Santa Fe Alliance For Public Health and Safety

Wednesday, May 26, 2010

Santa Fe Telecommunications Town Hall Meeting Two: Notes, April 22, 2010

Telecommunications Town Hall Meeting Two
April 22 at the Genoveva Chavez Community Center, 3221 Rodeo Road.
--NOTES

1. Miguel Chavez, City Councelor, Welcome
2. Arthur Firstenburg, Telecommunications Activist - history of cell tower citizens groups in Santa Fe since 2000.
Arthur read from a newsletter put out by the citizens group.
• “they wanted to put in hundreds of cell towers, “ said Mar Deblanco in a newsletter published in 2000 by the citizens task force. Three women: Mar Deblanco and Cili Solomon and one other woman. Thank you to all those who have contributed to this work.

3. Azlan White, Telecommunications Activist –Summary of Town Hall Meeting One
• We are grateful the city attorney’s office is listening to our suggestions, so you can know these meetings are effective in participating in the code-writing process. This is great news for the citizens of Santa Fe, New Mexico, to feel such a true Democratic process in place. We look forward to our continued collaboration, as a citizens group, to continue to advise the city on the telecommunications code revision to ensure things like: private property owners will have a public review before equipment is placed near their home.
4. Jeanne Price, –update on ordinance refinements and changes. Schedule is changing. Meeting has been delayed until June 9th.
5. Public Comment:

Sara Vacha : Question: “Where will the antennae’s be located? [for DAS, Distributed Antennae System, Wifi in neighborhoods]
Response from Jeanne: (paraphrased) On telephone poles, or if there are no poles, poles will be built.

Monika Stenhdl: “We don’t need many gas or water companies, so why do we need many telecommunications services?”
SOLUTION: to establish a kind of public corporation who can oversee the whole telecommunications infrastucture.

Bill Bruno: Overhead: one page 45 of ordinance:
Land use is crossed out. Example of complex questions involved in this telecommunications code.
1996 Telecommunications Act: this law is unconstitutional and should continue to be challenged.

Arianna – Corporate Accountability
Cell phone companies are finding ways to avoid corporate responsibility. Often included in the fine print of contracts with private property owners, where cell phone towers are to be placed, is something like: property owner is responsible for any and all damage or lawsuits coming from neighbors or anyone else.
Suggestion for city:
1. Write the law to increase corporate accountability.
2. Wireless telecom providers should not be allowed to pass any potential liability for their equipment on to property owners.
3. Also in fine print sometimes is: “property owner is not allowed to cancel the lease agreement.” Property owners, or the city should be able to cancel a lease or franchise contract any time requirements or proper maintenance and testing are not complied with.
4. Cell phone providers should cover their towers with 6 Million dollars of insurance per tower.
5. Tax cell phones to help pay for insurance premiums.

Alena -- A MORATORIUM, A moratorium on wireless and cell phone equipment installation on city property, gives the city time for the legal department to split wireless and non-wireless parts of the ordinance. It gives the city a chance to be in touch with neighborhood associations to be sure the city code is in harmony with neighborhood association requirements and codes. A 6 month moratorium gives us time to make a “Telecommunications Plan,” for the city of Santa Fe that is intelligent and considers the needs of all parties.

Therese – FCC has posted on their site that a moratorium is ok. 1. Can there be a compromise? I’ve lived in Santa Fe my whole life, I grew up here, and we are supposed to be the city different, so we do things different here. And why do we need more companies in a quadrant? Do all of these companies need to be there, or can we just have four?

2. And I don’t like the idea of a ten year franchise agreement. We are really just trying to protect the city from unnecessary head aches and law suites from individuals and property owners, and to protect the cities rights. Can’t you make one year agreements? Technology changes, etc.

3. Another thing, If the city can know where every single water meter is, and monitor it, then why can’t the city know and keep track of cell phone towers and monitor them closely?

4. We have the “cleanest air in America,” so why not keep Santa Fe clean of “airwaves” also. Please study the economic impact of these companies installing their equipment in neighborhoods, before moving forward with wireless technologies. We are working to protect the city.

Virginia—FCC comments : Don’t give up zoning laws. Keep towers and antennae’s out of residential areas, while we work on changing the federal law that does not allow people to prevent towers due to health or environmental concerns. I received a call from Udall’s office. Nathan, an assistant, has invited us to come to their office and work on this. This is something the city and state should work together on.

When a company applies to put up a tower, ask them to prove it is safe. Cell Phone Industry has side-stepped the need to prove the cell phones were safe for people, before releasing them.

If DAS will build poles, in a neighborhood that doesn’t have poles, how can they get approval for this?

Is there a way to devise a study on wildlife around cell phone towers?

Leah Morton – Friends of the Earth filed a lawsuit against the FCC for allowing towers in bird pathways.

A cell phone tower was placed in an area where the White Stork breeds. For miles around the cell tower, the White Stork fought with each other and could not build their nest. So the ability of the White Stork to reproduce was stopped in that location.

Young man at the end: I want 3G service. For the people who pay for 3G (high speed) service, you can’t get it here. Edge service is all you can get here, which is not as fast. Santa Fe needs to come up with the rest of the world in technology, so we can have 3G service here.

Question from audience: Do you want faster service even if your children will have Cancer?

Young Man: We already have microwaves and Televisions, I don’t see the difference.

Arianna: Security
Security is poor on a wireless network. It is continually becoming more and more broken into. All wireless internet providers follow Bruce Shine’s recommendations. A wired service is more secure. You do not need wireless. You can use wire for as many computers as you need.

John McPhee—Tom Udall has already agreed to meet with the American Association of Cell Phone Safety
Bingamon, Luhan?

Cell phone industry hearing. Case with federal govt. over health labeling. Government asked Industry, “why do you say, “Don’t hold it on your head,” Industry was confronted. Industry did not have a response, and said they would have to get back on that. This is a situation where we really need to have a guideline in the state and the city of Precautionary Principle.

3,000 doctors
wi max on train
water meters – wireless
like spraying DDT, spraying yard and house

Miguel Chavez – closing thank you

Azlan White, Closing Remarks: Even though we did not address health issues at this meeting, we, the local citizens group are concerned about local health and safety issues with cell phone and radio frequency devices. We hope to continue our intensive research into microwaves and radio waves and create a solid “oversight team,” in collaboration with the city of Santa Fe and the state of New Mexico, to oversee cell phone towers and radio frequency devices in the Santa Fe and surrounding area, to continually check these radio frequency devices for community safety. I am available as your Santa Fe telecommunications researcher and activist, because I care about this issue. I care about the wellbeing of the people in Santa Fe. Please feel free to contact me if you have questions: 505-983-7071 or aw@globalreliefresources.org

Residents: City should rethink wireless rules Group pushes for moratorium on city telecom ordinance Julie Ann Grimm | The New Mexican Posted: Thursday, April 08, 2010 - 4/8/10

The federal government does not want cities to talk about possible health or environmental consequences from the growing number of wireless antennas.

For some Santa Fe residents, that is exactly the reason those issues should be raised and why the city should slow down on making rules that would allow more telecommunications infrastructure here.

About 30 people gathered Thursday at the Mary Esther Gonzales Senior Center to talk about ways to govern telecommunications networks and cable systems in public rights of way.

"I've read a lot of studies on the Internet about (radio frequency waves)," said audience member Michael Collins. "They range from 'Oh, everything is fine' to 'Children should stay away from them.' I don't know what to think. ... I don't know about you, but I felt a lot better before cell phones and cell towers and Wi-Fi."

The meeting, arranged by the Santa Fe Alliance for Public Health and Safety in conjunction with city Councilor Miguel Chavez, included a pitch for supporters to gather signatures on a petition that will be presented to the City Council seeking a moratorium on applications for wireless networks.

Chavez has already introduced a measure that would impose a six-month moratorium on approval of applications to give the city time to refine its ordinance and evaluate how other cities are handling applications. At least four companies have already spoken with Santa Fe officials or filed formal requests to install such systems here.

Members of the alliance said they have been working on their own version of an ordinance that would establish two separate processes — one for cable and wired proposals, and another for wireless infrastructure such as towers and antennas.

City Legislative Liaison Jeanne Price said the city attorney would be the one to decide about whether separating those portions of the rules is possible or advisable.

"I love the city of Santa Fe. I don't want us to get sued," said Therese Zucal, who asked Chavez to work toward that goal.

"People keep intermixing the two, and we want to separate them," agreed John McPhee, a worker with the state Department of Health who volunteered to moderate the meetings and who lamented that his agency doesn't have jurisdiction over wireless antennas either.

Separating those concepts would also allow for projects such as broadband and fiber-optic cable installation to move ahead faster than the more controversial wireless projects, agreed other audience members.

Richard Lowenberg, part of 1st-Mile Institute's New Mexico Broadband Initiative, said "the national telecommunications landscape is changing rapidly and radically."

He agreed with the idea to separate cable rules from wireless rules and also urged the city to take its time. "Santa Fe would do well to really think about this deeply and in a very foresightedly way," Lowenberg said.

Chavez reminded the audience that although the city has asked the federal government to give it more authority when regulating telecommunications, the current effort needs to focus on "what we are allowed to discuss ... which is property value and aesthetics." The FCC limits local government from considering health or environment when granting approval for antennas.

Activist Azlan White said she sees tremendous promise in groups of residents calling on Santa Fe leaders to respond to their concerns.

"It seems like the federal government and the FCC have become mouthpieces for the industry. They are not thinking about health, and they are not thinking about our safety," White said, adding later, "Literally, it is against the law for us to interfere with the telecommunications business. ... We have to become much more outspoken for things that we care about."

The proposed Santa Fe telecommunications ordinance has been a contentious issue in the city for months. Even before the ordinance emerged from city staff, area residents had appeared in force at public hearings to protest the installation of wireless Internet in city buildings — which happened anyway — and the use of a wireless monitoring system for the city water system, which was successfully thwarted.

In early February, the City Council tabled its scheduled vote on the telecommunications ordinance after nearly 30 people testified against it.

The other side of the equation, communications providers who want to do business in Santa Fe, says the city has already violated rules from the federal government that require cities to act on applications for franchise agreements within 90 days, and their applications have passed that deadline.

The city's current telecommunications ordinance — which would be formally repealed by the proposed changes — was mostly struck down by a federal appellate court in 2004. City staff started redrafting the rules last year. Maureen Reed, a city assistant attorney, is no longer working on the project and has resigned from her job, according to City Manager Robert Romero.

A second public meeting is planned for 7 p.m. April 22 at the Genoveva Chavez Community Center, 3221 Rodeo Road. The City Council has the proposed ordinance on its agenda May 12.

Contact Julie Ann Grimm at 986-3017 or jgrimm@sfnewmexican.com.

link to article:
http://www.santafenewmexican.com/LocalNews/Residents--Rethink-wireless-rules

Saturday, April 17, 2010

Santa Fe has a technology Choice: FIBER OPTIC or WIRELESS?

As a fierce telecommunications activist, I research and educate about the real issues, wherever I can. There is a telecommunications ordinance that is up for revision in Santa Fe City right now.

Due to the recent proliferation of wireless and microwave technology in particular, there is a need for Santa Fe, as well as many other cities, to establish new codes for doing business with telecommunications companies. There are numerous and significant issues involved in this complex new technology to be considered. The city and public need more time to understand these issues so the city's code can be revised to serve everyone involved: telecommunications companies, the city, and the public, in the safest and most efficient way before too much infrastructure is created!!

Fiber Optic Technology is essentially an advancement in "cable technology", the next incarnation of what we know of as our "Common Carrier Protected Land Based Telephone Service."

I would like to see Santa Fe CHOOSE FIBER OPTIC TECHNOLOGY OVER WIRELESS TECHNOLOGY for the following reasons:

Wireless technology:
1. Wireless telecommunications equipment is insecure for credit card transactions and confidential information because it can most easily be "hacked".
2. Wireless equipment has not been definitively tested for potential effects on human and animal health and does not meet Precautionary Principle standards. For the Precautionary Principle go to the Science and Environmental Health Network: www.sehn.org
3. Wireless equipment in neighborhoods is proven to drop property values up to 20%
4. Wireless technology engages electromagnetic fields and biological fields in a way that is inefficient and causes static for both the information and the biology, whereas fiber-optic technology is cleaner.
5. As wireless information signals travel through the air, they interfere with the communications frequencies of birds, bees and other animals causing "static" or "interruptions" as well as biological processes of microscopic organisms which form the basis of the earth's ecosystems.
6. Studies are increasingly showing that these microwave and distributed wireless networks DO AFFECT BIOLOGICAL LIFE AND HUMAN HEALTH in a negative way including restlessness, depression, attention deficit, and accentuation & extenuation of debilitating chronic health conditions in humans. Interestingly, there has been an alarming increase in the incidence of brain cancer, particularly among young people using cell phones.
7. The city needs more time to address issues of property value, antennae placement, public process, public health concerns, environmental health concerns, efficiency issues, security issues, and addressing NEW UNTESTED TECHNOLOGY as it comes into the city. Do we simply put it on our electric poles, in our neighborhoods UNTESTED, or is there a process that we go through to test the safety of a device before we place it in our neighborhoods?

Fiber Optic Technology:
1. In fiber optic cable, information travels as light over shielded glass fiber, which is far more efficient than copper wire such as used in coaxial cable, ethernet or phone wire and it does not pick up static as copper is prone to do nor does it generate an electro-magnetic field like copper wire or wireless technology that can have negative biological effects as mentioned above. It is a "cleaner" and "greener" technology.
2. Private companies or the city itself could deliver fiber optic technology directly to homes for the same price we currently pay for copper-run, cable-based DSL internet service through Qwest or Comcast at 100 times the capacity. No joke - fiber optic cable can transmit 100 MB compared to around 8 MB through copper wire DSL service.
.
3. City Link, an Albuquerque-based company, is currently waiting to establish a contract with the City of Santa Fe under the revised telecommunications code, to provide businesses, residents and city facilities with fiber optic service.
4. We deserve the most effective, efficient, healthiest, greenest technology available, even if it's initial cost is higher, as the long term and hidden costs of inferior technologies will eventually become apparent. I believe fiber optics is the superior current technology.
5. As a well-researched activist I believe Fiber-optic infrastructure needs to be co-owned or shared or the city needs to include a clause in the contract with the fiber company, that we can purchase the fiber, as a city or a public telecommunications utility, able to be "leased" or "borrowed" by any company or individual.
6. Fiber optic technology runs in under ground, largely pre-existing sewer lines.
7. The city has historically made individual contracts with Qwest for common carrier telephone service, then Comcast for Cable Service when that developed. Fiber optics is the next level of common carrier service.

Please write to your city councilors, asking them to support an agreement between the city and City Link to begin laying fiber optic infrastructure for Santa Fe.

Also, please attend our Town Hall Meeting on THURSDAY, APRIL 22, 7-9 PM at the GENOVEVA CHAVEZ COMMUNITY CENTER, 3221 WEST RODEO ROAD.

Please join me in studying the effects of microwave radiation and wireless and cell phone technology on human health before purchasing cell phone technology for your family or establishing such a city-wide system. Lets use this new technology with care.

Thank you for your time and care and please pass this on to friends and neighbors.

Your personal telecommunications researcher,
Azlan

Friday, April 9, 2010

We recommend the below City Telecommunications code for cable and land based telecommunications services--called here Chapter 29.

Proposed Interim Cable-Based Telecommunications City Code: Chapter 29

This document is based on The revised Chapter 27 Santa Fe Telecommunications Code, recently revised by the city attorney's office. We've revised the language to address Cable Based Telecommunications only, requesting and suggesting a temporary moratorium on wireless infrastructure until the issues on the table are addressed.

I, Azlan White, telecommunications activist, have spent hundreds of hours researching this with experts in the telecommunications field and emf health field and have a few suggestions for the city and for people in Santa Fe:

I suggest separating the Wireless part of the telecommunications ordinance, from the Cable-based part of the telecommunications ordinance.

The logistics, issues involved, technology involved and process for installing technology are completely different for the two kinds of companies and we at Santa Fe Alliance for Public Health and Safety, feel fiber optic cable based telecommunications are far superior in security (for securing personal credit card and other information), where wireless networks are not secure. Also there are health issues that continue to surface with wireless technologies and distributed antennae systems that have not been tested or proven as safe for humans and animals.

Cable-based, fiber optic technology and businesses, who do business over fiber-optic cable do not have these same issues to address, either in the registration process with the city, or with the public.

Wireless networks have more complicated issues that will take longer for the public and the city to sift through and make choices. We need a little more time for the wireless section of the ordinance. We suggest revising chapter 27 once the city has addressed all of the issues that wireless equipment brings up for the city to address in the codes. Since there are so many complex issues, we believe the city needs at least 6 months to do research, answer questions of the Santa Fe Historic Board, coordinate the registration and oversight process with the Santa Fe Land Use staff, etc. I suggest a 6 month moratorium on Wireless Equipment and Towers in Santa Fe until the issues on the table can be addressed and a city code created for wireless telecommunications that will best mediate between companies, the city and the public.

I believe the cable part of the ordinance, below is ready to address new fiber-optic telecommunications systems for santa fe.

we suggest a review in one year.

CITY OF SANTA FE, NEW MEXICO

BILL NO. 2010 -

INTRODUCED BY:

AN ORDINANCE

REVISING CHAPTER 27 SFCC 1987 TO PROVIDE FOR WIRELESS COMMUNICATIONS SERVICE AND CREATING A NEW CHAPTER 29 SFCC 1987 TO PROVIDE FOR CABLE COMMUNICATIONS SERVICE.

PART TWO - CABLE

BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF SANTA FE:

Section 1 A new Chapter 29 SFCC 1987 is ordained to read:

29 [NEW MATERIAL.] CABLE SERVICES

Section 2 A new Article 29-1 SFCC 1987 is ordained to read:

29-1 CABLE SYSTEMS AUTHORIZED IN THE PUBLIC RIGHTS-OF-WAY.

29-1.1 [NEW MATERIAL.] Short Title; Purpose.

A. Article 29-1 shall be cited as the “Cable Systems in the Public Rights-of-Way Ordinance.”

B. The purpose of Article 29-1 SFCC 1987 is to establish a policy for use of the public rights-of-way for cable systems and enable the city to:

(1) Permit competitively neutral and non-discriminatory access to the public rights-of-way for providers of cable services;

(2) Manage the public rights-of-way in order to minimize the impact and cost to the citizens of the placement of cable systems within the public rights-of-way;

(3) Promote competition among cable service providers and encourage the universal availability of cable service to residents and businesses of the city;

(4) Obtain fair and reasonable compensation for the rental and use of public rights-of-way through collection of fees and charges;

(5) Minimize the congestion, inconvenience, visual impact, and other adverse effects on the city's public rights-of-way; and

(6) To the extent permitted by state and federal law, exercise such other powers as the city may have to protect the public health, safety, and welfare, ensure the continued quality of cable services, and safeguard the rights of consumers.

Section 3. A new Section 29-1.2 SFCC 1987 is ordained to read:

29-1.2 [NEW MATERIAL.] Applicability.

A. Article 29-2 SFCC 2010 shall apply to cable systems located within the public rights-of-way authorized by a franchise with the city.

B. Any franchise for cable services with the city existing prior to ______________, 2010 (adoption of this Ordinance) shall remain in full force and effect until it expires at which time the franchise shall come into compliance with this Chapter and all other applicable city code.

Section 4. A new Section 29-1.3 SFCC 1987 is ordained to read:

29-1.3 [NEW MATERIAL.] Definitions.

Access means the availability of cable system or open video system for noncommercial use by various eligible agencies, institutions, organizations, groups and individuals in the

community, including the city and its designees, to acquire, create, receive, and distribute

programming and signals as permitted under applicable law including, but not limited to:

A. Public access means access where community based, noncommercial

organizations, groups or individual members of the public, on a nondiscriminatory basis,

are the primary users.

B. Educational access means access where schools are the primary users having editorial control over non-commercial programming and services. For purposes of this definition, "school" means any State accredited public educational institution with a minimum enrollment of one hundred students.

C. Government access means access where governmental institutions or their designees are the primary users having editorial control over noncommercial programming and services.

D. Access channel means any channel, or portion thereof, designated for

access purposes or otherwise made available to facilitate or transmit access programming

or services.

Affiliate means each person who falls into one or more of the following categories: (i) 1

each person having directly or indirectly, a controlling interest in a provider; (ii) each person in which a provider has, directly or indirectly, a controlling interest; (iii) each officer, director, general partner, limited partner holding an interest of five percent (5%) or more, joint venturer, or joint venture partner of a provider; and (iv) each person, directly or indirectly, controlling, controlled by, or under common control with the provider—provided that the affiliate shall in no event mean any limited partner holding an interest of less than five percent (5%) of such provider, or any creditor of such provider solely by virtue of its status as a creditor and which is not otherwise an affiliate by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with such provider.

Applicant means any person who files an application with the city under Section 29-1.4

SFCC 1987 in order to obtain a franchise to use the public rights-of- way to provide cable service within the city.

Cable Services means:

A. The one-way transmission to subscribers of (i) video programming or (ii)

other programming services, such as digital audio; and subscriber interaction, if any,

which is required for the selection or use of such video programming or other

programming service; or

B. A two-way activated system that provides access to the Internet and data

transmission at speeds at least as great as 200 kilobits per second.

Cable system shall mean 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 to multiple subscribers, but such term does not include (i) a facility that serves only to re-transmit the television signals of one or more television broadcast stations; (ii) a facility that serves subscribers without using any public right of way; (iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications 1 Act of 1934, as amended, except that such a facility shall be considered a cable system (other than for purposes of Section 621 (c) of such Act) 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; (iv) an open video system that complies with Section 653 of Title VI of the Communications Act of 1934, as amended; or (v) any facilities of any electric utility used solely for operating its electric utility system.

City means the city of Santa Fe, New Mexico, a home rule municipal corporation, or as appropriate, any board, bureau, authority, agency, commission, department or any other entity of the city of Santa Fe, or any authorized officer, official, employee, or agent thereof.

City clerk means the city clerk of the city of Santa Fe or a designated representative.

City requirements means all laws, rules, regulations, policies, and directives of general

application of the city of Santa Fe in effect at present or to be adopted in the future by the governing body or the city.

Designated access provider means the entity or entities designated by the city to manage

or co-manage the public, educational or governmental access channel and facilities. The city may be a designated access provider.

Director means, unless specifically referring to the director of the land use department,

the director of the public works department of the city or the director’s designee, charged with the administration of the public rights-of-way.

Emergency means the repair, restoration, or replacement of an existing structure made

necessary because of a sudden unexpected event which has created a condition which is an immediate and continuing threat to the safety of property or persons or the operations of a provider.

Franchise means the non-exclusive authorization to operate a cable service within the city and the right granted by the city to use city public rights-of-way to provide telecommunications or cable service within the city, to the public, or to other providers, as specified by the terms of individual franchise agreement between the city and the applicant.

Governing body means the mayor and the city councilors together.

Gross revenue means:

(1) Includes any and all revenue received by the provider including provider’s affiliates, from the operation of the provider’s cable system to provide cable and other services to customers within the city limits and include, by way of example and not limitation:

(a) Revenues from equipment sales and rentals, services, installation, and other subscriber charges, advertising and shopping services, revenues from program guides;

(b) Revenue from data transmissions;

(d) Revenues of provider’s affiliates (other than those revenues

which are already treated as the revenues of the provider upon which a fee is

paid), only to the extent necessary to prevent avoidance of fees owed on

provider’s gross revenues from the delivery of cable services.

(2) Excludes the following types of revenue derived from the provision of

cable services to customers within the city limits:

(a) To the extent consistent with GAAP, bad debt, refunds or credits

issued; provided, however, that all or part of any bad debt that is written off but

subsequently collected shall be included in gross revenues in the period

collected;

(b) Any capital payments by the provider for PEG (public,

educational or government) access equipment as specified in a franchise;

of general applicability collected by the provider for pass-through to a

governmental agency, except that a franchise fee is not a fee of general

applicability; or

(d) Any value assigned to non-monetary transactions for cable or

other services provided by provider.

(3) Gross revenue as set forth above shall be interpreted consistent with FCC

regulations and rulings, and any relevant decision by a federal court and to the fullest extent allowed by applicable law. Any change in federal law subsequent to the effective date of a franchise shall not effect the definition of gross revenues unless the change specifically addresses one of the components of the definition. Gross revenue shall be measured and monitored periodically. As telecommunication and cable services continue to advance and evolve, the definition of gross revenues will be read based on the intent reflected in the above list. When a bundling of services is offered by a provider that includes services included in gross revenues or excluded from gross revenues there will be a pro rata allocation between franchise fees based services and nonfranchise fee categories based on the provider’s product usage rate.

PEG channel means any channel on the cable system set aside by the cable provider for

public, educational or government use.

Person means an individual, corporation, association, partnership, joint venture, or other

legally recognized entity, whether for profit or not for profit, but shall not mean the city.

Provider means:

A. Any person who provides any cable service within the city by means of: (i) a cable system owned by such person or its affiliate; (ii) specifically identifiable facilities of a cable system reserved or made available for the use of such person or its affiliate under a lease or any other arrangement for a term longer than 120 days; or (iii) facilities of a cable system not owned by such person or its affiliate and not specifically identifiable

but obtained from another person (including another provider) if the use of such facilities is continuing and substantial. A person owning or operating a cable system that merely pass through the city and such person and network or system do not offer cable service to subscribers within the city shall not be subject to this Article, provided that person has received other appropriate authorization from the city to rent or occupy the public rights-of-way.

Public rights-of-way means present and future surface, air space above the surface and area below the surface of any public street, highway, lane, alley, sidewalk, boulevard, drive, bridge, tunnel, easement in which the city holds any property interest or

exercises any rights of management or control and which, consistent with the purposes for which it was acquired or dedicated, may be used for the installation, maintenance, and operation of a cable system. Parks, open space, trails or other city owned land

are not considered public rights-of-way.

Public structure means any building or structure owned by the city.

Structure means anything that is constructed or erected with a fixed location on the

ground or attached to something having a fixed location on the ground. Structures include but are not limited to walls, buildings, fences, poles, street lights, street signs, other signs, mobile homes, swimming pools, spas, microwave satellite receiving dishes, TV antennas, communication devices and tennis courts.

Trenchless excavation means any line installation, replacement or rehabilitation through

the use of boring, jacking, horizontal drilling or tunneling.

Section 5. A new Section 29-1.4 SFCC 1987 is ordained to read:

29-1.4 [NEW MATERIAL.] Application to Provide Services.

A. Application Required. Any person who proposes to use the city’s public rights-

of-way to provide cable services shall submit an application to the director.The application, in a form prescribed by the director, shall describe applicant’s proposed use of the public rights-of-way.

B. Authority of Director. The director shall have the duty to review applications

submitted under this Article. The director shall review the application and shall notify the

applicant within ten business days of receipt of the application on whether or not the application

has been accepted or rejected. If the application has been rejected, a new application shall be

required. The director shall negotiate the terms of franchises (to the extent not prescribed in this

Article) for adoption by the governing body. The director shall administer and enforce

compliance with respect to all franchises granted under this Article except as specifically

delegated to the Land Use Director as set forth in Section 29-1.13 SFCC 1987.

C. Governing Body Action. All franchises granted under this Article shall

incorporate each applicable provision of this Article. The city shall apply any modifications or

amendments to this Article in a manner that does not discriminate against any provider subject to

this Article. The act of granting, amending, denying, or terminating a franchise is a legislative

function within the sound discretion of the governing body. Prior to proceeding with a

termination of a franchise granted by the governing body, the city shall comply with the

alternative dispute resolution provisions of this Article. Any person who is denied a franchise or

whose franchise is terminated shall petition the governing body for reconsideration before

seeking judicial remedies. The governing body shall have 30 days from the date of the petition to reconsider such denial or termination.

D. Franchise granted. A franchise granted under this Article shall authorize an

applicant to use public rights-of-way to provide cable service subject to compliance with this Article and other applicable requirements of city code.

Section 6. A new Section 29-1.5 SFCC 1987 is ordained to read:

29-1.5 [NEW MATERIAL.] Compensation and Charges.

A. Fees and Charges.

(1) Franchise fee. As partial compensation for the use of the public rights-of-way, each provider shall be subject to an annual fee of five percent (5%) of gross revenue obtained from the provision of the various cable services. Nothing contained in this Article shall prohibit or otherwise prevent a provider or other person from passing through any franchise fee to the ultimate end user of cable service.

(2) Filing fee. Each applicant shall submit a $2,500 non-refundable

application for each franchise request.

(3) Non-monetary consideration. Upon mutual agreement between the city and provider, a provider may pay up to one percent (1%) of the annual fee in the form of non-monetary consideration, including, without limitation, network or system capacity, conduit, equipment, or other infrastructure or services for use by the city for the purposes specified below. This consideration shall be negotiated with each provider taking into account the unique characteristics of each. Said consideration shall be valued in a nondiscriminatory manner based on the provider’s actual costs, including make-ready costs, maintenance, and repair charges, labor and material costs, plus ten percent (10%) as reimbursement for supervision and general and administrative costs. Further, any non-monetary consideration furnished to the city shall be for the city's public and noncommercial purposes. Use by the city under Section 29-1.5(B)(5)(a) and (5)(b) SFCC 1987 below, shall be included in the calculation of non-monetary consideration pursuant to this paragraph along with any other use of provider facilities by the city.

(4) Cable providers shall provide on the cable system in the basic tier of service (and in the lowest tier of service if different) the following channels collectively known as "PEG channels":

(a) One public access channel for use by members of the general public, to be administered by the city or its designee, or the Santa Fe community college; and

(b) One educational channel administered by the city or its designee,

or the Santa Fe community college or its designee. Provider shall provide the channel thirty (30) days after receiving notice from the city that there is a contract in force to administer and provide programming for the channel.

(c) One government channel administered by the city, or its designee, or such other unit of state or local government as the city may from time to time allow. The provider shall provide the channel thirty (30) days after receiving notice from the city that it is prepared to offer programming on the channel.

(5) Permit, inspection, and review/location charges. Each provider shall pay all permit and inspection charges related to a provider's construction in the public rights-of-way, as assessed by the director in accordance with city requirements.

B. Payment of Franchise Fee.

(1) Commencing the calendar quarter following the calendar quarter any public rights-of-way or franchise contract becomes effective, payment of the fees are required to be made within 45 days of the end of each calendar quarter. The fee shall be based on gross revenues received by the provider for the preceding quarter. Such payment shall be made through an electronic deposit process as established by the city treasurer. In the event that a fee payment is not received by the city on or before the duedate set forth in this section or in a franchise, or the fee owed is not fully paid, the provider subject to the fee shall be charged a penalty of two percent (2%) per quarter to a maximum of 10% plus interest on the outstanding amount owed from the due date at an interest rate equal to two percent (2%) above the rate for three-month federal treasury bills at the most recent United States treasury department sale of such treasury bills

occurring prior to the due date of the franchise fee payment. The provider shall furnish to

the city with each payment of compensation required by this section a detailed written statement showing the amount of gross revenue received by the provider within the city limit, broken out by provider's line of business for the period covered by the payment. Within such reasonable time as he/she may require, the city treasurer shall determine the accuracy of the amounts reported. However, neither payment of the fee nor failure to make such investigation shall stop the city in any way or prevent subsequent investigation, collection, or return of any amount properly due.

(2) In the event that it is claimed by the city that the amount of the fee paid for any calendar year is insufficient, or in the event that the provider claims that the amount is excessive, and the parties cannot agree, the city and the provider shall follow the dispute resolution provisions of this Article.

(3) In the event that the fee set forth in any franchise is declared illegal, unconstitutional, or void for any reason by any court or proper authority, the provider shall be contractually bound to pay the city an amount equal to the reasonable use of the city’s public rights-of-way. This section, however, shall not constitute a waiver of any claim the provider may assert against the city.

(4) Acceptance by the city of any payment due under a franchise shall not be

deemed to be a waiver by the city of any breach of the franchise occurring prior thereto,

nor shall the acceptance by the city of any such payments preclude the city from later

establishing that a larger amount was actually due under the franchise, or from collecting

any balance due to the city.

(5) In consideration of the rights and privileges granted by any franchise, the

following apply:

(a) The city shall have and provider shall grant to it the right and privilege at the city's expense to suspend and maintain wires and necessary control boxes on poles placed by the provider in the public right-of-way if space therein is available, which the city may require for fire, police, emergency, or other municipal purposes. All such wires shall be placed in mutually agreed upon locations on the poles or in the conduits so as not to interfere with the

service of the provider and shall not pose a danger to the provider's facilities, customers, or customer's property. However, nothing in the franchise shall limit the provider's right to reserve conduit space and/or pole space which in its sole discretion it retains for purposes of assuring its ability to provide future services or the safety of or servicing of its facilities.

(b) City agrees, in consideration of the establishment of this service and the furnishing of such facilities, to hold the provider free and harmless from all claims or liability for damage which may arise out of the city's operation of such wires and control boxes. In no event shall the city be required to pay any pole attachment fees in connection with the exercise of the city's rights under this section; however, the fair market value of the city’s use of provider’s wires or control boxes without recurring costs shall be included as part of non-monetary

consideration paid by the provider as further provided for in Section 29-1.5(A)(3) SFCC 1987.

(6) To facilitate the city's annual budget process, on or before the 1st of

November and each succeeding 1st of November thereafter during the term of any

franchise granted under this Article, the provider will provide the city with an estimate of

the gross revenue and resultant fee for the following calendar year. Nothing herein shall

preclude the provider and the city from agreeing to a revised payment schedule.

C. City's Right to Audit.

(1) Providers shall keep complete and accurate books of accounts and records of their business and operations pursuant to any franchise granted hereunder in accordance with generally accepted accounting principles. If required by the FCC, providers shall use the system of accounts and the forms of books, accounts, records, and memoranda prescribed by the FCC in 47 CFR Part 32 or its successor, and as may be further described herein. The director may require the keeping of additional records or accounts which are reasonably necessary for purposes of identifying, accounting for, and reporting gross revenue and uncollectibles for purposes of any franchise. Providers shall keep their books of account and records in such a way that identification of revenues by type of service within the city is available.

(2) Upon reasonable prior notice by the city of not less than 30 days, the city shall have the right to review or audit the provider's books and records in accordance with regularly accepted accounting and audit standards regarding any amounts which may be owed under a franchise. This right includes the right to review and audit all books and records of revenue not included in the calculation of the fee paid. The city shall give written notice to the provider of any additional amount claimed to be due to the city as a result of the city's review. If the provider disputes the additional amount allegedly due to the city, if any, the dispute shall be determined according to the dispute resolution provisions of this Article.

(3) In the event of an audit, the provider shall provide city-specific books, records, contracts, account codes, documents, and papers for its operations within the city.

(4) All such books, records, and accounts of the provider shall be retained by the provider for a period of six years, in accordance with § 37-1-3 NMSA 1978, or its successor. The provider shall make such records as are necessary for the city to complete its audit and be available for inspection by the city upon 30 days notice from the city.

(5) All audits will take place on provider premises within the city of Santa Fe or provider will pay the reasonable, documented costs required for the auditor to go to provider’s offices. The city's auditors may review all directly relevant materials and may make copies of any materials with the approval of the provider. Such approval will not be unreasonably withheld.

(6) In addition to paying all fees owed plus interest, in the event that the city reviews the provider’s franchise fee payments, and finds that the franchisee has underpaid the fee owed for any year in an amount exceeding 10% of the franchisee fees actually paid, the provider shall pay the reasonable cost of the city’s review.

Section 6. A new Section 29-1.5 SFCC 1987 is ordained to read:

29-1.5 [NEW MATERIAL.] Transfers of Franchise.

A. No franchise granted under this Article, the assets held by providers for use under

such franchise which are in the public rights-of-way, or any rights or privileges of providers

under a franchise, either separately or collectively, shall be sold, resold, assigned, transferred,

leased, or conveyed by providers to any other person, no less than 30 days prior to such proposed sale, transfer, or conveyance. Provider shall submit all information reasonably requested by the city relating to the financial, technical, and operational qualifications of the transferee. Prior to consummation of such sale, transfer, or conveyance, transferee shall affirmatively, and in writing, assume all obligations, rights, and liabilities of provider as specified in any franchise.

B. Any change of control of a provider shall constitute a transfer under this section. A mortgage or other pledge of assets to a bank or lending institution in a bona fide lending

transaction shall not be considered an assignment.

Section 7. A new Section 29-1.6 SFCC 1987 is ordained to read:

29-1.6 [NEW MATERIAL.] Obligations of Providers Regarding the Public

Rights-Of-Way.

A. Compliance with Law. Providers are explicitly subject to the police powers of the city, any other governmental powers, and the city's rights as a property owner under state and federal laws. This Article is governed by and construed and enforced in accordance with the laws of the state of New Mexico.

B. Land Use Requirements. Providers shall comply with Section 29-1.13 SFCC 1987 regarding land use requirements.

C. Construction Plans and Drawings.

(1) Before the provider may conduct underground work involving excavation, new construction, or major relocation work in any public rights-of-way:

(a) The provider shall first notify the city through the acquisition of an street cut permit as per Article 23-2 SFCC 1987 and shall comply with any special conditions relating to location, scheduling, coordination, and public safety; and

(b) The provider shall file maps and/or drawings with the director and with the city ITT Director showing the location of any construction or extension of its facilities and services in any public rights-of-way of the city. For multi-conduit duct banks, maps and drawings shall show overall size, material, and configuration of the duct bank showing the horizontal and vertical locations within the rights-of-way, size and type of equipment and

materials and location of other utilities. The provider shall provide city with updates of the maps and drawings showing the location of any new construction, extension, or relocation of its underground facilities or line spot such facilities.

(2) Proposed construction work to be done by the provider shall be

performed in a safe manner and in accordance with applicable federal and state laws and

city requirements now or hereinafter existing.

D. Construction Forecast. On or before the first day of June each year within three

years of which the provider anticipates constructing all or any identified and approved portion of its cable system in the city’s public rights-of-way, the city and provider will meet and exchange three year construction forecasts, including aerial builds, together with such additional information as the city and provider deem appropriate relating to projects planned within the city. Provider will use best efforts to forecast construction for the future, however, the city recognizes that construction is driven by customer demand for service which is highly unpredictable. The provider shall not be subject to termination, suspension, fines or other penalties if its actual construction does not meet the timelines stated in the forecasts. The city and provider shall hold such additional meetings as they deem necessary to exchange additional information with a view toward coordinating their respective activities in these areas where such coordination will prove mutually beneficial to the public by minimizing disruption costs to the public. Provider will comply with all building and zoning codes and assure that aesthetic and other relevant planning principles have been given due consideration. It is recognized that, notwithstanding the foregoing, the city retains absolute discretion over the timing and all other aspects of the city’s proposed projects. The parties will make reasonable efforts to allow each party’s work to be incorporated in the other’s respective projects. Provider will not cut or otherwise disturb any new or rehabilitated roadway within two years of its placement, and as limited by and pursuant to Article 23-2 SFCC 1987 Excavations, Street Cuts and Restoration Ordinance, except or unless, in emergency conditions. Where conflict occurs between the city’s construction plans and schedules and the provider’s construction plans and schedules, the city’s plans and schedules will take precedence.

E. Installations, Excavations, and Restorations.

(1) Pursuant to any franchise granted under this Article, the provider shall have the right to excavate in, occupy, and use any and all public rights-of-way for the purpose of installing, erecting, constructing, repairing, maintaining, removing, relocating, and operating its facilities after obtaining any and all appropriate permits from the city, and in compliance therewith provided, however, that:

(a) The provider shall not place any of its facilities on, over, under, or within any city park, duly designated as such by the city, but nothing herein contained shall preclude the city from granting a revocable permit therefore;

(b) The provider shall not place any of its facilities on, over, or within the median portion of any boulevard or parkway, except for perpendicular crossings, without first having obtained the written permission of the city;

(c) Where appropriate and as may be required by the city through any permitting process, installation, excavations, and restorations affecting street and/or lane closures shall be approved by the city and in accordance with current city policies and ordinances;

(d) The city reserves the right to direct the coordination and scheduling of any provider projects where such project may be reasonably coordinated with the placement of other franchisee or provider facilities. Otherwise, and subject to city permitting processes and approvals, it is recognized that, notwithstanding the foregoing, the provider retains discretion

over the timing of the provider's proposed projects. In directing these activities, the city will make a good faith attempt to accommodate the provider’s construction schedule and desired service initiation dates as long as they were disclosed in the construction schedule provided for in Section 29-1.6 D. SFCC 1987; and

(e) The provider shall, to the extent feasible, employ “trenchless” technology in the placement of its facilities.; and

(f) A franchise does not include the right to use the city’s sewer or storm sewers which requires a license from the city.

(2) Except in an emergency, not less than two working days prior to the

commencement of any work by the provider which involves excavation in any public

rights-of-way, the provider shall notify the director through the street cut permit process,

including payment for any and all fees, as set forth in Article 23-2 SFCC 1987. Provider

shall comply with Article 23-2 SFCC 1987 as it now or may exist in the future. In an

emergency, the director shall be notified the next working day.

(3) Whenever work is performed in any public rights-of-way, the provider

shall take all reasonable precautions to minimize interruption to traffic flow, damage to

property, or creation of a hazardous condition. A plan for traffic control shall be

provided to the director for his approval prior to issuance of a permit.

(4) After any excavation shall be made and after work is completed, the

provider, at provider expense, shall as soon as practicable but not longer than twenty-four

hours, weather permitting, remove all surplus material in compliance with specifications,

requirements, and regulations of the city in effect at the time of such restoration and

restore the portion of the public rights-of-way the same as nearly as practicable to its

condition before the start of construction and in a manner consistent with the normal

specifications and requirements of the city. All vegetation, landscaping and grounds

removed, damaged or disturbed as a result of the construction, installation, maintenance,

repair or replacement of cable facilities, shall be replaced, or restored, as

nearly as may be practicable, to the condition existing prior to performance of work. All

restoration work shall be done in accordance with landscape plans approved by the city.

If the provider fails to restore promptly the affected portion of the public rights-of-way

following written notice to provider, and reasonable opportunity to cure, the city may

make the restoration in a manner satisfactory to city, and all reasonable and documented

costs incurred for such restoration, whether done with city work forces and equipment or

otherwise shall be paid by the provider, or recovered from any posted bonds, including

the cost of any inspectors the city may assign to the project.

(5) The provider shall be responsible for the maintenance of its own

equipment, facilities, and appurtenances placed upon, over, or under the public rights-of-

way, including the removal of all graffiti therefrom. If after 72 hours’ notice unless a

lesser time period is required by another ordinance from the city such graffiti has not

been removed, it will be removed by the city at provider's sole cost.

(6) The provider shall ensure its public facilities in public rights-of-way are

located and constructed in a manner such that physical access is not impaired in

compliance with the Americans with Disabilities Act (ADA). Any intersection upgrades

shall include upgrading all four corners with ADA accessibility compliant ramps.

Following notice by the city of an ADA construction problem, the provider shall have 30

days or other reasonable time to remedy the problem. In the event that the city and the

provider cannot agree that a problem exists, the city and the provider shall follow the

dispute resolution provisions of this Article.

F. Location and Relocation of Facilities.

(1) All facilities of the provider shall be placed so that they do not interfere

with the use of public rights-of-way by the city and shall only be placed after approval of

the location by the director and in accordance with all barricade, excavation and

permitting ordinances and regulations adopted by the city governing the location of

facilities. The city reserves the right to construct, install, maintain, and operate any

public improvement, work, or facility, including without limitation, cable facilities, do any work that the city may find desirable on, over, or under any public rights-of-way, and vacate, alter, or close any public rights-of-way subject to provider’s rights and obligations under Section 29-1.6(E)F.(2) and (3) SFCC 1987. All such work shall be done, if possible, in such a manner as not to obstruct, injure, or prevent use and operation of the provider's network or system. Pursuant to any franchise, provider agrees to obtain the city's express written approval before placing structures in public rights-of-way that do not currently exist in public rights-of-way.

(2) The city may require the removal or relocation of facilities used by the provider in any public rights-of-way as follows:

(a) After notice to the provider, where relocation cannot reasonably

be avoided and where the city and the provider agree that no alternative exists, the city may require the removal or relocation of facilities used by the provider in any public rights-of-way as may reasonably be required by the city or caused or occasioned by any city project, including but not limited to the installation of water, sanitary sewer, storm drainage, or traffic signal facilities, road reconstruction, or other public right-of-way construction. The provider shall

remove and relocate such facilities within 60 days following notice to do so from the city. Projects requiring, in the opinion of the provider and the director, in excess of 60 days to complete shall be completed in a time frame determined on a project specific basis. Prior to any such relocation, the city agrees to provide for a suitable location for such relocated facilities sufficient to maintain service. The cost of any removal or relocation of its facilities shall be paid by the provider. To the extent that a delay in a city project is due to provider’s relocation, then such provider shall pay all reasonable, documented expenses incurred by the city as a result of and proportionate to its contribution to the delay. Notwithstanding the foregoing, provider shall not be required by the city to relocate its facilities to accommodate another franchisee, provider or other nongovernmental third party in the city. The costs of any relocations occasioned

by another franchisee of the city in no event shall be the responsibility of the city.

(b) The provider shall reconstruct, replace, or restore any street, alley, or public way or place in a timely fashion and any water, sewer, sanitary sewer, storm drainage, traffic signalization facilities, or other facility of the city disturbed by the provider, without cost to the city, to the condition that existed prior to the work by provider, consistent with city standards and specifications for public works construction. Any facility so disturbed by the provider shall be reconstructed, replaced, or restored only under the supervision of city personnel.

(c) Subject to the provisions of this section and upon notice to the city, the provider may remove or relocate facilities maintained by the provider on its own initiative.

(3) Where the city, acting through itself, an agent, contractor, or permit

holder, proposes to improve a street, which requires the relocation of an existing aerial

facility within the public rights-of-way under its jurisdiction or control, the provider shall

replace such overhead distribution facilities as are then within the affected right-of-way

with underground facilities unless the provider can demonstrate to the city that the cost of

relocation is economically unreasonable. All such relocations of provider facilities shall

be at such provider’s expense. The conversion from overhead to underground shall be

non-discriminatory and shall be conditioned upon the city requiring the under grounding

of all existing and new facilities located or to be located in the area. Such replacement of

overhead with underground distribution facilities of a provider shall be paid for by such

provider.

G. Public Works and Improvements.

(1) The city reserves the right to construct, install, maintain, and operate any

public improvement, work, or facility and do any work that the city may find desirable

on, over, or under any public rights-of-way including cable facilities owned by the city. All such work shall be done, if possible, in such manner as not to obstruct, injure, or prevent free use and operation of the provider's cable system, and shall be performed as expressly provided in Section 29-1.6(F)(2) SFCC 1987.

(2) Whenever the city shall excavate or perform any work in any present

and/or future public rights-of-way of the city, or shall contract, for such excavation or

work, where such excavation or work may disturb but not require removal or relocation

of provider's facilities, the city shall notify the provider sufficiently in advance of such

contemplated excavation or work to enable the provider to take such measures as may be

deemed necessary to protect and support such facilities from damage and possible

inconvenience or injury to the public or the city's public rights-of-way. If the provider

cannot take such measures, the provider shall be required to relocate its facilities in

accordance with this Article. In such case, the provider upon request shall furnish field

markings to the city or contractor, as the case may be, showing the location of all its

facilities in the area involved in such proposed excavation or other work.

(3) Subject to the requirements of Section 29-1.6(F) SFCC 1987,

whenever the city shall vacate any public rights-of-way for the convenience or benefit of

any person or governmental agency or instrumentality, the provider's rights shall be

preserved as to any of its facilities then existing in such public rights-of-way.

H. Moving of Buildings. Whenever it becomes necessary to temporarily rearrange,

remove, lower, or raise the aerial cables or wires or other apparatus of the provider to permit the

passage of any building, machinery, or other object, the provider shall perform such

rearrangement upon the receipt of written notice no less than 30 days prior to the move from the person or persons desiring to move said building, machinery, or other objects. The written notice shall detail the route and timing of movement of the building, machinery, or other object. The costs incurred by the provider in making such rearrangements of its aerial plant will be borne, excepting the city, by the person or persons seeking such rearrangement, unless the aerial plant is placed or maintained in violation of the applicable rules of any local, state, or federal regulatory agency and thereby interferes with the movement.

I. Safety Standards. The facilities of the provider shall at all times be constructed, operated, and maintained so as to protect and safeguard the health and safety of the public, and to this end provider shall observe all rules pertaining thereto now or hereinafter existing prescribed by any local, state, or federal regulatory authority.

J. Joint Use Agreements. The provider is authorized and encouraged to enter into

joint-use agreements with any person or entity franchised by the city with respect to the

placement of a cable system. The provider may require any such person or entity to pay reasonable compensation for such joint use and to furnish evidence of adequate insurance covering the provider and adequate bonds covering the performance of the person or entity attaching to the provider's cable system as a condition precedent to granting permission to any such person or entity to attach its cable system to the provider's network or system , provided that the provider's requirements for such insurance shall be reasonable.

K. Interference. The provider shall not be required to attach its facilities to the

facilities of any other person or entity or to permit the facilities of any other person or entity to be attached to the provider's facilities if it can be shown to the reasonable satisfaction of the city that the other person or entity is not willing to accept the terms of a joint use agreement, the provider will be subjected to increased risks of interruption of service or to increased liability for accidents, or if the facilities of such other person or entity are not of the character, design, and construction required by, or are not being maintained in accordance with industry standards or practice.

L. Supplying Maps. Provider shall maintain on file all available maps, operational

data, and reports pertaining to its operations in the city. The city may inspect the maps, data, and reports at any time during business hours. The provider shall furnish to the city, as soon as practicable without charge, current maps, either in a “hard copy” printed form or in the city's GIS format or compatible data base, showing the location and dimension of its cable system located in the rights-of-way, but not other proprietary information, used in operating the provider's cable system within the city of Santa Fe.

M. Limitation on Privileges. All rights, authority, and grants contained or conferred

are also conditioned upon the understanding and agreement that the exercise of these privileges in the public rights-of-way of the city are not to operate in any way so as to be an enhancement of the provider's properties or values or to be an asset or item of ownership in any appraisal thereof in the event of a city acquisition, by purchase or otherwise. In the event that the city shall at any time hereafter acquire the property of the provider, by purchase or otherwise, the value of any franchise shall be fixed and determined at $1.

Section 8. A new Section 29-1.7 SFCC 1987 is ordained to read:

29-1.7 [NEW MATERIAL.] Insurance Requirements.

A. Providers shall obtain and maintain in full force and effect throughout the term of

a franchise granted under this Article insurance with an insurance provider licensed to do

business in the state of New Mexico and acceptable to the city or shall provide evidence that it is a qualified self-insured. All insurance providers will be required to be rated A-VI or better by A.M. Best or A or better by Standard and Poors. Providers shall furnish the city with proof of such insurance so required at the time of the filing of the acceptance of a franchise. The city reserves the right to review these insurance requirements during the effective period of any franchise and to reasonably adjust insurance coverage and its limits when deemed necessary and prudent by the city's risk manager, based upon changes in statutory law, court decisions, or the claims history of the industry or the insurance provider. The city shall provide notice to the provider no less than 60 days in advance of any change of insurance requirements and provider shall have the opportunity to negotiate with the city to adjust the new requirement based on 2

reasonable industry standards.

B. Subject to providers' right to maintain reasonable deductibles in such amounts as

are approved by the director, providers shall obtain and maintain in full force and effect for the duration of any franchise, at providers' sole expense, insurance coverage as follows:

(1) Commercial comprehensive general liability insurance covering bodily

injury and property damage liability in the amount of at least one million dollars for each

person injured and for each accident resulting in damage to property;

(2) Workers’ Compensation insurance as required by law; and

C. The provider shall submit copies of certificates of insurance evidencing the coverage required above.

D. Providers shall agree that with respect to the above-required insurance, all

insurance certificates will contain the following required provisions:

(1) Name the city of Santa Fe and its officers, employees, board members,

and elected representatives as additional insureds (as the interests of each insured may

appear) as to all applicable coverage;

(2) Provide for 30 days notice to the city for cancellation, non-renewal, or

material change;

(3) Provide for notice to both the director and the office of risk management

by certified mail; and

(4) Provide that all provisions of this Article and the franchise, as amended,

concerning liability, duty, and standard of care, including the indemnity section, shall be

underwritten by contractual coverage sufficient to include such obligations within

applicable policies, subject to policy terms and conditions.

E. The insurance certificates obtained by providers in compliance with this section

shall be subject to approval by the city, and such proof of insurance shall be filed and maintained with the director and the office of risk management during the term of a franchise, or any

extension or renewal thereof, and may be changed from time to time to reflect changing liability

limits, as required by the city. Providers shall timely advise the city attorney of any actual

litigation that would materially affect said provider’s insurance coverage as required pursuant to

this section.

F. Insurers shall have no right of recovery against the city, it being the intention that

the insurance policies shall protect providers and the city and shall be primary coverage for all

losses covered by the policies.

G. Companies issuing the insurance policies shall have no recourse against the city

for payment of any premiums or assessments, which all are set at the sole risk of the providers.

Insurance policies obtained by provider shall provide that the issuing company waives all right of

recovery by way of subrogation against the city in connection with any damage covered by these

policies.

Section 9. A new Section 29-1.8 SFCC 1987 is ordained to read:

29-1.8 Customer Service Standards for Cable Service.

Cable providers shall comply with the customer service standards and rules set forth in Part 76, § 76.309 of the FCC's rules and regulations. Cable providers shall comply in all respects with the customer service requirements established by the FCC pursuant to § 632 (c) of the Cable Act as amended.

Section 10. A new Section 29-1.9 SFCC 1987 is ordained to read:

29-1.9 [NEW MATERIAL.] Term of Franchise.

The term of each franchise granted under this Article shall be subject to negotiation with applicants but in no event shall exceed ten years.

Section 11. A new Section 19-1.10 SFCC 1987 is ordained to read:

29-1.10 [NEW MATERIAL.] Indemnity.

Each franchise granted under this Article 25 shall contain provisions whereby the provider agrees to defend, indemnify, and hold harmless the city and its officials, agents, and employees from and against any and all claims, actions, suits, or proceedings of any kind brought against said parties because of any injury or damage received or sustained by any person, persons, or property arising out of or resulting from the franchise granted to provider or by reason of any asserted act or omission, neglect, or misconduct of the provider, or provider's agents or employees, or any subcontractor or its agents or employees. The indemnity required hereunder shall not be limited by reason of the specification of any particular insurance coverage.

Section 12. A new Section 29-1.11 SFCC 1987 is ordained to read:

29-1.11 [NEW MATERIAL.] Violations and Penalties.

Action by the city to impose fines and other penalties under this section shall be initiated only after dispute resolution provisions of this Article have concluded. All impositions of fines shall be stayed for up to 90 days during the period of good faith activity under the dispute resolution provisions.

A. Failure of a provider to abide by the requirements of Section 29-1.6 SFCC 1987,

regarding the public rights-of-way: $100.00 per day for each day such violation occurs.

B. Failure of a provider to abide by the requirements of Section 29-1.6 SFCC 1987,

regarding compensation for use of the public rights-of-way, and the city's right to perform audits:

$100.00 per day for each day such violation occurs.

C. Default and termination of franchise:

(1) The provider agrees that an event of default shall include but shall not be

limited to any of the following acts or failure to act by the provider:

(a) Failure to obtain any applicable permits from the city pursuant to this Article or the franchise.

(b) Failure to comply with the assignment of or transfer of control provisions of this Article or the franchise.

(d) Failure to supply bonds as may be required by the city to assure the proper completion of any construction performed.

(e) Failure to make any of the payments set forth in this Article or as required in any franchise.

(f) Failure to pay any permit fees, or failure to comply with any rules, regulations, orders, or approvals or directives of the city as set forth in this Article or any franchise.

(g) Failure to comply with federal, state or local laws upon enforcement.

(h) Failure to submit maps, operational data, reports, insurance certificates or other required documents.

(2) Upon the occurrence of an event of default, in accordance with the

procedures provided for in this Article or any franchise, the city may take any of the

following actions so long as the city does not also take action to impose penalties for the

same conduct under another ordinance or regulation:

(a) Require the provider to take such actions as the city deems appropriate that are consistent with provider’s duties under its franchise; or

(b) Seek money damages from the provider as compensation for such event of default; or

(c) Accelerate the expiration of the term of any franchise by decreasing the term of the franchise. The extent of such acceleration shall be determined by the city and may include any period of time, but not less than six months, provided that six months remain under the franchise; or

(d) As a last measure only, terminate the franchise.

(3) The city shall exercise the rights set forth in this section in accordance

with the following procedures:

(a) The director shall notify the provider, in writing, of an alleged event of default. This written notice shall set forth with reasonable specificity the facts the city believes are the basis for declaring that an event of default has occurred. The provider shall within 30 calendar days of the date the notice is postmarked, or such additional time as the director may specify in the notice, cure the alleged event of default, or in writing present for review by the director a reasonable time frame and method to cure the event of default. The provider, in lieu of the cure of the event of default as set forth herein, may in writing present facts and arguments as to why the provider disagrees that an event of default has occurred.

(b) If the provider presents a written response that challenges whether an event of default has occurred, the director shall within ten days review the submitted materials and determine again whether an event of default has occurred. If the director reaffirms that an event of default has occurred, the provider shall be notified in writing of this decision and shall, within 30 calendar days, cure the alleged event of default. The period to cure is tolled in the event one party demands mediation until such time as mediation is completed. (c) If the provider fails to cure the event of default so declared pursuant to this section within the time permitted by the director, the director shall prepare a written report to the governing body and recommend action to be taken. If the governing body, after consideration of this report and hearing, agrees that an event of default has occurred, it may order an appropriate remedy as set forth herein.

(4) In addition to the rights under this section, the city, upon any

termination, may, at its sole discretion, direct the provider to remove, at the provider's

sole cost and expense, any or all of the facilities from all public rights-of-way within the

city, subject to the following:

(a) The city may determine that removal of facilities is not necessary;

(b) In removing any part of the facilities, the provider shall refill and compact, at its own expense, any excavation that shall be made by it and shall leave all public rights-of-way in as good a condition as that prevailing prior to the provider's removal of the facilities;

(c) The city shall have the right to inspect and approve the conditions of public rights-of-way after removal has occurred;

(d) The removal shall commence within 30 days of an order to remove being issued by the director at the discretion of the governing body;

(e) The provider shall be responsible for all necessary removals ofthe facilities and maintenance of the street area in the same manner and degree as if the facilities were in active use, and the provider shall retain all liability associated with such removals.

(f) As an alternative to removal, the provider may, subject to the city's approval, abandon its facilities in place and transfer ownership of the installed facilities to the city. Nothing herein shall cause the City to incur any costs related to the removal of the provider's facilities or the transfer of ownership of said facilities to the city.

D. Dispute Resolution Provision.

(1) Following the notice set out in Section 29-1.13(C)(3) SFCC 1987,

above or in the event of any other dispute arising from or relating to the franchise or

breach thereof, and if the dispute cannot be settled through negotiations, the following

process will be followed during which any of the above remedies and penalties may be

imposed.

(2) All disputes will be mediated before resorting to arbitration. The costs of such mediation will be equally split. The place of the mediation session shall be in Santa

Fe, New Mexico. The city and the provider will select a mediator or mediators by mutual

agreement and, in cooperation with the mediator(s), shall determine all necessary rules

and procedures for the mediation. The city and the provider will fully cooperate in the

mediation activities. All mediation communications shall be confidential, not subject to

disclosure and shall not be used as evidence in any arbitration, judicial, or administrative

proceeding, as set forth in the Mediation Procedures Act, Chapter 11 NMSA (2007

Supp.) or as subsequently amended.

(3) Following the mediation session any unresolved claims shall be

submitted to arbitration pursuant to the New Mexico Uniform Arbitration Act, Section

44-7A-1, et seq., NMSA 1978 or as subsequently amended.

(a) The city and provider shall first attempt to select an arbitrator acceptable to both parties. If they are unable to mutually agree upon an acceptable arbitrator within 30 days from the date of the original written claim in arbitration, then the Chief Judge of the First Judicial District Court shall appoint an arbitrator.

(b) The city and the provider shall retain the right to object to the arbitrator selected by said Chief Judge. If a party objects to the arbitrator, it shall request that the court appoint another arbitrator.

(d) The arbitrator’s expenses shall be paid equally by each side. Each party shall bear his or her own attorneys’ fees, costs and expenses unlessotherwise determined by the arbitrator.

(e) The place of the arbitration shall be Santa Fe, New Mexico.

(f) After a party receives notice of the arbitration award, and upon motion to the court, the court shall issue a confirming order unless the award is modified, corrected, or vacated.

(g) In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator’s award, or fails to comply with the arbitrator’s award, the other party is entitled to costs of suit including reasonable attorney’s fee for having to compel arbitration or defend or enforce the award.

(h) Nothing in this section shall prohibit a party from challenging the legality of a ruling or decision of an arbitrator in any court of competent jurisdiction.

E. Remedies and Penalties Not Exclusive. Subject to the provisions of Section 29-1.11, all remedies and penalties granted pursuant to this Article and franchise are cumulative

and not exclusive, and the recovery or enforcement by one available remedy or imposition of any

penalty is not a bar to recovery or enforcement by any other such remedy or imposition of any

other penalty. The city shall not, however, pursue duplicative remedies or penalties against

provider for violations of other city ordinances or regulations arising from the same conduct. The city reserves the right to enforce the penal provisions of any ordinance or resolution and to avail itself of any and all remedies available at law or in equity. Failure to enforce shall not be

construed as a waiver of a breach of any term, condition, or obligation imposed upon the provider by or pursuant to this Article or any franchise. A specific waiver of a particular breach of any term, condition, or obligation imposed upon the provider by or pursuant to this Article or

franchise shall not be a waiver of any other or subsequent or future breach of the same or of any

other term, condition, or obligation, or a waiver of the term, condition, or obligation itself.

Section 13. A new Section 29-1.12 SFCC 1987 is ordained to read:

29-1.12 [NEW MATERIAL.] Unauthorized Use of Public Rights-Of-Way Unlawful.

A. It shall be unlawful for any person to use the public rights-of-way to provide

cable service that has not been authorized by the city in accordance with

the terms of this Article.

B. It shall be unlawful for any person to place facilities on public structures or utility

infrastructure to provide cable service not allowed under the terms of a

franchise.

C. Each unauthorized use shall be deemed to be a distinct and separate offense.

Each day a violation of this Article continues shall constitute a distinct and separate offense.

D. The provisions of this section do not apply to any dispute between the city and a

provider under a franchise where the city alleges that the provider has failed to comply with the

terms of the franchise.

Section 14. A new Section 29-1.13 SFCC 1987 is ordained to read:

29-1.13 [NEW MATERIAL.] Land Use Review for Cable Franchises.

A. Zoning Districts. Cable facilities are permitted in all zoning districts.

B. Aesthetic Requirements. Subject to applicable federal standards, cable facilities shall be installed underground to the maximum extent feasible.

C. Archaeological Requirements. The provider shall comply with Section 14-5.3

SFCC 1987 regarding the city’s archaeological review districts.

D. Application to Land Use Department. After approval of a franchise as set forth in

Section 29-1.4 SFCC 1987 and prior to construction, the franchisee shall submit an application to

the land use department for review by the planning commission. The application, in a form

prescribed by the land use department, shall describe applicant’s proposed cable

services and facilities and shall demonstrate compliance with this Section. The application shall

include a map at a suitable scale of the project area indicating the proposed route of cable facilities The application shall be in writing with the accompanying data in a format acceptable

to the city that can be posted on the city’s website. The applicant may submit one application

showing multiple phases or may submit a new application for each successive phase.

E. Fee. Applications shall be accompanied by a nonrefundable fee of $2,500 or the

fee established by the governing body for development plan review, whichever is less.

F. Staff Review of Application. The land use department and other city staff as

necessary shall review the application according to the standard procedures established by the

land use department for applications to the planning commission.

G. Community Information Availability. Following verification by the land use

department that the application is complete, the application and related submittal documents shall be made available to the public on the city’s website and in the land use department at least 15 days prior to the planning commission hearing.

H. Public Notice of Public Hearing and Review by Planning Commission.

(1) The planning commission agenda shall be mailed and published by the

land use department as set forth in Section 14-3.1 (H)(1)(a)(i) SFCC 1987.

(2) No less than 15 days prior to the public hearing, the applicant shall give

notice to the public as set forth below. The posters, mailings and display advertisements

shall state the nature of the application; the date, time and place of the public hearing; and

the availability for the public to review the application as set forth above. In addition, the

mailings and display advertisement shall include a map of the project area indicating the

proposed route and specific locations of all proposed above ground facilities and

equipment. The applicant shall:

(a) Place in the public right-of-way, one poster obtained from the

land use department at each major intersection within the project area provided

that there shall be no less than one poster every one-quarter mile along the

proposed route.

(b) Mail by first class mail a notice in a format approved by the land

use department to all property owners adjacent to the public rights-of-way where

the services are to be located.

general circulation.

I. Planning Commission Review.

(1) The planning commission shall review the application for compliance

with this Section and all relevant city codes.

(2) The planning commissions may place conditions upon its approval of the

application but the conditions shall not have a prohibitory effect on the provision of

cable services.

(3) Findings of fact and conclusions of law shall be prepared and approved.

(4) A decision of the planning commission is appealable as set forth in

Section 14-3.17 SFCC 1987.

J. Modifications. Modifications to the approved cable facilities plan

that comply with the standards of this Article 29-1 and do not materially alter the approved

cable plan may be approved by the land use director. An example of a material

alteration to the approved telecommunications plan is a route for which residents did not receive

notice of the planning commission public hearing. Installation of a spur from the main route to a subscriber’s home is not a material alteration.

K. Permits Required. In addition to the permits required set forth elsewhere in

Article 29-1 and city code, applicants shall obtain any other permits required from the land use department:

L. Annual Verification of Compliance. Cable providers shall submit

an annual report to the city certifying that it is in full compliance with all applicable federal, state

and local laws, rules, regulations, codes and conditions of approval. The report shall disclose any

enforcement actions taken by the FCC or other regulatory body against the cable

provider as related to services provided in the city of Santa Fe and the outcome of such action.

M. Enforcement. The land use director has the authority to interpret this Section in

accordance with the purpose of this Article and shall administer and enforce the provisions of this Section.

Section 15. A new Section 29-1.14 SFCC 1987 is ordained to read:

29-2.14 [NEW MATERIAL.] Compliance with Other Codes.

Cable systems granted approval under this article shall be constructed, installed, operated and maintained in accordance with all applicable federal, state and local codes, rules and regulations.

Section 16. A new Section 29-1.15 SFCC 1987 is ordained to read:

29-1.15 [NEW MATERIAL.] Effective Date. Article 29-1 SFCC 1987 is effective

_______________, 2010 (date of adoption).

APPROVED AS TO FORM:

_________________________________

GENO ZAMORA, CITY ATTORNEY