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.
(1)
Franchisee shall maintain all parts of its system in good condition and in accordance with standards no less than generally observed by the cable television industry, promulgated by the FCC and set forth in the City Code and a Franchise Agreement. Sufficient employees shall be retained to provide safe, adequate, and prompt service for all of its customers and facilities. The customer service standards set forth herein are applicable to all Cable Services subject to Chapter 710 and any Franchise Agreement granted pursuant thereto.
(2)
A Franchisee shall maintain at least one conveniently located business office in the City. A Franchisee shall have three service centers, one of which may be located at the business office, with a staffed customer service counter for, among other things, the distribution and receipt of equipment and payments. The service centers shall be located so that customers shall have access to a service center within a reasonable distance from their home. A Franchisee shall have a minimum of 14 payment centers (with one in each of the City's 14 Council districts) for the receipt of money from subscribers. The service centers and payment centers shall be open at minimum from 9:00 a.m. to 6:00 p.m., Monday through Friday and from 10:00 a.m. to 5:00 p.m. on Saturday. A Franchisee may negotiate with other commercial establishments (e.g. supermarkets, shopping centers) to establish payment centers at their locations to satisfy these requirements. Further, Franchisee shall locate, construct, design, staff, operate and maintain its business office and service centers so as to provide all subscribers, including but not limited to those subscribers who may be elderly, disabled or otherwise impaired, with access to its office. The office shall make available (i) parking within reasonable proximity of the office and (ii) sufficient covered waiting areas and adequate seating capacity. All service centers shall be sufficiently staffed to keep customer waiting times to a reasonable length.
(3)
Franchisee shall maintain a listed local, toll-free telephone number and employ a sufficient number of telephone lines, personnel and answering equipment or service to allow reasonable access by subscribers and members of the public to contact the Franchisee on a full-time basis, 24 hours per day, seven days per week, including holidays. Knowledgeable, qualified Franchisee representatives will be available to respond to customer telephone inquiries, 24 hours per day, seven days per week, including holidays.
(4)
Franchisee shall answer all customer service and repair telephone calls made under normal operating conditions within 30 seconds, including wait time and within an additional 30 seconds to transfer the call to a live customer service representative. For purposes of this Chapter, the term "normal operating conditions" shall be defined as the definition contained in the Code of Federal Regulations, at 47 CFR 76.309(c)(4)(ii). Customers shall receive a busy signal less than three percent of the time. These standards shall be met no less than 90 percent of the time under normal operating conditions, measured on a quarterly basis, with each quarter that the measure of compliance falls below 90 percent constituting a separate violation. Franchisee shall submit reports showing its performance under this subsection (4) on a monthly basis, however, its performance shall be measured for purposes of compliance with the above standard on a quarterly basis.
(5)
Franchisee shall employ and maintain sufficient qualified personnel and equipment to be available (i) to accept payments; (ii) to exchange or accept converters or other equipment; (iii) to receive subscriber complaints or requests for service or repairs on a full-time basis, 24 hours per day, seven days per week; (iv) to initiate and undertake normal repairs, and initiate action with respect to any subscriber service complaints within 24 hours; (v) to enable a service technician to respond to service calls 24 hours per day, seven days a week, including holidays, when more than 25 subscribers served from the same nearest active electronic device, such as an amplifier or node, call with the same complaint.
(6)
Franchisee must meet each of the following standards no less than 95 percent of the time under normal operating conditions as measured on a quarterly basis:
(i)
Standard installation work shall be performed within five business days after an order has been placed except in those instances where a subscriber specifically requests an installation date beyond the five business day period. "Standard" installations are up to 125 feet from the existing distribution system. If scheduled installation is neither started nor completed as scheduled, the subscriber will be telephoned by an employee of the Franchisee the same day. Evening personnel shall also attempt to call subscribers at home between the hours of 5:30 p.m. and 8:00 p.m. If the call to the subscriber is not answered, an employee or representative of the Franchisee shall telephone the subscriber the next day.
(ii)
Franchisee will respond to service interruptions promptly and in no event later than 24 hours after the interruption becomes known. "Service interruptions" shall be defined as in 47 CFR 76.309(c)(4)(iii). Other service problems will be responded to promptly and in no event later than 48 hours after the problem becomes known. All service interruptions, and service problems within the control of Franchisee will be responded to within 72 hours after receipt of a complaint; and normal operating conditions shall be restored.
(iii)
The appointment window alternatives made available for installations, service calls, repairs, and other installation activities will be either a specific time, a three-hour time block during normal business hours, or at the election and discretion of the subscriber, "all day". "Normal business hours" shall be defined as in 47 CFR Section 76.309(c)(4)(i).
(iv)
Franchisee may not cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment; and
(v)
If at any time an installer or technician is running late for a scheduled appointment, an attempt to contact the customer will be made and the appointment rescheduled as necessary at a time which is convenient for the customer.
(vi)
Franchisee shall submit reports showing its performance under this subsection (6) on a monthly basis, however, its performance shall be measured for purposes of compliance with the above standard on a quarterly basis.
(vii)
A Franchisee shall implement a policy of providing credits in a reasonable amount for customers who complain to Franchisee about service outages. Said policy shall be provided to the Director prior to its implementation.
(7)
Subscribers who, under normal operating conditions, have experienced one missed installation or service appointments due to the fault of Franchisee shall receive installation free of charge upon notice of the missed appointment. If the installation was to have been provided free of charge or if the appointment was for service or repair, the subscriber shall receive a credit on its bill of not less than $20 upon notice of the missed appointment. An appointment shall not be considered missed if the technician arrives no more than 15 minutes later than the designated time block.
(8)
Disconnection.
(i)
Voluntary Disconnection.
(A)
A subscriber may terminate service at any time.
(B)
A Franchisee shall promptly disconnect any subscriber who so requests from the cable system of the Franchisee. No period of notice prior to voluntary termination of service may be required of subscribers by any Franchisee. So long as the subscriber returns equipment within five (5) business days of the disconnection, no charge may be imposed by any Franchisee for such voluntary disconnection, or for any cable services delivered after the date of disconnect request.
(C)
A subscriber may be asked to disconnect the equipment of the Franchisee and return it to the Franchisee.
(D)
Any security deposit and/or other funds due the subscriber shall be refunded on disconnected accounts after any customer premises equipment including all converters but excluding wiring have been recovered by the Franchisee. The refund process shall take a maximum of 30 days from the date disconnection and return of the equipment was completed.
(ii)
Involuntary Disconnection. If a subscriber fails to pay a monthly subscriber or other fee or charge, the Franchisee may disconnect the service outlet of the subscriber; however, such disconnection shall not be effected until 35 days after the due date of the monthly subscriber fee or other charge, and ten days advance written notice of intent to disconnect to the subscriber in question. If the subscriber pays the balance due within 35 days of the due date and after notice of disconnection has been given, the Franchisee shall not disconnect. After disconnection, upon payment by the subscriber in full of all proper fees or charges, including the payment of the reconnection charge, if any, the Franchisee shall promptly reinstate service. Franchisee reserves the right to deny service to any customer who has been repeatedly disconnected for non-payment of services to the extent such rights are consistent with applicable state and federal law.
(iii)
Nothing in this Ordinance shall be construed to prevent the Franchisee from removing its property from a premises of a subscriber upon the termination of service consistent with FCC rules and regulations and any other applicable law. At the request of a subscriber, a Franchisee shall remove its subscriber equipment from the premises of the subscriber within 30 calendar days of the request. Where removal is impractical, such as with buried cable or internal wiring, facilities and equipment may be disconnected and abandoned rather than removed, unless there is a written agreement stating otherwise, provided, however, that such agreement must be consistent with applicable law and FCC rules.
(9)
Franchisee shall intentionally interrupt service only for good cause and for the shortest time possible. Franchisee shall use its best efforts to insure that such interruptions shall occur only during the hours of 1:00 a.m. to 6:00 a.m., except during a rebuild or upgrading of the cable system. Franchisee shall maintain a written log for all intentional service interruptions.
(10)
Franchisee shall notify the Director or the Mayor's designee within 24 hours if a service interruption affects 100 or more of the total system subscribers in the Franchise Area for a time period greater than two hours and prevents the reception of more than five channels of programming at a time.
(11)
Franchisee shall cause all of its field employees to wear a picture identification badge indicating employment by Franchisee. This badge shall be clearly visible to the public. All service vehicles shall be clearly marked with the name or logo of the Franchisee.
(12)
A Franchisee shall develop written procedures for the investigation and resolution of all subscriber or City resident complaints, including, but not limited to, those regarding the quality of service, equipment malfunction and security deposits, which procedures shall be provided in advance of distribution to the Director or the Mayor's designee. A subscriber or City resident who has not been satisfied by following the procedures of the Franchisee may file a written complaint with the office of the Director or the Mayor's designee, who will investigate the matter and, in consultation with the Franchisee as appropriate, attempt to resolve the matter. The good faith or lack thereof of the Franchisee in attempting to resolve subscriber and resident complaints in a fair and equitable manner will be considered in connection with the renewal application of the Franchisee. Franchisee shall maintain a complete list, in a form agreed upon with the Director, showing the number of all service and billing complaints received by category. The list shall be provided to the Director on a monthly basis. The list for each month shall be supplied to the City no later than the fifteenth business day of the next month.
(13)
The City, or its designated representatives, shall have the right to review and audit the customer service call centers upon reasonable notice not to be less than 48 hours. Any such audit shall be limited to those records and data related to the obligations set forth in subsections (4) and (6)(f), above. If such audit concludes that Franchisee has a five percent or greater margin of error in its reporting of customer service numbers, Franchisee shall reimburse the City for its audit expenses.
(14)
Franchisee shall abide by the following requirements governing communications with customers, bills and refunds:
(i)
Each Franchisee shall provide to subscribers written information in each of the following areas at the time of installation, at least once annually, and at any future time upon request by the subscriber:
(A)
How to use the cable service;
(B)
Installation and service maintenance policies;
(C)
The products and services offered;
(D)
Prices and service options;
(E)
Channel positions of programming carried on the system;
(F)
The procedures of the Franchisee for the receipt and resolution of customer complaints, the address of the Franchisee and telephone number to which complaints may be reported, and the hours of operation;
(G)
The telephone number and address of the City office designated to handle cable television complaints and inquiries shall be printed on the back of the bill;
(H)
The availability of a "lock-out" device; and
(I)
The Franchisee's information collection and disclosure policies for the protection of the privacy of the subscriber.
(ii)
Franchisee bills will be clear, concise and understandable.
(iii)
Refund checks will be issued promptly, but no later than the earlier of 30 days or the next billing cycle of the customer following the resolution of a refund request, or the return of the equipment supplied by the Franchisee if service is terminated.
(iv)
Credits for service will be issued no later than the next billing cycle of the customer following the determination that a credit is warranted.
(v)
A Franchisee shall provide subscribers, the City, and the Director or the Mayor's designee with at least 30 days advance written notice of any changes in rates, charges, or channel lineup, or initiations or discontinuations or changes of cable services offered over the cable system whenever practicable in the manner required by FCC rules.
(15)
A Franchisee shall provide a pro-rated 24-hour credit upon request to the account of the subscriber for any period of four hours or more within a 24-hour period during which a subscriber experienced and reported an outage of service or substantial impairment of service, whether due to a system malfunction or other cause.
(16)
Billing.
(i)
The first billing statement of the Franchisee after a new installation or service change shall be pro-rated as appropriate and shall reflect any security deposit.
(ii)
The billing statement of the Franchisee must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Invoices will also clearly delineate all activity during the billing period, including optional charges, rebates and credits.
(iii)
The billing statement of the Franchisee must show a specific due date not earlier than ten days after the date of the beginning of the service period. Any balance not received within ten days after the due date may be assessed an administrative charge or late fee not to exceed $5. The charge will appear on the billing statement of the following month.
(A)
Subscribers shall not be charged an administrative fee, a late fee or otherwise penalized for any failure by the Franchisee, its employees, or contractors, including failure to timely or correctly bill the subscriber, or failure to properly credit the subscriber for a payment timely made.
(iv)
The Franchisee must notify the subscriber that payment can be remitted in person at the office of the Franchisee in the City and inform the subscriber of the address of that office where payment can be made.
(17)
Alterations in Cable Service.
(i)
If a Franchisee wishes to alter the service being provided to a subscriber (including by re-tiering, restructuring a tier or otherwise) in such a way that the subscriber will no longer be able to obtain the same package of services, then the Franchisee must provide the subscriber with 30 days notice of such alteration, explain the substance and the full effect of the alteration, and provide the subscriber the right within the 30-day period following notice, to opt to receive any other combination of services offered by the Franchisee.
(ii)
Except as provided herein, or under applicable federal or state law, no charge may be made for any service or product which the subscriber has not affirmatively indicated, in a manner separate and apart from payment of the regular monthly bill, that wishes to be received.
(18)
Where a Franchisee offers and/or advertises any product or service in the City, such products and services must be made available to all customers in the Franchise Area. Failure to provide any product or service to a customer consistent with the material terms and conditions of the offers and advertisements, upon request and agreement to pay, shall be considered a violation of this Ordinance. This Section shall not apply to new products and services being offered on a trial or experimental basis not to exceed a 12 month period in a limited area for purposes of testing, assessing customer interest, or other legitimate business reason for such new products.
(19)
Franchisee, through its local manager or other person responsible for the operation of the cable system, shall upon request certify in writing to the City on January 30 and July 30 of each year based upon internal due diligence by the Franchisee that to the best of knowledge of the Franchisee it is in substantial compliance with the standards set forth in this Section 710.107(d). At the request of the City, the Franchisee shall submit such documentation, as may be required, to demonstrate compliance of the Franchisee with this Section. This documentation shall be submitted within 45 days of the receipt of the written request of the City.
(20)
Excessive customer complaints to the City. If in any single month the number of Service Complaints and Billing Complaints from different individuals received by the City exceeds 75 under Normal Operating Conditions, the Director may notify Franchisee in writing and request a meeting with Franchisee's system manager within five business days to determine the cause of the high call volume and to establish a plan to cure or commence to cure within 30 days the cause of the high call volume. If following such a meeting the call volume nevertheless exceeds 100 the following month, the Director may assess liquidated damages of $1,000. If following such a meeting the call volume continues to exceed 100 calls in each consecutive month thereafter, the Director may assess liquidated damages of $2,500, increasing in $5,000 increments each consecutive month thereafter during which the call volume continues to exceed 100 calls. Once the call volume falls below 100 calls for any one month, the liquidated damages amount shall reset to $1,000 for the next violation. Complaints to the City generated artificially by any third party, organization, group or the City shall not count toward assessment of the damages set forth herein. No liquidated damages may be assessed if the City has not notified the Franchisee and held the above-mentioned meeting. If it appears that call volume to the City continues to exceed 100 calls per month in consecutive months despite Franchisee's best efforts to remedy any problem, or in the absence of an identifiable cause, Franchisee may request and the City shall not arbitrarily deny a new call volume threshold.
(21)
Where the Franchisee has knowledge of any funds collected from subscribers by Franchisee in excess of that which is lawfully allowed under applicable federal, state or local law, rules, regulations or by contract or agreement, Franchisee shall issue to subscriber cash refunds no later than the next billing cycle unless such time is extended by the City for good cause shown.
(22)
Responsibility for the administration of this Ordinance and the Franchise agreement, and for the investigation and assistance in resolving complaints against the Franchisee regarding the quality of service, equipment malfunctions, and related matters, including the authority to order fines, is hereby delegated to the Director or the Mayor's designee, who is empowered, among other things, to settle, or compromise any controversy arising from operations of the Franchisee, on behalf of the City in accordance with the best interests of the public. The Director or the Mayor's designee may require compliance with specific obligations of this Ordinance and the Franchise Agreement, provided that any person aggrieved by a decision of the Director or the Mayor's designee, including the Franchisee, may appeal the matter to the City Council for hearing and determination. The City Council may accept, reject or modify the decision of the Director or the Mayor's designee. No adjustment, settlement, or compromise, whether instituted by the Director or the Mayor's designee or by the City Council, shall be contrary to the provisions of this Ordinance or any Franchise Agreement issued pursuant to this Ordinance, and neither the Director or the Mayor's designee nor the City Council, in the adjustment, settlement, or compromise of any controversy shall have the right or authority to add to, modify or delete any provision of the Ordinance or of the Franchise Agreement, or to interfere with any rights of subscribers or any Franchisee under applicable federal, or state law or private contract.
(23)
For a failure to comply with the requirements of this Section 710.107(d), the Director or the Mayor's designee may assess Franchisee liquidated damages in the amount of $500 per violation for each day the violation remains uncured unless liquidated damages in another amount is specifically set forth herein.
(i)
Prior to assessing any liquidated damages, the Director or the Mayor's designee shall mail to the Franchisee a written notice by certified or registered mail of the alleged violation and the proposed liquidated damage, specifying the violation at issue. The Franchisee shall have 30 days from the date of receipt of the written notice to cure or commence to cure, as is appropriate depending on the nature of the violation, the alleged violation or file a written response to the notice of violation by the Director or the Mayor's designee refuting the alleged violation or explaining why additional time for cure is necessary. The written response of the Franchisee shall be signed by management level personnel of Franchisee.
(ii)
Prior to assessing liquidated damages, the Director or the Mayor's designee shall consider any justification or mitigating factor advanced in the written response of the Franchisee, including but not limited to rebates or credits to the subscriber. The Director or the Mayor's designee may, after consideration of the response of the Franchisee, waive or reduce any proposed liquidated damage in the event the violation has not been cured. The Director or the Mayor's designee may not assess any liquidated damage if the Franchisee has reasonably responded to the complaint or cured or commenced to cure, as may be appropriate, the violation within a reasonable time frame not to exceed 30 days following receipt of written notice from the City, unless some other cure period is approved by the Director.
(iii)
Upon expiration of the cure period without a cure or commencement of a cure, as may be appropriate with consideration of the response of the Franchisee, if any, the Director or the Mayor's designee may issue an assessment of the liquidated damages in writing delivered by certified mail. Any liquidated damages will commence as of the date of the written notice specifying the violation at issue. The liquidated damage shall be paid within 30 days of written notice of assessment to the Franchisee. This fine shall constitute liquidated damages to the City for the violation and the City may enforce payment of the liquidated damage in any court having jurisdiction, including enforcement against the letter of credit provided by a Franchisee. It is the intent of the City to determine liquidated damages as a reasonable estimate of the damages suffered by the City, whether actual or potential, which may include without limitation, increased costs of administration and other damages difficult to measure.
(iv)
Franchisee may appeal any decision of the Director or the Mayor's designee directly to the City Council within 30 days of notice of the assessment to the Franchisee. Franchisee's obligation to pay the liquidated damages assessed shall be stayed pending resolution of the appeal.
(v)
Any person who intentionally files a false complaint against a Franchisee shall be subject to a fine in the amount of $50 for the first violation and $100 for each subsequent violation.
(vi)
A practice of intentional misrepresentation, fraud or deceit by a Franchisee in connection with the customer service standards set forth in this Chapter shall be grounds for franchise revocation or a fine in an amount not to exceed $25,000.
(24)
In addition to complying with the customer service standards set forth in this Ordinance or in any Franchise Agreement issued pursuant to this Ordinance, a Franchisee shall comply with all FCC customer service standards applicable to cable systems and any other applicable federal, state or local law concerning customer service standards, consumer protection, and unfair or deceptive trade practices.
(25)
The City expressly reserves the right to consider violations of the customer service requirements in evaluating any renewal, modification or transfers of any Franchise Agreement.
(26)
Subscriber Privacy.
(i)
A Franchisee shall at all times protect the privacy of all Subscribers to the full extent required by Section 631 of the Cable Act, 47 U.S.C. 551, and state law. A Franchisee shall not condition Subscriber or other service on the grant of permission of the Subscriber to disclose information which, pursuant to federal or state law, cannot be disclosed without the explicit consent of the Subscriber. No penalties or extra charges may be invoked by the Franchisee for a failure of the Subscriber to grant consent.
(ii)
Unless otherwise permitted by federal or state law, neither the Franchisee nor its agents or employees shall, without the prior and specific written authorization of the Subscriber involved, sell, or otherwise make available for commercial purposes the names, addresses or telephone numbers of any Subscriber or Subscribers, or any information which identifies the individual viewing habits of any Subscriber or Subscribers.
(27)
All data and information required by this Chapter to be provided to the City by Franchisee shall reflect only the operations of the cable system within the City. The City shall maintain the confidentiality of any information provided by a Franchisee that has been designated as Confidential or Trade Secret information.
(28)
In the event that Franchisee intends to pass through to subscribers any additional costs arising from the customer service standards set forth in this Section 710.107(d), pursuant to 47 CFR 922(e)(2)(ii) the Franchisee must provide at least 60 days prior written notice to the City and shall provide the City with such documentation as may be required by the City to substantiate such additional cost. The customer service requirements at issue shall be suspended while the City evaluates the information provided by Franchisee to allow the City to consider implementation of or modifications to the customer service standards that may be deemed appropriate by the City.
(29)
No Third-Party Beneficiaries. Nothing in this Chapter or any Franchise Agreement is or was intended to confer third-party beneficiary status on any member of the public to enforce the terms of such Chapter or Franchise Agreement.
(Ord. 2003-188-E, § 1)