SUBSTITUTE BILL NO. 094-1103

AN ORDINANCE AUTHORIZING THE ISSUANCE OF FRANCHISES FOR USE OF THE RIGHT OF WAY OF THE METROPOLITAN GOVERNMENT FOR INSTALLATION AND USE OF FACILITIES FOR FIBER OPTIC COMMUNICATIONS SERVICES AND ESTABLISHING REQUIREMENTS AND CONDITIONS FOR THE GRANT OF ANY SUCH FRANCHISE.

WHEREAS, due to expanding and improved technology, the capability of fiber optic cable to provide communications services has grown in recent years; and,

WHEREAS, several companies that wish to provide fiber optic services have contacted various officials of the Metropolitan Government, seeking authority to provide services to the public in Metropolitan Nashville and Davidson County; and,

WHEREAS, in order to provide fiber optic communications services to the public, it is necessary to place fiber optic cable and possibly other facilities as well, on, above or beneath public rights-of-way; and,

WHEREAS, it is proper that permission to use the public rights-of-way for fiber optic communications services be granted in the form of a revocable franchise under authority of Article 17 of the Charter of The Metropolitan Government of Nashville and Davidson County; and,

WHEREAS, due to the fact that more than one company has expressed interest in providing fiber optic communications services, it is in the public interest that any such provider shall satisfy the same conditions as the others seeking to provide services; and,

WHEREAS, the Metropolitan Council finds that it is in the public interest to enact legislation to establish minimum criteria for franchises for providers of fiber optic communications services.

NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY.

SECTION 1. -DECLARATION OF NEED. That the Metropolitan Council finds and declares that, within Metropolitan Nashville and Davidson County, the public necessity Metropolitan Nashville and Davidson County, but not including cable television services as defined under the Cable Communications Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, and/or any franchise granted by the Metropolitan Government pursuant to said Act.

2.10. "Franchise" shall mean the non-exclusive authorization granted as provided in this ordinance to occupy or use the streets and/or public rights-of-way within Metropolitan Nashville and Davidson County for the construction, operation and maintenance of a fiber optic telecommunications system within all or a portion of Metropolitan Nashville and Davidson County.

2.11. "Franchise Agreement" shall mean a fully executed and notarized contractual agreement by and between the Metropolitan Government and grantee, wherein grantee accepts the provisions stated in this ordinance.

2.12. "Gross Revenue" shall mean all receipts collected by the Grantee for all communications and related operations and services within the corporate limits of the Metropolitan Government, as well as any other revenue arising from operation or possession of this franchise. By way of example, but without limitation, "Gross Revenue" includes the sale or lease of customer premise equipment, installation charges, access charges paid to the Grantee by other carriers, franchise fees and occupation taxes surcharged to customer, and the lease or re-sale of lines or circuit paths to third parties. "Gross Revenue" does not include revenue uncollectible from customers.

2.13. "Metropolitan Government" shall mean The Metropolitan Government of Nashville and Davidson County.

2.14. "PSC shall mean the Tennessee Public Service Commission or any successor agency.

2.15. "Public Right-of-Way" shall mean real property subsurface and air rights acquired by the Metropolitan Government by any lawful means and includes the surface and that area below the surface which is necessary to support the public street, alley, path, bridge, tunnel, sidewalk, planting strip, median, waterway, dock,

A. Any franchise application shall be made to the Council through the Metropolitan Clerk and introduced in the Council in the manner provided by the rules of the council.

B. Each such application shall be kept on file with the metropolitan clerk. Any intentional misrepresentation in such application shall be grounds for the rejection of the franchise. The application shall be a part of any franchise grant or agreement under this chapter.

C. Each application shall include a map and description of the proposed service area for the Grantee.

D. The mandatory referral to the metropolitan planning commission required by Section 11.505 of the Metropolitan Charter shall apply to each franchise application.

E. No ordinance granting or revoking a franchise shall be passed b y the Council without a full public proceeding affording due process in which the Grantee's legal, character, financial, technical and other qualifications, and the adequacy and feasibility of its construction arrangements have been reviewed and approved either by the full council or a committee composed of members of the Council only.

3.3. Franchise - Grant conditions. terms.

A. All franchises, and all renewals, extensions and amendments thereof shall be granted only by ordinance. No such ordinance shall be adopted before the application therefor has been filed with the Council through the Metropolitan Clerk.

B. Grantee shall not provide cable services or operate a cable system as defined in the Cable Television Consumer Protection and Competition Act of 1992 (47 U.S.C.A. 521, et seq., as amended) or as recognized by the Federal Communications Commission (the "FCC") without first obtaining a separate cable franchise from the Metropolitan Government and shall not allow the use of the System by a cable system that has not been granted a franchise by the Metropolitan Government. Nor shall any provider of cable services or grantee of cable television law or regulation of the Metropolitan Government, not less than seven (7) days prior to filing of a request for a construction permit, Grantee shall provide to the Director of Public Works a copy of all the construction work plans and drawings for the System, or any segment or expansion thereof. Grantee shall not proceed with construction until the plans and drawings have been approved in writing by the above-listed Metropolitan Government official.

SECTION 5. AS BUILT DRAWINGS.

Grantee shall submit to the Director of Public Works "as built" drawings of the portions of Grantee's System located along the public right-of-way of a size and material satisfactory to the Director of Public Works within sixty (60) days after completion of construction of such portions. Grantee shall update such drawings within sixty (60) days whenever material changes are made to Grantee's System which impact the public right-of-way. Said drawings, set forth by utility quarter sections, shall at a minimum include cable routings and the location of amplifiers, power supplies and system monitor test points.

SECTION 6. CONSTRUCTION STANDARDS.

6.1. All work done in connection with the construction, expansion, reconstruction, maintenance or repair of the System shall be subject to and governed by all laws, rules, and regulations of the Metropolitan Government in accordance with the provisions of Chapter 13.20 of the Metropolitan Code, except that the provisions of Sections 13.20.020 and 13.20.030 shall not be applicable. Grantee shall excavate only for the construction, installation, expansion, repair, removal, and maintenance of all or a portion of its System.

All installations shall be underground in those areas of the Metropolitan Government where public utilities providing telephone and electric service are underground at the time of installation. In areas where either telephone or electric utility facilities are above ground at the time of installation, Grantee may install its service above ground, provided that, at such time as those facilities are required to be placed underground by the Metropolitan Government, or are placed underground, maintenance, repair or removal of the System, the Grantee shall, at its own cost and expense, protect any and all existing structures and improvements, including landscaping and trees belonging to the Metropolitan Government, and all designated historical landmarks, as well as all other structures within any designated historical district. The Grantee shall obtain the prior approval of the Metropolitan Government before altering or crossing any water main, sewerage or drainage system, or any other municipal, state or federally-owned structure in the streets required because of the presence of the System in the Streets. Any such alteration shall be made by the Grantee at its sole cost and expense, and in a manner prescribed by the Metropolitan Government. The Grantee shall be liable, at its own cost and expense, to replace or repair and restore to serviceable condition in a manner as may be specified by the Metropolitan Government, any street or any municipal, state or federally-owned structure involved in the construction of the System that may become disturbed or damaged as a result of any work thereon by or on behalf of the Grantee pursuant to its franchise.

6.5. Erection, Removal and Use of Poles.

No poles shall be erected by Grantee without prior approval of the Metropolitan Government with regard to location, height, types and any other pertinent aspect. However, no location of any pole or wire-holding structure of Grantee shall give rise to a vested interest, and such pole or structures shall be removed or modified by Grantee at its own expense whenever the Metropolitan Government determines that the public convenience would be enhanced thereby. Approval under this section shall require the written approval of the Department of Public Works.

6.6. Upon request of the Metropolitan Government or other authority of competent jurisdiction, Grantee shall remove and abate any portion of the System or any facility that is dangerous to life or property, and in case Grantee, after notice, fails or refuses to act, the Metropolitan Government may remove or abate the same, at the sole cost and expense of Grantee, all without compensation or liability for damages to Grantee.

SECTION 11. MOVING WIRES. The Metropolitan Government may, at any time, in case of fire, disaster or other emergency, as determined by the Metropolitan Government in its reasonable discretion, cut or move any other optical fibers, wires, cable, amplifiers, appliances, or other parts of the System in the streets or in Metropolitan Government buildings, in which event the Metropolitan Government shall not be liable therefor to the Grantee.

SECTION 12. TEMPORARY REMOVAL OF FACILITIES FOR DEMOLITION OF BUILDINGS.

Upon the request of a person holding a permit issued by the Metropolitan Government for the moving or demolition of a building, and at least ten (10) days notice, Grantee shall temporarily raise, lower or remove its facilities to permit the removal or demolition of such building. The expense of such temporary removal, raising or lowering of facilities shall be paid by the person requesting the same and Grantee shall have the authority to require such payment in advance; provided, however, that no payment (direct or indirect) shall be required of the Metropolitan Government.

SECTION 13 JOINT USE.

Grantee may elect or may be required by the Metropolitan Government to attach portions of the System to poles or to share cable, duct trench space, or fiber capacity owned and maintained by any other person or entity, or to permit the wires or equipment of any other person or entity franchised by the Metropolitan Government to be attached to the facilities owned and maintained by the Grantee, upon reasonable, non-discriminatory terms and at fair market value. In the event that Grantee and such other person or entity franchised by the Metropolitan Government. shall be unable to agree on such terms and just compensation, or if same are not otherwise resolved or determined within a reasonable time, the Council shall provide for arbitration under Section 17.04 of the Metropolitan Charter. Grantee may require any such person or entity to furnish evidence of adequate insurance covering Grantee and adequate bonds covering the performance of the person or entity attaching to Grantee's facilities as a transportation purposes. The permits referred to in Section 4 may be amended or revoked in whole or in part by the issuing department whenever such action is necessary or advisable for a public purpose. Grantee shall make no claims for costs or damages against the Metropolitan Government by reason of such removal or relocation. Upon 30 days written notice to Grantee of partial or complete revocation of such permit from the Director of Public Works, Grantee shall remove, modify, replace or relocate its facilities as required at its own expense. In the event Grantee does not remove, mo dify, replace or relocate its facilities as required by said notice within thirty (30) days as aforesaid, the Director of Public Works may cause the same to be done at Grantee's expense and all expenses incurred or damages paid by the Metropolitan Government on account of such action shall be paid by Grantee on demand. Grantee shall remove, replace or modify, at its own expense, the installation of any of its facilities as may be deemed necessary by any other appropriate governmental authority to meet such authority's proper responsibilities. In the, event the Metropolitan Government exercises its predominant right to use any right-of-way used by Grantee for a public purpose, the Metropolitan Government shall reasonably cooperate with Grantee in finding an alternate site for any telecommunications facilities removed and in avoiding disruption to Grantee's telecommunications system to the extent not reasonably required by the Metropolitan Government. In an emergency, as determined by the Director of Public Works, the Metropolitan Government may order Grantee to remove or relocate its facilities within forty-eight (48) hours. If the Metropolitan Government exercises any of its rights pursuant to this Section, Grantee shall have the option, upon notice to the Director of Information Services, of abandoning the portion of its telecommunications system to be so removed or relocated and deleting such portion from the public right-of-way.

SECTION 16. PROTECTION OF TREES.

Trimming of trees and shrubbery within the public right-of-way to prevent contact with Grantee's facilities shall be done only in accordance with the standards approved by the Urban Forester in accordance with the ordinances of the Metropolitan

19.2 Relocation of Right-of-Way. Wherever a public right-of-way or other public property is being constructed, paved (whether or not such paving is part of a more extensive improvement project), resurfaced, relocated or otherwise altered or improved (including, but not limited to, the installation of sidewalk, curb, gutter, drainage facilities, water mains, or sewer mains, traffic signals or trees), Grantee shall, within ninety (90) days of written notice from the Director of Public Works, and at no cost (direct or indirect) to the Metropolitan Government, remove or relocate any Grantee facility located within such public right-of-way or public property or perform such work as it deems necessary for the extension of new facilities. The relocation or extension of new facilities shall be to a location approved by the Metropolitan Government. Failure to obtain the Metropolitan Government's approval of the location of facilities relocated under this section will be considered a forfeiture under Section 31 of this Ordinance. Grantee shall be responsible for any damage it causes to property, including damage to trees and other landscaping, as a result of the relocation or removal of facilities.

19.3 Time Limit - Liquidated Damages. Failure of Grantee to remove or relocate the facility to a location approved by the Metropolitan Government within ninety (90) days of the Metropolitan Government's written notice shall entitle the Metropolitan Government to recover liquidated damages from Grantee. The liquidated damages for failure to remove or relocate a facility shall be $250.00 per diem.

If Grantee believes it will be unable to complete the relocation within ninety (90) days from receipt of notice from the Metropolitan Government, Grantee shall explain the reasons for its inability in detail and the Metropolitan Government and Grantee shall attempt to agree on an alternate schedule, subject, however, to the Metropolitan Government's right to finally determine the schedule and liquidated damages, as long as its decision is not unreasonable.

SECTION 20. BONDS.

(A) Grantee shall obtain and maintain, at its sole cost and expense, and file with the Metropolitan Clerk, a corporate surety bond with a surety company

(2)  One Million Dollars ($1,000,000.00) aggregate

Grantee shall also file with the Metropolitan Government a certificate of insurance for a comprehensive automobile liability insurance policy written by a company authorized to do business in the State of Tennessee, for all owned, nonowned, hired and leased vehicles operated by Grantee, with limits no less than One Million Dollars ($1,000,000.00) each accident, single limit, bodily injury and property damage combined, or evidence of self-insurance.

Grantee shall also maintain, and by its acceptance of any franchise granted hereunder, and specifically agrees that it will maintain throughout the term of the franchise, workers compensation and employers liability, valid in the State, in the minimum amount of the statutory limit for workers compensation, and Five Hundred Thousand Dollars ($500,000.00) for employers liability.

All liability insurance required pursuant to this section shall be kept in full force and effect by Grantee during the existence of the franchise and until after the removal of all poles, wires, cables, underground conduits, manholes and any other conductors and fixtures installed by Grantee incident to the maintenance and operation of the communications system as defined in this ordinance. All policies shall be endorsed to give the Metropolitan Government thirty (30) days written notice of the intent to amend or cancel by either Grantee or the insuring company.

SECTION 23. SERVICES TO THE METROPOLITAN GOVERNMENT.

Grantee shall cooperate with all efforts by the Metropolitan Government to initiate and complete interconnections of the Metropolitan Government's system and users with Grantee. Grantee agrees to provide terminated interactive fiber interconnects using ST compatible connections for the Metropolitan Government's communications system to all buildings (including public schools) in which the Grantee provides service or which the Grantee plans to provide service. Any other connections requested of Grantee by The Metropolitan Government shall be made by Grantee subject to payment by The Metropolitan Government of Grantee's verified cost plus ten percent (10%) of the cost. Once a connection has been terminated in a box using ST compatible connectors inside a building, the Metropolitan Government shall bear the sole responsibility to obtain and install any equipment necessary to use the connection. Grantee shall maintain with the Metropolitan Government a current listing of all buildings, both public and private, in which it provides services. No monthly fee shall be charged to the Metropolitan Government for this service.

Grantee agrees to provide the Metropolitan Government with four (4) dark fiber optic fibers of the System. Grantee also shall provide coordination and engineering assistance to the Metropolitan Government for providing such fiber optic accesses as the Metropolitan Government may require.

In order to ensure coordination of Metropolitan Government facilities with Grantee's network, Grantee agrees:

(a) To provide twenty-four (24) hour per day continuous monitoring of the facilities that the Metropolitan Government is using in conjunction with Grantee's network;  and

(b) To coordinate design and installation of other network specific requirements the Metropolitan Government may have, including maintenance, at Grantee's cost, plus ten percent (10%).

SECTION 24. COMPENSATION TO THE METROPOLITAN GOVERNMENT.

24.1 General Compensation. For the reason that the public streets, alleys and including, but not limited to:

1 . all telecomm ' unications service revenues charged on a flat rate basis;

2. all telecommunications services charged on a usage sensitive or mileage basis;

3. all revenues from installation service charges;

4. all revenues from connection or disconnection fees;

5. all revenues from penalties or charges to customers for checks returned from banks, net of bank costs paid;

6. all revenues from equipment sold or rented to customer upon customer premises;

7. all revenues from local service;

8. all revenues from authorized rental of conduit space;

9. all revenues from charges for access to local and of long distance networks;

10. all revenues from authorized rentals of any portion of Grantee's System, including plant, facilities, or capacity leased to others;

11. all other revenues collected from Grantee's business pursued with the Metropolitan Government, excluding third party billing arrangements not related to Grantee's business;

12. recoveries of bad debts previously written off and revenues from the sale or assignment of bad debts. Unrecovered bad debts charged off after diligent, unsuccessful efforts to collect are excludable from gross revenues; and

13. all revenues from operation of any local subcontractor and/or subsidiary.

Gross revenues shall not include revenues from interstate toll operations other than revenues from local access connections.

Payment of money under this section shall not in any way limit or inhibit any of the privileges or rights of the Metropolitan Government, whether under this franchise ordinance or otherwise.

Grantee shall file annually with the Director of Finance no later than ninety (90) days-after the end of the Grantee's fiscal year, an audited statement of revenues (for that year) attributable to the operations of the Grantee's system, within Metropolitan Nashville and Davidson County pursuant to this franchise ordinance. This statement shall present a detailed breakdown of gross revenues and uncollectible accounts for the year. This statement shall be audited by an Independent Certified Public accountant whose report shall accompany the statement.

Any transaction which have the effect of circumventing payment of required franchise fees and/or evasion of payment of franchise fees by non-collection or nonreporting of gross revenues, bartering, or any other means which evade the actual collection of revenues for business pursued by Grantee are prohibited.

and if reports are to be made under oath.

25.4 Grantee shall provide the Metropolitan Government with access at reasonable times and for reasonable purposes, to examine, audit, review and/or obtain copies of the papers, books, accounts, documents, maps, plans and other records of Grantee pertaining to this franchise ordinance. Grantee shall fully cooperate in making available its records and otherwise assisting in these activities.

25.5 The Metropolitan Government may, at any time, make inquiries pertaining to Grantee's operation of its System within Metropolitan Nashville and Davidson County. Grantee shall respond to such inquiries on a timely basis.

25.6 Grantee shall provide the Metropolitan Government with notices of all petitions, applications, communications and reports submitted by Grantee to the FCC, Securities and Exchange Commission and the Tennessee Public Service Commission or their successor agencies, relating to any matters affecting the use of public streets, alleys and public rights of way and/or the telecommunications operations authorized pursuant to this franchise ordinance. Upon written request from the Metropolitan Government, Grantee shall provide the Metropolitan Government with copies of all such documentation.

SECTION 26. TERM OF FRANCHISE.

26.1 Term. Upon execution of a franchise agreement between the Metropolitan Government and Grantee, a franchise shall be in full force and effect for a term and period of fifteen (15) years, ending on the anniversary date of the franchise.

26.2 Renegotiation At Five (5) Years. The Metropolitan Government and Grantee shall have the right to renegotiate in good faith, at the fifth (5th) and tenth (10th) anniversary dates of the franchise, the amount, nature and terms of compensation to be paid by Grantee for use of the public rights-of-way during the term of this franchise. Any adjustment to compensation shall become effective on the next succeeding anniversary date. In order to renegotiate compensation, the Metropolitan Government, acting through its Director of Finance, shall give written notice to Grantee the Metropolitan Government shall withdraw the proposed adjustment to compensation, and Grantee shall continue paying the compensation previously in, effect.

SECTION 27. EXTENSION OF TERM.

If, on the expiration date, Grantee shall not be in default under the franchise, and if neither party has notified the other of its intent to terminate the franchise on or before the expiration date, then the terms of this franchise shall be deemed extended on an interim basis until terminated, renewed or renegotiated. Said interim extension period shall not extend beyond a date sixty (60) days after the expiration date, after which date the franchise shall be considered terminated and all rights of the Grantee to use the public rights-of-way to provide telecommunications services shall cease.

SECTION 28 RENEWAL.

At any time during the last year of the franchise, Grantee may request the Metropolitan Government to enter into negotiations toward renewing or extending this franchise. The exercise by Grantee of this option shall not bind the Metropolitan Government as to acceptance of any particular terms or renewal of the rights granted by the franchise. Any proposed renewal, extension or modification of the franchise is subject to the Council's approval, modifications or rejection in its sole discretion.

Upon expiration of the fifteenth (15th) year of the franchise, the Metropolitan Government shall have the right, at its election, to:

a. Renew or extend the franchise for an additional period, as agreed by the Metropolitan Government and Grantee;

b. Invite additional franchise applications or proposals; or

C. Terminate the franchise without further action.

The Grantee shall make it a condition of each contract entered into by it that the Metropolitan Government shall have the right to exercise these options.

SECTION 29. ASSIGNMENT OR LEASE OF FRANCHISE.

Neither the franchise, the assets held by Grantee under this franchise ordinance, nor any rights or privileges of Grantee under this franchise ordinance, Grantee's system capacity, or allowance of access to Grantee's system, either separately or collectively, 25

such notice, Grantee shall respond in writing to provide explanation or documentation to support that the violation did not occur. Grantee shall be allowed thirty (30) days to cure violations after written notice is received from the Metropolitan Government.

Upon evidence being received by the Metropolitan Government that any violation of this franchise ordinance, any Metropolitan Charter provisions or any ordinances lawfully regulating Grantee in the construction and operation of this system is occurring, or has occurred, the Metropolitan Government shall cause an investigation to be made. If the Metropolitan Government finds that such a violation exists or has occurred, the Grantee shall take appropriate steps to comply with the terms of this franchise ordinance and any lawful regulation. Should Grantee fail to comply, after the above-stated notice and opportunity to cure, then the Metropolitan Government may take any action authorized by law, including revocation or repeal of the franchise or a suit in court to compel compliance. If, in any such proceeding, default is finally established, Grantee shall be required to pay to the Metropolitan Government the reasonable expenses incurred in the prosecution of such suit and all the Metropolitan Government's damages and costs (including attorney fees).

SECTION 31. REVOCATION AND TERMINATION.

30.1 In addition to all other rights and powers retained by the Metropolitan Government under this franchise ordinance or otherwise, the Metropolitan Government reserves the right to revoke and terminate any franchise issued by authority of this Ordinance, and all rights and privileges of Grantee hereunder shall cease in the event of substantial breach, subject to reasonable notice and opportunity to cure, of its terms and conditions. A substantial breach of Grantee shall include, but shall not be limited to, the following:

(1) Grantee's violation of any material provision of the franchise ordinance or any material rule, order or regulation of the Metropolitan Government made pursuant to this franchise ordinance;

(2) Grantee's failure to properly compensate the Metropolitan Government as required in this franchise ordinance;

federal regulations, or finally adjudged by a court of law invalid or unenforceable and the Council further finds that such provision constitutes at that time a consideration material to the continuance of the franchise herein granted, the Metropolitan Government reserves the right to revoke and terminate any franchise issued under authority of this Ordinance.

SECTION 32. SERVICE STANDARDS.

Grantee shall maintain and operate its communications system and business in an efficient manner and shall provide adequate, efficient and reasonable service to its customers in Metropolitan Nashville and Davidson County. Once it commences operation, Grantee's System shall provide continuous and uninterrupted service throughout the term of the Franchise.

Grantee shall comply with all applicable federal, state and local laws, rules and regulations, including the Tennessee Public Service Commission.

Grantee shall not practice unjust discrimination regarding rates and services between individual customers or classes of customers.

SECTION 33. PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED.

Grantee shall not make or grant any unreasonable preference or advantage to any person, nor subject any person to any unreasonable prejudice or disadvantage in its exercise of the rights and privileges granted by its franchise; provided, however, that nothing in its franchise shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules, consistent with applicable law, to which any customer coming within such classification would be entitled.

SECTION 34. CONFLICT WITH OTHER LAWS.

Where a provision of this ordinance or Grantee's franchise is in conflict with any state or federal statute or a rule of the Tennessee Public Service Commission or FCC, so that Grantee cannot reasonably comply with both the provisions of this ordinance or franchise and the statute or rule of the Tennessee Public Service Commission or FCC, then Grantee may, after giving the Metropolitan Government written notice of

SECTION 38. OFFICE LOCATION.

The Grantee shall maintain an office in Metropolitan Nashville and Davidson County. Grantee shall always keep and maintain city specific books, records, contracts, accounts, documents, and papers for its operation within Metropolitan Nashville and Davidson County. All maps, plats, records and inventories and books of the Grantee, insofar as they show values and location of existing property shall be preserved for use, if necessary, in connection with any future valuation of the property of the Grantee.

SECTION 39. SEVERABILITY.

If any section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this franchise ordinance is for any reason held invalid or unenforceable by any court of competent jurisdiction, the remainder of this franchise ordinance shall not be affected thereby, but shall be deemed as a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof, and each remaining section, subsection, sentence, clause, phrase, term, provision, condition, covenant and portion of this franchise ordinance shall be valid and enforceable to the fullest extent permitted by law.

SECTION 40. EFFECTIVE DATE.

This Ordinance shall take effect from and after its passage, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by:  Ronnie Steine

AMENDMENT NO. 1

TO

SUBSTITUTE ORDINANCE NO. 094-1103

Mr. President:

I move to amend Ordinance No. 094-1103 as follows:

1. Amend Section 2.9 by deleting it in its entirety and substituting in lieu thereof.

2.9 "Fiber Optic Communications" of "Fiber Optic services" means telecommunication systems as defined in Section 2.12.

2. Amend Section 2.12 by deleting the words "the sale or lease of customer premise equipment," between the words includes and franchise in the second sentence.

3. Amend Section 2.17 by deleting it in its entirety and substituting in lieu thereof.

2.17 "System" or "Telecommunications System" shall mean Grantee's network of cables, wires, lines, towers, wave guides, optic fiber, microwave, and any associated converters, equipment, or facilities designed and constructed for the purpose of producing, receiving, amplifying or distributing audio, video or other forms of electronic signals to or from subscribers or locations within Metropolitan Nashville and Davidson County, but not including the offering to the public cable television services as defined under the Cable Communications Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, and/or any franchise granted by the Metropolitan Government pursuant to said Act.

4. Amend Section 3.1 by adding the words "to the extent permitted by law" to the end of the last sentence.

5. Amend Section 3.3, subsection B. by deleting it in its entirety and substituting in lieu thereof

B. Grantee shall not provide cable services or operate a cable system as defined in the Cable Television Consumer Protection and Competition Act of 1992 (47 U.S.C.A. 521 et seq., as amended) or as recognized by the Federal Communications Commission (the "FCC") without first obtaining a separate cable franchise from the Metropolitan Government and shall not allow the use of the System by a cable system that has not been granted a franchise to operate a cable communications system by the Metropolitan Government. Nor shall any provider of cable services or grantee of a cable television franchise operate or provide telecommunications service or facilities except pursuant to this ordinance.

6. Amend 3.3, Subsection D by deleting the first sentence in its entirety

7. Amend Section 5 by deleting the word and figure "sixty (60)" in the first sentence of Section 5 and substituting in lieu thereof the words and figure "one hundred and twenty (120)".

In order to ensure coordination of Metropolitan Government facilities with Grantee's network, Grantee agrees to:

(a) provide twenty-four (24) hour per day continuous monitoring of Grantee's system.

(b) coordinate, design and install network specific requirements of the Metropolitan Government, including maintenance, at Grantee's cost, plus ten percent (10%).

Grantee shall maintain with the Metropolitan Government a current listing of all buildings, both public and private, in which it provides services. No monthly fee shall be charged to the Metropolitan Government for this service.

Grantee shall comply with applicable requirements of regulatory agencies, with jurisdiction over ratemaking issues, which promote universal service.

16. Amend Section 24.2 by deleting Number 6 "all revenues from equipment sold or rented to customer upon customer premises" and renumbering accordingly.

17. Amend Section 24.2 by amending the new Number 8 by deleting the word "of' between the words "and" and "long".

18. Amend Section 24.2 by amending the new Number 10 by adding the words "excluding revenues received pursuant to Section 23 (b) and," between the words "Government" and "excluding".

19. Amend Section 24.2 by amending the new Number 12 by deleing it in its entirety and substituting in lieu thereof

12. all revenues received from any subcontractor and/or subsidiary operating telecommunications services under or pursuant to Grantee's franchise.

20. Amend Section 24.2 by deleting the words "interstate toll" and substituting in lieu thereof the words "long distance" in the second full paragraph which begins with the word "Gross" and ends with the word "connections."

21. Amend Section 24.2 by deleting the fourth full paragraph, beginning with the word "Grantee" and ending with the word "statement.", in its entirety.

22. Amend Section 25.2 by deleting the second paragraph in its entirety and substituting in lieu thereof:

Grantee shall file annually with the Director of Finance and the Metropolitan Clerk, on a form approved by the Metropolitan Government, no later than ninety (90) days after the end of the Grantee's fiscal year, an audited statement of revenues (for that year) attributable to the operations of the Grantee's system within Metropolitan Nashville and Davidson County pursuant to this franchise ordinance. This statement shall present a detailed breakdown of gross revenues and uncollectible accounts for the year. This statement shall be audited by an Independent Certified Public accountant whose report shall accompany the statement. The Metropolitan Government may, if it sees fit, have the books and records of Grantee examined by a representative of said Metropolitan Government to ascertain the correctness of the reports agreed to be filed herein.

23. Amend Section 25.4 by deleting the words "and/or obtain copies of" between the words "review and the" in the first sentence.

24. Amend Section 26.3 by deleting from the first paragraph the words beginning with "and" and ending with the "?" and by deleting the second full paragraph.

25. Amend Section 28 by deleting the words "make it a condition" between the words "shall"

LEGISLATIVE HISTORY

Substitute Introduced: June 21, 1994
Passed Second Reading: June 21, 1994
Amended: July 19, 1994
Passed Third Reading: July 19, 1994
Approved: July 25, 1994
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