§ 404. Books and records; inspection of system; testing requirements.

404.(a). Company shall provide the City access to all books and records, as required by Chapter 430. Without limiting its obligations under that Chapter, or other provisions of applicable law, the Company agrees that it will provide the City access to all books and records related in whole or in part to its construction, operation, or repair of the Cable System so that the City may inspect and copy these books and records. The Company's' obligation includes the obligation to produce all books and records related to revenues derived from the operation of the Cable System. If the Company offers cable-related and non-cable-related services and equipment in a bundle, and allocates revenue from the bundle among cable and non-cable related services and equipment, it must maintain records adequate to permit City to audit the accuracy of the allocation of revenues among cable-related and non-cable-related service and to ensure that the proper franchise fee owed on cable-related revenues was paid. The Company is responsible for obtaining or maintaining the necessary possession or control of all such books and records related to its construction, operation or repair of the Cable System so that it can produce the documents upon request, without regard to whether the books and records are held by it, a parent company, a contractor or subcontractor, or someone else. Books and records must be maintained for a period of five years, except that (a) any record that is a public record must be maintained for no less than the period required by state law; and (b) the City may from time to time specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials. The Company shall take all reasonable steps required, if any, to ensure that it is able to provide the City all information which must be provided or may be requested under this franchise or applicable law, including by providing appropriate Subscriber privacy notices. Company shall be responsible for redacting any data that applicable law prevents it from providing to the City. Nothing in this Section 404 shall be read to require the Company to violate state or federal law protecting Subscriber privacy or personnel records.

404.(b). The terms "books and records" shall be read expansively to include information in whatever format stored. The term "construction, operation and repair" shall be read expansively, including by way of example and not limitation, information related to system management, contractual relationships with Subscribers and other entities located in the Streets, and information related to the use of the Cable System.

404.(c). Books and records requested shall be produced to the City at the location designated by the Cable Communications Officer. However, if any books and records are too voluminous, or for security reasons (for example, because the documents contain trade secrets) cannot be copied and moved, then Company may request that the inspection take place at some other location mutually agreed to by the City and the Company, provided that (1) the Company must make necessary arrangements for promptly copying documents selected by the City after its review and providing them to the City; and (2) the Company must pay all travel and additional copying expenses incurred by the City (above those that would have been incurred had the documents been produced in the City) in inspecting those documents or having those documents inspected by its designee.

404.(d). [RESERVED FOR PURPOSES OF NUMBERING]

404.(e). Without limiting the foregoing, the Company shall provide the City the following within 10 days of their receipt or (in the case of documents created by the Company or an affiliate) filing:

404.(e).(1). notices of deficiency or forfeiture related to the operation of the Cable System (other than notices issued by the City); and

404.(e).(2). copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the Company or by any partnership or corporation that owns or controls the Company directly or indirectly.

404.(f). The Cable Communications Officer may require the Company to maintain records, and to prepare reports relevant to determining the compliance of the Company with the terms and conditions of this franchise or applicable law. Without limiting this general obligation, the Company shall prepare the following reports:

404.(f).(1). As part of only the first quarterly report of the year, the Company shall provide:

i.

[reserved for purposes of numbering]

ii.

A report detailing Company's performance under each applicable customer service standard as defined by FCC rules, Chapter 430 and regulations adopted pursuant thereto, and this franchise. For each standard not met, the report will explain the cause, and corrections taken for each.

iii.

The number of Subscribers receiving any rate discounts required under this Franchise, and the amount of such discounts.

iv.

A full schedule of all Subscriber and User rates, fees and charges for all Cable Services provided for the preceding year.

v.

A copy of Subscriber and User agreements used by the Company.

vi.

Provided that, when it provides the information required by subsections (D) and (E), Company need not include proprietary MDU rates and agreements, so long as the same are made available for the City's inspection upon request.

vii.

A copy of an actual Subscriber bill, which includes showing how Company is itemizing franchise fees, and taxes, and itemizing costs.

404.(f).(2). Within 45 days of the end of each quarter, which shall end on March 31, June 30, September 30, and December 31 of every year, Company shall provide:

i.

A statement, in a form approved by City, showing the number of Subscribers served in the franchise area.

ii.

A statement certified as true by an independent auditor or a designated representative for the Company (i) listing by category the revenues for each source of revenue which is included within the definition of Gross revenues in this franchise, and (ii) identifying any other revenues of the Cable System that the Company has excluded from Gross revenues; the amount of the exclusion; and the reason for the exclusion; and identifying any adjustments or offsets against payments and the basis for the same.

iii.

A report summarizing known Cable System outages in the Twin Cities Metropolitan Area which will allow the City to easily obtain and identify St. Paul specific outage information (with the understanding that there may be an some overlap of information with communities adjacent to the City which share area codes and telephone prefixes), and an estimate of the number of Subscribers affected by the outage, and the time it took to repair the outage, measuring from the time the Company first knew about the outage. An outage is defined as a loss of audio or video or impairment of audio or video on ten (10) or more Channels affecting more than one Subscriber.

iv.

A report showing the percentage of time service interruptions were cured within 36 hours; the average time from notice that a problem existed to final cure; and the percentage of time that other service calls were resolved within 96 hours.

v.

[reserved for numbering]

vi.

The percentage of time installations were completed within the time required by the City.

404.(g). Company shall provide the City the following on an ongoing basis:

404.(g).(1). A statement of the resolution of complaints referred to it by the City.

404.(g).(2). Company shall provide the City with a special number that the City may call to obtain information about any unplanned or unanticipated outage. This number cannot be the same number used by general Subscribers, and must provide a means for the City to promptly contact a Person knowledgeable about the outage.

404.(g).(3). Company shall provide the City with at least a 24-hour advance notice of any planned outages lasting for a period of more than 4 hours and affecting 500 or more Subscribers on the same distribution line or fiber node within the franchise area.

404.(h). Company shall maintain records of all complaints received, the disposition of those complaints, and the time from disposition to any cure.

404.(i). Company shall maintain accurate and detailed maps and improvement plans which show the location, size, and a general description of its facilities installed in the Streets and any power supply sources (including voltages and connections). Maps shall be based upon post-construction inspection to verify location. These maps and plans must be submitted to the City upon request in an electronic format. The medium and the format used for the electronic submissions must be a standard medium and format satisfactory to the City. The Company shall keep current records and plats on all underground facilities it owns or operates. Such plats and records are to be available to all utilities and the City immediately upon request. City acknowledges the Company has the right to designate such material as "trade secret" to the extent permitted under the Minnesota Data Practice Act and other applicable law.

404.(j). Company shall maintain accurate Subscriber drawings which show the location of all facilities, and it must provide those drawings upon request in electronic format specified by the City.

404.(k). The Cable System and all property owned or used by the Company in connection with the system shall be subject to inspection and testing at the request the City to determine compliance with the provisions of this ordinance and applicable law. The City shall be notified two weeks in advance of, and shall have the right to be present when the Cable System is tested by the Company for any required proof of performance test, or any test that the Company is required to perform under Section 404.(m). The City shall have the right to be present for any other test, upon request. The Company must respond to requests for information regarding its system and plans for the system as the City may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired.

404.(l). If, based on complaints received or upon its own inspection, the Cable Communications Officer concludes that there is reason to believe that the System may not be performing as required, it may require the Company to perform tests and inspections of its system, and to prepare a report showing the results of the inspection or testing, and any corrective action taken as a result thereof.

404.(m). Except to the extent that federal law prevents the Company from enforcing this requirement, the Company shall be required to test its Cable System periodically for compliance with all applicable technical and performance standards. The tests shall be conducted at least twice each year, shall be conducted by trained personnel using properly calibrated and tested equipment, and accepted engineering testing procedures designed to measure performance under the worst case scenarios.

404.(n). In addition, Company shall make available upon request the results of testing it performs. Company shall provide City with credentials of Person or persons conducting said tests. Nothing in this section relieves Company of any obligation it may have under FCC rules to submit proof of performance tests to the City.

404.(o). All costs of testing shall be borne by Company. Where special testing is required to determine the source of technical difficulties, the Company shall be liable for all the costs thereof.

404.(p). Company must produce the books and records, prepare the reports and permit the City to conduct the inspections, requested by the City even if the Company does not believe that the request satisfies the standard set out in this Section 404, unless the City waives the requirement, or the Company obtains a court order from a court of competent jurisdiction enjoining the request.

404.(q). Any material misrepresentation made by the Company in any report required by this section shall subject the Company to the liquidated damages provisions of this ordinance and shall subject the Company to all remedies available to the City by law.

(Ord 15-55, § 1, 11-12-15)