City residents have benefited from new technology, deregulation, federal laws and regulatory rules that permit and encourage competition in the video services business. Cox Communications, AT&T and direct broadcast satellite companies are now offering video programming services in Oklahoma City.
The City encourages and promotes a competitive video services market. The City Council has amended the Broadband Telecommunications Ordinance, the Municipal Code, 2002 and entered into an agreement to ensure that the interests of the citizens of Oklahoma City are best served.
Cable Television Service
In 1979 after taking proposals from several cable television providers the City selected and entered into its first franchise with Cox Cable. Law required voter approval of the franchise then. Voters approved a second franchise with Cox in 1991.
The franchise authorized Cox to use Oklahoma City public right-of-ways to provide cable television service. The Broadband Telecommunications Ordinance, which had not been substantially updated since 1991, was written as an enabling ordinance to accompany the Cox franchise agreement. The ordinance was primarily to select and regulate a single provider cable television service.
The City Council amended the Broadband Telecommunications Ordinance (23,437) and the Municipal Code, 2002 (Chapter 11) on September 11, 2007. The amended ordinance and municipal code now govern cable television service in Oklahoma City.
Franchise Agreement
Published in The Journal Record September 12 , 2007
ORDINANCE NO. 23,437
AN ORDINANCE RELATING TO CABLE TELEVISION SERVICE AND THE CITY’S REGULATION THEREOF UNDER 11 O.S. § 22-107.1, SUBJECT TO APPLICABLE FEDERAL LAWS; AMENDING CHAPTER 11 OF THE OKLAHOMA CITY MUNICIPAL CODE, 2002 (CODE), ENTITLED “BROADBAND TELECOMMUNICATIONS;” AMENDING SECTIONS 11-1(2), 11-1(3), 11-1(4), 11-1(22), 11-2(19), 11-2(20), 11-4, 11-14, 11-15, 11-16, 11-17, 11-18(f), 11-19, 11-20(a), 11-21, 11-22, 11-23(c), 11-25, 11-26, 11-36, 11-37, 11-38, 11-40, 11-41, 11-42, 11-51(a), 11-52, 11-53(f), 11-55, 11-57, 11-58, 11-59, 11-60, 11-62, 11-72, 11-73, 11-74, 11-76, 11-77, 11-80, 11-82(a)(2), 11-83, 11-85, AND 11-88 OF SAID CHAPTER 11, WHICH PERTAINS TO BROADBAND TELECOMMUNICATIONS AND RELATES TO GENERAL PROVISIONS, TO BROADBAND TELECOMMUNICATIONS FRANCHISES, TO BROADBAND TELECOMMUNICATIONS SYSTEMS, TO REGULATIONS GOVERNING THE INSTALLATION, OPERATION, AND MAINTENANCE OF BROADBAND TELECOMMUNICATIONS NETWORKS, AND TO RULES GOVERNING A GRANTEE OF A BROADBAND TELECOMMUNICATIONS FRANCHISE UNDER CHAPTER 11; AMENDING ORDINANCE NO. 19,654 OF THE CITY, WHICH GRANTED A BROADBAND TELECOMMUNICATIONS FRANCHISE TO COX CABLE OKLAHOMA CITY, INC., NOW COXCOM, INC. (COX), BY REPEALING OR AMENDING CERTAIN SECTIONS AND SUBSECTIONS OF THE BROADBAND TELECOMMUNICATIONS FRANCHISE AGREEMENT INCORPORATED THEREIN BY REFERENCE; REPEALING ARTICLE IV, SECTION 3 (RELATING TO PERFORMANCE BOND) AND ARTICLE VII, SECTION 2 (RELATING TO LIQUIDATED DAMAGES) OF THE FRANCHISE AGREEMENT INCORPORATED BY REFERENCE INTO ORDINANCE NO. 19,654; AMENDING ARTICLE VIII, SUBSECTION 3(b) (RELATING TO PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS CHANNELS) OF THE FRANCHISE AGREEMENT INCORPORATED BY REFERENCE INTO ORDINANCE NO. 19,654, TO SPECIFY THAT SUBSECTIONS 11-36(a)(5), (a)(6), AND (b) OF CHAPTER 11 OF THE CODE SHALL CONTROL THE PUBLIC ACCESS CHANNEL; AMENDING ARTICLE VIII, SUBSECTION 3(f) (RELATING TO CERTAIN SERVICE INSTALLATIONS WITHIN THE CITY) OF THE FRANCHISE AGREEMENT INCORPORATED BY REFERENCE INTO ORDINANCE NO. 19,654, TO SPECIFY THAT SECTION 11-37 OF CHAPTER 11 OF THE CODE SHALL CONTROL PUBLIC SERVICE INSTALLATIONS FOR PUBLIC SCHOOLS, PUBLIC LIBRARIES, AND MUNICIPAL BUILDINGS; AMENDING ARTICLE X, EXTENSION POLICY, OF THE FRANCHISE AGREEMENT INCORPORATED BY REFERENCE INTO ORDINANCE NO. 19,654, TO ADD A NEW SECTION 3 PROVIDING THAT SECTION 11-25 OF CHAPTER 11 OF THE CODE SHALL CONTROL EXTENSION POLICY IN THE EVENT OF A CONFLICT BETWEEN SECTIONS 1 AND 2 OF ARTICLE X AND SAID SECTION 11-25; AND PROVIDING AN EFFECTIVE DATE.
WITNESSETH:
WHEREAS, CoxCom, Inc. (Cox), currently the sole franchisee operating a cable television service within the meaning of 11 O.S. Supp. 2006, § 22-107.1 inside the corporate limits of The City of Oklahoma City (City), has requested certain changes to Chapter 11 of the Oklahoma City Municipal Code, 2002 (sometimes referred to hereinafter as the “Broadband Telecommunications Ordinance” or as Chapter 11) and to Ordinance No. 19,654; and
WHEREAS, the franchise held by Cox authorizing it to utilize the public ways within the City to provide cable television service within the meaning of 11 O.S. Supp. 2006, § 22-107.1 was granted to Cox pursuant to Ordinance No. 19,654, with the terms of the said franchise set forth in a Franchise Agreement between Cox and the City that is incorporated into Ordinance No. 19,654 by reference as if fully set forth therein; and
WHEREAS, City staff has reviewed the Cox-requested changes to Chapter 11 and Ordinance No. 19,654 and has determined that certain of the changes may be acceptable if adoption thereof is the will of the City Council; and
WHEREAS, as a matter of policy, City management recommends adoption of the acceptable changes requested by Cox to the Broadband Telecommunications Ordinance and Ordinance No. 19,654; and
WHEREAS, the recommended changes to the Broadband Telecommunications Ordinance and Ordinance No. 19,654 are set forth hereinafter in this Emergency Ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF OKLAHOMA CITY:
SECTION 1. That Sections 11-1(2), 11-1(3), 11-1(4), 11-1(22), 11-2(19), 11-2(20), 11-4, 11-14, 11-15, 11-16, 11-17, 11-18(f), 11-19, 11-20(a), 11-21, 11-22, 11-23(c), 11-25, 11-26, 11-36, 11-37, 11-38, 11-40, 11-41, 11-42, 11-51(a), 11-52, 11-53(f), 11-55, 11-57, 11-58, 11-59, 11-60, 11-62, 11-72, 11-73, 11-74, 11-76, 11-77, 11-80, 11-82(a)(2), 11-83, 11-85, and 11-88 of Chapter 11 of the Oklahoma City Municipal Code, 2002, are hereby amended to read as follows:
Chapter 11
BROADBAND TELECOMUNICATIONS
ARTICLE I. GENERAL PROVISIONS
§ 11-1. Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
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(2) Annual gross revenues:
(a) Annual gross revenues shall include:
(i) recurring charges from basic service;
(ii) event-based charges for basic service, including but not limited to pay-per-view and video-on-demand charges;
- rental of set top boxes and other basic service equipment;
- service charges related to the provision of basic service, including but not limited to, activation, installation, and repair;
- administrative charges related to the provision of basic service, including, but not limited to, service order and service termination charges;
- amounts billed subscribers to recover the annual fee authorized by this chapter.
(b) Annual gross revenues shall not include:
(i) Uncollectible fees, provided that all or part of uncollectible fees which is written off as bad debt but subsequently collected, less expenses of collection, shall be included in gross revenues in the period collected;
(ii) late payment fees;
- revenues from contracts for in-home maintenance service unless they relate solely to maintenance on equipment used only for the provisioning of basic service and not for the provisioning of any other services provided by a grantee or its affiliates;
- amounts billed to basic service subscribers to recover taxes, fees or surcharges imposed upon basic service subscribers in connection with the provision of basic service, other than the Franchise Fee authorized by this section;
- revenue from the sale of capital assets or surplus equipment; or
- charges, other than those described in subsection (2)(a) above, that are aggregated or bundled with amounts billed to basic service subscribers.
- Annual gross revenues which are subject to the annual fee shall additionally include a pro rata portion of all revenue collected by a grantee pursuant to compensation arrangements for advertising (less any commissions grantee receives from any third parties for advertising) and home-shopping sales derived from the operation of a BTN within the City. Advertising commissions paid to third parties (excluding any refunds, rebates, or discounts a grantee makes to advertisers) shall not be deducted from advertising revenue included in annual gross revenue. The allocation of advertising and home-shopping revenue referred to above shall be based on the number of subscribers in the City divided by the total number of subscribers in relation to the relevant regional or national compensation arrangement.
(d) Bundling discounts shall be apportioned fairly among video and other services. A grantee shall not apportion revenue in such a manner as to avoid the annual fee.
(e) If or when the Federal Communications Commission or a court of competent jurisdiction modifies the current interpretation, this definition may also be altered to include or exclude revenue from other sources as may be permitted by such modification.
(3) Basic service means all video programming, including cable service as that term is defined in federal law, provided by the grantee over the network, covered by the regular monthly charge paid by all subscribers. Basic service does not include any information service or telecommunications service as those terms are defined in federal law.
(4) Broadband telecommunications network (BTN) means all of the component physical, operational and programming elements of any network of cables, optical, electrical or electronic equipment used for the purpose of transmission of electrical impulses of video programming, either analog or digital for sale or use by the inhabitants of the City.
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(22) Service area means the geographic area within the franchise territory having a potential of 40 subscribers per cable mile.
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§ 11-2. Selection of grantee.
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(19) Alternate procedure. As an alternative to the renewal procedure contemplated in Section 11-22 below, the City may accept from a grantee under applicable law any renewal proposal submitted under authority of Title 47 USC § 546, Subsections (a) through (g) or Subsection (h).
Fifteen copies of the application shall be supplied to the City, each separately bound and containing no information not specifically requested by the City. Supplementary or additional information that the applicant deems reasonable for consideration may be submitted at the same time as the application in the same number of copies. The City may, at its discretion, consider such additional information as part of the application.
The City reserves the right to require any supplementary or additional information it deems necessary in order to make the proper analysis and determination. In this connection, the applicant agrees, if applicable, to cooperate fully any time the City desires to contact other cities served by the applicant in order to determine the quality of service provided and the willingness to meet the needs of their subscribers. The City may waive the requirement of inclusion of any information set forth above if it deems the information unnecessary.
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§ 11-4. Application of Chapter.
The provisions of this chapter shall apply only to persons that the City has authority to regulate pursuant to 11 O.S. Supp. 2006, § 22-107.1, subject to applicable federal laws.
ARTICLE II. THE BROADBAND TELECOMMUNICATIONS FRANCHISE
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§ 11-14. Election and costs.
If applicable, Iin order for a nonexclusive franchise to be granted pursuant to this chapter, an election must be held and a majority of those voting must vote in favor of the granting of such franchise. The entire cost of the election together with all printing and publishing costs relating thereto shall be prepaid by the applicant selected by the Council to be grantee, regardless of whether or not the applicant is granted a franchise by said election. When the actual costs of the election are known, the final payment may be adjusted accordingly.
§ 11-15. Term of franchise.
The nonexclusive franchise and the rights, privileges, obligations and authority thereby granted shall take effect and be in force as provided herein within 30 days from and after final passage thereof by the City Council, or by qualified electors at a special or general election thereon, as applicable, and shall continue in full force and effect for a term of not more than 20 years from date of acceptance by franchisee, subject, however, to the right of the City to terminate said franchise as provided herein.
§ 11-16. Franchise fee.
Annual franchise payment. A grantee of a franchise hereunder shall pay to the City an annual fee in an amount to be set by the franchise agreement as a percentage of annual gross revenues derived from operation of the BTN by the grantee. Such payment shall be in addition to any other payment, charge, permit fee or bond owed to the City by the grantee and shall not be construed as payment in lieu of personal or real property taxes levied by State, County or local authorities; provided, however, such fee shall include and be in lieu of any fee required by the City for any construction, building, or other permit for use or occupation of, or work in, the streets, except for the inspection fee and service charge levied under Article VII of Chapter 13 of this Code.
§ 11-17. Payments to City.
(a) Method of computation. Sales taxes or any other taxes or fees including copyright fees which are collected from subscribers by the grantee to be remitted by the grantee to a governmental agency shall be deducted from the annual gross revenue prior to the computation of the annual franchise payment. The payment due the City under the provisions of Section 11-16 shall be computed and due quarterly, based on the City's fiscal year, with the last quarter payment being adjusted based on the audit of the franchisee's network operation and shall be paid not later than 45 days after the end of each calendar quarter. The payment period shall commence as of the effective date of the franchise. In the event of a dispute, the City, if it so requests, shall be furnished a statement of said payment, by a certified public accountant, reflecting the total amounts of annual gross revenues and the above charges, deductions and computations for the period covered by the payment.
(b) Acceptance by City. No acceptance of any payment by the City shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of the grantee.
(c) Audit. The City shall have the right to conduct reasonable audits to assure that the annual fee has been properly calculated.
§ 11-18. Nature of nonexclusive franchise.
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(f) Franchise held in personal trust. Any such franchise shall be a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, except to an affiliate of a grantee, without prior consent of the Council as provided herein, which consent shall not be unreasonably withheld.
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§ 11-19. Franchise agreement.
The grantee awarded a franchise shall execute a franchise agreement which shall set forth the terms and provisions of the franchise. No conditions or provisions of a franchise shall conflict with any provisions of this chapter or other law. In case of such conflict or ambiguity between any terms or provisions of the franchise and this chapter, the words of this chapter shall control.
§ 11-20. Acceptance and effective date of franchise.
(a) No franchise granted pursuant to this chapter and passed by the City Council or a vote of the qualified electors, as applicable, shall become effective for any purpose unless and until written acceptance thereof shall have been filed with the City Clerk, duly executed by the proper officers of the grantee. Written acceptance, which shall be in the form and substance approved by the Municipal Counselor, must contain, in addition to any other matters included, the following express representations by the grantee that: * * *.
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§ 11-21. Franchise reviews and modification.
(a) Upon written notice given by the City or the grantee, one to the other the terms and conditions of the franchise agreement may be modified, provided that both the City and the grantee are agreeable to such modification. Modifications shall be directed toward effecting alterations in the terms and conditions to reflect those technical, economic, or regulatory changes which have occurred during the interim period.
(b) Any changes in the franchise agreement necessitated by modifications to the Federal Communications Commission regulations shall be incorporated into the franchise agreement within the time limit provided for in the rules and regulations of the Federal Communications Commission then in force and effect.
§ 11-22. Franchise renewal.
A franchise granted pursuant to this chapter shall be renewed pursuant to the procedures established by federal law or such other procedure to which the City and a grantee mutually agree.
§ 11-23. Transfer of franchise.
(a) Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to, by forced or voluntary sale, merger, consolidation, receivership or other means without the prior consent of the City, and then only under such conditions as the City may establish. Such consent as required by the City shall, however, not be unreasonably withheld.
(b) Nothing in this chapter shall be deemed to prohibit the assignment of the franchise, mortgage or pledge of the network or any part thereof for financing purposes. However, any such assignment, mortgage, pledge or lease shall be subject to the rights of the City under this chapter.
(c) Subsection (a) of this section shall not apply to the sale, transfer, or assignment of the franchise or all or part of a BTN to an affiliate of a grantee.
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§ 11-25. Extension of network.
(a) After the grantee has substantially completed the construction of distribution facilities as defined in Section 11-1, it shall continue to extend its broadband telecommunications network so as to provide service to all parts of the franchise territory having a density of at least 40 single-family residential units per cable mile.
(b) If a grantee is also operating in another municipality abutting the franchise territory located within the City, and if the density requirements set forth in Subsection (a) above can be met by counting single-family resident units located in both the City franchise territory and in the abutting municipality, then upon request of the City Manager, the grantee will use its best efforts, where economically and technologically feasible, to extend the BTN and service from the abutting municipality into the City franchise territory.
(c) If a grantee extends the BTN and service into the City franchise territory from an abutting municipality under Subsection (b) of this section, and if the grantee is technically unable to provide the municipality-specific PEG programming, as required by Section 11-36, the grantee shall be relieved of the obligations of Section 11-36 for the residential units provided service by such extension until such time as the density requirement of Subsection (a) above is met solely by single-family residential units located within the City franchise territory and service is no longer being provided from the abutting municipality. The franchise revenues payable by the grantee shall be paid to the municipality in which the subscribers reside.
§ 11-26. Abandonment of service.
After the grantee has established service pursuant to this chapter in the franchise area, such service shall not be suspended or abandoned in the whole of or any part of the franchise area unless the suspension or abandonment is authorized by the Council, which authorization shall not be unreasonably denied. The Council’s failure to act within 90 calendar days of such a request shall be deemed approval.
ARTICLE III. THE SYSTEM
§ 11-36. Network description.
(a) The broadband telecommunications network shall be capable of providing the services described in a grantee’s application and shall:
(1) be operationally capable of relaying to subscriber terminals, television and radio signals;
(2) consist of a cable network having a minimum forward bandwidth of 450 MHz, in compliance with the technical standards and rules of the Federal Communications Commission;
(3) provide to the City and each subscriber of grantee at least one dedicated, noncommercial access channel for use by a nonprofit consortium of educational agencies within the City;
(4) provide to the City and each subscriber of grantee one dedicated, noncommercial access channels for use by governmental agencies within the City;
(5) provide one public access studio with its associated production equipment;
(6) provide at least one dedicated, noncommercial access channel for use by citizens of the City; and
(7) have a minimum capacity of 54 channels.
(b) Any grantee operating a BTN on or before October 1, 2007, shall have the option to terminate the services specified in Subsections (a)(5) and (a)(6) of this section on December 1, 2007.
§ 11-37. Public service installations.
(a) The grantee shall provide within the service area, without charge for installation, one video service connection to each public school, public library, and occupied municipal building located within three hundred (300) feet of a grantee’s activated Broadband Telecommunications Network. A grantee shall provide its limited basic service at no charge to each installation.
(b) Any service granted pursuant to Subsection (a) above may be extended by the persons receiving such service to as many areas within the building where the service is granted or adjacent buildings which are a part of the total complex receiving such service. The person receiving such service shall pay all expenses for any such extension and shall complete such extension so as not to interfere with the operation of the broadband telecommunications network. A grantee shall not be responsible for any maintenance to such internal extensions.
§ 11-38. Emergency alert override.
The grantee shall comply with the Emergency Alert System regulations of the Federal Communications Commission.
* * *
§ 11-40. Performance monitoring.
A grantee shall comply with all applicable federal standards with respect to the construction, maintenance, and operation of a BTN.
§ 11-41. Interconnections.
(a) Consistent with applicable law, the franchisee shall so construct and operate the network as to have the capability to interconnect the same into all other networks within the City.
(b) Consistent with applicable law, whenever it is financially and technically feasible, the franchisee shall so construct, operate and modify the network so as to have the capability to interconnect the same into all networks adjacent to the City.
(c) All costs of interconnecting with another network shall be borne by the party requesting interconnection.
§ 11-42. Parental control device.
A parental control device will be made available upon request to provide control over TV programming as required by federal law and regulations.
ARTICLE IV. REGULATIONS GOVERNING
INSTALLATION, OPERATION, AND MAINTENANCE OF THE NETWORK
§ 11-51. Regulatory jurisdiction and procedures.
(a) Continuing regulatory jurisdiction. Except as preempted by applicable law, the Council shall have continuing regulatory jurisdiction and primary supervision over any franchise granted hereunder including subscriber rates; provided, the Council shall not have regulatory jurisdiction over subscriber rates if the FCC should hereafter issue an order under applicable federal law decertifying the City’s authority to regulate such rates. However, it is recognized that the daily routine, administrative responsibilities and supervision of the franchise should be entrusted to the City Manager.
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§ 11-52. Resolving disputes.
The City Manager may mediate any controversy or charge arising from the operations of any grantee under this chapter, either on behalf of the City, the grantee, or any subscriber, in the best interest of the public.
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§ 11-53. Construction schedule.
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(f) The City shall not unreasonably block, restrict, or limit the construction and installation of a grantee’s network. The City shall process any and all permits for the installation, construction, maintenance, repair, and removal of a grantee’s network in a timely and prompt manner in accordance with the normal permitting procedures of the Public Works Department of the City.
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§ 11-55. Customer service standards.
A grantee shall comply with the customer service standards of the Federal Communications Commission, as may set forth in the applicable sections of the Code of Federal Regulations, including without limitation 47 C.F.R. §§ 76.309, 76.1602, 76.1603, 76.1604, 76.1619.
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§ 11-57. Report, records and maps.
(a) Reports required. The grantee shall file with the City: maintain up-to-date copies of the grantee’s schedule of charges, contract or application forms for regular subscriber service, policy regarding the processing of subscriber complaints, delinquent subscriber disconnect and reconnect procedures and any other terms and conditions adopted as the grantee’s policy in connection with its subscribers, and shall provide such reports to the City upon request.
(b) Records required. The grantee shall at all times maintain records sufficient to demonstrate the proper payment of the annual fee required by Section 11-16 of this Chapter.
(c) Maps. A grantee shall maintain a full and complete set of plans, records and "as built" maps showing the exact location of all broadband telecommunications network equipment installed or in use in the City streets, exclusive of subscriber service drops. Plans, records and "as built" maps will be available for inspection by the City Manager or his designee during normal business hours.
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§ 11-58. Inspection of property and records.
A grantee shall permit the City Manager, City Engineer or the City Auditor, or any duly authorized representative of the City Manager, City Engineer or the City Auditor, to inspect of all franchise property and records related thereto, together with any appurtenant property of grantee situated within or without the City.
§ 11-59. Street occupancy.
(a) A grantee shall comply with all generally applicable ordinances and regulations pertaining to the use and occupation of the streets.
(b) The grantee shall notify the City at least two days prior to the intention of the grantee to commence any new construction in any streets. The City shall cooperate with the grantee in granting any permits required, providing that such grant and subsequent construction by the grantee shall not unduly interfere with the use of such streets and that proposed construction shall be done in accordance with the provisions of Chapter 50.
§ 11-60. Request for removal or change.
(a) The grantee shall, on the request of any person holding a building moving permit issued under the provisions of Article V of Chapter 50 of this Code, temporarily raise or lower its wires to permit the moving of said building. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the grantee shall have authority to require such payment in advance. The grantee shall be given not less than five days advance notice of any move contemplated to arrange for temporary wire changes.
(b) The City shall notify the grantee at least ten days prior to the intention of the City to commence any construction in the streets that requires the relocation of the grantee's lines, wires or other network appurtenances so as not to interfere with such construction. To the extent there are state or federal funds available to compensate facility owners for the cost of relocating their facilities, a grantee shall be offered such compensation on a non-discriminatory basis.
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§ 11-62. Reserved.
ARTICLE V. RULES GOVERNING GRANTEE
§ 11-72. Reserved.
§ 11-73. Employment practices.
A grantee shall comply with all applicable federal, state and local laws with regard to its employment practices.
§ 11-74. Preferential or discriminatory practices prohibited.
A grantee shall not deny access to service to any group of potential subscribers because of the income of the residents of the local area in which the group resides, or because of race, color, religion, sex or national origin.
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§ 11-76. Liability and indemnification.
(a) The City may require a grantee to indemnify and hold harmless the City, its officers, boards, commissions, agents, and employees, against and from any and all claims, demands, causes of action, actions, suits, proceedings, damages (including but not limited to damages to City property and damages arising out of copyright infringements, and damages arising out of any failure by grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by grantee's broadband telecommunications network), costs or liabilities (including costs or liabilities of the City with respect to its employees), of every kind and nature whatsoever, including but not limited to, damages for injury or death or damage to person or property, and regardless of the merit of any of the same, and against all liability to others, and against any loss, cost, and expense resulting or arising out of any of the same, including any attorney fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, traveling and transportation expense, or other costs or expense arising out of or pertaining to the exercise or the enjoyment of any franchise hereunder by the grantee, or the granting thereof by the City, provided that the grantee shall not be liable for any such damages, fees or expenses where any lawsuit is based on the actions or omissions of the City but not on any act or omission by the grantee.
(b) The City may require a grantee to maintain a general comprehensive liability insurance policy naming, as an additional insured, the City, its officers, boards, commissions, agents and employees, in a company mutually acceptable by the grantee and the City in a form satisfactory to the City protecting the City and all persons against liability for loss or damage for personal injury, death or property damage occasioned by the operations of the grantee under any franchise granted hereunder in the amount of:
(1) five hundred thousand dollars for bodily injury or death to any one person, within the limit, however, of $1,000,000.00 for bodily injury or death resulting from any one accident.
(2) five hundred thousand dollars for property damage resulting from any one accident.
(3) workmen's compensation insurance in such coverage as may be required by the workmen's compensation insurance and safety laws of the State and amendments thereto.
(c) Notice of cancellation and reduction of coverage. The insurance policies referred to above shall contain an endorsement stating that the policies are extended to cover the liability assumed by the grantee under the terms of this chapter and shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled or the amount of coverage thereof reduced until thirty (30) days after receipt by the City by registered mail, of written notice of such intent to cancel or reduce the coverage."
§ 11-77. Reserved.
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§ 11-80. Reserved.
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§ 11-82. Forfeiture or revocation.
(a) Grounds for revocation. The City reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default and breach under this chapter and the franchise grant:
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(2) if the grantee should fail to provide or maintain in full force and effect, the liability and indemnification coverages as may be required herein.
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§ 11-83. Reserved.
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§ 11-85. Protection of privacy.
Grantee shall comply with all provisions of applicable federal and state law as it relates to subscriber privacy.
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§ 11-88. Reserved.
SECTION 2. That Article IV, Section 3 (relating to performance bond), and Article VII, Section 2 (relating to liquidated damages) of the Franchise Agreement incorporated by reference into Ordinance No. 19,654 of the City are hereby repealed in their entirety.
SECTION 3. That Article VIII, Subsection 3(b) (relating to public, educational and governmental access channels) of the Franchise Agreement incorporated by reference into Ordinance No. 19,654 of the City is hereby amended to read as follows:
(b) The City and the Company shall establish rules pertaining to the administration of the designated non-commercial public access channel, the designated governmental access channels and the designated educational access channel. Provided, the City and the Company agree that Subsections 11-36(a)(5), (a)(6) and (b) of Chapter 11 of the Code, as amended, shall control the public access channel.
SECTION 4. That Article VIII, Subsection 3(f) (relating to certain service installations within the City) of the Franchise Agreement incorporated by reference into Ordinance No. 19,654 of the City is hereby amended to read as follows:
(f) The Company shall provide one cable service outlet to governmental, religious, public health care, and educational facilities. Provided, the City and the Company agree that Section 11-37 of Chapter 11 of the Code, as amended, shall control installations for public schools, public libraries, and municipal buildings.
SECTION 5. That Article X, Extension Policy, of the Franchise Agreement incorporated by reference into Ordinance No. 19,654 of the City is hereby amended by the addition of a new Section 3 to read as follows:
SECTION 3.
Notwithstanding the foregoing provisions of this Article X, the provisions of Section 11-25 of Chapter 11 of the Code, as amended, shall control extension policy in the event of a conflict between Sections 1 and 2 of this Article X and Section 11-25 of Chapter 11 of the Code, as amended.
SECTION 6. EFFECTIVE DATE OF THIS ORDINANCE. This Ordinance shall become effective on October 15, 2007, but only if Cox files a letter with the City Clerk of the City prior to that date stating that Cox, as a franchisee under Ordinance No. 19,654 and Chapter 11 of the Code, as amended, agrees to and accepts the provisions of this Ordinance. In the event Cox shall fail to file said letter with the City Clerk, this Ordinance shall be deemed null and void and of no force and effect.
INTRODUCED AND READ in open meeting of the Council of The City of Oklahoma City this 28th day of August , 2007.
PASSED by the Council and SIGNED by the Mayor of tThe City of Oklahoma City this 11th day of September , 2007.
s/b Mick Cornett
MAYOR
ATTEST:
Frances Kersey
CITY CLERK
IP Video Services
The City entered into an agreement with AT&T Oklahoma to offer internet-protocol (IP) video service to Oklahoma City residents. AT&T Oklahoma began offering this service in August 2007. The agreement authorizes AT&T to use Oklahoma City public right-of-ways to provide IP video service.
Franchise Agreement
This Agreement (“Agreement”) is made and entered into this 27th day of March, 2007, by and between the City of Oklahoma City, a municipal corporation, hereinafter referred to as the “City,” and SOUTHWESTERN BELL TELEPHONE, L.P., a Texas limited partnership doing business as AT&T Oklahoma, hereinafter referred to as “AT&T Oklahoma” or “Company,” with AT&T Oklahoma and City sometimes separately referred to hereinafter as a “party,” and sometimes collectively as “parties.”
WHEREAS, every telephone or telegraph corporation authorized to conduct transportation or transmission business under the laws of the State of Oklahoma for such purpose has the right to construct and operate between any points in this State pursuant to Article IX, Section 2 of the Constitution of the State of Oklahoma and Title 18, § 601, subject to control of the proper municipal authorities as to what grounds, streets, alleys or highways said lines shall run over or across, and the place the poles to support the wires are located;
WHEREAS, AT&T Oklahoma represents that it desires to upgrade its existing facilities and equipment, and install new facilities and equipment, and further represents that it will then be capable of offering, among other things, an integrated internet protocol (“IP”) platform of voice, data, information and video services (the video component of which is switched, two-way, point-to-point and interactive and is referred to herein as the “IP-enabled Video Service”) within the geographic boundaries of the City;
WHEREAS, AT&T Oklahoma takes the position, based on Okla. Const. Article IX, §2 and 18, Okla. Stat. §601, and other applicable law, that it is not required to obtain authorization from the City in order to provide its IP-enabled Video Service; however, notwithstanding its position, as stated above, in consideration of the forbearance of litigation by the City in relation to the provision of IP-enabled Video Service by AT&T Oklahoma within the City and the City’s agreement to follow its normal permitting practices with respect to installation of facilities that may be used in whole or in part to provide IP-enabled Video Services, AT&T Oklahoma is willing to enter into this Agreement and to pay an IP-enabled Video Services Provider Fee as set forth more fully below so that both AT&T Oklahoma and the City can achieve the full benefits that competition and the availability of such services will bring to the community and citizens of the City; and
WHEREAS, in consideration of the payment of the IP-enabled Video Services Provider Fee by AT&T Oklahoma to the City and the forbearance of litigation by AT&T Oklahoma in relation to the provision of IP-enabled Video Service by AT&T Oklahoma within the City, the City is willing to enter into this Agreement; and
WHEREAS, the parties understand and agree that neither party shall be deemed to have waived any of its legal rights by entering into this Agreement except as expressly provided herein;
NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements hereinafter set forth, the parties agree as follows:
1. Term of Agreement: This non-exclusive Agreement shall take effect upon approval hereof by AT&T Oklahoma and by the City Council of the City and shall be effective for a term of five (5) years thereafter. Prior to the end of this term, the parties agree to enter into good faith negotiations regarding a possible renewal and/or modification and/or extension of this Agreement.
2. Nature of Agreement:
(A) No privilege or exemption shall be granted or conferred by this Agreement except those specifically prescribed herein.
(B) Any right or power in, or duty impressed upon, any officer, employee, department, or board of the City by this Agreement shall be subject to transfer by the City to any other officer, employee, department, or board of the City.
(C) This Agreement shall not relieve AT&T Oklahoma of any existing obligations involved in obtaining permits, pole or conduit space from any department of the City, utility company, or from others maintaining utilities in streets.
(D) This Agreement shall be a privilege to be held in personal trust by AT&T Oklahoma for the benefit of the public. Said privilege cannot in any event be sold, transferred, leased, assigned or disposed of (except to an affiliate of AT&T Oklahoma), including but not limited to, by forced or voluntary sale, merger, consolidation, receivership or other means without the prior written consent of the City, and then only under such conditions as the City may establish. Such consent as required by the City shall not, however, be unreasonably withheld.
3. Obligations of AT&T:
(A) During the term of this Agreement, AT&T Oklahoma shall pay to City a fee equal to 5% of the gross revenues of AT&T Oklahoma and its affiliates collected from each subscriber to AT&T Oklahoma’s IP-enabled Video Services product, and 5% of the portion of gross revenues from advertising which are defined in subsection 3(A)(3), below; the fee (“IP-enabled Video Services Provider Fee”) may be identified and passed through on any subscriber bill by AT&T Oklahoma, and all such fees collected will be forwarded to City quarterly and shall be due forty-five (45) days after the end of each quarter.
(1) For purposes of this Agreement, gross revenues are limited to the following:
(i) recurring charges for IP-enabled Video Services;
(ii) event-based charges for IP-enabled Video Services, including but not limited to pay-per-view and video-on-demand charges;
(iii) rental of set top boxes and other IP-enabled Video Services equipment;
(iv) service charges related to the provision of IP-enabled VideoServices, including, but not limited to, activation, installation, and repair; and
(v) administrative charges related to the provision of IP-enabled Video Services, including, but not limited to, service order and service termination charges;
(vi) amounts billed to IP-enabled Video Services subscribers to recover the IP-enabled Video Services Provider Fee authorized by this section.
(2) For purposes of this Agreement, gross revenues do not include:
(i) Uncollectible fees, provided that all or part of uncollectible fees which is written off as bad debt but subsequently collected, less expenses of collection, shall be included in gross revenues in the period collected;
(ii) late payment fees;
(iii) revenues from contracts for in-home maintenance service unless they relate solely to maintenance on equipment used only for the provisioning of IP-enabled Video Services and not for the provisioning of any other service provided by AT&T Oklahoma or its affiliates;
(iv) amounts billed to IP-enabled Video Services subscribers to recover taxes, fees or surcharges imposed upon IP-enabled Video Services subscribers in connection with the provision of IP-enabled Video Services, other than the IP-enabled Video Services Provider Fee authorized by this section;
(v) revenue from the sale of capital assets or surplus equipment; or
(vi) charges, other than those described in subsection (1), that are aggregated or bundled with amounts billed to IP-enabled Video Services subscribers.
(3) “Gross Revenues” which are subject to the IP-enabled Video Services Provider Fee paid by AT&T Oklahoma additionally include a pro rata portion of all revenue collected by AT&T Oklahoma pursuant to compensation arrangements for advertising (less any commissions AT&T receives from any third parties for advertising) and home-shopping sales derived from the operation of AT&T Oklahoma’s IP-enabled Video Service within the City. Advertising commissions paid to third parties (excluding any refunds, rebates, or discounts the Company may make to advertisers) shall not be deducted from advertising revenue included in gross revenue. The allocation of advertising and home- shopping revenue referred to above shall be based on the number of subscribers in the City divided by the total number of subscribers in relation to the relevant regional or national compensation arrangement.
(4) Bundling discounts shall be apportioned fairly among video and other services. AT&T Oklahoma shall not apportion revenue in such a manner as to avoid the IP-enabled Video Services Provider Fee.
(5) In the event that any other video services provider, including but not limited to a cable operator or open video service provider, enters into any agreement or makes any arrangement with City during the term of this Agreement whereby it is required or allowed to pay a fee to the City that is similar to the IP- enabled Video Services Provider Fee described herein, City shall allow AT&T Oklahoma to substitute the definition of “gross revenue” set forth in that agreement or arrangement for the definition of “gross revenue” set forth in this Agreement immediately upon request of AT&T Oklahoma.
(6) AT&T Oklahoma will grant the City the right to conduct reasonable audits to assure that the IP-enabled Video Services Provider Fee has been properly calculated.
(B) AT&T Oklahoma and City agree that the IP-enabled Video Services Provider Fee shall be in lieu of all other concessions, charges, excises, franchise, license, privilege, permit fees, taxes, or assessments except sales taxes, personal or real property taxes, ad valorem taxes, any fees levied for the purpose of funding the E9-1-1 system, and the two percent (2%) Telephone Inspection Fee currently being paid by AT&T Oklahoma;
(C) During the term of this Agreement, AT&T Oklahoma shall provide capacity for four "streams" or "channels" of noncommercial educational and governmental programming through AT&T Oklahoma's IP-enabled Video Service so long as City and educational institutions designated by the City provide any educational or governmental programming content in a standard digital format compatible with AT&T Oklahoma's IP-enabled video technology. City and educational institutions designated by the City shall provide this programming, and AT&T Oklahoma shall receive this programming, at AT&T Oklahoma’s Point of Presence in downtown Oklahoma City. City and educational institutions designated by the City will be solely and individually responsible for their own programming content.
(D) AT&T Oklahoma shall work with the City to identify an economically and technically feasible process for providing an appropriate message through AT&T Oklahoma’s IP-enabled Video Service in the event of a public safety emergency issued over the emergency alert system, which at a minimum will include the concurrent rebroadcast of local broadcast channels.
(E) The parties agree to consult in the event that, after the Effective Date, any court, agency, commission, legislative body, or other authority of competent jurisdiction issues a finding that limits the validity or enforceability of this Agreement, in whole or in part. Should the finding be final, non-appealable and binding upon either City or Company, this Agreement shall be deemed modified or limited to the extent necessary to address the subject of the finding unless either party, within thirty (30) days of receipt of the ruling, provides written notice to the other party of election to terminate, in which case this Agreement shall terminate within six (6) months or such earlier period as the parties mutually may agree. Where the effect of a finding is a modification, the parties shall enter into good faith negotiations to modify this Agreement in the manner which best effectuates its overall purposes and the intentions of the parties. Failure to reach a mutually satisfactory modification within ninety (90) days of the commencement of such efforts shall entitle either party to terminate the Agreement on the provision of thirty (30) days’ written notice.
In addition to the termination rights set forth above, AT&T Oklahoma shall have the right to terminate this Agreement and all obligations hereunder upon ninety (90) days notice to the City, if (i) AT&T Oklahoma concludes in its reasonable business judgment that IP-enabled Video Service in the City is no longer technically, economically or financially consistent with AT&T Oklahoma’s business objectives; (ii) Title VI obligations or any similar obligations are imposed on AT&T Oklahoma; or (iii) it becomes clear that the Company must offer or provide IP-enabled Video Service pursuant to a franchise (cable or otherwise) and/or franchise-like requirements or other local authorization.
(F) AT&T Oklahoma shall determine, in its sole discretion where in the City its facilities shall be constructed, operated, maintained, repaired and upgraded to provide, and where in the City to provide its IP-enabled Video Services. However, AT&T Oklahoma agrees that it will offer a competitive video service through the technology of its choosing, which may include, but is not limited to, direct-to-home satellite service, to all residential subscribers residing within its current local telephone service footprint within the boundaries of the City, subject to density, technical feasibility, and access limitations based on standard industry practice (e.g., density limitation of thirty (30) homes per mile, authorized access to private property/developments, etc.).
4. Obligations of City. City will not attempt to nor subject the provision of AT&T Oklahoma’s IP-enabled Video Service to regulation under any cable television or broadband telecommunications franchise ordinance or similar ordinance(s). In addition:
(A) City agrees to subject the construction and installation of the facilities that will be used in whole or in part to provide AT&T Oklahoma’s IP-enabled Video Service to the same process and review as it subjects the installation and construction of traditional telecommunications infrastructure;
(B) City agrees not to unreasonably block, restrict, or limit the construction and installation of facilities that will be used in whole or in part to provide AT&T Oklahoma’s IP-enabled Video Service;
(C) City agrees to process any and all applicable permits for the installation, construction, maintenance, repair, removal, and other activities associated with placement of communications or transmission facilities of any kind in a timely and prompt manner;
5. Modification. This Agreement may be amended or modified only by a written instrument executed by both Parties.
6. Entire Agreement. This Agreement constitutes the entire agreement between City and AT&T Oklahoma with respect to the subject matter contained herein and supersedes all prior or contemporaneous discussions, agreements, and/or representations of or between City and AT&T regarding the subject matter hereof.
7. Waiver. Failure on the part of either Party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any other provision.
8. Miscellaneous.
(A) AT&T Oklahoma and City each hereby warrants that it has the requisite power and authority to enter into this Agreement and to perform according to the terms hereof.
(B) The headings used in this Agreement are inserted for convenience or reference only and are not intended to define, limit or affect the interpretation of any term or provision hereof. The singular shall include the plural; the masculine gender shall include the feminine and neutral gender.
(C) Nothing contained in this Agreement is intended or shall be construed as creating or conferring any rights, benefits or remedies upon, or creating any obligations of the Parties hereto toward any person or entity not a party to this Agreement, unless otherwise expressly set forth herein.
(D) This Agreement shall not be exclusive and the City expressly reserves the right to enter into similar agreements with any other company offering the same or similar video services at any time.
(E) The geographic area covered by this Agreement shall be the incorporated limits of the City of Oklahoma City, Oklahoma, as such area now exists or may be modified in the future by annexation or deannexation.
(F) The parties agree that either Oklahoma County District Court (7th Judicial District) or the United States District Court for the Western District of Oklahoma shall be the sole and exclusive forum for any judiciable disputes concerning this Agreement.
9. Binding Effect. This Agreement shall be binding upon and for the benefit of each of the Parties and their respective principals, managers, City Council members, offices, directors, shareholders, agents, employees, attorneys, successors and assigns and any parents, subsidiaries or affiliated corporations or entities, as applicable.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement and made the same effective as of the 27th day of March, 2007.
AT&T Oklahoma:
Name: _Don Cain________
Title: _President-Oklahoma_
City:
APPROVED by the City Council of The City of Oklahoma City, Oklahoma, on the 27 day of March, 2007.
s/b Mick Cornett
MAYOR
ATTEST:
Frances Kersey
CITY CLERK
REVIEWED as to form and legality this 22nd day of March, 2007.
Orval Edwin Jones
Assistant Municipal Counselor