[HISTORY: Adopted by the Board of Commissioners of Henderson County. Amended 6-19-1991; 11-18-
1998; 8-20-2003; 9-6-2005]
§ 92-1. Purpose; Statutory Authority; Jurisdiction.
In the public interest and for the promotion of the public health, safety, welfare and convenience and
pursuant to other applicable laws, the following rules are adopted, which rules set forth the conditions,
limitations, restrictions and requirements under which a person may construct, or cause to be constructed,
operate and maintain a community antenna television system and engage in the business of providing a
community antenna television service in the unincorporated areas of Henderson County, and within those
incorporated areas whose governing body has specifically requested enforcement of this Chapter upon
consent of the Henderson County Board of Commissioners. (In making such a request, the city or town
§ 92-2. Grant of Franchise.
Franchise required. It shall be unlawful for any person to engage in the construction,
operation or maintenance of a community antenna television (CATV) system in the areas
of the County's jurisdiction under §92-1 of this chapter, unless such person or the person
for whom such action is being taken shall have first obtained and shall currently hold a
valid franchise granted pursuant to this Chapter.
General grant. The Board of County Commissioners has the authority to grant the
nonexclusive right, privilege and franchise to construct, erect, operate and maintain in,
over, under and along public streets, roads, alleys, easements, rights-of-way and other
public ways and areas a CATV system in the areas or portions of the County which are in
the County's jurisdiction under §92-1 of this Chapter.
Examination and investigation of applicants. Said right, privilege and franchise may be
offered to qualified applicants, subject to the right of the County, or its designated
agency, to perform an examination and/or investigation of the applicant(s), said
examination and/or investigation to include, but not be limited to, the legal, character,
financial, technical and other qualifications of the applicant(s) and as to whether any
proposed construction plans and arrangements are shown to the satisfaction of the
Board of Commissioners to be both feasible and adequate to meet the minimum
requirements herein established.
Nonexclusively. A franchise granted to construct, erect, operate and maintain a CATV
system in the County and to obtain all rights-of-way and easements pursuant thereto is
not and shall not be deemed to be an exclusive right or permission. The County expressly
reserves the right to grant similar nonexclusive franchises to other persons, firms or
corporations to conduct CATV within the same or other areas of the County at any time
or any period of time. No additional franchise granted by the County shall in any way
affect the obligations of the grantee hereunder. Any subsequent franchise granted by the
County shall be under identical terms and conditions as contained in this Chapter, and no
grantee shall receive terms and conditions more favorable than another.
§ 92-3. Term of Franchise.
A franchise granted shall be for a term of 15 years unless the same shall sooner expire by reason of other
provisions hereof. The term of the franchise shall commence on the first day of the first month next
following the date the grantee hereunder accepts and agrees to abide with the terms and conditions of the
franchise by filing a written acceptance thereof with the Clerk to the Board of County Commissioners,
which said acceptance shall be filed within a period of 30 days from the award to the grantee of its
franchise. If such acceptance shall not be filed within the time aforesaid, then the franchise so awarded
shall be deemed void and of no further force and effect, and the offer of franchise so awarded to the grantee
shall stand revoked.
§ 92-4. Definitions and Word Usage.
When not inconsistent with the context, words used in the present tense include the
future, words in the plural number include the singular number, and words in the singular
number include the plural number. The word "shall" is always mandatory and not merely
The captions supplied herein for each section are for convenience only. The captions are
not part of the section and are not to be used in construing the language of any section.
The following terms are defined for purposes of this Chapter:
Applicant - Any person submitting an application to the County for a franchise
to operate a CATV system under the terms and conditions set forth by the Board
of County Commissioners.
CATV - A community antenna television system as hereinafter defined.
Channel - A portion of the electromagnetic frequency spectrum which is used in
a cable system and which is capable of delivering a television channel.
Community Antenna Television System (hereinafter called "CATV system") -
A facility consisting of a set of closed transmission paths and associated signal
generation, reception and control equipment that is designed to provide cable
service which includes video programming and which is provided to multiple
subscribers within a community.
Federal Communications Commission or FCC - That agency as presently
constituted by the United States Congress or any successor agency.
Franchise - The permission, license, franchise or authority given hereunder to
conduct and operate a community antenna television system in the County.
Grantee - The person herein defined to whom or to which a franchise is granted
by the Board of County Commissioners under this Chapter or anyone who
succeeds the person in accordance with the provisions of the franchise.
Gross Annual Revenues - Any and all compensation and other compensation in
any form whatsoever received by the grantee from subscribers and users
pursuant to its exercise of the franchise granted to it and any contributing grant
or subsidy, including connect, disconnect and installation fees, received
directly or indirectly by the grantee herein from subscribers or users within the
County, except that gross annual revenues shall not include any taxes on
services furnished by the grantee herein imposed directly on any subscriber or
user by any state, city or other governmental unit and collected by the grantee on
behalf of such governmental unit.
Local Government Access Channels - Channels on the CATV system which are
placed on both the basic service and the tier service and reserved by this Chapter
for use by the County.
Person - Any individual or association of individuals or any firm, corporation or
other business entity.
Public Access Channels - Channels on the CATV system specially designated as
noncommercial, public access channels.
§ 92-5. Fees.
General payment. The grantee shall pay to the County during the life of the franchise a
sum equal to 5% of the gross annual revenues per year in the areas of the County's
jurisdiction pursuant to §92-1 of this Chapter. Said sum shall be paid quarterly and
within 30 days from the end of each quarter. The grantee shall file with the County
annually within 60 days after the expiration of the grantee's fiscal year a financial
statement prepared according to generally accepted accounting procedures and certified
by the chief financial officer of the grantee showing in detail the gross annual revenues
per year in the areas of the County's jurisdiction pursuant to §92-1 of this Chapter during
the preceding quarters. It shall be the duty of grantee to pay to the County within 60 days
after the time for filing such statement the sum, if any, due and not paid during the
preceding quarters. For purposes of the franchise, all payments thereafter shall be made
to the Henderson County Finance Officer. In the event that any payment is not made on
or before the applicable date fixed in the franchise agreement, interest on such payment
shall apply from such date at a rate of 18% annually.
Effect of acceptance. No acceptance of any payment by the County shall be construed as
a release of or an accord or satisfaction of any claim the County might have for further or
additional sums payable under the terms of the franchise granted by this chapter or for
any performance or obligation of the grantee hereunder.
Taxes. The payment of any and all fees by the grantee is in addition to any ad valorem
taxes which the County may levy on the grantee's real or personal property and is in
addition to any other tax which may lawfully be levied by other governmental units.
Amendments. The County reserves the right to amend the franchise fee at any time
during the term of the franchise and upon 30 days' notice to the grantee, but said fee shall
be no higher than the maximum allowable by the FCC or other regulatory agency.
§ 92-6. Records.
Filing. The grantee shall file with the County annually a copy, true and accurate, of maps
and/or plats of all existing and proposed installations (excluding customer house drop
installations) upon streets, highways and public ways. These maps and plats shall be kept
up to date on an annual basis. Copies of all rules, regulations, terms and conditions
established by a grantee as they relate to subscribers for the operation of a CATV system
under the franchise shall be filed with the County and at the local office of a grantee and
shall be available for inspection during normal office hours.
Officers. The grantee shall keep on file with the County Manager a current list of local
management personnel and the functional areas for which they are responsible. The list
shall be kept up to date and shall indicate the person who should be contacted by County
officials in the event of questions or problems. It shall also provide a means to contact the
appropriate personnel of the grantee in the event of an emergency, whether during or
after normal working hours.
Inspection. All books and records of a grantee relative to its subscribers and subscriber
revenues concerning its operations within the County, for the term of the franchise, shall
be made available for inspection and audit by the County Manager or his designee within
30 days after any request for such inspection or audit has been made. The County shall
have the right to inspect the grantee's records showing the gross annual revenues from
which its franchise payments are computed, and the right of audit and recomputation of
any and all amounts paid under the franchise shall be accorded to the County during
reasonable business hours and times.
Complaints. The grantee shall, immediately upon request, make available to the County
its records of customer complaints, including the name of the customer, date, nature of
the complaint, disposition and date of disposition. Such records shall also include
complaints from residents who are not customers.
§ 92-7. Construction and Installation.
Procedure. Within 30 days after the acceptance of the franchise, a grantee shall proceed
with due diligence to obtain all necessary permits and authorizations which are required
for construction and installation of the CATV system and the conduct of the grantee's
business, including, but not limited to, any utility joint use attachment agreements,
microwave carrier licenses and any other permits, licenses and authorizations to be
granted by a duly constituted regulatory agency (including registration with the
FCC) having jurisdiction over the construction, installation and operation of a CATV
system or its associated microwave transmission facilities.
No discrimination. In planning and undertaking construction of the cable system, the
grantee shall treat all areas and neighborhoods of the franchise area equally except to the
extent that any physical or geographical circumstances may delay or negate construction
in particular areas. (All requirements for construction and line extension shall be
governed by the density requirements contained in this section.)
Density requirements. The grantee agrees to extend the cable system and to provide cable
service, upon request of the resident, to all occupied dwelling units in the franchise area;
provided, however, that the grantee shall not be required to extend its system or provide
service to any dwelling unit where there are not on the average at least 20 occupied
dwelling units per street mile of cable, or fraction thereof, measured from the dwelling
unit to the point on the cable system from which the necessary extension must be made in
order to provide service to the dwelling unit in question. The 20 homes per mile shall be
measured by the cable mile and not by the linear mile, i.e., for each mile of cable
necessary to provide service to the area, there must be an average of 20 homes per
mile. In addition, the grantee shall not be required to provide cable service to any
dwelling unit where the drop line is 300 feet or more from the nearest feeder line from
which the dwelling unit can be served. However, a customer who is willing to properly
construct or pay for such construction of a line beyond the three-hundred-foot mark to
serve his business or residence shall be connected to an existing feeder line.
The "drop line" is the wire or cable used to connect the individual dwelling unit
to the feeder lines of the cable system located in the right-of-way.
For purposes of this section, "dwelling unit" shall mean occupied units of
residential housing designed for single-family occupancy, including but not
limited to apartments, condominiums, townhouses and single-family houses in
an area not currently served by CATV services. Nothing contained in this
section shall require or prohibit the duplication or overbuilding of CATV
services in an area.
Safety requirements. The grantee shall at all times employ ordinary care and shall install,
maintain and use commonly accepted methods and devices for preventing failures and
accidents which are likely to cause damage, injuries or nuisances to the public. All
structures and all lines, equipment and connections in, over, under and upon the streets,
sidewalks, alleys and public ways or places of the County, wherever situated or located,
shall at all times be kept and maintained in a safe, suitable condition and in good order
and repair. The grantee shall relocate at any time, at no cost to the County, any
component of its system which interferes with a new installation or a modification of an
old installation maintained or installed by the County.
§ 92-8. Insurance.
Within 30 days after the granting of the franchise and prior to the commencement of
construction or system operation, and at all times during the terms of the franchise, the
grantee shall obtain, pay all premiums for and file with the Clerk to the Board of County
Commissioners executed duplicate copies and receipts evidencing the payment of
premiums for the following:
A general comprehensive public liability insurance policy indemnifying,
defending and saving harmless the County, its offices, boards, commissioners,
agents or employees from any and
all claims by any person whatsoever on
account of injury to, or death of, a person or persons occasioned or alleged to
have been occasioned by the operations of the grantee under the franchise
herein granted, in the amount of at least $500,000 combined single limit for
personal injury or death of any persons in any occurrence.
Renewal certificates of such insurance shall be promptly forwarded to the Clerk to the
Board of County Commissioners as such renewals are made, and such insurance shall be
constantly kept in force and effect during the term of this grant or franchise.
The grantee and/or the insurance company shall file with the Clerk to the County
Commissioners a written notice of any material alteration or cancellation of any
insurance coverage at least 30 days prior to the effective date of property damage
insurance indemnifying, defending and saving harmless the County, its offices, boards,
commissioners, agents and employees from and against all claims by any person
whatsoever for property damage occasioned or alleged to have been occasioned by the
operation of a grantee under the franchise herein granted in the amount of at least
$500,000 for property damage, combined single limit, in any 1 occurrence.
§ 92-9. Indemnification.
Liability. The grantee shall at his sole cost and expense fully indemnify, defend and save
harmless the County, its offices, boards, commissioners, agents and employees against
any and all claims, demands, suits, actions, liability and judgments for damage arising out
of the construction, operation and maintenance of the CATV franchise, and against all
liabilities to others including, but not limited to, any liability for damages by reason of, or
arising out of, any failure by the grantee to secure consents from the owners, authorized
distributors or licensees of programs to be transmitted or distributed by the grantee, and
against any loss, cost, expense and damages resulting there from, including reasonable
attorney's fees, arising out of the exercise or enjoyment of this franchise, irrespective of
the amount of the comprehensive liability policy required hereunder. This indemnity shall
not apply to damages occasioned solely and exclusively by acts of the County, its agents
Copyright infringement. The grantee shall indemnify, defend and save harmless the
County, its offices, boards, commissioners, agents and employees from and against all
claims of any person whatsoever for copyright infringement occasioned by the sole
operation and control of a grantee under the franchise herein granted or alleged to have
been so caused or occurred.
Term. Such insurance as provided for in this section shall be kept in full force and effect
by a grantee during the existence of the franchise and until after the removal of all poles,
wires, cables, underground conduits, manholes and other conductors and fixtures incident
to the maintenance and operation of the CATV system as defined in the franchise.
Requirements. All of the foregoing insurance contracts shall be in form satisfactory to the
County Attorney and shall be issued and maintained by companies authorized to do
business in the State of North Carolina and acceptable to the County Attorney and Clerk
to the Board of Commissioners, which acceptance shall not be unreasonably withheld,
and they shall require 30 days' written notice of any cancellation or reduction in coverage
to both the County and a grantee herein, and a copy of said policy shall be filed with the
Clerk to the Board of County Commissioners.
§ 92-10. Use of Streets or Roads.
Minimum interference. All transmission and distribution structures, lines and equipment
erected by a grantee within the County shall be so located as to cause minimum
interference with the proper use of streets, highways and public rights-of-way and to
cause minimum interference with the rights and reasonable convenience of property
owners who abut any of said streets, highways or public rights-of-way. The CATV
system shall be constructed and operated in compliance with all existing and future
County, state and national construction and electrical codes.
Repair. In case of the excavation or disturbance by the grantee or designated
subcontractor of any street, sidewalk, alley, public way or paved area, the grantee shall, at
its own cost and expense, repair, replace and restore such street, sidewalk, alley, public
way or paved area in as good a condition as before the work was done.
Relocation of facilities. Whenever the State of North Carolina or other properly
constituted authority shall require the relocation or reinstallation of any property of a
grantee in any of its streets, highways or public rights-of-way within the County, it shall
be the obligation of the grantee, upon 30 days' notice of such requirement, to immediately
remove and relocate or reinstall such property as may be reasonably necessary to meet
the requirements of the state or such properly constituted authority. Such relocation,
removal or reinstallation by a grantee shall be at no charge or expense to the County.
Notice of construction work by other agencies. The grantee shall, at its expense, and after
48 hours' notice thereof, protect, support, temporarily disconnect or relocate in the same
street or other public place any property of the grantee when required by the County or
the North Carolina Department of Transportation by reason of traffic conditions, public
safety, street closing or abandonment, highway or street construction, change or
establishment of street grade, installation of sewers, drains, water pipes, power lines or
signal lines or any other type of structures or improvements, and the County or the North
Carolina Department of Transportation shall not be liable for any disturbances of the
grantee's installation resulting therefrom. This subsection applies to streets or roads
as defined herein.
Use of poles. A grantee shall not erect, authorize or permit others to erect any poles or
facilities within the streets, highways or public rights-of-way within the County for the
conduct of its CATV system but shall use the existing poles and other equipment of the
appropriate electrical power and telephone and other utility companies under such terms
and agreements as the grantee negotiates with these companies; provided, however, that
when the grantee is unable to reach mutually satisfactory arrangements with appropriate
electrical power and telephone and other utility companies, or where facilities are not
available, the grantee may locate its poles or facilities within the streets, highways or
public rights-of-way within the County or to the extent that the County has such right-of-
way and appropriate approval is obtained.
Coordination. The grantee shall maintain membership in North Carolina One Call Center,
Inc. to assure coordination with all member utilities.
§ 92-11. Construction Standards; Inspections.
Technical standards. The system shall be constructed, maintained and at all times
operated in a manner that will provide each subscriber of the CATV system with a signal
quality level, on all cable channels, that is equal to or better than that which may be
obtained through normal off the air, external antenna reception within the primary
coverage area of a Class 1 standard broadcast television station. Any franchise granted
under this chapter is subject to all of the technical standards of 47 CFR Ch. 1 (10-1-
1988), Subpart K, Technical Standards of the Federal Communications Commission,
Parts 76.601 through 76.619, excluding all amendments which reduce or limit the scope
of the rules applicable to CATV. Hereinafter, all amendments to any section of the Code
of Federal Regulations, including but not limited to the rules and regulations of the
Federal Communications Commission that set forth technical standards for a CATV
system which broaden the scope of this section or set requirements which will yield more
favorable quality to the subscriber of CATV service, will, in addition to the requirements
of this section, be binding upon any grantee when enacted.
Construction codes. The system shall be constructed and maintained at all times in
compliance with all applicable standards of the National Electrical Code prepared and
adopted by the National Fire Protection Association, NFPA No. 70-1971, and approved
by the American National Standards Institute, ANSI-CI-1971, and such applicable laws
of the State of North Carolina and ordinances of the County as are now in effect or as
may hereafter be adopted.
Inspection of system. The County shall have the right and privilege to inspect or have
inspected the construction, installation, operation and maintenance of the cable television
Channel capacity. The system shall at all times provide the minimum number of
television channels specified in the system franchise.
§ 92-12. Compliance with Applicable Codes.
The County, as a function of its regulatory authority and in order to ensure that cable television meeting the
minimum standards provided by law is available to its residents, shall have the right to require the grantee
to prove compliance with any applicable standards or codes. Should the grantee fail to prove compliance
within a reasonable period of time, or should the County determine that there is a reasonable doubt as to
compliance, the County may, at the expense of the grantee, directs an independent, qualified consultant to
determine whether the grantee is in compliance.
§ 92-13. Public, Educational and Government Access.
No charges. The grantee shall provide 1 access channel for the transmission of access
broadcast programs by residents of Henderson County and recognized community
organizations. The grantee shall make no charges for noncommercial access channel
time, excluding leased access channels, and shall exercise no editorial control. The
grantee shall upon request provide and furnish without charge to all public educational
institution and governmental buildings within the area served by the system of the
grantee's existing distribution cable, 1 service connection. The institution shall be
entitled to receive, free of charge, the grantee's basic cable television service.
Equipment. The grantee shall provide the equipment for the transmission of the
community access channel, and said equipment shall remain as the property of the
grantee. All costs associated with normal repairs and maintenance of the equipment shall
be the responsibility of the grantee. Equipment supplied to the County by the grantee for
the purpose of video recording or production shall be owned by the County, and any
maintenance or repair costs shall be the responsibility of the County.
Control. The grantee shall at all times have available parental control devices for the
purpose of controlling premium television programming on individual subscriber
television sets. The grantee shall have the right to charge reasonable fees for the use of
§ 92-14. System Interruption and Repair.
Restoration of service. The grantee shall provide such adjustments and repairs as are
necessary to provide a quality signal to the subscriber within 24 hours of the time the
report of failure or malfunction of a subscriber's service is made. Failures or malfunctions
of the system shall be corrected by the grantee promptly after notice of such failure or
malfunction except or unless such failure or malfunction shall be over a substantial
portion of the grantee's system and shall have been caused by storm, fire, vehicular
damage, lightning, explosion, civil commotion or other similar catastrophe; in such case
repairs shall be made as soon as possible.
Interruption of service. The grantee shall render efficient service, make repairs promptly
and interrupt service only for good cause and for the shortest time possible. Interruptions
for system maintenance insofar as possible shall be preceded by notice and shall occur
during periods of minimum use of the system. The grantee shall, upon request of the
customer, prorate the customer charges for service if the customer has experienced total
loss of service for any period over 24 hours, unless such loss was beyond the control of
Business office and telephone number for repairs. The grantee shall consistently maintain
an office in the County which shall be open during normal business hours of every day,
legal holidays excepted, Monday through Friday, inclusive, which shall have a listed
telephone, which telephone shall be so operated and monitored that complaints or
requests for repairs or adjustments because of malfunctions can be received at any
time of day, Sunday through Saturday, and holidays.
Notice concerning complaints. Notice of the procedure for reporting and resolving
complaints will be given to each subscriber at the time of initial installation of the cable
system. A contact telephone number will be given to each subscriber for each subscriber
to directly report their complaints to the grantee.
In the event of a major interruption of service affecting a large number of customers, the
grantee will make every effort to respond personally to customer inquiries or shall utilize
a recorded telephone message identifying the specific system malfunction and giving the
estimated time of service restoration. However, at no time shall any incoming calls be
Standby power. The grantee shall provide emergency power supplies at the head-end. All
utility safety regulations shall be followed to prevent the emergency power supplies or
standby generators from powering nonfunctioning utility lines. The status of each standby
power supply will be monitored regularly by the grantee to ensure reliable operation and
to record actual usage.
§ 92-15. Emergency Use of Facilities.
In the event of any emergency or disaster, a grantee shall, upon request of the Chairman
of the Board of County Commissioners, make available its facilities to the County at no
cost to the County for emergency use during the period of such emergency or disaster and
shall provide such personnel as necessary within the judgment of the grantee to properly
operate under the circumstances.
The grantee shall also provide an emergency audio alert system. This system will enable
the County to gain access to the system by using any touch-tone telephone to override the
audio portion of all channels with the emergency telephone message. The County will
take reasonable steps to ensure that access to this system is limited only to public safety
officials responsible for communication within the County in the event of emergency.
§ 92-16. Revocation of Franchise.
Rights of the County. In addition to all of the rights and power reserved or pertaining to
the County, the County reserves as an additional and as a separate and distinct power the
right to terminate the franchise and all rights and privileges of a grantee hereunder in any
of the following events or for any of the following reasons insofar as they are consistent
with the provisions of the Cable Communications Policy Act of 1984:
A grantee shall, by act or omission, violate any material term or condition of this
chapter and shall within 30 days following written demand by the County to
effect such compliance fail to do so;
A grantee becomes insolvent, unable or unwilling to pay its lawfully determined
debts, or is adjudged a bankrupt;
A grantee attempts to, or does, practice any fraud or has made a material false
statement in its conduct or relations under the franchise with the County or
subscribers or potential subscribers; or
The grantee, contrary to the best interest of public convenience and welfare, fails
or is failing to provide subscribers with regular, adequate, reasonable and
proper service. In fulfilling its obligation, a grantee will follow applicable FCC
standards as they relate to CATV and the provisions of this Chapter.
Hearing required. No revocation shall be effected unless or until the Commissioners shall
have adopted a resolution setting forth the causes and reasons for the revocation and the
effective date thereof. Such resolution shall not be adopted without 30 days' notice (or
within such extended period as may be allowed by the Board of County Commissioners)
to a grantee and without an opportunity for a grantee to be heard upon the proposed
adoption of such proposed resolution. If the revocation as proposed in such resolution
depends on a finding of fact, such finding of fact as made by the Commissioners after the
hearing provided for, if requested by the grantee, shall be conclusive.
Beyond control of grantee. A grantee shall not be declared in default or be subject to any
sanction under any provision of this chapter in any case in which performance of any
such provisions is prevented for reasons beyond its control.
§ 92-17. Termination of Franchise.
In the event the franchise is terminated, whether by revocation, expiration or otherwise, the grantee may
continue to operate the cable system pursuant to the terms and conditions of the terminated franchise only
upon the following terms and conditions:
Continued operation of system. In the case of a revocation only upon the finding of the
County Commissioners that the grantee's continued operation would not be harmful to
the health, safety or welfare of the citizens of Henderson County and only upon the terms
and conditions found necessary by the Board of County Commissioners.
Renewal denied. In the event that the County denies renewal, the grantee shall be
afforded a period of 6 months from the effective date of the final order denying
renewal, including any appeal, within which to sell, transfer or convey the cable system
and the franchise to a qualified purchaser. The grantee shall be afforded a period of 12
months to remove the distribution system and all service connections from poles and
Extension of franchise. Upon the expiration of a franchise, the County, on its own
motion, may require the grantee to operate the franchise for an extended period of time
not to exceed 12 months from the date of any such resolution. All provisions of the
franchise shall continue to apply to operation during an extension. The County shall serve
written notice at the grantee's business office of intent to extend under this section at least
30 days prior to the expiration of the original franchise.
§ 92-18. Sale or Lease of Franchise.
Written consent required. The franchise shall be deemed a privilege to be held in personal
trust by the grantee. It shall not be sold, sublet, transferred, leased, assigned or disposed
of in whole or in part either by forced or voluntary sale, merger, consolidation or
otherwise without the prior consent of the Board of County Commissioners expressed by
resolution, and then only under such conditions as may therein be prescribed; nor shall
title, either legal or equitable, or any right, interest or property therein pass to or vest in
any person either by the act of a grantee or by operation of law without the written
consent of the County Commissioners unless otherwise ordered by a court of competent
jurisdiction. The Board of County Commissioners shall act upon a request for such
consent within 60 days of the date thereof, and such consent shall not be unreasonably
withheld. The granting, giving or reserving of any 1 or more of such consents shall not
render unnecessary any subsequent consent or consents.
Vested rights. Nothing in the franchise shall act to give the grantee vested property rights
such that the same may be effectively transferred or disposed of voluntarily or
involuntarily without the consent of the Board of County Commissioners.
Transfer made in writing. Any transfer or assignment or other distribution of any of the
rights under the franchise shall be made only by an instrument in writing, a duly executed
copy of which shall be filed in the office of the Clerk to the Board of County
Commissioners within 30 days after such transfer or assignment shall have been executed
or affected and shall reflect therein the consent of the Board of County Commissioners.
§ 92-19. Renewal of Franchise; Periodic Review.
Renewal procedure. At least 1 year prior to the expiration of the franchise, the grantee
shall inform the County in writing of its intent to seek renewal of the franchise. The
County shall proceed to determine whether the grantee has satisfactorily performed its
obligations under the agreement. To determine satisfactory performance, the County shall
consider technical developments and performance of the system programming, other
services offered, cost of service and any other particular requirements set forth in the
agreement. Industry performance on a national basis shall be considered. Provision shall
be made for community comment. A 4 month period shall be provided to determine
the grantee's eligibility for renewal. The County then shall prepare within 2 months
any amendments to the agreement it believes necessary and submit such changes to the
grantee. If the County finds the grantee's performance satisfactory, a new franchise shall
be granted pursuant to the agreement, as amended, for a period of 5 years with an
option to renew for an additional 5 years. In the event the grantee is determined by the
County to have performed unsatisfactorily, new applicants shall be sought and evaluated
and a franchise award shall be made by the County according to franchising procedures
adopted by the County.
Periodic review. The County and the grantee shall hold scheduled review sessions within
180 days of the third anniversary date of award of the franchise under the agreement.
Special review sessions may be held at any time during the term of the franchise at the
request of the County or the grantee. The following topics shall be discussed at each
review session: service rate structures, free or discounted services, application of new
technologies, system performance, services provided, programming offered, customer
complaints and judicial and Federal Communications Commission rulings. Topics in
addition to those listed may be added. The specific purpose of the review session before
the third-year anniversary date under the franchise agreement will be for properly
gauging the performance of the grantee in providing cable service in the prescribed
area to adequately determine whether the citizens are receiving service which meets the
expectations of the franchise agreement.
§ 92-20. Sale of System.
System may be sold. If the use of any part of the grantee's CATV system is discontinued
for any reason for a continuous period of 12 months or if such system as installed does
not comply with the requirements of this chapter and the grantee's franchise, or if the
grantee's franchise is terminated or revoked or not renewed, the County may, in its
discretion but not in conflict with the provisions of the Cable Communications Policy Act
of 1984, as amended, require that said system be sold for cash to a franchise designated
by the Board of Commissioners at a purchase price equal to the system's fair market
value as determined in Subsection C hereof.
County may purchase. Under the conditions set forth in subsection A above, the County
may, at its option, purchase said system at its fair market value. If the franchise is
otherwise revoked, the County may purchase said system for equitable value as defined
in Section 627 of the Cable Communications Policy Act of 1984, as amended.
Fair market value. Fair market value shall be determined by the County consistent with
generally accepted appraisal and accounting principles and with provisions of the Cable
Communications Policy Act of 1984, as amended. No consideration or value shall be
given for any right or privilege granted by this chapter or the grantee's franchise. Any
dispute between the County and the grantee over determination of the system's fair
market value (as a going concern) shall be resolved by a panel of 3 appraisers, 1 to be
selected by the County, 1 to be selected by the grantee and the third to be selected
by the other 2 appraisers. The grantee shall fully cooperate with said appraisers. The
cost of such appraisal shall be borne equally by the grantee and the successor grantee.
The grantee, after having received full consideration, shall execute such deeds, bills of
sale and other documents as may be necessary to effectuate the transfer.
§ 92-21. Removal on Subscriber's Request.
On termination of service to any subscriber, the grantee shall promptly remove all of its facilities and
equipment from the premises of such subscriber if the subscriber shall so request. In any event, the facilities
of the grantee shall be so constructed and designed that by the use of ordinary household tools and without
special skills or knowledge and without unreasonable risk of harm, the subscriber may be capable at any
time of disconnecting the system of the grantee from the subscriber's television set or receiver so that said
set or receiver may be used independently of the system for service of the grantee.
§ 92-22. Application Fee and Bond.
Application fee. Applicants for a franchise hereunder shall pay an application fee to the
County of Henderson of $1,500, which sum shall be due and payable to the County upon
submission to the County of an application for a franchise. The application fee shall be
Application bond. Each applicant for a franchise hereunder shall submit an application
bond, in a form acceptable to the County Attorney, or certified check on a bank that is a
member of the Federal Deposit Insurance Corporation, payable to the order of the
County, in the amount of $10,000.
Should the applicant fail or refuse to accept a
franchise as provided hereunder or fail or refuse to furnish the bonds, letters of credit and
insurance policies herein within 30 days after written notification of the award of a
franchise by the County, said applicant will be considered to have abandoned the
proposal, and the County shall enforce the application bond in accordance with its terms
or shall retain the proceeds of the certified check. Application bonds or certified checks
received in lieu thereof from applicants whose proposals are not accepted by the County
shall be returned to the applicant as soon as the proposal is rejected. The application bond
or certified check of the applicant that receives the franchise shall be returned to the
applicant upon filing acceptance as provided for herein.
§ 92-23. Performance Bond.
The grantee shall, concurrently with the filing of its acceptance of a franchise, file with the Clerk to the
Board of County Commissioners and at all times thereafter maintain in full force and effect for the term of
a franchise, at the grantee's sole cost and expense, a corporate surety bond with a company in a form
approved by the County Attorney of Henderson County and in the amount equal to $20,000, plus an
additional $5,000 for each 100 subscribers served or proposed to be served, provided that the total bond
required shall not exceed $75,000 renewable and negotiable annually, and conditioned upon the faithful
performance of the grantee of all of the terms and conditions of its franchise for the term thereof.
§ 92-24. Effect of Franchise Acceptance.
No recourse for damages. The grantee shall have no recourse whatsoever against the
County for any loss, cost or expenses or damage arising out of the provisions or
requirements of the franchise or because of the enforcement thereof by the County, nor
for the failure of the County to have the authority to grant all or any part of the franchise
or to properly exercise such authority.
Understanding of franchise. A grantee expressly acknowledges that upon accepting a
franchise, it does so relying upon its own investigation and understanding the power and
authority of the County to grant the franchise and that it has not been induced to enter
into the franchise by any understanding or promise or other statement, whether verbal or
written, by or on behalf of the County or by any other third person concerning any term
or condition of the franchise not expressed herein.
Acceptance. The grantee further acknowledges by the acceptance of the franchise that it
has carefully read the terms and conditions hereof and is willing to and does accept all of
the risks of the meaning of such terms and conditions.
§ 92-25. Failure of County to Enforce Franchise.
A grantee shall not be excused from complying with any of the terms and conditions of the franchise by
any failure of the County upon any 1 or more occasions to insist upon or to seek compliance with any such
terms or conditions.
§ 92-26. Failure of Grantee to Meet Deadlines.
Whenever the franchise shall set forth any time for any action to be performed by or on behalf of the
grantee, said time shall be deemed of the essence, and any material failure of the grantee to perform within
the time allotted shall always be sufficient grounds for the County to revoke the franchise.
§ 92-27. Rights Reserved To County.
Without limitation on the rights which the County might otherwise have, the County does hereby expressly
reserve the right, power and authority to exercise its governmental power now or hereafter to the full extent
that such power may be vested in or granted to the County, including but not limited to the power and
authority to amend this chapter; to determine through its Board of County Commissioners any question of
facts relating to the meaning, terms, obligations or other factors of this chapter; and to grant additional
franchises within the County to other persons for the conduct of providing CATV operations.
§ 92-28. Compliance with Law.
The grantee shall at all times during the term of the franchise comply with all laws and regulations of the
State of North Carolina and the federal government or any administrative body or agency of each. The
grantee shall also be subject to all lawful exercises of the police power of the County and to such
reasonable regulations as the County shall prescribe for the general conduct of persons providing CATV
service within the County.
§ 92-29. Simultaneous Filing with Regulatory Agencies And County.
Copies of all petitions, applications and communications submitted by the grantee to the Federal
Communications Commission, Securities and Exchange Commission or any other federal or state
regulatory commission or agency having jurisdiction in respect to any matter affecting CATV operation
shall also be submitted simultaneously to the County by filing the same with the County Attorney.
§ 92-30. State and Federal Laws.
Whenever any law of the State of North Carolina or the federal government or regulation
of any agency of either shall be in conflict with or supersede any provision of this
Chapter, then for so long as such federal or state law or regulation shall be in force and
effect such ordinance provisions shall be deemed amended to conform therewith.
However, the validity of the remaining portions or provision shall not be affected
The grantee and County shall mutually exchange information of the existence and
effective date of any such federal or state law or regulation or any amendments thereto as
soon as it shall come to the knowledge of each.
§ 92-31. Violations and Penalties.
For the violation of any of the provisions of this Chapter, the grantee shall be subject to
the penalties set forth in Henderson County Code, Chapter 1, General Provisions, Article
II. Such penalties shall be chargeable to the franchise bond. Violation of this Chapter
includes the following:
Failure to adhere to system construction milestones and other construction,
reconstruction or upgrade commitments in accordance with the franchise
agreement, unless the Board of County Commissioners specifically approves the
modification due to the occurrence of conditions beyond the grantee's control.
Failure to provide data, documents, reports or information required by this
Chapter to the County.
Failure to test, analyze and report on the performance of the system following a
request by the County.
Failure to comply with operational, performance or maintenance standards.
Failure to provide the community channel and equipment as required in this
Chapter or in the franchise agreement with the County.
Failure to pay the franchise fee on time.
These penalties shall be in addition to and not a limitation upon the other penal provision
of this Chapter or the franchise agreement, including revocation or other statutorily or
judicially imposed penalties. No decision by the County to invoke any remedy under this
Chapter, the franchise or any statute, law or ordinance shall preclude the exercising of
any other such remedy.
§ 92-32. Through 92-50. (Reserved)