Sec. 6-76. - Regulatory authority.

The city shall exercise regulatory authority under the provisions of this chapter and applicable law. This authority shall be vested in the mayor and city council and administered through the city's cable television commission.

(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)

Sec. 6-77. - Regulatory responsibility.

The city shall have the following regulatory responsibilities:

(1)

Administering and enforcing the provisions of the cable system franchise.

(2)

Franchise award or renewal as specified in this article.

(3)

Activate and oversee educational and governmental channels.

a.

Coordinate the operation of governmental and educational channels, including negotiations with other suboperators and users of educational and governmental channels regarding the use of such channels.

b.

At the time of the activation of educational channels, determine, through the CVT commission the selection of suboperators and users of such channels by issuance of a request for qualification and proposal to determine the financial capability, television production and educational experience, and long-term capacity to provide appropriate educational content for such educational channels, either individually or in collaboration with other entitles. If the CVT commission is unable to find an appropriate suboperator, a request for qualification and proposal may be reissued every six months thereafter.

(4)

Enter into agreements with other franchise authorities, itself or through a separate entity established for such purpose, for coordination of uses of access channels.

(5)

Exercise rate regulation to the full extent authorized by federal, state or local regulation.

(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07; Ord. No. 11-022(sub 1), § 1, 6-16-11)

Sec. 6-78. - Cable video & telecommunications commission—Composition, authority.

(a)

The Wilmington Cable Video & Telecommunications Commission ("CVT Commission"), established through provisions of a previous cable television franchise agreement, is hereby authorized to continue as the office of the city responsible for the administration and monitoring of any franchise agreement in the city, including conducting the cable renewal process under the CCPA, as amended (47 U.S.C. § 521 et seq.), as further provided herein.

(b)

The commission shall be comprised of nine members, namely the city solicitor, the city auditor, the commissioner of public works, the city council's chief of staff, the mayor's communications director, the president of city council who shall serve as chair, and three members of the city council appointed by the city council president, or each such member's respective designee.

(c)

The CVT commission shall meet not less than semi-annually.

(d)

It is the intent of the city to provide day-to-day administration and enforcement of the provisions of any franchise granted pursuant to this article by delegating the responsibility to the CVT commission for the conduct of the city's responsibilities related to cable communications. To that end, the commission shall adopt rules and regulations.

(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07; Ord. No. 12-001, § 1, 1-19-12)

Sec. 6-79. - Same—Responsibilities.

The responsibilities of the CVT commission shall include the following:

(1)

Monitor and advise the city council and city administration of compliance by each franchisee with the provisions of the city's cable television ordinance, related ordinances, and its franchise agreement.

(2)

Serve as the liaison body for the government and educational access channels of cable television and any institutional networks that may be developed.

(3)

Advise the city government of objectives to be attained in the city's cable system based upon its continued evaluation of the city's cable television franchise and continued assessment of cable technology.

(4)

In connection with any cable renewal:

a.

Commence and conduct a proceeding to assess operator past performance and identify future, cable-related needs and interests; to make findings with respect to the same; and to terminate the proceeding upon its completion;

b.

Prepare and issue a request for renewal proposals, and establish a date by which such proposals shall be submitted;

c.

Evaluate any renewal proposal;

d.

Issue a recommendation to the council that the council should either renew the cable franchise or issue a preliminary assessment that the cable franchise should not be renewed;

e.

Recommend procedures to the council for conducting the administrative hearing contemplated by 47 U.S.C. § 546(c)(1) as part of the recommendation for granting or preliminarily denying renewal; and

f.

Issue notices to the public and to the operator (including notices of past performance deficiencies), and adopt such additional regulations as may be necessary to the discharge of the commission's duties under this part.

Provided that all of the foregoing responsibilities are to be performed consistent with state and local law, and with the CCPA, as amended (47 U.S.C. § 521 et seq.).

(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07; Ord. No. 12-001, § 1, 1-19-12)

Sec. 6-80. - Reports and records.

(a)

Open books and records.

(1)

The city shall have the right to inspect and copy at any time during normal business hours at the local cable system office or at such location as the city may designate, all books, receipts, maps, plans, financial statements, contracts, service complaint logs, performance test results, records of requests for service, computer records, codes, programs, and disks or other storage media and other like material which the city deems appropriate in order to monitor compliance with the terms of this chapter, the franchise agreement, or applicable law. This includes not only the books and records of the franchisee, but any books and records the city deems relevant held by an affiliate, a cable operator of the cable system, or any contractor, subcontractor or any person holding any form of management contract for the cable system. These materials shall be supplied to the city in any format that the city may require at the time of its request. The franchisee is responsible for collecting the information and producing it at the location specified above, and by accepting its franchise it affirms that it can and will do so.

(2)

The franchisee shall maintain financial records that allow analysis and review of its operations in the city's individual franchise area.

(3)

Access to the franchisee's records shall not be denied by the franchisee on the basis that said records contain "proprietary" information. Refusal to provide information required herein to the city shall be grounds for revocation. All confidential information received by the city and designated as such by the franchisee shall remain confidential insofar as permitted by the Delaware Freedom of Information Act, Title 29, chapter 100 of the Delaware Code, and other applicable state and federal law.

(4)

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

(b)

Communication with regulatory agencies and other third parties.

(1)

The franchisee shall file with the city all reports and materials submitted to or received from the following agencies by the city or its affiliates that relate specifically to the cable system or could affect the franchisee's operations in the city: the FCC, the Security and Exchange Commission, and any other federal or state regulatory commission or agency having jurisdiction over any matter affecting operation of the franchisee's cable system. Such reports and materials shall include, but are not limited to, proof of performance tests and results, Equal Employment Opportunity reports, and any petitions or applications regarding the cable system or a group of cable systems of which the franchisee's cable system is a part.

(2)

Materials filed with the city pursuant to subsection (b) shall be filed as follows: Materials submitted by the franchisee, an affiliate, or any other person on the behalf of the franchisee shall be filed with the city at the time they are submitted to the receiving agency. Materials received by the franchisee shall be filed with the city within 30 days of the date they are received by the franchisee, except that if applicable law permits a response to such materials by the city and sets a deadline of 60 or fewer days for the city's response, they shall be filed with the city within five days of the date they are received by the franchisee.

(3)

Public access to such reports received by the city shall not be denied, except to the extent expressly required by law.

(4)

The franchisee shall copy the city on any correspondence it sends to the issuer or holder of any bond or other security instrument required pursuant to section 6-38 that relates to such bond or other security instrument.

(c)

Annual report. Unless this requirement is waived in whole or in part by the city, no later than 90 days after the end of its fiscal year, the franchisee shall submit a written report to the city, in a form directed by the city, which shall include the following information on forms which are available from the CVT commission:

(1)

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

(2)

A copy of any contracts with subscribers used by the franchisee and of any rules and regulations of the franchisee applicable to subscribers of the cable system;

(3)

An annual statement of gross revenues derived from the operation of the cable system, certified by the franchisee's chief financial officer or an independent certified public accountant;

(4)

An annual financial report for the previous calendar year, certified by the franchisee's chief financial officer or an independent certified public accountant, including year-end balance sheet; income statement showing subscriber revenue from each category of service and every source of non-subscriber revenue, line item operating expenses, depreciation expense, interest expense, and taxes paid; statement of sources and applications of funds; capital expenditures; and depreciation schedule;

(5)

An annual list of officers and members of the board of directors or similar controlling body of the franchisee;

(6)

An organizational chart showing all corporations or partnerships with more than a five percent ownership interest in the franchisee, and the nature of that ownership interest (limited partner, general partner, preferred shareholder, etc.); and showing the same information for each corporation or partnership that holds such an interest in the corporations or partnerships so identified and so on until the ultimate corporate and partnership interests are identified;

(7)

An annual report and SEC 10(k) filing for each entity identified in subsection (c)(6) of this section that generates such documents;

(8)

A summary of the results of, and/or, at the franchisee's option, copies of the system's technical tests and measurements performed during the past year;

(9)

Full and complete plats, maps and records showing the actual locations of its facilities located within the public rights-of-way of the city. These maps shall be provided to the city in both hardcopy and compatible electronic formats, updated at least annually and at such other times as may be specified by the city. In addition, the franchisee shall make "as-built" maps (as that term is used in the cable industry) available to the city for inspection;

(10)

A full schedule of all subscriber and other user rates, fees and charges;

(11)

The franchisee's policies regarding A/B switches;

(12)

The franchisee's policies regarding subscriber privacy;

(13)

A summary of institutional network usage, including mileage in use, number of active drops, channel assignments, and amount of usage;

(14)

A summary of minority business policies as specified by the city;

(15)

Such other information as the city may direct.

(d)

Special reports: Unless this requirement is waived in whole or in part by the city, the franchisee shall deliver the following reports under specified conditions to the city:

(1)

The franchisee shall submit monthly construction reports to the city after the franchise is awarded for any cable system upgrade or similar major construction undertaken during the term of the franchise until such construction is complete. The franchisee must submit updated as-built cable system design maps to the city, or make them available for inspection with notice of their availability, within 30 days of the completion of such construction in any geographic area. The maps shall be developed on the basis of post-construction inspection by the franchisee and construction personnel to assess compliance with cable system design. Any departures from design must be indicated on the as-built maps.

(2)

The franchisee must submit a copy and full explanation of any notice of deficiency, forfeiture, or other document issued by any state or federal agency instituting any investigation or civil or criminal proceeding regarding the cable system, the franchisee, or any affiliate of the franchisee, to the extent the same may affect or bear on operations in the city. By way of illustration and not limitation, a notice that an affiliate that has a management contract for the cable system was not in compliance with FCC EEO requirements would be deemed to affect or bear on operations in the city. This material shall be submitted in accordance with the deadlines specified in herein.

(3)

Reserved.

(4)

Reserved.

(5)

The franchisee must submit a copy and brief explanation of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly. This material shall be submitted in accordance with the deadlines specified in herein.

(6)

The franchisee shall submit the following reports quarterly:

a.

A summary of complaints, identifying both the number and nature of the complaints received and an explanation of their dispositions, as such records are kept by the franchisee, together with copies of any written complaints received. Where complaints involve recurrent cable system problems, the nature of each problem and the corrective measures taken shall be identified;

b.

A report showing the number of service calls received by type during each quarter, and the percentage of service calls compared to the subscriber base by type of complaint;

c.

A report showing the number of outages and service degradations for each quarter, and identifying separately each planned outage, the time it occurred, its duration, and the estimated area and number of subscribers affected; each unplanned outage or service degradation, the time it occurred, its estimated duration and the estimated area and the number of subscribers affected; and the total hours of outages and service degradations as a percentage of total hours of cable system operation.

(e)

Technical reports. Each franchisee shall submit to the city a report, which shall demonstrate compliance with the technical standards provided in its franchise agreement. Such report shall contain sufficient details such that the city is able to ascertain that the technical standards prescribed by the FCC and the franchise agreement are achieved and maintained.

(f)

Additional reports. Each franchisee shall prepare and furnish to the city, at the times and in the form prescribed by the city, such additional reports with respect to its operation, affairs, transactions or property, as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the city in connection with this chapter and/or the franchise agreement.

(g)

Records required. The franchisee shall maintain:

(1)

Records of all complaints received. The term "complaints" as used herein and throughout this chapter refers to complaints about any aspect of the cable system or the franchisee's operations, including, without limitation, complaints about employee courtesy. Complaints recorded may not be limited to complaints requiring an employee service call.

(2)

A full and complete set of plans, records, and "as built" maps showing the exact location of all cable system equipment installed or in use in the city, exclusive of subscriber service drops.

(3)

Records of outages, indicating date, duration, area, and the estimated number of subscribers affected, type of outage, and cause.

(4)

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

(5)

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

(6)

A public file showing its plan and timetable for construction of the cable system.

(7)

Billings. The franchisee shall maintain fiscal and financial data sufficient to accurately reflect all its subscriber billings. Such data shall be kept and maintained in accordance with generally accepted accounting principles, except to the extent such principles are inconsistent with the terms of the franchise agreement which shall be controlling. Such records shall be retained for a three-year period and may be inspected by the city during such period, subject to the provisions of section 631 of the CCPA. The franchisee shall submit to the city on an annual basis a report detailing all of its subscriber billings for customers within the franchise area during the preceding fiscal year.

The city may require additional information, records, and documents from time to time.

(h)

Performance evaluation.

(1)

The city may, at its discretion, hold performance evaluation sessions. All such evaluation sessions shall be open to the public, and announced in a newspaper of general circulation. The franchisee may be required by the city to notify subscribers of all such evaluation sessions by announcement on a designated local channel on the cable system between the hours of 11:00 a.m. and 9:00 p.m. for five consecutive days preceding each session.

(2)

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

(3)

During the evaluation process, the franchisee shall fully cooperate with the city and shall provide such information and documents as the city may need to reasonably perform its review.

(i)

Voluminous materials. If any books, records, maps or plans, or other requested documents are too voluminous, or for security reasons cannot be copied and moved, then the franchisee may request that the inspection take place at some other location, provided that (1) the franchisee must make necessary arrangements for copying documents selected by the city after review; and (2) the franchisee must pay all travel and additional copying expenses incurred by the city in inspecting those documents or having those documents inspected by its designee. These materials shall be supplied to the city in any format that the city may require at the time of its request. Payments made by the franchisee under this subsection (i) are not a franchise fee and fall within one or more of the exceptions in 47 U.S.C. § 542(g)(2).

(j)

Retention of records; relation to privacy rights. The franchisee shall take all steps that may be required to ensure that it is able to provide the city all information which must be provided or may be requested under this chapter or the franchise agreement, including by providing appropriate subscriber privacy notices. Nothing in this section shall be read to require the franchisee to violate 47 U.S.C. § 551. Each franchisee shall be responsible for redacting any data that federal law prevents it from providing to the city. The city retains the right to question any such redaction and to challenge it in any forum having jurisdiction over such a challenge. Records shall be kept for at least five years.

(k)

Waiver of reporting requirements. The city may, at its discretion, waive in writing the requirement of any particular report specified in this subsection (c).

(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)

Sec. 6-81. - Schedule of penalties.

Because a franchisee's failure to comply with certain provisions of its franchise agreement may result in injury to the city and because it may be difficult to estimate the extent of such injuries the following penalties shall be applied:

(1)

Specific penalties.

a.

Failure by a franchisee to complete in a timely manner the rebuilding of a cable system as set forth in a franchise agreement, $1,000.00 per day.

b.

Failure to provide the production equipment required under a franchise agreement, $100.00 per day.

c.

Failure to test the system or provide reports thereof as required by law or under a franchise agreement, $50.00 per day.

d.

Failure to provide the PEG channels or institutional channels required under a franchise agreement, $200.00 per day.

e.

Failure to maintain the technical performance standards required by a franchise agreement or as promulgated from time to time by the FCC, $500.00 per day.

f.

Failure to comply with any other provision of its franchise agreement, $100.00 per day.

(2)

Commencement of penalties. The penalties set forth above shall commence from the date that a written notice of default is delivered to the franchisee and shall continue until notice that the default has been cured has been received by the city from the franchisee; provided, however, that the city shall provide the franchisee with reasonable opportunity to cure any alleged default before the accrual of any penalty. The accrual of penalty shall automatically cease upon termination of the franchise.

(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)

Sec. 6-82. - Forfeiture.

The penalties provided in section 6-81 shall be the exclusive monetary remedy for the named breaches. Neither the right to assess penalties nor payment of penalties shall bar or otherwise limit the right of the city in a proper case to consider any violation as grounds for termination of a franchise pursuant to the terms of the franchise agreement or consider any violation as grounds for nonrenewal of a franchise subject to sections 6-46 and 6-49.

(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)

Secs. 6-83—6-87. - Reserved.

Sec. 6-88. - Judicial enforcement.

The assessment of any penalty under this chapter or a franchise agreement shall not bar the city from seeking judicial enforcement of a franchisee's obligations by means of specific performance, injunctive relief, mandate or other remedies at law or in equity.

(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)

Sec. 6-89. - Notices.

All notices from the franchisee to the city pursuant to any franchise agreement shall be to the CVT commission unless otherwise designated by the city in writing. The franchisee shall maintain an office within the county to which all notices by the city may be addressed. All notices required to be given under a franchise agreement shall be in writing and shall be deemed served when delivered by hand or when mailed to any party, registered, return receipt requested.

(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)

Sec. 6-90. - Basic service tier rate regulation.

(a)

Authority. The city (the "franchising authority") has the legal authority to administer and shall enforce against any cable television system operator, as permitted therein, the provisions of Part 76, Subpart N of the rules and regulations of the Federal Communications Commission, concerning cable rate regulation, 47 C.F.R. sections 76.900 et seq., as they currently read and hereafter may be amended, which are herewith incorporated by reference.

(1)

The franchising authority may impose fines or monetary forfeitures on a cable operator that does not comply with a rate decision or refund order of the franchising authority, directed specifically at the cable operator, pursuant to the laws of the state, and the codes, rules and regulations of the city.

(2)

The franchising authority shall be authorized, at any time, whether or not in the course of a rate regulation proceeding, to gather information as necessary to exercise its jurisdiction as authorized by the laws of the state, the Communications Act of 1934, as amended, and the FCC rules and regulation. Any information submitted to the franchising authority shall be verified by an appropriate official of the cable television system supervising the preparation of the response on behalf of the entity, and submitted by way of affidavit or under penalty of perjury, stating that the response is true and accurate to the best of that person's knowledge, information and belief formed after reasonable inquiry.

(c)

Certification. The franchising authority shall file with the FCC the required certification form (FCC Form 328) at any time on or after September 1, 1993, but as soon as thereafter as appropriate. Thirty days later, or as soon thereafter as appropriate, the franchising authority shall notify the cable operator that the franchising authority has been certified by the FCC and that it has adopted all necessary regulations so as to begin regulating basic service tier cable television rates and equipment charges.

(d)

Cable programming service tier. With regard to the cable programming service tier, as defined by the Communications Act of 1934, as amended, and the FCC rules and regulations, and over which the franchising authority is not empowered to exercise rate regulation, the cable operator shall give notice to the franchising authority of any change in rates for the cable programming service tier or tiers, any change in the charge for equipment required to receive the tier or tiers, and any changes in the nature of the services provided, including services included in the tier or tiers. Such notice shall be provided within five business days after the change becomes effective.

(e)

Cable officials. The franchising authority may delegate its powers to enforce this section to such municipal employees or officers ("cable officials") as may be deemed necessary, more specifically, the CVT commission or a committee thereof. The cable officials shall have the authority to:

(1)

Administer oaths and affirmations;

(2)

Issue subpoenas;

(3)

Examine witnesses;

(4)

Rule upon questions of evidence;

(5)

Take or cause depositions to be taken;

(6)

Conduct proceedings in accordance with this section;

(7)

Exclude from the proceeding any person engaging in contemptuous conduct or otherwise disrupting the proceedings;

(8)

Conduct conferences for the settlement or simplification of the issues by consent of the parties; and

(9)

Take any further actions and render decisions or recommend decisions in conformity with the City Charter and Code.

(f)

Inconsistent provisions. Insofar as the provisions of this section are inconsistent with the provisions of any other Wilmington ordinance or regulation, the provisions of this section shall be controlling.

(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)

Sec. 6-91. - Office of cable and communications; cable television franchise fund.

(a)

There is hereby established an office of cable and communications (the "office"). The office shall be a part of the city council staff, but may have its offices in the Louis L. Redding Building or in an office more suited to its cable communications operations and programming production needs. The annual operating budget for the office shall be part of the annual operating budget for the city council and staff, but the funds for the office shall be derived from the annual cable television franchise fees received by the city as a franchising authority. The office shall be responsible for the analysis of cable and communications needs and capabilities of the city, both as to its governmental operations and as to providing its public services to the Wilmington community and, in particular, as to the governmental channel(s) of the city and program development for the production and development for the same. The office shall also monitor the operations and future planning of the cable television system acting as a cable operator pursuant to an agreement with the city, particularly with regard to leased access programming, basic service tier rate regulation and any other matters brought to it by the CVT commission (the "commission"). In that regard, the office shall be authorized to act on behalf of the commission on information and referral matters to and from the commission, and shall assure, to the extent that its budget permits, that the governmental channel(s) address the program requirements of the mayor's office, city council and all offices and departments of the executive branch of city government.

(b)

The chief administrative official of the office of cable and communications shall be known as the "station manager—WITN," who shall be appointed by the city council president and serve at the pleasure of the president. The said station manager shall have general supervisory authority over the operations of the office of cable and communications and shall report to the city council chief of staff. The station manager shall prepare an annual report summarizing the operations of the cable operator, the governmental channel operations and related matters.

(c)

Notice of city meetings. In each instance in which a department of city government schedules and posts an agenda for any public meeting to be held by the department, or by a city board or commission, which is primarily staffed by such department, then and in that event any such public meeting notice shall be forwarded to the office of cable and communications for the purpose of such office posting the information on the city's educational or governmental ("EG") channel message board, in order that notice of such public meeting will have enhanced distribution.

(d)

Cable television franchise fund. There is hereby established as a requirement for the annual operating budget ordinance, that there shall be a separate fund to be known as the "cable television franchise fund" which shall be funded by and from all cable television franchise fee revenues received by the city during each fiscal year. The expenditures from such fund shall be limited to those expenditures authorized for the operation of the city's office of cable and communications and its related activities. Unexpended funds in any fiscal year shall be retained in the cable television franchise fund going forward into the new fiscal year.

(e)

City's web site. The office of integrated technologies shall have the authority and responsibility for coordinating the development and maintenance of the city's official web site. The said office shall be authorized to contract for professional services deemed necessary to develop the city's web site. The office shall act as the lead office in working with departments of city government to develop, maintain and update the city's only web site. Each operating department and office of city government shall retain its responsibility over administrative and business functions relating to the department or office. Any questions involving issues of programming policy and operational procedures and substantive content shall be referred to the office of integrated technologies to develop web site guidelines, rules and regulations.

Any conflict over implementation of rules, regulations and operational procedures shall be resolved by the CVT commission.

(Ord. No. 07-001(sub 1), § 1(Exh. A), 4-19-07)

Secs. 6-92—6-115. - Reserved.