Tucson Code § 7A-1 Short title.
Sec. 7A-1. Short title.
This chapter shall be known and may be cited as the City of Tucson Cable Code.
(Ord. No. 8937, § 2, 9-2-97)
CABLE COMMUNICATIONS
Tucson Code ch. 7A
in effectTucson Code § 7A-2 Definitions.
Sec. 7A-2. Definitions.
For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning.
Applicant means a person, as defined in this section, who submits a proposal to provide cable service to the city.
Basic service means any service tier which includes the retransmission of local television broadcast signals.
Cable channel means a frequency band capable of carrying at least one (1) standard color video signal; but the use of a channel is not limited to carrying a video signal.
Cable operator means any person or group of persons (A) who provides cable service over a cable system and directly or through one (1) or more affiliates owns a significant interest in such cable systems, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
Cable service means (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
Cable system means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within the City of Tucson. But, such term does not include (A) a facility that serves only to retransmit the television signals of one (1) or more television broadcast stations; (B) a facility that serves subscribers without using any public rights-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of subchapter II of 47 U.S.C.A. subchapter V, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system certified by the FCC; or (E) any facilities of any electric utility used solely for operating its electric utility system.
City is the City of Tucson, a municipal corporation of the State of Arizona.
City property means and includes all real property owned by the city, other than rights-of- way, and all property held in a proprietary capacity by the city, which is not subject to licensing as provided in this chapter.
Converter means an electronic device and any associated channel selector which converts signals to a format which permits a subscriber to receive the signals transmitted via the cable system.
FCC means the Federal Communications Commission or any legally designated successor.
Gross revenues means all cash, credits, property of any kind or nature, or other consideration derived from the operation of the cable system to provide cable services by the licensee; any cable operator of the cable system; or only to the extent necessary to prevent evasion, their affiliates, subsidiaries, parent and any person in which the licensee has a financial interest, that are not cable operators but that are performing the normal functions and responsibilities of a cable operator. This definition is intended to be read to reach as broadly as possible to encompass all revenues, subject to only to the limitations imposed by federal law. Therefore, "gross revenues" would include, by way of example but not limitation, the following:
(a) Basic subscriber service monthly fees;
(b) Optional service monthly fees;
(c) Installation and reconnection fees;
(d) Leased channel fees;
(e) Converter rentals;
(f) Production equipment and personnel fees;
(g) Advertising revenues;
(h) The sale, exchange or cablecast of any programming developed on or for community service channels or institutional users;
(i) All recoveries of bad debts previously written off and revenues from the sale or assignment of bad debts; and
(j) All sales of subscriber names and addresses.
This sum shall be the basis for computing the fee imposed pursuant to Tucson Cable Code, Section 7A-34. Gross revenues shall not include any taxes on services furnished by licensee which are imposed upon any subscriber or user by the state, city or other governmental unit and collected by licensee on behalf of said governmental unit (a license fee is not such a tax).
Licensee means a person who, in accordance with the provisions of this chapter executes a license agreement with the city for the nonexclusive privilege to erect, construct, operate, maintain or dismantle a cable system in the city.
Mayor and council means the governing body of the city.
Minority shall mean citizens or lawful permanent residents of the United States, defined for the purposes of this article to include Asian, Black, Hispanic and Native American men and women. Bona fide minority group memberships shall be established on the basis of the individual's claim that he or she is a minority and is so regarded by that particular minority community.
Person includes any individual, partnership, association, corporation, legal entity or organization of any kind. Whenever used in any clause prescribing a penalty, the term "person" as applied to partnerships or associations includes partners or members thereof, and if applied to corporations, the officers thereof. "Person" shall not include a municipal corporation unless otherwise indicated.
Proposal means an applicant's formal written response to the city's request for proposals or any other application to provide cable services submitted to the city pursuant to this chapter.
Public, educational or government or PEG use means the use of the cable system by members of the public, educational institutions and representatives of governments to transmit information to subscribers generally or to specific recipients via channels designated for such use in a license agreement over licensee-provided channels.
Rights-of-way. The term "rights-of-way" refers to city rights-of-way, alleys, roads, easements, and other city-owned property primarily dedicated to, designed for or actually and customarily used for vehicular or pedestrian travel or any easement the licensee is authorized to use by federal law. It does not include city-owned real estate utilized primarily for any purpose other than vehicular or pedestrian travel. This exclusion includes without limitation, sidewalks, parking, and ingress/egress areas appurtenant to such other use.
Subscriber means a municipal corporation or person who lawfully receives any signal or service provided or distributed by a cable system licensee.
Two-way capability means the ability to receive and transmit signals from a subscriber terminal to other points in the system.
User means a municipal corporation or person utilizing PEG or institutional network channels, including all related facilities for purposes of production and/or transmission of electronic or other signals as opposed to utilization solely as a subscriber.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-3 Findings and purpose.
Sec. 7A-3. Findings and purpose.
(1) The mayor and council find that the city's rights-of-way constitute valuable public property,
(a) Having been acquired and maintained by the city over many years at taxpayer expense;
(b) Being capable of providing rights-of-way uniquely valuable to private companies for providing cable services;
(c) Constituting public investments for which the taxpayers are entitled to a fair monetary return on the city's past and future investment in the city's infrastructure; and
(d) Comprising significant assets which should be managed fairly and appropriately to enhance the public safety and economy.
(2) Therefore, this chapter is intended:
(a) To regulate the erection, construction, reconstruction, installation, operation, maintenance, dismantling, testing, repair and use of the cable system in, upon, along, across, above, over or under or in any manner connected with the rights-of-way, public ways or public places within the jurisdiction of the city, as now or in the future may exist;
(b) To provide for the payment of certain fees and other valuable considerations to the city to regulate the construction and operation, use and development of the cable system within the city;
(c) To provide conditions under which the cable system will serve present and future needs of government, public institutions, commercial enterprises, lawful public and private organizations, and the citizens and general public of the city;
(d) To provide remedies and prescribe penalties for violations of this chapter;
(e) To permit and manage reasonable access to the public ways of the city for cable purposes on a competitively neutral basis;
(f) To conserve the limited physical capacity of the rights-of-way held in the public trust by the city;
(g) To assure that the city's current and ongoing costs of granting and regulating private access to and use of the rights-of-way are fully paid by the persons seeking such access and causing such costs;
(h) To secure fair and reasonable compensation to the city and the residents of the city for permitting private use of the rights-of-way;
(i) To assure that all cable companies providing facilities or services within the city comply with the ordinances, rules, and regulations of the city;
(j) To assure that the city can continue to fairly and responsibly protect the public health, safety, and welfare;
(k) To enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition, and technological development.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-4 License agreement.
Sec. 7A-4. License agreement.
(1) Issuance of licenses subject to agreement; conflicts with agreements and ordinance. Within sixty (60) days after written notification of the award of a license by the city, a selected applicant shall execute a license agreement which shall set forth the terms and provisions of the license.
(2) Relationship of license and license agreement to laws. Each license issued by the city is subject to, and licensee must exercise all rights granted to it in accordance with, its license agreement and applicable law, including this chapter. This chapter is not a contract with any licensee and may be amended.
(3) Nature of license agreements. Each license agreement is a contract, subject to the city's exercise of its police and other powers. A license agreement shall not confer any rights upon the licensee or limitations upon the city other than as expressly provided therein. Subject to the exercise of the city's police and other powers, in the case of any conflict between the express terms of a license agreement and the express terms of this chapter, the license agreement shall govern. A licensee, by entering into a license agreement, does not waive its rights to challenge the lawfulness of any particular enactment after the date the license is issued, including on the grounds that a particular enactment is an unconstitutional impairment of contractual rights.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-5 Policy of innovation.
Sec. 7A-5. Policy of innovation.
Recognizing the fluid and expanding state of the development of communications technology and uses, it is the policy of the city to strongly encourage experimentation and innovation in the development of cable system technology uses, services, programming and techniques that will be of general benefit to the community; provided that all such experiments and innovations shall be subject to the rules of the FCC and any other federal, state and city laws and regulations.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-6 Time is of the essence.
Sec. 7A-6. Time is of the essence.
Whenever this chapter or the license agreement sets forth any time for any act to be performed by the licensee, such time shall be deemed of the essence; and the licensee's failure to perform within the time allotted shall, in all cases, be sufficient grounds for the city to invoke the remedies available under the terms and conditions of this chapter and the license agreement.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-7 License required.
Sec. 7A-7. License required.
(1) License required. No person shall construct, install, maintain or operate a cable system within, along or under any rights-of-way in the city, or any other public property in the city, unless a license has first been granted by the mayor and council pursuant to the provisions of this chapter, and unless the license agreement is in full force and effect. Nothing in this chapter shall be deemed to require the granting of any license when in the opinion of the city it would not be in the public interest to do so.
(2) License nonexclusive. Any license granted pursuant to this chapter by the city shall not be exclusive, and the city specifically reserves the right to grant other licenses to any persons or to authorize itself to provide cable services without a license at any time and in any area of the city if the city determines that it is in the public interest to do so.
(3) License binding. All provisions of this chapter and any license agreement shall be binding upon the licensee, its successors, lessees, or assignees.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-8 Grant of authority.
Sec. 7A-8. Grant of authority.
(1) Length of license. Any license granted by the city pursuant to this chapter shall commence upon execution of the license agreement by the licensee and the city and shall be for a period specified by the license. All licenses shall be subject to periodic review by the city to evaluate whether the cable system's technology is meeting the community's needs and interests. Any license shall also provide that following such review, the city may require a licensee to make any changes necessary to reasonably upgrade the cable system's technological capabilities. The city may expressly waive such requirement in the event it determines that the cable system reasonably meets the city's technological needs and interests. In no event shall any license exceed a term of fifteen (15) years, subject to the conditions and restrictions as provided in this chapter. A license agreement may be renewed pursuant to the provisions of this chapter and federal law. No privilege or exemption shall be inferred from the granting of any license unless it is specifically prescribed.
(2) No right of property. The granting of any license pursuant to this chapter shall be a privilege and shall not impart to the licensee any right of property in any city rights-of-way or other city property.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-9 Local regulatory framework.
Sec. 7A-9. Local regulatory framework.
(1) Continuing regulatory jurisdiction. The mayor and council shall have continuing regulatory jurisdiction and supervision over the operation of any license granted pursuant to this chapter. However, it is recognized that the daily administrative, supervisory and enforcement responsibilities of the provisions of this chapter and the license agreement shall be delegated and entrusted to the city manager, or his designee, as hereafter provided.
(2) The city manager shall have the following responsibilities and authority:
(a) Interpret, administer and enforce the provisions of this chapter and the license agreement;
(b) Represent the city in all matters pertaining to the implementation of the provisions of this chapter and the license agreement;
(c) Resolve disputes or disagreements between subscribers, users, potential subscribers and users, and the licensee as to matters involving an interpretation of this chapter or the license agreement, or other matters subject to the city's jurisdiction, but only in the event that such parties are unable first to resolve their dispute; provided that, nothing in this section is meant to waive any rights a licensee may have to appeal the city's resolution of a dispute.
(d) Review and audit reports and other documents submitted to the city as required by this chapter or other law, so as to ensure that the necessary reports are completed and fulfilled pursuant to the terms of this chapter;
(e) Assure that all records, rules and charges pertinent to the system are made available for inspection at reasonable hours upon reasonable notice consistent with the license agreement and applicable law;
(f) Confer with licensees, assist in coordination among licensees, and enforce requirements under applicable law and license agreements for interconnections among cable systems and other systems;
(g) Consistent with this chapter, establish and administer sanctions as authorized by the mayor and council to ensure compliance with this chapter;
(h) Advise the mayor and council on matters which may constitute grounds for termination or revocation of the license agreement in accordance with this chapter and a license;
(i) Advise the mayor and council on proposed transfers of the system;
(j) Consistent with this chapter, promulgate regulations regarding the construction, reconstruction, operation, maintenance, dismantling, testing or use of the system as necessary;
(k) Ensure that the licensee makes any public access channel available to all residents of the city on a nondiscriminatory basis;
(l) Ensure that the operation of any public access channel is free of program censorship and control to the extent permitted by law;
(m) Perform any other duties assigned under the provisions of this chapter or other legislation which may hereafter be enacted by the mayor and council or such other related duties as the mayor and council may direct.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-10 Reserved.
Tucson Code § 7A-11 Geographic coverage of the system.
Sec. 7A-11. Geographic coverage of the system.
(1) The city may issue a nonexclusive license for any or all portions of the city's jurisdictional limits as delineated in the request for proposals. Upon the annexation of any additional land area by the city, the annexed area shall thereafter be subject to all the terms of this chapter and the license agreement immediately upon notification to the licensee of the annexation by the city.
(2) A licensee shall construct and operate its cable system so as to provide service to all parts of its license area as provided in the license agreement and having a density of at least fifteen (15) residential dwelling units per street half-mile of system or where eight (8) residential dwelling units per street half-mile agree to subscribe to cable service for at least one (1) year. In addition, all areas which reach such density at any time during the license term shall be provided service upon reaching the minimum density.
(3) Where the density is less than that specified above, the licensee shall inform persons requesting service of the possibility of paying for installation or a line extension and shall offer to provide them with a free written estimate of the cost, which shall be provided within fifteen (15) working days of such a request. The charge for installation or extension for each person requesting service shall not exceed a pro rata share of the actual cost of extending the service. If, for example, the density in an area were three (3) residential units per half mile, licensee would pay one-fifth ( 1/5) of the costs of the extension and persons agreeing to take service would pay the remaining four-fifths.
(4) Any residential dwelling unit located within one-hundred and twenty-five (125) feet of the closer of (a) the nearest edge of the public right-of-way or (b) the nearest tap on a licensee's system shall be connected to the cable system at no charge other than the standard installation charge (plus extension charges, if any, that would apply under section 7A11(2)-(3)). In determining what is the drop length from the "nearest edge of the right-of-way," the drop length will be measured to the nearest edge of the right-of-way directly adjoining the premises of the subscriber, in the direction in which the licensee's plant is located (or is to be located, in a case involving a line extension). The licensee shall, upon request by any potential subscriber residing in the city beyond the 125-foot limit, extend service to such subscriber provided that the subscriber shall pay the net additional drop costs.
All measurements must be made in a manner most favorable to the person requesting service.
(5) Under normal operating conditions, if licensee cannot perform installations within the times specified in applicable customer service standards, the subscriber may request and is entitled to receive a credit equal to the charge for a standard installation. For any installation that is not a free installation or a standard installation, the licensee shall provide the subscriber with a written estimate of all charges within seven days of a request by the subscriber. Failure to comply will subject licensee to appropriate enforcement actions. This section does not apply to the introduction of new products and services when licensee is utilizing a phased introduction.
(6) In all cases where new developments and subdivisions are to be constructed to be served in whole or in part by underground power and telephone utilities, the owner or developer of such areas shall provide reasonable notice to the licensee of the availability of trenches, backfill and specifications of all necessary substructures in order that the licensee may install all necessary electronic cable facilities. In no event shall such undergrounding be at any cost or expense to the city.
(7) Subject to the other provisions of this section 7A-11, cable service shall be made available upon request to all individual residential dwellings, multiple-unit residential dwellings, condominiums, cooperative buildings, townhouses, institutions, organizations, businesses and all other structures within the designated license area.
(8) Nothing in this section shall prohibit a person from requiring that cable system facilities conform to laws and regulations and reasonable conditions necessary to protect safety, functioning, appearance and value of premises or the convenience and safety of persons and property.
(9) Nothing in this section shall prohibit a person from requiring the licensee to agree to indemnify or compensate the owner for damages or from liability for damages caused by the installation, operation, maintenance or removal of system facilities by the licensee.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-12 Interconnection.
Sec. 7A-12. Interconnection.
(1) New licensees shall interconnect their system with any or all other systems located in the city or within the county for PEG and I-Net purposes upon the directive of the city. For existing licensees, the interconnect requirements shall be determined through the license renewal process under this chapter, subject to federal law. Interconnection of systems may be done by direct cable connection, microwave link, satellite or other appropriate methods. Interconnection may be required for one or several channels of the system, including but not limited to PEG channels.
(2) Upon receiving the directive by the city to interconnect, the licensee shall immediately initiate negotiations with the other affected system or systems in order that costs may be shared equally by the systems for both the construction and operation of the interconnection link.
(3) Each licensee shall cooperate with any city-county interconnection authority, the provisions of any city-county intergovernmental agreements, regional interconnection authority or state or federal regulatory agency which may be established for the purpose of regulating, facilitating, financing or otherwise providing for the interconnection of cable systems within and beyond the boundaries of the city. A licensee may be granted reasonable extensions of time to interconnect, or the city may suspend any order it may have issued to interconnect upon petition by the licensee to the city if the city finds that the licensee has negotiated in good faith and has failed to obtain agreement from the system of the proposed interconnection, or has demonstrated that interconnection is technically unfeasible. Nothing in this section 7A-12(3) creates an obligation to physically interconnect with another system where that obligation does not arise under a license agreement or other applicable law.
(4) Any connection whatsoever of the licensee's system with any other system shall not relieve the licensee of any of its obligations under this chapter or the license agreement.
(5) Once the city directs a licensee to interconnect, the licensee is under an obligation to interconnect promptly. The licensee shall have sixty (60) days to reach an agreement on the terms of interconnection, and to submit that agreement to the city. In the event that the parties to the agreement fail to submit that agreement, either may submit its interconnection proposal to the city. The city, after public hearing, may establish the interconnection requirements, and the parties shall promptly interconnect in accordance with the city's direction. However, nothing in this section prevents either party from appealing the city's order to a court of competent jurisdiction if the party believes that it is unreasonable.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-13 Conditions of rights-of-way occupancy.
Sec. 7A-13. Conditions of rights-of-way occupancy.
(1) A licensee shall first obtain the written approval of the city engineer prior to commencing construction on the rights-of-way and public places of the city. Approval shall be in accordance with relevant Charter and Code provisions and administrative regulations, which approval shall not be unreasonably withheld. The licensee shall notify the city at least ten (10) days prior to the commencement of any construction in any rights-of-way.
(2) The licensee shall not open or disturb the surface of any rights-of-way or public place for any purpose without first having obtained a permit to do so in the manner provided by law. All excavation shall be coordinated with other utility excavation or construction so as to minimize disruption to the public.
(3) Use of existing poles or conduits.
(a) The licensee shall utilize existing poles, conduits and other facilities whenever possible and shall not construct or install any new, different or additional poles, conduits or other facilities whether on public property or on privately-owned property until the written approval of the city is obtained. No location or any pole or wire-holding structure of the licensee shall be a vested interest, and such poles or structures shall be removed or modified by the licensee at its own expense whenever the city determines that the public convenience would be enhanced thereby.
(b) The facilities of the licensee shall be installed underground in those areas of the city where existing telephone and electric services are both underground at the time of construction by the licensee. In areas where either telephone or electric utility facilities are installed aerially at the time of system construction, the licensee may install its facilities aerially; however, at such time as the existing aerial facilities are placed underground, the licensee shall likewise place its facilities underground at sole cost to the licensee.
(4) All transmission and distribution structures, lines and equipment erected by the licensee shall be located so as to cause minimum interference with the unencumbered use of rights-of-way and other public places and minimum interference with the rights and reasonable convenience of property owners who adjoin any of the rights-of-way and public places.
(5) In case of disturbance or damage caused by the licensee to any rights-of-way or public place, the licensee shall, at its own cost and expense and in the manner approved by the city, replace and restore such rights-of-way or public place in as good or better a condition as before the work performed by the licensee which caused such disturbance or damage.
(6) At any time during the period of the license, the licensee shall, at its own expense, protect, support, temporarily disconnect, relocate or remove any of its property when, in the opinion of the city, (i) the same is required by reason of traffic conditions, public safety, rights- of-way vacation, freeway or rights-of-way construction, alteration to or establishment of any rights-of-way or any facility within the rights-of-way, sidewalk, or other public place, including but not limited to, installation of sewers, drains, waterlines, power lines, traffic signal lines or transportation facilities; or (ii) a city project or activity makes disconnection, removal, or relocation necessary or less expensive for the city.
(7) The licensee shall, on request of any person holding a permit to move a building, temporarily raise or lower its wires to permit the movement of such buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the licensee shall have the authority to require such payment in advance. The licensee shall be given not less than five (5) days advance notice to arrange such temporary wire alterations.
(8) Whenever, in case of fire or other emergency, it becomes necessary in the judgment of the city manager, police chief, fire chief, or their delegates, to remove or damage any of the licensee's facilities, no charge shall be made by the licensee against the city for restoration, repair or damages.
(9) The licensee shall have the authority to trim trees on public rights-of-way at its own expense as may be necessary to protect its wires and facilities, subject to supervision and direction by the city. Trimming of trees on private property shall require consent of the property owner. Any trimming of trees by the licensee in the rights-of-way and public ways shall be subject to such regulation as the city manager or other authorized official may establish to protect the public health, safety and convenience.
(10) Protection of facilities. Nothing contained in this section shall relieve any person from liability arising out of the failure to exercise reasonable care to avoid damaging the licensee's facilities while performing any work connected with grading, regrading or changing the line of any rights-of- way or public place or the construction or reconstruction of any sewer or water system.
(11) Installation records. Each licensee shall keep accurate installation records of the location of all facilities in the rights-of-way and public ways and furnish them to the city upon request. A licensee shall cooperate with the city to furnish such information in an electronic mapping format compatible with the then-current city electronic mapping format. Upon completion of new or relocation construction of underground facilities in the rights-of-way and public ways, the licensee shall provide the city with installation records in an electronic format compatible with the then-current city electronic mapping format showing the location of the underground and above ground facilities.
(12) If, during the design process for public improvements the city discovers a potential conflict with proposed construction, the licensee shall either: (a) locate and, if necessary, expose its facilities in conflict or (b) use a location service under contract with the city to locate or expose its facilities. Each licensee is obligated to furnish the location information in a timely manner, but in no case longer than thirty (30) days.
(13) The city reserves the prior and superior right to lay, construct, erect, install, use, operate, repair, replace, remove, relocate, regrade, widen, realign, or maintain any rights-of-way and public ways, aerial, surface, or subsurface improvement, including but not limited to water mains, traffic control conduits, cable and devices, sanitary or storm sewers, subways, tunnels, bridges, viaducts, or any other public construction within the rights-of-way of the city limits.
(14) When the city uses its prior superior right to the rights-of-way and public ways, the licensee shall move its property that is located in the rights-of-way and public ways, at its own cost, to such a location as the city directs. Notwithstanding the foregoing, in the event the public project is paid for totally or in part by non-public funds, then the licensee's costs of moving its property shall be borne by the source of the non-public funds in the same ratio as the non-public funds bear to the total project costs.
(15) If, during the course of a project, the city determines licensee's facilities are in conflict, the following shall apply:
(a) Prior to city Notice to Proceed to Contractor: The licensee shall, within a reasonable time, but in no event exceeding three (3) months, remove or relocate the conflicting facility. This time period shall begin running upon receipt by the licensee of written notice from the city. However, if both the city and the licensee agree, the time frame may be extended based on the requirements of the project.
(b) Subsequent to city Notice to Proceed to Contractor: The city and the licensee will immediately begin the coordination necessary to remove or relocate the facility. Removal or relocation is to begin no later than seventy-two (72) hours, if practicable, after written notification from the city of the conflict.
(16) The licensee agrees to obtain a permit as required by the city prior to removing, abandoning, relocating or reconstructing, if necessary, any portion of its facilities. Notwithstanding the foregoing, the city understands and acknowledges there may be instances when the licensee is required to make repairs, in compliance with federal or state laws, that are of an emergency nature. The licensee will notify the city prior to such repairs, if practicable, and will obtain the necessary permits in a reasonable time after notification to the city.
(17) If, in the installation, use or maintenance of its facilities, the licensee damages or disturbs the surface or subsurface of any rights-of-way or public ways or adjoining public property or the public improvement located thereon, therein, or thereunder, the licensee shall promptly, at its own expense, and in a manner acceptable to the city, restore, repair or replace the property thereon, therein, or thereunder, in as good a condition as before such damage or disturbance. If such restoration, repair or replacement is not completed within a reasonable time, or such repair or replacement does not meet the city's reasonable standards, the city shall have the right to perform the necessary restoration, repair, or replacement, either through its own forces or through a hired contractor, and the licensee agrees to reimburse the city for its expenses in so doing within thirty (30) days after its receipt of the city's invoice therefor.
(18) If licensee's relocation effort so delays construction of a public project causing the city to be liable for delay damages, the licensee shall reimburse the city for those damages attributable to the delay created by the licensee. In the event the licensee should dispute the amount of damages attributable to the licensee, the matter shall be referred to the city engineer for a decision. In the event that licensee disagrees with the city engineer's decision, the matter shall be submitted to the city manager or the city manager's designee for determination, whose decision shall be final and binding upon licensee as a matter of city review, but nothing herein waives any right of appeal to the courts.
(19) In the event the city becomes aware of a potential delay involving the licensee's facilities, the city shall promptly notify the licensee of this potential delay.
(20) The installation, use and maintenance of the licensee's facilities within the rights- of-way and public ways authorized herein shall be in such a manner as not to interfere with the city's placement, construction, use and maintenance of its rights-of-way and public ways, rights- of-way lighting, water pipes, drains, sewers, traffic signal systems or other city systems that have been, or may be, installed, maintained, used or authorized by the city.
(21) The licensee agrees not to install, maintain or use any of its facilities in such a manner as to damage or interfere with any existing facilities of another utility located within the rights-of-way and public ways of the city and agrees to relocate its facilities, if necessary, to accommodate another facility relocation. Nothing in this section 7A-13(21) is meant to limit any rights a licensee may have under applicable law to be compensated for the cost of relocating its facilities from the utility that is requesting the relocation.
(22) Reimbursement paid through the permitting process is separate, and in addition to, any other fees included in the license. The licensee, at the time of or prior to submitting construction plans, shall provide the city with a description of the type of service to be provided by the licensee in sufficient detail for the city to determine compliance with the license and applicable law.
(23) The city may issue reasonable policy guidelines to all licensees to establish procedures for determining how to control issuance of engineering permits to multiple licensees for the use of the same rights-of-way for their facilities. The licensee shall cooperate with the city in establishing such policy and comply with the procedures established by the city manager or his designee to coordinate the issuance of multiple engineering permits in the same right-of-way segments.
(24) To maximize public and employee safety, to minimize visual clutter of aerial plant, and to minimize the amount of trenching and excavation in and along city rights-of-way and sidewalks for underground plant, licensee shall make every commercially reasonable effort to co-locate compatible facilities within the rights-of-way subject to the engineering requirements of the owners of utility poles and other facilities.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-14 Use, rental or lease of utility poles and facilities.
Sec. 7A-14. Use, rental or lease of utility poles and facilities.
Each licensee assumes all responsibility for gaining permission from any electric, gas or telephone utility in the city for the use, rental or lease of poles, underground conduits and other structures and facilities for the purpose of extending, carrying or laying the licensee's wires, cables, electronic conductors and other facilities and appurtenances necessary or desirable in conjunction with the establishment and operation of the system. Copies of all agreements for use of poles, conduits, or other utility facilities must be provided to the city manager within thirty (30) days of a request therefor by the city.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-15 Cable system design.
Sec. 7A-15. Cable system design.
It is the intent of the city that the cable system provide the broadest range of services possible. In this regard, the requirements stated in this section are intended only as minimum specifications for the system and final determination of system design for licensees will be made through the initial licensing or renewal process. The city may increase or otherwise alter the requirements in an RFP for a license. Applicants are strongly encouraged to offer the city, through the proposal process, the broadest range of services, facilities, equipment, technical assistance and other related considerations as technologically and economically feasible. Neither the specifications of the minimums in subsections (1) through (7) nor the final terms of a license agreement shall be interpreted to waive any rights or obligations of the licensee or the city under 47 U.S.C. § 546.
(1) Channel capacity. The licensee shall construct, at a minimum, a system that provides a minimum capacity of 550 MHz and that is designed in a way so that it can deliver the channels in manner reasonably responsive to customer demand. The system shall be designed so that the number of channels may be increased as supply and demand for additional channel utilization exceeds the number initially activated and so that the capacity of the cable system may be increased without substantial reconstruction of the cable system.
(2) System configuration. The licensee shall design and construct the system in such a manner as to provide maximum utilization flexibility for both subscribers and users.
(3) Emergency override. Except as inconsistent with FCC regulations, the system shall include an emergency alert capability which shall permit the mayor or the mayor's designate to override the audio on all television channels and FM signals simultaneously, in the case of public emergencies as determined by the mayor. The licensee shall also designate a video channel which will be used for emergency broadcasts, which designation shall be included in the license agreement.
(4) Standby power. The licensee shall maintain in constant readiness equipment capable of providing standby power for the cable system as consistent with sound engineering practices given the licensee's system design.
(a) Such equipment shall be constructed so as to revert automatically to a standby mode when alternating current power returns.
(b) Licensee shall comply with all utility and other safety regulations to prevent the alternate power supply from powering a "dead" utility line so as to prevent injury to any person.
(5) Two-way capability. Maximum two-way interactive service capability as reasonably justified in light of the needs and interests of the community and the costs thereof, considering projected advances in technology shall be designed into the system at its inception.
(6) PEG channels. In addition to the other services proposed by applicants, the city shall place significant emphasis on the provision of PEG channels, facilities and related considerations. Such areas include but are not limited to the following: channel(s) for government usage, educational usage (public and nonprofit schools, colleges and universities), public access, and local origination. Applicants are strongly encouraged to investigate the needs and desires of potential users and to offer such community services as are technologically and economically feasible. Both internal institutional communications and connection to subscribers is encouraged where appropriate. In this regard, applicants should also consider and respond to the request for proposals in the area relating to institutional networks.
The licensee shall not take any actions that would discourage or prevent maximum utilization of all PEG channels provided, and shall cooperate with the city and managers of PEG channels to ensure that subscribers are aware of the channels, can access them easily, and, to the extent that a licensee (or some entity acting on a licensee's behalf) is involved in publicizing licensee's other channels or channel schedules, that the PEG channels and channel schedules are similarly publicized.
(7) Facilities and management. In regard to the community service provisions referred to in this section, applicants are strongly encouraged to consider and provide studio facilities, production equipment, technical assistance and other facilities and equipment to enable the city and its residents to fully utilize the system as not only an entertainment medium, but as an intracommunity communications and education medium. Such services, facilities, production equipment, origination points, hours of availability where appropriate, costs and all other necessary information relating to community service shall be as proposed by applicants and as provided for in the license agreement. Specific operational details and responsibilities, including the city's right to designate management organizations to operate various community service channels and facilities (a right specifically reserved herein by the city), shall be provided for in the license agreement and a separate agreement between the licensee, the city and any management organizations designated by the city for this purpose.
(8) Public use connections. At a minimum, the licensee shall offer to provide, without charge, one (1) outlet of services to a conveniently accessible point in each public, private and parochial school, nonprofit college and university and each fire station, police station, public library branch, city neighborhood community center, public park and such other facilities used for municipal purposes as may be designated by the city. A license agreement may specify the particular conditions under which the outlets will be provided.
(9) Institutional network. Each licensee either shall provide an institutional network for educational and government use, or shall provide an appropriate contribution for construction of an institutional network, which contribution shall be specified in the license agreement.
(10) Reception. The system shall be capable of and shall produce a picture upon any subscriber's television receiver in black and white or color that is undistorted and free from ghost images, is without noticeable picture degradation or other forms of interference attributable to the performance of the system, and accompanied by undistorted sound. This requires that equipment be installed at the headend to allow the licensee to receive or cablecast signals in substantially the form received, without substantial alteration or deterioration (for example, the headend should include equipment that will transmit color video signals received at the headend in color). Equipment must be installed so that all closed captioning programming received by the cable system shall include the closed caption signal so long as the closed captioned signal is provided consistent with FCC standards. Equipment must be installed so that all local signals received in stereo or with secondary audio tracks (broadcast and PEG) are retransmitted in those same formats. In the case of AM/FM radio transmission, the above specifications, where applicable, shall apply.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-16 Reserved.
Tucson Code § 7A-17 Privacy.
Sec. 7A-17. Privacy.
(1) As used in this section, "valid authorization" shall mean an authorization valid under federal or state law.
(2) The licensee shall strictly observe and protect the rights of privacy and property rights of subscribers and users at all times. Individual subscriber preferences of any kind, viewing habits, political, social or economic philosophies, beliefs, creeds, religions or names, addresses or telephone numbers shall not be revealed to any person, governmental unit, police department or investigating agency unless upon the authority of a court of law or upon prior voluntary valid authorization of the subscriber, which shall not in any event be required as a condition of receiving service.
(3) The licensee may release the number of its subscribers but only as a total number and as a percentage of the potential subscribers throughout the city. When indicating the number of subscribers viewing a particular channel at a particular time, the licensee shall indicate only the total number of subscribers viewing during the relevant time and the percentage of all subscribers which they represent, but never the identity of a particular subscriber.
(4) The licensee may maintain such information as is necessary to bill subscribers for the purchase of any system service.
(5) Neither the licensee nor any other person shall initiate in any form the discovery of any information on or about a subscriber's premises without prior valid authorization from the subscriber potentially affected.
(6) A subscriber may at any time revoke any authorization previously made, by delivering to the licensee in writing by mail or otherwise, his/her decision to so revoke. Any such revocation shall be effective upon receipt by the licensee.
(7) No monitoring of any subscriber terminal shall take place without specific prior valid authorization by the user of the terminal in question; however, the licensee may conduct systemwide or individually addressed "sweeps" for the purpose of verifying system integrity. In no event shall aural or visual monitoring of any kind take place without a clear indication to the subscriber that such monitoring is taking place. The licensee shall not initiate a subscriber response mechanism without the city manager's making a finding that the system can operate effectively and yet give absolute protection against any invasion of privacy.
(8) The licensee shall not tabulate any test results, nor permit the use of the system for such tabulation, which would reveal the commercial product preferences or opinions of subscribers, members of their families or their invitees, licensees or employees without prior valid authorization of the subscriber.
(9) Each compilation, publication, tabulation or other dissemination of each piece of information made or permitted to be made in violation of this section shall be considered a separate violation.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-18 Reserved.
Tucson Code § 7A-19 Construction and technical standards.
Sec. 7A-19. Construction and technical standards.
(1) Compliance with construction codes.
(a) Construction practices shall be in accordance with all applicable provisions of the Occupational Safety and Health Act of 1970 and any amendments thereto as well as all applicable laws, rules and regulations of the state and the city, including but not limited to requirements of the city in regard to various electrical wiring necessary to the operation of city functions, including but not limited to traffic-control signalization, right-of-way lighting, fire lines and communications lines.
(b) All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the applicable provisions of the current editions of the National Electrical Safety Code as published by the Institute of Electrical and Electronics Engineers, the National Electrical Code of the National Fire Protection Association, and all state and local codes where applicable.
(c) Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the United States Department of Transportation and all other applicable laws, rules and regulations of the state and the city.
(2) Performance standards. The system shall be installed, maintained and operated in accordance with the highest accepted standards of the industry. The licensee shall design and construct the system so as to meet the following minimum standards:
(a) The cable system should be capable of continuous twenty-four-hour daily operation without severe material degradation of signal except during extremely inclement weather, and immediately following extraordinary storms which adversely affect utility services or which damage major system components.
(b) The cable system should be capable of operating over an outdoor temperature range of 0 degrees F to +135 degrees F and over variation in supply voltages from 105 to 130 volts AC without catastrophic failure or irreversible performance changes.
(3) Technical standards. Except as otherwise provided in federal law, each cable system shall be designed, installed and operated so as to comply with all applicable technical standards, codes, and regulations as promulgated by the FCC and other federal, state and local authorities. In this regard, 47 C.F.R. section 76.60, relating to technical standards (including but not limited to performance monitoring and measurements), shall apply in full and is hereby incorporated herein by this reference, except as preempted by federal law. All other applicable state or city laws, rules or regulations relating to technical standards and operation of the system as may be enacted or promulgated from time to time shall apply and govern the installation and operation of the system to the extent such laws, rules or regulations are not preempted by federal regulation.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-20 Customer service standards.
Sec. 7A-20. Customer service standards.
(1) Definitions.
(a) Normal business hours shall be a minimum of fifty (50) hours Monday through Friday, and four (4) hours on Saturday.
(b) Normal operating conditions include those service conditions which are within the control of the licensee. These 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. Conditions which are not within the control of the licensee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe weather out of the ordinary for the area.
(c) Service interruption means the loss of picture or sound on one or more channels. The definition of service interruption affects the timing of when the licensee must respond to a service problem.
(2) Office and phone service.
(a) The licensee shall maintain an office in the city which shall be open and staffed during normal business hours. The licensee shall have a locally listed telephone number and be so operated that complaints and requests for repairs or adjustments may be received twenty-four (24) hours per day, each day of the year. Licensee's personnel at the local office shall, at a minimum, be able to provide immediate billing information, provide for equipment pick-up and drop-off, and customer service information.
(b) Trained company representatives will be available to respond to telephone inquiries from 7 a.m. to 8 p.m. Monday through Saturday. Between 8 p.m. and 7 a.m. Monday through Saturday, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received by licensee's answering service or automated response system must be responded to by a trained company representative on the next business day.
(c) Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds from when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. Callers will receive a busy signal less than three (3) percent of the time. Calls will be lost or abandoned less than three (3) percent of the time. These standards shall be met no less than ninety (90) percent of the time, measured on a quarterly basis.
Failure to meet these standards shall subject licensee to appropriate enforcement actions.
(d) Customer service center and bill payment locations will be open at least during normal business hours and will be conveniently located. A licensee may use an agent such as a bank or other business to receive bill payment from cable customers during and outside of normal business hours. Such an arrangement, however, will not relieve the licensee of its obligation to have its own bill payment location open at least during normal business hours. The account of a customer who remits payment at any authorized bill payment location will be credited by licensee no later than the beginning of the following business day.
(e) Licensee shall notify the city manager or his designee as promptly as possible, by any available means including accessing telephones away from licensee's premises, whenever there is a total interruption of telephone service which affects licensee's subscriber service phone lines.
(3) Notification requirements.
(a) The licensee shall provide written information on each of the following areas at the time of installation of service; at least annually to all subscribers; and at any time upon request of a subscriber or potential subscriber. A current version of the information will be provided to the city upon request, and automatically whenever the material provided to subscribers or potential subscribers changes. The notice provided must provide information specific to Tucson. However, nothing prevents the company from complying with this section by sending a national notice and a separate notice that provides detail concerning local procedures, so long as the two are consistent.
(i) Products and services offered;
(ii) Prices and options for programming services and conditions of subscription to programming and other services. In order that subscribers are fully apprised of the charges they may incur, licensee shall note that advertised rates are subject to additional taxes and fees;
(iii) Installation and service maintenance policies, including, when applicable, information regarding the subscriber's home wiring rights and information describing ownership of internal wiring during the period service is provided;
(iv) Instructions on how to use the cable service;
(v) Channel positions of programming carried on the system;
(vi) Billing and complaint procedures, including address and telephone number of the city's cable office. Such notification shall be either a separate document which may be included with a billing statement or included on the portion of the monthly bill that is to be retained by the subscriber;
(vii) The availability of a parental control device;
(viii) Licensee's practices and procedures for protecting against invasions of privacy;
(ix) The address and telephone number of licensee's office to which complaints may be reported;
(x) When applicable, licensee's community unit identifier as specified by the FCC;
(xi) The manner in which the licensee will provide notice of any rate or service changes; and
(xii) Subscribers' rights to obtain refunds or credits from the licensee and the steps that must be taken to obtain the refunds and credits.
(b) At any time a subscriber's services are changed due to action by licensee, licensee shall send the following notice:
(i) Products and services offered;
(ii) Prices and options for programming services and conditions of subscription to programming and other services. In order that subscribers are fully apprised of the charges they may incur, licensee shall note that advertised rates are subject to additional taxes and fees;
(iii) Channel positions of programming carried on the system;
(iv) Subscribers' rights to downgrade or to disconnect.
(c) Customers will be notified of any changes in rates, programming services, or channel positions as soon as possible in writing unless otherwise expressly provided by federal law. Notice must be given to subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the licensee. In addition, the licensee shall notify subscribers thirty (30) days in advance of any significant changes in the other information required by the preceding paragraph in writing. Notices of changes of programming services and/or channel locations shall include a concise description of the new programming service and the specific channel position of that programming service. In addition, should the channel position be affected by the introduction of a new service, such information must also be included in the notice.
The city shall be notified of any change in rates, programming services, channel position or policy at least forty-five (45) days in advance of such change by letter delivered to the telecommunications administrator, except where such notification is impossible because the change is beyond the control of licensee or any affiliate, in which case the notice must be given as quickly as possible. As part of this notice, licensee will tell the city how notice will be provided to subscribers and provide a copy of the notice that will be given to subscribers, or if the precise notice is not available, licensee will provide the text of the notice. For informational purposes only, a listing of licensee closings or holidays will be provided to the city annually, by no later than January 1 of each year.
(d) Notice to subscribers must be reasonable.
(e) Notice of termination. Every notice of termination of service shall include all of the following information:
(i) The name and address of the subscriber whose account is delinquent;
(ii) Current account balance;
(iii) The date by which payment is required in order to avoid termination of service; and
(iv) The telephone number of a representative of licensee who can provide additional information and handle complaints or initiate an investigation concerning the service and charges in question.
(f) Special notice procedures
(i) At any time a person subscribes to any service, the person must be specifically informed whether there will be a charge to drop the service.
(ii) If there is any charge for terminating a promotional or free product or service, the charge must be disclosed in writing prior to connection of the service or provision of the product.
(iii) At the time a person schedules a service call or installation, licensee shall inform the person that the person is entitled to refunds or credits if the licensee's personnel misses the appointment without the consent of the person.
(g) Missed appointments. Under normal operating conditions, if licensee does not arrive for installations or service calls by appointment within the scheduled four-hour time frame agreed to by the person, the person may request within thirty (30) days of the missed appointment and is entitled to receive a twenty dollars ($20.00) credit in addition to providing the installation, service and products as promised to the customer at the time the call was first scheduled (for example, if the company had agreed to provide the install for free, it would be obligated to provide the twenty dollars ($20.00) credit and provide free installation). Failure to comply will subject licensee to appropriate enforcement action.
(4) Service calls and response time. Under normal operating conditions, each of the following standards will be met no less than ninety-five (95) percent of the time, as measured on a quarterly basis:
(a) Installations to locations that are located within one hundred and twenty-five (125) feet of the existing distribution system will be performed within seven (7) business days after an order has been placed. Installations to locations that are located more than 125 feet away from, but within three hundred (300) feet of the existing distribution system will be performed within fourteen (14) days after an order has been placed.
(b) Where a request for service can be satisfied without a service call, the request must be satisfied within three (3) business days from the date of request.
(c) For installations to locations that are more than three hundred (300) feet from the existing distribution system, service must be provided within thirty (30) days of the date the person requesting service agrees to pay the charges associated with the installation. Nothing in this section 7A-20 permits a licensee to charge for extending service in an area where the licensee is required to provide service pursuant to section 7A-11. Installations on new construction entitled to service under a license agreement or this ordinance shall be completed within ninety (90) days of the date of occupancy.
(d) The "appointment window" alternatives for installations, service calls, and other installation activities will be either a specific time or, at maximum, a four-hour time block during normal business hours. The licensee may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.
(e) Licensee may not cancel an appointment with a person after the close of business on the business day prior to the scheduled appointment without the person's consent.
(f) If licensee's representative is running late for an appointment with a subscriber and will not be able to keep the appointment as scheduled, licensee will make an effort to contact the person directly. If, however, the person is unavailable at the time the contact attempt is made, licensee will attempt a second contact at least one more time during the previously agreed upon appointment window. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer. This later contact is an independent obligation and will not necessarily excuse a missed appointment. Contacting the person will not negate any applicable requirement for a credit.
(g) Excluding conditions beyond the control of the licensee, the licensee will begin working on "service interruptions" promptly and in no event later than twenty-four (24) hours after the interruption becomes known to the licensee. The licensee must begin actions to correct other service problems the next business day after notification of the service problem. Merely acknowledging the existence of the problem does not satisfy this requirement.
(h) Service interruptions must be corrected within thirty-six (36) hours of the time that the interruption becomes known to the licensee.
(i) Other problems must be solved within ninety-six (96) hours of the time that the problems become known to the licensee.
(5) Disconnect charges; time for disconnection. Licensee shall be prohibited from levying a disconnect charge upon any subscriber who wishes to stop subscribing to licensee's service. For purposes of billing, a request for disconnection shall be effective immediately upon the subscriber's oral or written request, and the subscriber may not be billed for any service provided after the request, and is entitled to refunds on any prepaid period. However, in the case of special promotions, a subscriber is not entitled to a refund of prepayment amounts if the subscriber was fully and clearly informed in writing prior to taking the service that prepaid amounts would not be returned. Nothing prevents a licensee from establishing reasonable charges to disconnect the service of persons who fail to pay their bills.
(6) Refunds, credits and rebates. In addition to such refunds, credits and rebates provided for in the foregoing sections, subscribers shall be entitled to a refund, rebate or credit in each of the following circumstances:
(a) In the case of any failure to notify a subscriber of a rate increase that is implemented before the notice is corrected, the subscriber shall be entitled to service at the old, lower rate until notice is provided as required herein; provided that, if the licensee is not notified that the notice was defective within thirty (30) days of the date the increase was implemented, the old, lower rate will apply only for the first full monthly billing cycle;
(b) In the case of any failure to provide other required notices, where the licensee implements the change before the notice violation is corrected:
(i) Where the change involves a change in services but not in charges, subscribers as to whom the notice was defective will be provided a credit equivalent to free basic service for one month upon the subscriber's request; a complaint from the subscriber related to the notice will be deemed to be a request for the credit;
(ii) Where the change involves a charge (e.g., a late fee), any incremental increase in the charge, or in the case of a new charge, the entire charge, shall be waived until the notice is corrected;
(7) Unscheduled service interruptions, notifications and sanctions.
(a) The licensee may interrupt system service after 7:00 a.m. and before 1:00 a.m. only upon necessary cause for the shortest time possible and only after publishing notice of such service interruption, except for emergency situations. Services may be interrupted between 1:00 a.m. and 7:00 a.m. for routine testing, maintenance and repair, without notification, provided that all such interruptions are limited to the shortest possible time. Except for conditions not within the licensee's control, or for authorized and scheduled interruptions, in the event of an aggregate of more than two (2) hours of service interruptions or six (6) distinct service interruptions within a twenty-four-hour period, the licensee shall provide a rebate for the twenty-four-hour period to any customer that calls and reports the outage or that requests a rebate.
(b) Subject to the preceding paragraph, except for acts of God, and except in circumstances where prior approval has been obtained from the city, in the event that there is repeated, unscheduled interruption of service to any subscriber or user, the licensee shall, upon request, rebate a percentage of the monthly fee to affected subscribers or users as follows:
(i) Three (3) daily rebates within any 30-day period: Twenty-five (25) percent of the monthly fee in lieu of the required daily rebate in paragraph (a) of this section;
(ii) Four (4) or more daily rebates within any 30-day period: One hundred (100) percent rebate of the monthly fee in lieu of the required daily rebate in subsection (b)(i) of this section;
(iii) Twenty-four(24) consecutive hours: Five (5) percent rebate of the monthly fee;
(iv) Twenty-four (24) to forty-eight (48) consecutive hours: Fifteen (15) percent rebate of the monthly fee;
(v) Forty-eight (48) to seventy-two (72) consecutive hours: Twenty-five (25) percent rebate of the monthly fee;
(vi) Greater than seventy-two (72) consecutive hours: One hundred (100) percent rebate of the monthly fee.
(8) Bills and billing disputes.
(a) Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. In case of a billing dispute, the licensee must respond to a written complaint to a subscriber within thirty (30) days. If, on bills, licensee chooses to itemize as a separate line item license fees and/or other governmentally imposed fees attributable to the total bill, such fees must be shown in accordance with any applicable law concerning licensee's ability to itemize such fees.
(b) Refund checks or rebates will be issued promptly, but no later than either (i) the customer's next billing cycle following resolution of the request or thirty (30) days whichever is earlier, or (ii) a return of the equipment supplied by the cable operator if service is terminated. Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted.
(c) A specific due date at least ten (10) business days from the date of mailing shall be indicated on every subscriber bill. This provision applies only to active accounts in good standing, not those accounts pending disconnect for prior delinquencies. A late charge or other fee for late payment may not be imposed earlier than the later of (i) twenty-three (23) days after the bill is mailed; or (ii) the twentieth (20th) day of the month in which the service for which payment is sought is rendered. For purposes of determining whether a fee may be imposed, the bill is deemed paid on the date licensee receives payment, and it is licensee's responsibility to ensure that its posting and crediting practices will not result in assessment of improper fees and charges upon subscribers.
(d) Any subscriber who, in good faith, disputes all or part of any bill has the option of withholding the disputed amount without disconnection or imposition of late fees until licensee has investigated the dispute and has made a determination that the amount is owed provided that:
(i) The subscriber pays all undisputed charges;
(ii) The subscriber provides written notification of the dispute to the licensee in a timely manner and includes identifying information; and
(iii) The subscriber cooperates in determining the appropriateness of the charges in dispute.
(e) Subscriber bills from licensee shall include the name, address, and telephone number of the telecommunications administrator. The telecommunications administrator will provide the required information to licensee on an annual basis by January 1, or as needed.
(f) Licensee shall forward all regulatory billing inserts affecting rates, policies and procedures and copies of all other mailings required by law or license to subscribers to the telecommunications administrator fifteen (15) days prior to the time they are provided to subscribers. Copies of notices to subscribers must be forwarded to the telecommunications administrator to determine compliance pursuant to applicable law.
(g) It is licensee's obligation to pick up any equipment upon termination of any service if licensee initially delivered the equipment to the subscriber. Any charges imposed for pick-up of such equipment shall not exceed the charge for delivering the equipment, assuming that the customer honors the equipment pick-up appointment agreed to with the company.
(9) Complaints. If a complaint to a licensee cannot be resolved to a customer's satisfaction, the city may consider individual cases brought to its attention and may seek that information necessary to investigate the dispute and to exercise any authority the city may have to resolve the dispute.
(10) Disconnection or denial of service.
(a) Licensee shall not terminate residential service for nonpayment of a delinquent account unless licensee provides initial written notice of the delinquency and impending disconnection at least ten (10) days prior to the proposed termination. The notice shall be mailed, postage prepaid, to the subscriber to whom the service is billed. This notice shall not be sent until thirty (30) days after the delinquent date of the bill. The disconnect notice may be included as part of a mailing containing a billing statement so long as the disconnect notice is prominent and in at least sixteen-point bold type.
(b) Licensee shall terminate service only on days when the subscriber can reach a representative of licensee either in person or by telephone. Service terminated without good cause must be restored without charge for the service restoration. In addition, licensee must provide two (2) months' credit or refund for basic service plus one other service tier selected by the subscriber at no cost to the subscriber. Good cause includes, but is not limited to, failure to pay, payment by check for which there are insufficient funds, or theft of service.
(c) Subject to provisions of the license agreement, licensee shall furnish and maintain services to each person in the license area who makes a request to receive any programming service. Nothing in these standards shall limit the right of licensee to deny service to any household or individual which has a negative credit or service history with licensee, which may include nonpayment of bills or theft or damage to licensee's equipment, or who has threatened or assaulted employees of licensee in the course of their employment, or for other good cause, which must be documented; provided, however, that in the event service is denied, licensee will give notice to the subscriber of the right to contact the appropriate regulatory authority, providing name, address, and phone number as directed by the licensing authority.
(11) Deposits, refunds, and credits.
(a) Licensee may require refundable deposits for service or equipment. Upon termination of service for any reason, subscribers will be entitled to receive a refund or credit against amounts owed to licensee equal to the deposit.
On all deposits, licensee shall be required to pay simple interest at a rate of one- half ( 1/2) percent per month (six (6) percent per year). Such interest shall be accrued and payable upon termination of service. Upon termination of service for any reason, subscribers will be entitled to receive a refund or credit against amounts owed licensee equal to the deposit plus accumulated interest. The rate may be modified to reflect prevailing market rates upon approval by city which shall not be unreasonably withheld. Such interest shall be accrued on deposits charged to subscribers after the effective date of the license.
(b) Refund checks will be issued within thirty (30) days following the resolution of the event giving rise to the refund. In addition to a refund, if licensee fails to mail a check for a refund to any subscriber disconnecting service with an outstanding credit of three dollars ($3.00) or more within thirty (30) days of the date service is ended, and the subscriber has returned all licensee-owned equipment, the subscriber is entitled to receive a ten dollars ($10.00) penalty payment, in addition to the total refund due. Failure to comply with the ten dollars ($10.00) penalty provision shall be grounds for appropriate enforcement actions by the city. Refunds will be provided to subscribers with outstanding credits of less than three dollars ($3.00) upon request by the subscriber.
(c) Credits for service will be issued no later than thirty (30) days after the event giving rise to a credit or the subscriber's next billing cycle following the determination that a credit is warranted, whichever occurs first.
(12) Rates, fees, and charges.
(a) Licensee shall not, except to the extent permitted by law, impose any fee or charge on any subscriber for service calls to said subscriber's premises to perform any repair or maintenance work related to licensee-installed equipment necessary to receive service, except for any such work which was necessitated solely by a negligent or wrongful act of said subscriber.
(b) Where the actions of licensee, its agent(s) or subcontractors(s) can be shown upon a reasonable demonstration of evidence to have contributed to the theft, loss or damage or a converter or other equipment lawfully used by a subscriber, the subscriber's liability with respect to said converter or other equipment shall be reduced to the extent of such contributing actions.
(c) Licensee shall be entitled to recover a reasonable fee for all checks returned due to insufficient funds.
(13) Employee and vehicle identification. All personnel and service vehicles of licensee or its subcontractors contacting subscribers or potential subscribers outside the office of licensee or performing any work within city rights-of-way must be clearly identified as associated with licensee through visible uniform insignia, photo identification devices, or signs affixed to the vehicle.
(14) Rights reserved by city. City reserves the right to establish additional, reasonable subscriber service standards from time to time, as may be necessary.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-21 Rates.
Sec. 7A-21. Rates.
(1) The city may regulate rates except to the extent prohibited by state and federal law.
(2) Each licensee shall file with the city an up-to-date rate schedule of all subscriber and user rates, fees and charges for all cable services and products provided, which schedule shall be on file in the office of the telecommunications administrator at all times. Any and all proprietary special rates for institutions, motels, hotels, inns, multiple-family dwelling units (referred to below as "MDU" rates), shall be made available for inspection promptly upon the city's request. Should a federal agency of competent jurisdiction rule that the City has no authority to review the MDU rates for reasonableness or to prevent discrimination, then the rates would only be available for inspection on the same basis as other books and records would be available for inspection. Licensee shall file any revised rate schedule with the telecommunications administrator in accordance with the requirements of section 7A-20.
(3) The system shall be operated in a manner consistent with the principles of fairness and equal accessibility of facilities, equipment, channels, studios and other services to all residents, businesses, public agencies or other entities having a legitimate use for the system; and no one shall be arbitrarily excluded from its use. The licensee shall not discriminate in the assessment, levy, charge, imposition or collection of rates, fees or charges on the basis of race, color, religion, ancestry, sex, age, disability which includes but is not limited to, HIV/AIDS, national origin, sexual orientation, gender identity, familial status and/or marital status.
(4) Nothing in this chapter shall be construed to prohibit the reduction or waiving of charges in conjunction with promotional campaigns for the purpose of attracting subscribers or users, so long as the promotion is bona fide, temporary, and available to all similarly situated persons throughout the city.
(5) Licensee may request in writing and city may grant, temporary authority to licensees for periods not to exceed twenty-four (24) months to offer specifically identified services, packages and combinations of services to selected groups of subscribers at terms and conditions not generally available to all subscribers. The city may refuse to grant this waiver unless it is persuaded upon sufficient showing by licensee that the temporary authority will be used solely to offer services on an experimental or test market basis, and that the services will either be withdrawn at the conclusion of the test or will be made generally available to all subscribers in a uniform, consistent and nondiscriminatory manner.
(Ord. No. 8937, § 2, 9-2-97; Ord. No. 11057, § 1, 3-27-13)
Tucson Code § 7A-22 Reports.
Sec. 7A-22. Reports.
(1) Annual reports. On or before March 31 of each year during the term of the license agreement, the licensee shall submit a written report to the licensing authority. The reports shall be submitted in accordance with forms prepared by the telecommunications administrator after providing a period for notice and comment and providing interested parties an opportunity for notice and comment on the forms. Until such forms are prepared after notice and opportunity for comment, the annual reports shall be prepared in accordance with the general business practices of a licensee and shall contain at least the following information regarding the previous calendar year:
(a) A summary of activities in the development of the system, including but not limited to services begun or discontinued, total number of subscribers, homes passed, subscribers added or discontinued and user participation, all per the provisions of this chapter and the license agreement.
(b) A list of all complaints and system downtime received or experienced during the reporting period. All such submitted data shall include complaint disposition and response time.
(c) A summary by category of complaints, identifying the number and nature of complaints and their dispositions.
(d) A fully audited revenue report, or a revenue report certified as correct by a Licensee's chief financial officer.
(e) A projected income statement and statement of projected construction for the next two (2) years.
(f) A list of officers and members of the board of directors of the licensee and its parents.
(g) A list of stockholders holding five (5) percent or more of the voting stock of the licensee or its parents.
(h) A copy of the licensee's annual report and those of its parents and subsidiaries.
(i) A full schedule of all subscriber and user rates, fees and charges for all cable services provided.
(j) A copy of subscriber and user agreements used by the licensee.
provided that, when it provides the information required by subsections (i) and (j), a licensee need not include proprietary MDU rates and agreements.
(2) Annual surveys. In addition to providing such other information as may be requested under section 7A-22(1), the licensee shall annually provide the following special reports:
(a) An annual opinion survey report which identifies subscriber satisfaction/dissatisfaction with cable services offered by the licensee. Surveys required to make said report shall be scientifically valid. In lieu of this obligation, a licensee may agree in a license agreement to pay a fixed sum to the city so that the city may perform the survey.
(b) An annual plant survey report, which shall be a survey of the licensee's plant and a full report thereon including new construction and complete annual outages by area of the city. The purpose of the report is to assure the city that the plant is being operated and maintained in accordance with applicable law. Said report shall include but not be limited to an appropriate engineering evaluation and shall be conducted in conformance with standard engineering practices. This requirement does not apply during a period of initial construction, or upgrade mandated by a license.
(3) Quarterly reports. Within forty-five (45) days of the end of each calendar quarter, each licensee shall submit a written report to the licensing authority. The reports shall be submitted in accordance with forms prepared by the telecommunications administrator after providing a period for notice and comment and providing interested parties an opportunity for notice and comment on the forms. Until such forms are prepared after notice and opportunity for comment, the quarterly reports shall be prepared in accordance with the general business practices of a licensee and shall contain the following information:
(a) A report showing compliance with the requirements regarding telephone calls specified in the customer service standards.
(b) The percentage of time service interruptions were cured within thirty-six (36) hours; the average time from notice that a problem existed to final cure; and the percentage of time that other service calls were resolved within ninety-six (96) hours.
(c) The percentage of time standard and non-standard installations were completed within the time required by sections 7A-11 and 7A-20.
(d) The total number of complaints received for the quarter, and the number of complaints by type of complaint; and complaints received as a percentage of basic subscribers.
(e) The total number of outages, divided into planned and unplanned outages, and showing the number of outages and the total duration of outages. An outage is defined as a loss of audio or video or impairment of audio or video affecting more than one subscriber.
(f) A list of all services offered by the licensee, including any non-cable services; provided that, after the initial filing, subsequent filings need only identify new services and changes in services offered.
(4) Reports to others. The licensee shall file promptly with the city a copy of any document the licensee files with the FCC, the Securities and Exchange Commission or any other regulatory agency with jurisdiction pertaining to the system. To the extent that such documents contain, to the satisfaction of the city manager, the information required by other reports hereunder, the city manager may suspend the requirements to file such other reports with the city so as to avoid duplication and the administrative costs attendant thereto. Alternatively, a licensee may comply with this subsection (4) by providing the city a list and short description of the documents it files, and providing copies of the documents upon request. The list must be kept current.
(5) Material misrepresentations. Any material misrepresentation made by the licensee in any report required by this section shall subject the licensee to the penalty provisions of this chapter and shall subject the licensee to all remedies available to the city by law.
(6) Access to books and records.
(a) The city may inspect and copy books and records of the licensee that are reasonably necessary to the enforcement of any provision of this chapter; the license agreement; to the conduct of performance evaluation sessions; or to the exercise of any authority that the city may have under the same or any other provision of applicable law. Without limiting the foregoing, a licensee shall provide the city access to complaint data to enable the city to fully investigate subscriber complaints. Books and records shall be produced to the city for inspection at City Hall or at such other mutually agreed upon location within the city. The city will not unreasonably refuse a request that it inspect documents at the licensee's facilities within the city. Provided, however, that nothing in this chapter shall be read to require the licensee to violate any provision of federal or state law relating to customer privacy. Information requested shall be made available for inspection within fourteen (14) business days of a request therefor, which period shall be subject to extension for good cause shown where no harm will result to the public interest from the delay.
(b) A licensee must produce the books and records requested by the city even if the licensee does not believe that the request satisfies the standard set out above, unless the city waives the requirement, or the licensee obtains a court order from a court of competent jurisdiction enjoining the request.
(c) A licensee may not refuse to produce books and records on the ground that such books and records contain proprietary information. However, all proprietary information received by the city from a licensee and clearly marked as such shall not be publicly disclosed insofar as permitted by the Arizona Public Records Law, A.R.S. 39-121 et. seq. and other applicable law. The city will notify a licensee if any third party seeks access to any document that is marked confidential, and the city will withhold releasing the document for the maximum period permitted by law to permit the licensee to seek court protection against the release of the requested documents.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-23 Performance evaluation sessions.
Sec. 7A-23. Performance evaluation sessions.
To provide for technological advances in the state of the art of cable communications, to promote the maximum degree of flexibility and utilization of the system, to evaluate the licensee's performance and compliance with the provisions of this chapter and the license agreement, and to evaluate the performance of every operator to ensure that the quality of every operator's service continues to reasonably meet the needs of the community, the city and each licensee shall comply with the following review procedures:
(1) The city may commence a regularly scheduled review session any time after the second anniversary date of the execution of the license agreement and subsequently every two (2) years thereafter. All review sessions shall be open to the public notice of date, time, location and agenda shall be given by the licensee, at the licensee's cost, by provision of the city of a bill insert to be included in subscribers' bills to arrive at least fourteen (14) days prior to the meeting, and by publication at least once in a newspaper of citywide general circulation at least one (1) week prior to each session. In addition, the licensee shall announce the date, time and location of each session on each of at least five (5) days immediately preceding each session at a minimum of six (6) regularly scheduled intervals daily on at least two (2) subscriber channels of the system. Provided that, the city may waive the billing notice requirement where the notice would be ineffective, and provided further, a licensee is not obligated to provide notice using billing inserts unless: (i) at least ninety (90) days prior to the date scheduled for the review session, the city notifies licensee that it wishes the licensee to provide notice using billing inserts; and (ii) the city provides the licensee the text to be used in the billing inserts or, if the licensee requests it, the billing inserts (prepared in accordance with the standard format for billing inserts used by a licensee).
(2) Topics for discussion and review at the regular review sessions shall include but shall not be limited to the following:
Rate structure, free or discounted services, application of new technologies, system performance, services provided, programming, subscriber complaints, user complaints, rights of privacy, construction progress, community service channel implementation and utilization, amendments to this chapter, undergrounding process and developments in the law.
(3) The city may hold special review sessions at any time on specific issues relevant to the system. All such review sessions shall be open to the public and shall be advertised, if possible, as provided in paragraph (1) of this section. Either the city or the licensee may select additional topics for discussion at any regular or special review session.
(4) The city shall provide for the taking of written minutes and a recording of all review sessions held.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-24 Renewal, revocation, or forfeiture of license.
Sec. 7A-24. Renewal, revocation, or forfeiture of license.
(1) Renewal. The procedure for considering renewal of the license agreement shall be as provided by federal law.
(2) Revocation, procedure. Where, after notice and providing the licensee an opportunity to be heard (if such opportunity is timely requested by a licensee), the city finds that the facility is being maintained or operated in violation of this chapter or in substantial violation of the terms of the license, the city may revoke the license. The license may not be revoked unless the licensee (1) was given notice of the default; and (2) sixty (60) days to cure the default; and (3) the licensee failed to cure the default fully and completely to prevent the recurrence of the same or a similar violation, or to propose a schedule for curing the default acceptable to the city where it is impossible to cure the default in sixty (60) days; except that, fraud shall be deemed incurable. The city manager or his designee is authorized to provide the notice and conduct a proceeding that provides the licensee an opportunity to be heard, and to issue a recommended decision, but any such decision may be appealed to the city council. Any appeal must be filed within thirty (30) days of the decision of the city manager or it shall be deemed waived.
(3) Exceptions/forfeiture. Notwithstanding the foregoing, the city may declare the license forfeited where the licensee (1) fails to begin to exercise its rights under the license or fails to commence or complete any required rebuild of its system within nine (9) months of a period specified in the license; (2) willfully stops operating the cable system as it is required to operate it under the license in a substantial portion of the license area; (3) without the prior consent of the city, transfers the license; or (4) defrauds or attempts to defraud the city or the operator's customers. However, before declaring the license forfeited, the city shall notify the licensee in writing of its intent to declare the license forfeited and provide the licensee with an opportunity to show cause why the license should not be forfeited.
(4) Effect of termination or forfeiture. Upon termination or forfeiture of a license, whether by action of the city as provided above, or by passage of time, the licensee shall be obligated to cease using the cable system for the purposes authorized by the license.
(5) Remedies cumulative. All remedies under this chapter and any license are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a licensee of its obligations to comply with its license. Remedies may be used singly or in combination; in addition, the city may exercise any rights it has at law or equity. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise, does not limit a licensee's duty to indemnify the city in any way; nor shall such recovery relieve a licensee of its obligations under a license, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have. Nothing herein shall be read to authorize the double-recovery of damages.
(6) Right to require dismantling. In the event that the city exercises its option to require the licensee to dismantle the system, the licensee shall, in an expeditious manner, at its own expense and at the direction of the city, restore any property, public or private, to the condition in which it existed prior to the erection or construction of the system, including any improvements made to such property subsequent to the construction of the system.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-25 Continuity of service.
Sec. 7A-25. Continuity of service.
The licensee shall provide continuous service for the entire term of the license agreement to all subscribers and users in return for payment of the established rates, fees and charges. If the licensee overbuilds, rebuilds, modifies, or seeks permission to transfer the system; or if the city revokes, fails to renew, or otherwise terminates the license agreement or declares it forfeited, or elects to purchase the system; or if for any reason the license becomes void, the licensee shall continue to operate the system in a normal and orderly manner until an orderly and lawful change of operation is effectuated. This period of operation shall not exceed thirty-six (36) months from the date of occurrence of any of the above events, or the date any appeals of the same are finally concluded, whichever is later. During such interim period, the licensee shall not make any material, administrative or operational change that would tend to (1) degrade the quality of service, (2) decrease revenues, or (3) materially increase expenses, without the express written permission of the city. In addition to providing grounds for termination, if the licensee fails to operate the system for ninety-six (96) consecutive hours without prior approval of the city or fails to continue operation on the occurrence of any of the events stated in this section, the city shall have the right to operate the system, either directly or through a designate, until such time as a new operator is selected. If the city is required to fulfill this obligation for the licensee, the licensee shall reimburse the city for any and all costs, fees or damages incurred by the city.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-26 Purchase of system by city.
Sec. 7A-26. Purchase of system by city.
(1) Rights To purchase. In the event the city terminates, or revokes the license agreement or declares the license forfeited pursuant to any provisions of this chapter, or at the normal expiration of the license agreement (referred to collectively and individually in this section by use of the term terminate or termination), the city shall have the first option, directly or as an intermediary, to purchase the system. The city shall have ninety (90) days prior to the effective date of termination and an additional ninety (90) days following the conclusion of any appeal of the termination, to notify the licensee of the city's intent to exercise the option to purchase stated herein.
(2) Valuation. In the event of a termination of the license agreement by the city for cause, the city may purchase the system for an equitable price. "Equitable price" means fair market value adjusted downward for the harm to the city or subscribers, if any, resulting from Licensee's breach of its license agreement, or violation of this chapter, and as further adjusted to account for other equitable factors that may be considered consistent with 47 U.S.C. § 547. Upon other termination of the license agreement the value of the system shall be solely based on the fair market value of the system.
(a) No value shall be assigned to the license itself whether termination is or is not for cause.
(b) "Valuation" as referred to above shall be determined by audit of system assets pursuant to generally accepted auditing principles. Procedures for valuation may be specified in a license agreement.
(3) Date of valuation. The date of valuation shall be ninety (90) days after city gives licensee notice of its intent to exercise the option to purchase.
(4) Transfer to city. Upon exercise of the city's option to purchase and written notice of such action by the city to the licensee, the licensee shall, immediately upon payment of the purchase price by the city, transfer to the city possession and legal title to all system facilities and property, both real and personal, free from any and all liens and encumbrances not agreed to be assumed by the city in lieu of a portion of the purchase price; and the licensee shall execute such warranty deeds or other instruments of conveyance to the city as shall be necessary to effectuate this transfer.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-27 Foreclosure and receivership.
Sec. 7A-27. Foreclosure and receivership.
(1) In the case of a foreclosure or other judicial sale or termination of lease of the plant, property or equipment of the licensee, or any substantial part thereof, or any rights under the license agreement, the licensee shall serve written notice upon the city of any such event; and the city may serve written notice of termination upon the licensee and the successful bidder at such sale, in which event the license and the license agreement and all rights and privileges of the licensee thereunder shall cease and terminate thirty (30) days after service of such notice, unless:
(a) The mayor and council have approved the transfer of ownership of the license, in accordance with all pertinent provisions of section 7A-28 ("Transfers and Assignments"); and
(b) Such successful bidder shall have covenanted and agreed with the city, in writing in a form approved by the city attorney, to assume and be bound by all the terms and conditions of this chapter and the license agreement.
(2) The license shall terminate one hundred twenty (120) days after the appointment of a receiver, or trustee, to take over and conduct the business of the licensee, whether in receivership, reorganization, bankruptcy or other related action or proceeding.
(3) Failure to comply with the provisions of paragraph (1) of this section shall be deemed an unauthorized transfer pursuant to the provisions of section 7A-28 ("Transfers and Assignments").
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-28 Transfers and assignments.
Sec. 7A-28. Transfers and assignments.
The procedures for transfers and assignments of the license agreement will conform to the requirements as set forth in federal law and applicable FCC regulations and will include the following requirements:
(1) The licensee shall not sell, transfer, assign, exchange or release, or permit the sale, transfer, assignment, exchange or release of more than five (5) percent of the ownership of the system or rights in the license agreement to a person (hereinafter "proposed transferee"), without the prior written authorization of the mayor and council. For purposes of this section, a merger or consolidation shall be deemed a transfer or assignment. Any transaction in which actual working control of a licensee or its system, in whatever manner exercised, is transferred, shall be deemed a transfer. The mayor and council specifically reserve the right to deny, restrict or condition authorization to transfer upon the criteria stated in this section and any other lawful criteria the mayor and council determine to be necessary in the public interest.
(2) The licensee shall provide the following information to the city:
(a) All information and forms required under federal law or the equivalent of such forms if no longer required by federal law;
(b) Any contracts or other documents that constitute the proposed transaction and all documents, schedules, exhibits, or the like referred to therein;
(c) Any shareholder reports or filings with the Securities and Exchange Commission that discuss the transaction;
(d) Complete information regarding any potential impact of the transfer on subscriber rates and service and system debt; and
(e) A brief summary of the proposed transferee's plans for at least the next five (5) years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of services, and any other changes affecting or enhancing the performance of the cable system.
(3) Once the required information has been provided, the transfer application shall be subject to review by the city and any approval shall be subject to the city's determination that:
(a) The proposed transferee has the qualifications to construct, operate and repair the system proposed in conformity with applicable law;
(b) The proposed transferee will accept the conditions established by the city on the transfer; and the proposed transferee will enter into a license and comply with any conditions precedent to its effectiveness. This section does not authorize the city to exercise authority it does not otherwise have under applicable law.
(4) Any approval will also be subject to a determination by the city that:
(a) There will be no adverse effect on subscribers, the public, or the city's interest in the license;
(b) Transferee will agree to be bound by all the conditions of the license and to assume all the obligations of its predecessor;
(c) Any outstanding compliance and compensation issues will be resolved or preserved to the satisfaction of the city; and
(d) The proposed transferee and the current licensee have provided all required information so that the city may act on the application.
(5) Any proposed transferee shall execute an agreement, in such form as acceptable to the city attorney, that it will assume and be bound by all of the provisions, terms and conditions of this chapter, the license agreement and any other conditions the mayor and council may have established in granting authorization as contemplated by subsections (1) through (4).
(6) No transfer under paragraph (1) of this section shall be permitted within fifteen (15) months prior to the expiration date of the license agreement.
(7) The occurrence of an unauthorized transfer or assignment may, at the option of the city, provide the mayor and council with cause to immediately terminate the license agreement and accelerate all of the obligations and rights as provided in section 7A-24.
(8) From and after any occurrence constituting an unauthorized transfer or assignment, the putative transferee shall not make, execute or enter into any deed, deed of trust, mortgage, contract, conditional sales contract or any loan, lease, pledge, security agreement, sale, pole agreement or any other agreement or hypothecation concerning any system facilities or property, whether real or personal, without the written approval of the mayor and council.
(9) Nothing in this section shall be deemed to prohibit the use of the licensee's property as collateral for security in regard to construction financing. However, any such financing arrangements shall be subject to all provisions of this chapter and the license agreement. In no case may any person, including the institution holding the system as collateral, succeed to the ownership or control of the system or the license without the prior approval of the city.
(10) Nothing in this section shall be read to prohibit licensee from providing information subject to the protections for proprietary information under this chapter or a license agreement.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-29 Subscriber antennas.
Sec. 7A-29. Subscriber antennas.
The licensee is expressly prohibited from requiring the removal of any potential or existing subscriber antennas as a condition for provision of service.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-30 Indemnification and disputes regarding issuance of license.
Sec. 7A-30. Indemnification and disputes regarding issuance of license.
(1) The licensee shall indemnify, save harmless and defend the city, its mayor and council, appointed boards and commissions, officers and employees, individually and collectively from all fines, liens, suits, claims, demands, actions, costs of litigation, attorneys' fees, judgments or liability of any kind (including but not limited to libel, slander, invasion of privacy, unauthorized use of any trademark, trade name or service mark, copyright infringement, injury, death or damage to person or property) arising out of or in any way connected with the installation, construction, operation, maintenance or condition of the system. The licensee shall assume all risks in the operation of the system and shall be solely responsible and answerable for any and all accidents or injuries to persons or property arising out of the performance of the license agreement. The amounts and types of insurance coverage requirements set forth in section 7A-31 ("insurance") shall in no way be construed as limiting the scope of indemnity set forth in this section. The city shall give the licensee timely written notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the indemnity of this section, where the licensee is not a party thereto.
(2) Disputes regarding issuance of license:
(a) Licensee shall indemnify save harmless and defend the city, its mayor and council, appointed boards and commissions, officers and employees, individually and collectively from all fines, liens, suits, claims, demands, actions, costs of litigation, attorneys' fees, judgments or liability of any kind arising from the defense of any litigation brought by third parties challenging the right of the city to issue the license under state law. The city shall give the licensee timely written notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the indemnity of this section, where the licensee is not a party thereto. In the event that any such litigation ensues, the city may, but is not required to, tender the defense of such litigation to licensee, which shall then defend the litigation; provided, however, that if the city tenders such defense to licensee, licensee shall have the right to retain counsel of its own choice, to settle all or any part of the litigation on terms acceptable to licensee (and as determined in the sole discretion of the city, acceptable to the city), or at any time of its election, to terminate its license under the termination terms provided in the license and withdraw from any such litigation.
(b) Licensee shall assume the risk of, and shall relinquish any claim against the city in connection with any final, non-appealable determination by a court of competent jurisdiction that the city lacked the current statutory authority to issue the license.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-31 Insurance.
Sec. 7A-31. Insurance.
Within thirty (30) days after written notification of the award of a license by the city, the licensee shall file with the city manager and maintain in full force and effect throughout the term of the license agreement insurance policies issued by an insurer duly authorized to conduct business in the state, insuring with respect to the installation, construction, operation and maintenance of the system as follows:
(1) Comprehensive general and automobile liability coverage including, but not limited to: (a) blanket contractual liability; (b) completed operations liability; (c) broad form property damage endorsement, including but not limited to coverage for explosion, collapse and underground hazard; and (d) automobile non-ownership liability. This insurance shall be written in the following minimum amounts:
(a) For bodily injury, including death: Five hundred thousand dollars ($500,000.00) combined single limit;
(b) Property damage: Five hundred thousand dollars ($500,000.00) combined single limit;
(c) Comprehensive automobile liability; bodily injury: Five hundred thousand dollars ($500,000.00) combined single limit;
(d) Excess umbrella liability in the minimum amount of five million dollars ($5,000,000.00).
(2) Workers' compensation coverage as required by the laws, rules and regulations of the state.
(3) All insurance policies required herein shall include the city as an additional insured.
(4) With respect to the insurance required herein, the licensee shall be solely responsible for all premiums due and payable.
(5) The insurance policies required by this section shall contain the following endorsement, or substantially similar language approved by the city attorney:
It is hereby understood and agreed that this policy of insurance may not be canceled by the insurer nor the intention not to renew be stated by the insurer until sixty (60) days after receipt by the City of Tucson, by registered mail, of written notice of such intent to cancel or not to renew.
(6) It is each licensee's responsibility to ensure that every insurance policy conforms to the city's requirements. Each licensee must provide a standard insurance certificate or other adequate proof required by the city attorney, updated whenever there is a change in the policy or insurer, showing that the policies conform to all the requirements herein, without condition or exception. No licensee may initiate or begin construction until such proof has been provided.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-32 Bonding.
Sec. 7A-32. Bonding.
(1) Performance bond. Within thirty (30) days after written notification of the award of a license by the city, the licensee shall file with the city a performance bond for the benefit of the city in the amount of one million dollars ($1,000,000.00) to be effective upon the execution of the license agreement and conditioned that in the event that the licensee fails to comply with any provision of this chapter, the license agreement or other law applicable to the license, then there shall be recoverable jointly and severally from the principals and surety any and all damages or costs suffered or incurred by the city, including but not limited to attorney's fees and costs of any action or proceeding, and including the full amount of any compensation, indemnification, cost of removal or abandonment of any property or other costs due and owing the city up to the full principal amount of such bond. The performance bond shall be maintained in full as a continuing obligation during the entire term of the license agreement and thereafter until the licensee shall have satisfied in full any and all obligations to the city which arise out of or pertain to the license agreement. The performance bond shall be issued by a surety company authorized to do business in the state and shall be in a form approved by the city attorney.
(a) The performance bond shall contain the following endorsement:
It is hereby understood and agreed that this bond may not be canceled by the surety nor the intention not to renew be stated by the surety until sixty (60) days after receipt by the City of Tucson, by registered mail, of written notice of such intent to cancel or not to renew.
(b) None of the provisions of this section or section 7A-33 ("Security Fund"), nor any damages recovered by the city thereunder, shall be construed to excuse the faithful performance by or limit the liability of the licensee.
(c) Upon application to the city, the licensee shall be entitled to the return of the performance bond at the expiration of the license agreement, or any renewal thereof provided there is then no outstanding default or moneys due the city by the licensee; provided that, nothing herein shall be read to excuse a licensee from its obligation to have a performance bond during the renewal term.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-33 Security fund.
Sec. 7A-33. Security fund.
(1) Within thirty (30) days after written notification of the award of a license by the city, the licensee shall deposit with the finance director of the city, and maintain on deposit throughout the term of the license agreement, a security fund in the sum of fifty thousand dollars ($50,000.00) in cash as security for the faithful performance by the licensee of all provisions of this chapter and the license agreement and compliance with all orders, permits and directions of any agency or department of the city having jurisdiction over the licensee's operations. In lieu of the cash deposit, a licensee may provide an irrevocable and unconditional fifty thousand dollar ($50,000) letter of credit with a local financial institution, in a form acceptable to the city attorney. Both the letter of credit and the cash deposit are referred to by the term "security fund" in subsections (2) through (6).
(2) Within fifteen (15) days after written notice to the licensee by the city that the city has withdrawn any amount from the security fund, the licensee shall deposit or pay to the finance director a sum of money sufficient to restore such security fund to the original amount of fifty thousand dollars ($50,000.00), or, in the case of a letter of credit, restore the letter of credit to its full amount.
(3) If the licensee fails to pay the city any moneys due within the time fixed in this chapter or the license agreement; or fails after ten (10) days' written notice to pay to the city any taxes due and unpaid; or fails to repay to the city after ten (10) days' written notice any damages, penalties, costs or expenses which the city may be compelled to pay by reason of any act, omission or default of the licensee; or fails, after ten (10) days' written notice, to comply with any provision of this chapter or the license agreement which the city reasonably determines can be remedied or partially cured by an expenditure from the security fund, the finance director may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the finance director shall in writing notify the licensee of the amount and date thereof. In the event the security fund is insufficient to pay the city for any compensation, damage, penalties, costs or expenses owing to the city pursuant to this chapter or the license agreement, the performance bond may be drawn upon by the city for any amount due the city over and above the amount in the security fund.
(4) The security fund, including any interest that may have accrued, shall become the property of the city in the event that a license agreement is terminated by the city by reason of a violation of this chapter or breach of the license agreement pursuant to the provisions of section 7A-24 ("renewal and termination").
(5) Upon application to the city, the licensee shall be entitled to the return of all moneys remaining in the cash security fund, including accrued interest, at the expiration of the license agreement or any renewal thereof, provided there is then no outstanding default or moneys owing on the part of the licensee to the city; provided that, nothing herein shall be read to excuse a licensee from its obligation to have a security fund during the renewal term.
(6) The rights reserved to the city with respect to the security fund are in addition to all other rights of the city, whether reserved by this chapter or authorized by law; and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the city may have.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-34 License fee.
Sec. 7A-34. License fee.
(1) In addition to any other consideration supporting the award of a license by the city, including but not limited to the granting of the privilege to utilize the rights-of-way of the city pursuant to this chapter for the purpose of providing cable service, and the license agreement to construct and operate the system, the licensee shall pay to the city an amount equal to five (5) percent of gross revenues.
(2) It is the intent of the city that these license fees may be utilized, in the discretion of the mayor and council, to defray certain of the costs of local regulation of the licensee and the system, to support the development and maximum utilization of all PEG channels to generally encourage development of the system to full utilization and potential, and for other purposes.
(3) Payments due the city under this section shall be computed quarterly, for the preceding quarter, as of March 31, June 30, September 30 and December 31 of each year. Each quarterly payment shall be due and payable no later than thirty (30) days after the applicable computation date. Each payment shall be accompanied by a financial statement showing in detail the gross revenues of the licensee relating to the relevant calendar quarter as well as any other report required by section 7A-22.
(4) No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the city may have for further or additional sums due and payable. The city or its designate shall have a right to audit all financial records of licensee reasonably necessary to the determination of whether gross revenues and franchise fees have been accurately computed and paid upon the giving of reasonable notice and during normal business hours. In the event an audit results in additional moneys owed the city, interest shall be charged at the rate of one (1) percent per month on the unpaid balance. If there is a dispute as to whether a particular item of revenue is within the scope of the term "gross revenues," records will be provided without prejudice to any claim the licensee might have that a franchise fee is not owed on such revenues. Provided that, a licensee may withhold revenue records for items that it claims are not "gross revenues" so long as the licensee (i) provides a certified statement describing the nature of the revenues contained in the records withheld and (ii) agrees, in its license agreement, to pay all costs, including attorney fees, that the city incurs should the city seek production of the records and ultimately prevail. Each licensee shall be required, in accordance with the terms of its license, to pay for any audit where the audit shows the licensee failed to pay the license fee due to the city.
(5) The payment required pursuant to this section shall be in addition to and not in lieu of any other tax, fee (including by way of example and not limitation, permit fees), or payment owed the city by the licensee pursuant to any other applicable provisions of this Code or laws of the state, unless the tax, fee or payment is required to be treated as a franchise fee under 47 U.S.C. § 542.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-35 Rights reserved to the city.
Sec. 7A-35. Rights reserved to the city.
(1) Without limitation upon the rights which the city might otherwise have, every license issued shall be deemed to expressly reserve the following rights, powers and authorities, whether expressly set forth in the license or not:
(a) To exercise its governmental powers now or hereafter to the full extent that such powers may be vested in or granted to the city.
(b) To determine any question of fact relating to the meaning, terms, obligations or other aspects of this chapter and the license agreement, subject to applicable judicial review.
(c) To inspect all construction or installation work performed by the licensee, and to supervise all construction in the rights-of-way or on city property.
(2) Nothing in this chapter shall be deemed or construed to impair or affect the right of the city to exercise its power of eminent domain to acquire the property of the licensee for just compensation, which shall not include any amount for the license itself or any privilege thereunder.
(3) The city reserves the right, during the term of the license agreement, to install and utilize, upon the poles and conduits owned or jointly owned by the licensee, any wire or pole fixtures required for municipal purposes, without cost to the city so long as such installation and utilization does not unduly interfere with the operation of the system.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-36 Nondiscrimination and equal employment opportunity.
Sec. 7A-36. Nondiscrimination and equal employment opportunity.
(1) A licensee shall not deny service, access or otherwise discriminate against subscribers, users or any resident of the city. In this regard, each licensee shall comply with the human relations provisions of this Code, section 17-21, incorporated herein by this reference. The licensee shall strictly adhere to the equal employment opportunity requirements of the FCC. The licensee shall comply at all times with all other applicable federal, state and city laws, rules and regulations, and all executive and administrative orders relating to nondiscrimination.
(2) A licensee shall define the responsibility of each level of management to ensure positive applications of the policy of equal opportunity, making all reasonable efforts to assure employment at the higher and midmanagement levels for minority persons. The licensee shall conduct a continuing review of employment structures and employment practices and adopt positive recruitment policies, on-the-job training, job design and other measures needed to assure genuine equality of opportunity.
(3) Each licensee shall abide by the following general employment practices:
(a) Recruiting through schools and colleges with high minority enrollments.
(b) Maintaining systematic contacts with media advocacy groups, minority and human relations organizations, leaders, spokespersons and other appropriate recruitment sources within the county to make it known that qualified minority persons sensitive to the needs of the minority community are being sought for consideration whenever the licensee prepares to hire employees so as to assure nondiscrimination in selection for employment.
(c) Instructing personally those on the licensee's staff who make hiring decisions that applicants for all jobs are to be considered without discrimination in accordance with the provisions of this section.
(d) Making all reasonable efforts to avoid the use of selection techniques or tests that have the effect of discriminating against minority persons.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-37 Selection of licensee.
Sec. 7A-37. Selection of licensee.
(1) Any person submitting a proposal for a license shall provide all information required by this chapter and all other information as may be solicited in the city's request for proposals or otherwise required by the city. Any misrepresentation, failure, neglect or refusal to provide any required information may at the option of the city render a proposal invalid and it may be given no consideration. The requested information must be complete and verified as true by the applicant. Every proposal must be submitted as an offer, so that the city may incorporate the proposal into a license agreement by reference and may condition the award of any license upon the incorporation of the proposal into the license agreement.
(2) All proposals received by the city from the applicants shall become the sole property of the city.
(3) The city reserves the right to reject any and all proposals and to waive all informalities where the best interest of the city may be served.
(4) Before submitting a proposal, each applicant shall be solely responsible for and must: (a) examine this chapter and the request for proposal documents thoroughly; (b) be familiar with local conditions that may in any manner affect performance under the license, including but in no event limited to relevant demographics, topographics, pole attachment policies of appropriate utility authorities, undergrounding, and subscriber and user desires; (c) be familiar with federal, state and local laws, ordinances, rules and regulations affecting performance under the license; and (d) carefully correlate all observations with the requirements of this chapter and the request for proposals documents.
(5) The city may make such investigations as it deems necessary to determine the ability of the applicant to perform under the license agreement, and the applicant shall furnish to the city all such information and date for this purpose as the city may request. The city reserves the right to reject any proposal if the evidence submitted by or investigation of such applicant fails to satisfy the city that such applicant is properly qualified to carry out the obligations of the license agreement, comply with the provisions of this chapter, or to satisfactorily construct and operate the system. Conditional proposals shall not be accepted.
(6) In evaluating an application for a license, the city may consider the following factors:
(a) The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing cable license for the city;
(b) Whether the quality of the applicant's service under any existing license in the city, including signal quality, response to customer complaints, billing practices and the like has been reasonable in light of the needs and interests of the communities served;
(c) Whether the applicant has the financial, technical, and legal qualifications to hold a cable license; which qualifications require that the applicant can be relied upon to perform as promised and in accordance with applicable law;
(d) Whether the application satisfies requirements established by the city under this chapter or in an RFP or is otherwise reasonable to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests;
(e) Whether, to the extent not considered as part of this Code, the applicant will provide adequate public, educational, and governmental use capacity, facilities, or financial support thereof;
(f) Whether issuance of a license is in the public interest considering the immediate and future effect on the public rights-of-way and private property that would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way; and the comparative superiority or inferiority of competing applications; and
(g) Whether the approval of the application may eliminate or reduce competition in the delivery of cable service in the city.
If the city finds that it is in the public interest to issue a license considering the factors set forth above, the city may adopt a license ordinance setting forth the terms and conditions of the license, which license shall become effective upon satisfaction of conditions precedent to effectiveness, and when signed and accepted by the applicant. If the city denies a license, it will cause a written explanation of the denial to issue, which may be in any appropriate form. Without limiting its authority to deny an application for a license, the city specifically reserves the right to reject any application that is incomplete or fails to respond to an RFP. Nothing in this chapter shall be construed in any way to limit the discretion and legislative authority of the city council in making decisions relative to the granting, denial, or renewal of license.
Notwithstanding the foregoing, to the extent required by federal law, requests for cable license renewal under the Cable Act will be received and reviewed in a manner consistent with Section 626 of the Cable Act, 47 U.S.C. § 546, and every provision of this Chapter shall be interpreted in a manner consistent therewith.
(7) Application fees.
(a) Notwithstanding any other requirement of this chapter, each applicant must furnish with its proposal a nonrefundable filing fee in the amount of seventy-five hundred dollars ($7,500.00) by certified or cashiers check made payable to the City of Tucson. No proposal for a license shall be considered without receipt of such check.
(b) All checks received will be deposited to an account of the city and will serve to recover all expenses incurred by the city in the preparation and granting of the license, the execution of the license agreement and regulation of the licensee pursuant to this chapter. Such expenses shall include but not be limited to any and all publication costs, consultant's expenses and the reasonable value of services performed by the city's employees, agents or contractors.
(c) In the event that expenses exceed the total amount of filing fees collected from the applicants, the applicant awarded the license shall pay to the city (pro rata in the event more than one (1) applicant is awarded a license) the excess amount, not to exceed fifty thousand dollars ($50,000.00) within sixty (60) days of demand by the city.
(8) The decision of the mayor and council concerning licensee selection shall be final.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-38 Cost of consultant.
Sec. 7A-38. Cost of consultant.
Except as otherwise provided by law, notwithstanding any other payment required by this chapter or the license agreement, when necessary to aid in the analysis of matters relating to the system, including but not limited to, rate investigations and regulation, technical standards, construction supervision or market surveys in the city, the city shall be entitled to employ the services of a consultant to assist and advise the city manager and the mayor and council. All reasonable fees of the consultant incurred by the city in this regard shall be shared equally by the licensee and the city, regardless of the nature or outcome of any specific matter under consideration. The terms of this section shall not apply to any research cost incurred by the city in connection with the right of the city to purchase the system.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-39 Theft of service and tampering.
Sec. 7A-39. Theft of service and tampering.
It shall be unlawful for any person, without the express consent of the licensee, to make any connection or attachment, extension or division, whether physically, acoustically, inductively, electronically or otherwise with or to any segment of the system for the purpose of receiving or redistributing service where the person has not paid for it. Nothing in this section shall be read to prohibit a subscriber to cable service to utilize lawful subscriber-owned equipment in the enjoyment of such service.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-40 Damages.
Sec. 7A-40. Damages.
By execution of the license agreement, the licensee agrees that failure to comply with the provisions of this chapter and the license agreement will result in damage to the city, and that it will be impracticable to determine the actual amount of such damage; and that, in addition to any other damages suffered by the city or remedies available to it, the licensee will pay to the city the following amounts as adjusted for inflation chargeable by the city to the security fund established in section 7A-33 ("Security Fund") of this chapter; provided that nothing herein prevents the city from establishing different liquidated damage amounts in a license, based on the damage likely to be caused by the particular licensee, and to the extent different damages are specified in a license agreement for the same violation, the damages in the license agreement will control. Procedures, if any, for notice and opportunity to cure, may be provided for in a license agreement.
(1) For failure to timely file required plans, data or reports pursuant to this chapter and the license agreement--Fifty dollars ($50.00) per day.
(2) For failure to timely comply with lawful orders of the city--Fifty dollars ($50.00) per day.
(3) For failure to complete construction or commence operations of the portion of the system that is primarily intended to serve residential subscribers pursuant to this chapter and the license agreement--Seven hundred dollars ($700.00) per day, or where identifiable, one dollar ($1.00) per day for each affected subscriber.
(4) For failure to provide the services proposed by the licensee pursuant to the provisions of this chapter and incorporated into the license agreement, including but not limited to PEG channel activation, equipment and personnel--One thousand dollars ($1,000.00) per day.
(5) For failure to timely pay the license fee or other moneys due the city pursuant to this chapter and the license agreement--Two hundred fifty dollars ($250.00) per day.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-41 Penalties.
Sec. 7A-41. Penalties.
(1) Where this chapter provides alternative penalties or remedies, they shall be cumulative; and the imposition of one penalty or remedy shall not prevent the imposition of any other penalty or remedy provided for.
(2) Any person convicted of violating any provision of this chapter or any rule or regulation promulgated hereunder shall, upon conviction, be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) and costs for each offense or may be imprisoned for not more than six (6) months, or both. Each day of a continuing violation shall constitute a separate and distinct offense.
(Ord. No. 8937, § 2, 9-2-97)
Tucson Code § 7A-42 Severability.
Sec. 7A-42. Severability.
If any provision, section, paragraph, sentence, clause or phrase of this chapter is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity of the remaining portions of this chapter. It is the intent of the city in adopting this chapter that no portion or provision thereof shall become inoperative or fail by reason of any invalidity or unconstitutionality of any other portion or provision, and to this end all provisions of this chapter are declared to be severable.
(Ord. No. 8937, § 2, 9-2-97)
Source: City of Tucson, Tucson Code (Charter and General Ordinances) and Unified Development Code (American Legal Publishing, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/tucson/latest/tucson_az/0-0-0-6213Fetched: 10/28/2026