Chapter 5.12
CATV FRANCHISES
Sections:
5.12.010 Intent.
5.12.020 Definitions.
5.12.030 Nonexclusive franchises authorized.
5.12.040 Scope of the franchise.
5.12.050 Term of the franchise and grantee’s acceptance.
5.12.060 Franchise service area.
5.12.070 Application – Required.
5.12.080 Application – Contents.
5.12.090 Solicitation of franchise applications.
5.12.100 Review, report and setting for public hearing.
5.12.110 Notice of hearing.
5.12.120 Posting and publishing notice.
5.12.130 Comments by interested persons.
5.12.140 Conduct of the hearing.
5.12.150 Decision after hearing.
5.12.160 Franchise renewal.
5.12.170 Standards for minimum service and consumer protection.
5.12.180 Franchise fee.
5.12.190 Security for grantee’s obligations.
5.12.200 Promotion of local cable usage.
5.12.210 Design, construction and maintenance requirements.
5.12.220 Technical standards.
5.12.230 Rates and charges.
5.12.240 Indemnification.
5.12.250 Insurance requirements.
5.12.260 Franchise nontransferable.
5.12.270 Reports and records required of grantee.
5.12.280 Annual review of system performance and quality of service.
5.12.290 Interim review of system performance and quality of service.
5.12.300 Special evaluation sessions.
5.12.310 Remedies for material franchise violations.
5.12.320 Force majeure – Grantee’s inability to perform.
5.12.330 Abandonment and removal of grantee’s property.
5.12.340 Restoration by City – Reimbursement of costs.
5.12.350 Extended operation and continuity of services.
5.12.360 Receivership and foreclosure.
5.12.370 Rights reserved to City.
5.12.380 Rights of individuals.
5.12.382 Fee for support of local cable usage.
5.12.384 Special provisions applicable to holders of state video franchises.
5.12.390 Violations.
Prior legislation: Ord. 295.
5.12.010 Intent.
(A) California Government Code Section 53066 provides that the City may, pursuant to such provisions as may be prescribed by its governing body, authorize by franchise or license the construction of a community antenna television system, and prescribe such rules and regulations as it deems advisable to protect the individual subscribers to the services of such community antenna television system. It is the intent of this chapter to achieve such objectives and thereby safeguard the local public interest by promoting the welfare, safety and convenience of the general public.
(B) This chapter shall be construed in a manner consistent with all applicable federal and state laws. If the Federal Communications Commission or the California Public Utilities Commission, or any other federal or state agency, shall hereafter exercise any paramount jurisdiction over any specific provisions of this chapter, such paramount jurisdiction shall preempt or preclude the exercise of like jurisdiction by the City. Modification of a federal or state law or regulation shall, to the extent applicable to the City, be deemed a part of this chapter as of the effective date of such modification.
(C) If the Federal Communications Commission deregulates any area of cable communications over which it currently exercises jurisdiction in such manner as to expand rather than limit municipal regulatory authority, any franchise authorized pursuant to this chapter shall be deemed automatically amended to incorporate such new municipal regulatory powers, and the City may, in its discretion, adopt additional rules and regulations related thereto. (Ord. 906 § 1, 1991)
5.12.020 Definitions.
For the purpose of this chapter, the following terms, phrases, words, abbreviations and their derivations shall have the meaning given herein.
Words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning.
(A) “Basic cable service” means the tier of service regularly provided to all subscribers that includes the public, educational and governmental channels, and the retransmission of any broadcast television signals.
(B) “Cable communications system” or “system,” also referred to as “cable television system,” “cable system,” “CATV system,” or “community antenna television system,” means 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, including video programming, and which is provided to multiple subscribers within the community. Such terms do not include:
(1) A facility that serves only to retransmit the television signals of one or more television broadcast stations;
(2) A facility that serves only subscribers in one or more multiple-unit dwellings under common ownership, control, or management, unless such facility uses any public right-of-way;
(3) A facility of a common carrier, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or
(4) Any facilities of any electric utility used solely for operating its electric utility system.
(C) “Cable service” means the total of the following:
(1) The one-way transmission to subscribers of video programming or other programming service; and
(2) Subscriber interaction, if any, which is required for the selection of such video programing or other programing service.
(D) “Channel” or “cable channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel as defined by the Federal Communications Commission.
(E) “City” means the City of Palmdale.
(F) “Council” means the City Council of the City of Palmdale.
(G) “FCC” means the Federal Communications Commission, or any duly designated successor agency.
(H) “Franchise” means any authorization granted by the Council pursuant to this chapter, whether designated as a franchise, license, permit, privilege, or otherwise, to construct, operate or maintain a cable television system in the City.
(I) “Franchise agreement” means an express written agreement, approved by ordinance of the Council, containing the specific terms and provisions of the franchise granted, including specifications, operational requirements and other related matters.
(J) “Franchise fee” means any tax, fee or assessment of any kind imposed by the City upon a grantee in consideration for the rights and privileges conferred pursuant to the franchise agreement.
(K) “Grantee” means any person granted a franchise pursuant to this chapter and the ordinance approving a franchise agreement, and its authorized successor, transferee or assignee.
(L) “Gross receipts” or “annual gross receipts” means any and all revenues, income, compensation or other consideration in any form received by grantee each year which is derived from or attributable to all operations of the cable television system within the designated franchise service area, including, without limitation, receipts from subscribers or other users, leased channels, pay-television, advertising, basic services, premium services and special services; provided, however, that “gross receipts” shall not include refundable deposits, or any sales or excise taxes on services furnished by the grantee and which are collected by the grantee for direct pass-through to local, state or federal governmental entities.
(M) “Lockbox” means a parental control device, either in the form of a separate unit or incorporated into a descrambler or other piece of equipment used to provide cable television service, which is made operational by a key or by a code, and which enables the subscriber to prevent the viewing of any pay channel offering adult programming.
(N) “Property of grantee” means all property owned, installed or used by a grantee in the conduct of a cable television system in the City under the authority of a franchise granted pursuant to this chapter.
(O) “Public, educational or governmental access facilities” or “PEG access facilities” means the total of the following:
(1) Channel capacity designated for public, educational, or governmental use; and
(2) Facilities and equipment for the utilization of such channel capacity.
(P) “Street” means each of the following which has been or is hereafter dedicated to the public, maintained under public authority, and located within the City limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas.
(Q) “Subscriber” means any person or entity receiving for any purpose service provided by grantee’s cable television system. (Ord. 906 § 1, 1991)
5.12.030 Nonexclusive franchises authorized.
A nonexclusive franchise to construct, operate and maintain a cable television system in the City may be authorized and granted by ordinance of the Council to any individual or entity offering to construct, operate and maintain such system in compliance with the terms and provisions of this chapter. (Ord. 906 § 1, 1991)
5.12.040 Scope of the franchise.
A franchise granted pursuant to the provisions of this chapter shall authorize the grantee to do the following:
(A) To engage in the business of providing cable television service and to distribute and sell such service to subscribers within the designated franchise service area.
(B) To install, operate and maintain property of the grantee for the origination, collection, transmission, amplification, distribution and reception of television and radio signals.
(C) To erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, under, along and across the public streets or other public places within the designated franchise service area such wires, cables, poles, antennas, conductors, ducts, conduits, vaults, manholes, amplifiers, pedestals, appliances, attachments and other appurtenances as may be required for the construction, operation and maintenance of the cable television system. (Ord. 906 § 1, 1991)
5.12.050 Term of the franchise and grantee’s acceptance.
(A) Term. A franchise granted hereunder shall be for the term specified in the franchise agreement. The term shall commence on the effective date of the ordinance authorizing the franchise or on the date specified in that ordinance as the effective date of the franchise.
(B) Renewal. A franchise granted hereunder may be renewed by the Council following application by the grantee pursuant to the provisions of applicable state and federal law and PMC 5.12.160.
(C) Grantee’s Acceptance. Within 25 days after the effective date of the ordinance awarding or renewing a franchise, or within such extended period of time as the Council in its discretion may authorize, the grantee shall file with the City Clerk its written acceptance thereof, in form and content satisfactory to the City Attorney, together with any performance bond and insurance policies or certificates required by the franchise agreement, and grantee’s agreement to be bound by, to comply with, and to do all things required of grantee by the provisions of this chapter and the franchise agreement. If any of such conditions are not satisfied in the time and manner required hereunder, the Council may declare the franchise null and void. (Ord. 906 § 1, 1991)
5.12.060 Franchise service area.
The franchise service area may be all or any designated portion of territory within the City, and certain areas hereafter added to the City during the term of the franchise as provided below.
(A) If, pursuant to statute, any geographical area consisting of 1,500 acres or more is annexed to the City subsequent to the grant by the City of a franchise or license to provide cable television service to such geographical area, and if the provisions of subsection (B) of this section are not applicable, then the City shall solicit applications for an additional cable television franchise within such geographical area in accordance with the procedures specified in PMC 5.12.090 through 5.12.150; provided, however, that any additional franchise granted in a newly annexed geographical area consisting of 1,500 acres, or more, and where an existing cable operator is providing service or certifies to the City, as the franchising authority, that it is ready, willing and able to provide service, shall require the additional franchisee to wire and serve such newly annexed geographical area within a reasonable time and in a sequence which does not discriminate against lower income or minority residents, and shall contain the same public, educational and governmental access requirements that are set forth in the existing franchise. These provisions shall not be applicable where all existing cable operators entitled to provide cable television service to such newly annexed geographical area certify to the City, as the franchising authority, that they do not intend to provide service within a reasonable time to the newly annexed geographical area to be initially served by the additional franchise.
(B) If unincorporated territory covered by an existing franchise or license granted by the County of Los Angeles is annexed to the City after the grantee thereof has commenced or completed construction and installation of a cable television system within the territory, the rights reserved under such franchise or license to the County of Los Angeles shall inure to the benefit of the City, and all regulatory provisions of this chapter, and any other rules and regulations applicable to cable television systems operating within the City, whether then in effect or subsequently adopted, shall be applicable to and binding upon said grantee. In addition, the grantee shall be obligated to pay annually to the City the percentage of the annual gross receipts established by the County of Los Angeles in said franchise or license.
(C) If unincorporated territory covered by an existing franchise or license granted by the County is annexed to the City prior to the time that the grantee of such franchise or license has commenced construction of a cable television system within said territory, all rights acquired by such grantee under said County franchise or license shall terminate by operation of law as of the date on which annexation to the City becomes effective, and the terms and provisions of this chapter shall thereafter be applicable. In no event shall any grantee be deprived of any rights to construct a cable television system in any area as a consequence of annexation thereof by the City. (Ord. 957 § 1, 1992; Ord. 906 § 1, 1991)
5.12.070 Application – Required.
Any person desiring a franchise for a cable television system, or the transfer or renewal of an existing franchise, shall file an application with the City. A nonrefundable application fee in an amount established by resolution of the Council shall accompany the application to cover initial costs associated with processing and reviewing the application. In addition, upon the issuance of a new franchise, the renewal of an existing franchise, or the transfer of a franchise, the grantee shall reimburse the City for all additional processing costs and expenses not covered by the initial application fee including, without limitation, the publication of notices and ordinances, the drafting of franchise ordinances and agreements, and reasonable consultants, fees and City Attorney or special counsel fees. Grantee shall reimburse such costs and expenses within 30 days after receipt from the City of an itemized statement setting forth such additional costs and expenses. (Ord. 906 § 1, 1991)
5.12.080 Application – Contents.
The application for issuance of a franchise, or for transfer or renewal of a franchise, shall contain the following information, as applicable:
(A) The name and principal business address of the applicant, and the exact name, including any fictitious business name, if applicable, under which the cable television system is to be operated.
(1) If the applicant is a general partnership or a joint venture, the name and address of each partner or joint venturer shall be set forth, and there shall be submitted a copy of any partnership or joint venture agreement, certified as true and correct by a responsible managing officer of the applicant.
(2) If the applicant is a limited partnership, there shall be submitted a copy of the limited partnership agreement, if any, and the certificate of limited partnership as filed with the County Clerk, which documents shall be certified as true and correct by a responsible managing officer of the applicant.
(3) If the applicant is a corporation, or a partner of any partnership or joint venture is a corporation, then the name of the corporation shall be set forth exactly as shown in the articles of incorporation, together with any authorizations to issue or transfer stock, as well as proof that said corporation is in good standing and, if a foreign corporation, duly authorized to transact business in the state of California. A corporate applicant shall also submit a list of the names and addresses of all officers, directors and principal management employees, and of all persons having a legal or equitable ownership interest in 10 percent or more of the applicant’s voting stock. The names and addresses of parent and subsidiary companies shall also be submitted.
(B) A resume of the prior business history of applicant, including the experience of applicant in constructing, operating and maintaining a cable television system.
(C) A description of the education and business background of each officer, director and managing employee of the applicant.
(D) A current audited financial statement of applicant prepared by a certified public accountant, evidencing applicant’s financial status and financial ability to undertake and complete the construction or reconstruction, operation and maintenance of a cable television system.
(E) A description of the cable television system proposed to be constructed, reconstructed, operated and maintained by the applicant and the schedule therefor; the proposed location of such system and its various components, the manner in which applicant proposes to construct, reconstruct, maintain and operate the same; and the extent and manner in which existing or future poles or other facilities of public utilities will be used for such system.
(F) A description of the existing or proposed public streets and public places within which applicant seeks authority to construct, reconstruct, operate and maintain any cable television system equipment or facilities; a description of the equipment or facilities proposed to be constructed, reconstructed, operated or maintained therein; and the proposed specific location thereof.
(G) A map delineating the proposed franchise service area within which applicant proposes to provide cable television services, and the location of any proposed or existing antenna site and local business office.
(H) A statement or schedule of proposed rates and charges to subscribers for installation and services, and a copy of any proposed service agreement between the applicant and its subscribers.
(I) A copy of any contract, if existing, between the applicant and any public utility providing for the use of facilities of such public utility, such as poles, lines or conduits.
(J) A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any person, firm or corporation with respect to the proposed franchise or the proposed cable television system operation. If a franchise is granted to a person, firm or corporation posing as a front or alter ego for another person, firm or corporation, and such information is not disclosed in the application, the franchise shall be deemed void and of no force and effect.
(K) A statement signed by a responsible managing officer of the applicant indicating whether any officer, director or principal management employee:
(1) Has ever been convicted or held liable for acts involving moral turpitude (including, but not limited to, charges brought by any federal or state agency, or violations of any tax or securities law), or is presently subject to any indictment, investigation or complaint charging such acts;
(2) Has ever had a judgment in an action for fraud, deceit or misrepresentation entered against him or her by any court of competent jurisdiction; or
(3) Has pending any legal claim, lawsuit or administrative proceeding arising out of or involving a cable television system.
(L) Any additional information that the City reasonably deems to be necessary in evaluating the technical, financial and legal capabilities of the applicant. (Ord. 906 § 1, 1991)
5.12.090 Solicitation of franchise applications.
Notwithstanding the provisions of PMC 5.12.070, the Council may, by advertisement or any other means, solicit applications for cable television system franchises, and may determine or fix any date upon or after which the same shall be received by the City, or the date before which the same must be received, or the date after which the same shall not be received, and may make any other determinations and specify any other times, terms, conditions, or limitations respecting the solicitation and receipt of such applications. (Ord. 906 § 1, 1991)
5.12.100 Review, report and setting for public hearing.
(A) Upon receipt of any application for a franchise, whether submitted pursuant to PMC 5.12.070 or 5.12.090, the application shall be referred to the City Manager for a report and recommendations concerning such application.
(B) Upon receipt of the City Manager’s report and recommendations, the City Clerk shall set a time and date for a hearing by the Council on the application. (Ord. 906 § 1, 1991)
5.12.110 Notice of hearing.
Not less than 15 days before the hearing, the City Clerk shall give to the applicant notice in writing of the time, date and place of hearing. The City Clerk shall serve such notice upon the applicant, either by first class mail, postage prepaid, or by personal delivery. (Ord. 906 § 1, 1991)
5.12.120 Posting and publishing notice.
Not less than 15 days prior to the hearing, the City Clerk shall cause a notice to be posted in three places within the area proposed to be served by the applicant stating the time, date and place of the hearing. The City Clerk shall publish in a newspaper of general circulation distributed within the area proposed to be served, and pursuant to Section 6063 of the Government Code, the same notice as is required to be posted. (Ord. 906 § 1, 1991)
5.12.130 Comments by interested persons.
At any time after the filing of an application as provided in this chapter, and prior to the hearing thereon, any interested person may file with the City Clerk written comments, protests, or suggestions relating to the granting of the franchise, or to any proposed terms and conditions of the franchise. (Ord. 906 § 1, 1991)
5.12.140 Conduct of the hearing.
At the time and place set for the hearing, or at any continuation thereof, the Council shall hear the applicant, who may present any relevant evidence to show why the franchise should be granted, or why certain terms or conditions should or should not be imposed on such franchise if granted. The Council shall also receive testimony or statements from other persons who may attend the hearing. (Ord. 906 § 1, 1991)
5.12.150 Decision after hearing.
(A) Within 30 days after the close of the hearing, and based upon the evidence received at the hearing, the Council shall make a decision as to whether the application should be granted, and, if granted, subject to what conditions. The Council may grant one or more franchises, or may decline to grant any franchise. The Council shall send a copy of its decision to the applicant.
(B) The award of any franchise by the Council may be made on the basis of experience and financial responsibility of the applicant, plus any other consideration that will safeguard the local public interest. (Ord. 906 § 1, 1991)
5.12.160 Franchise renewal.
(A) A franchise renewal granted hereunder shall be for the term specified in the franchise agreement. The term shall commence on the effective date of the ordinance authorizing the renewal or on the date specified in that ordinance as the effective date of renewal.
(B) The following renewal procedures shall be applicable:
(1) An application for renewal of the franchise shall be filed in accordance with applicable law.
(2) The application for renewal shall be considered by the Council at a duly noticed public hearing. Mailed notice of the hearing shall be given to the grantee at least 15 days prior to the hearing. The determination of the Council granting or denying renewal shall be in writing and shall include findings as to the reason for the determination.
(3) The City may condition renewal upon compliance with any amendments to this chapter and applicable federal and state law. Renewal may be denied upon any of the following grounds; provided, that the grantee has first been given notice and opportunity to cure any deficiency in operation or any violation of the grantee’s obligations under this chapter or the franchise agreement:
(a) The grantee lacks the financial, legal or technical ability to provide the services, facilities and equipment as set forth in its application for renewal.
(b) The grantee’s proposal is not adequate or reasonable to meet the future cable-related needs and interests of the community, taking into account the technical and financial feasibility of meeting such needs and interests.
(c) The grantee has not been in substantial compliance with the terms and conditions of the existing franchise, this chapter, or applicable federal or state law.
(d) The quality of the service provided by the grantee, including signal quality, billing practices, and responses to subscriber complaints, has not been satisfactory or reasonable in light of community needs.
(C) If the grantee does not accept a franchise renewal granted pursuant to this section within 90 days of the determination granting such renewal, the franchise shall terminate on the expiration date set forth in the existing franchise.
(D) If an application for renewal hereunder is denied by the City, the grantee shall be afforded the procedural protections and right of appeal contained in Section 626 of the Cable Communications Policy Act of 1984. (Ord. 906 § 1, 1991)
5.12.170 Standards for minimum service and consumer protection.
Standards for minimum service and standards governing consumer protection, including grantee’s response to subscriber complaints, which standards are not otherwise provided for in this chapter, may be specified in the franchise agreement. Grantee shall comply with all such standards in the operation of the cable television system. (Ord. 906 § 1, 1991.)
5.12.180 Franchise fee.
(A) Following the issuance and acceptance of the franchise, grantee shall pay to the City a franchise fee of five percent of the annual gross receipts, as defined herein, at such times and in accordance with such procedures as may be set forth in the franchise agreement.
(B) The grantee shall file with the City’s Director of Finance, at a time specified in the franchise agreement but not later than 90 days after the expiration of any calendar year or portion thereof during which the franchise is in force, a financial statement prepared by a certified public accountant, or other qualified person satisfactory to the City, setting forth in detail the annual gross receipts of grantee during the preceding calendar year or portion thereof. It shall be the duty of the grantee to pay to the City, within 15 days after the time for filing such financial statement, any unpaid balance of the franchise fee for the calendar year or portion thereof covered by such statement.
(C) The City shall have the right to inspect the grantee’s records showing the annual gross receipts on which its franchise fee is computed and the right of audit and recomputation of any and all amounts paid under this chapter. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under this chapter or for the performance of any other obligation hereunder.
(D) Upon any holding over after expiration or other termination of any franchise granted hereunder, without the express written consent of the City, the grantee shall pay to the City such liquidated damages or other monetary penalties as may be specified in the franchise agreement. (Ord. 906 § 1, 1991)
5.12.190 Security for grantee’s obligations.
The franchise agreement between the City and the grantee of a cable television system franchise may include terms and provisions relating to one or more, or any combination of, the following forms of security to guarantee performance of the grantee’s obligations:
(A) Security Fund.
(1) The City may require grantee to deposit into an interest-bearing bank account, established or approved by the City, a sum established by the City as a security fund. This sum shall be maintained on deposit throughout the term of the franchise, and all interest thereon shall be payable to grantee.
(2) The security fund shall be available to City to satisfy any and all claims, penalties, liens, fees, payments, costs, damages, or taxes due City from grantee which arise by reason of construction, operation, or maintenance of the cable television system.
(3) Grantee may withdraw any interest accrued on the security fund at any time. However, during the existence of the security fund, grantee shall not withdraw any part of the principal amount without the prior written consent of the City.
(4) Subject to City approval, these security fund requirements may be satisfied by an irrevocable letter of credit in favor of the City and in a form approved by City.
(5) After notice and hearing requirements specified in this chapter have been satisfied, if the grantee fails or refuses to pay to the City any amounts due under the terms and provisions of this chapter or the franchise agreement, the City may thereafter withdraw from the security fund the amount thereof, plus accrued interest and penalties. Upon such withdrawal, the City shall give written notice to grantee of the amount and date of withdrawal.
(6) Within 30 days after receipt of written notice from the City to grantee that any amount has been withdrawn from the security fund by the City to satisfy any of grantee’s obligations specified in subsection (A)(2) of this section, the grantee shall deposit sufficient moneys to restore the security fund to the amount required by the franchise agreement.
(7) Any security fund established by a franchise agreement shall become the property of the City if the franchise is revoked for cause by reason of any violation of the grantee as specified in PMC 5.12.310(B)(6). Within 90 days after expiration of the term of the franchise, grantee shall be entitled to the proceeds of the security fund then on deposit; provided, however, that grantee is not then in default of its obligations under the franchise agreement.
(8) The rights reserved to the City with respect to the security fund shall be in addition to all other rights of the City pursuant to this chapter and the franchise agreement; and the City’s exercise of rights with respect to the security fund shall not constitute an election of remedies or a waiver of any other rights the City may have.
(B) Performance Bond.
(1) Concurrently with grantee’s acceptance of the grant of a new franchise, or the renewal of an existing franchise, either of which requires significant construction or reconstruction of the cable television system, and prior to the commencement by grantee of any such work, the City may require the grantee to file with the City Clerk a performance bond in such form and in such amount as may be specified in the franchise agreement.
(2) Any performance bond so filed shall be in a form approved by the City Attorney and may be reduced in principal amount or exonerated upon completion and City approval of all work of construction or reconstruction required by the franchise agreement. (Ord. 906 § 1, 1991)
5.12.200 Promotion of local cable usage.
(A) In connection with any franchise granted, City shall have the right to establish a commission, committee, association, corporation or other entity to receive and allocate support funds, facilities, equipment or other consideration to be provided by grantee or other sources to develop, provide and manage public, educational and governmental access facilities.
(B) Grantee’s obligations to support or promote PEG access facilities, or to provide channel capacity, cabling, interface equipment or other technical assistance, shall be specified in the franchise agreement. (Ord. 906 § 1, 1991)
5.12.210 Design, construction and maintenance requirements.
(A) The property of grantee to be constructed and operated under the franchise shall be constructed of first-class materials in a good and workmanlike manner and shall be maintained at all times in good working condition.
(B) Subject to any density requirements set forth in the franchise agreement, grantee shall design and construct the cable television system to pass every single-family dwelling unit, multiple-family dwelling unit, hospital, rest-home, boarding house, school, commercial facility, institutional and governmental building within the designated franchise service area.
(C) After activating trunk cables to establish service for any area, grantee shall provide cable service to any requesting subscriber within that area not later than 30 days from the date of request.
(D) The grantee shall not deny access to cable service to any group of potential residential cable subscribers because of the income of the residents of the local area in which the group resides; provided, however, that grantee shall not be required to build a line extension to a residence if grantee reasonably demonstrates that it is too remote and that the cost to wire is substantially above the average cost of providing cable television service within other areas of the City.
(E) Grantee shall not construct or install any poles, conduits or other system facilities within City streets until the grantee has secured all necessary permits, approvals or other authorization from the City or the state, and has obtained any required consent from the Federal Aviation Administration to erect and maintain antennas for the operation of the cable television system.
(F) No poles or attachments thereto shall be erected or maintained by grantee in any public street or private easement in which there then exists or is being erected a pole line of any public or private entity engaged in service to the public as an electric or telephone utility, and such pole line is or will be reasonably available for use by the grantee pursuant to a pole line rental agreement.
(G) In those areas of the City where transmission or distribution facilities of all public utilities providing telephone or electric power service are underground, the grantee shall likewise construct and maintain its transmission or distribution facilities underground. Subdividers or developers shall be required by the City to provide each subdivision with all trenching, conduit and miscellaneous substructures which may be necessary for the installation of cable television system cables, wires and similar equipment, all without charge to grantee.
(H) In those areas of the City where grantee’s cables are located on the aboveground transmission or distribution facilities of a public utility providing telephone or electric power service, and if such public utility facilities or any part thereof are subsequently placed underground, then the grantee shall likewise reconstruct, operate and maintain its transmission or distribution facilities underground.
(I) Amplifiers and other electrical facilities to service underground cables may be pad-mounted.
(J) If any portion of a street is damaged by reason of the installation or maintenance of any facility constructed under a franchise, the grantee shall, at its sole expense, immediately following written or oral notification thereof, repair such damage and put such street in as good condition as it was before such damage, to the satisfaction of the City Manager or his designee. Verbal notification will be confirmed by the City in writing within 48 hours.
(K) The grantee of the cable television system franchise shall make lockboxes available to subscribers without charge.
(L) Grantee shall not remove any tree located on public property without the prior consent of the City. Grantee may trim trees located on public property, without the City’s prior written consent, where such trimming is necessary to maintain the integrity of the cable television system. City shall have the right to undertake any tree removal or tree trimming requested by grantee at grantee’s expense.
(M) Grantee shall comply with all applicable building codes and permit procedures of the City. City shall be entitled to charge reasonable permit and inspection fees to recover all inspection costs attributable to construction or reconstruction of the cable television system.
(N) Grantee shall, at its expense, protect, support, temporarily disconnect, relocate or remove from any City street or public place any property of the grantee when so directed by the Director of Public Works upon reasonable advance written notice to the grantee, by reason of traffic conditions, public safety, street vacation, freeway and street construction or realignment, grade separation, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signals, tracks or any other structures, facilities or improvements undertaken or authorized by the City or other public agencies having jurisdiction; provided, however, that in all such cases grantee shall have the right to abandon its property in place, in accordance with the applicable provisions of PMC 5.12.330.
(O) At the request of any person to whom a building permit or a moving permit is issued by the City, grantee shall temporarily remove, raise or lower its wires to facilitate the construction or moving of a structure. The expense of any such temporary removal, raising or lowering of wires shall be borne by the person requesting the same, and grantee shall be authorized to require payment in advance. The grantee shall be given not less than seven days’ advance written notice to arrange for such temporary wire modifications.
(P) All transmission lines, equipment and structures shall be installed and located so as to minimize interference with the rights and convenience of property owners. The grantee shall, at all times, use ordinary care and shall utilize commonly accepted methods and devices to prevent failures and accidents which may cause damage, injuries or nuisances to the public. Suitable barricades, flags, lights, flares and other devices shall be used at such times and places as are reasonably required for the safety of the public. Poles or other fixtures placed in any street or public way by the grantee shall be placed so as not to interfere with normal pedestrian and vehicular traffic.
(Q) City shall have the right to inspect grantee’s property, and all construction and installation work performed by grantee, and to perform such tests as it may deem necessary in order to ensure compliance with the terms and provisions of the franchise agreement, this chapter, and other applicable laws, ordinances and regulations. (Ord. 906 § 1, 1991)
5.12.220 Technical standards.
(A) Grantee shall construct, operate and maintain its cable television system in compliance with all laws, ordinances, construction standards, governmental requirements, FCC technical guidelines and standards, and any other detailed guidelines or standards submitted by the grantee as part of its application and approved by the City. Any modification of FCC technical guidelines or standards shall, to the extent applicable, be deemed a part of the franchise as of the effective date of the modification.
(B) During the term of the franchise, grantee shall maintain FCC technical guidelines, standards and quality of service as set forth in this chapter and the franchise agreement. Should the City determine that the grantee has failed to maintain FCC technical guidelines, standards or quality of service, and should the City specifically identify improvements to be made, the grantee shall make such improvements. Failure to make such improvements shall constitute a material breach of the franchise, as provided in PMC 5.12.280.
(C) The franchise agreement entered into by City and grantee may contain technical and signal quality standards exceeding the standards required by the FCC. If it becomes necessary to do so by virtue of preemption by the FCC or otherwise, grantee shall cooperate with City and execute all documents necessary to obtain a waiver of FCC technical standards so as to facilitate implementation of agreed-upon standards.
(D) Unless the cable television system operated by grantee incorporates technology to prevent unwanted reception of audio and video signals from occurring under normal operating conditions, grantee shall provide a written statement to all new subscribers advising them that audio or video signals, or both, may be present on certain channels to which they do not subscribe. (Ord. 906 § 1, 1991)
5.12.230 Rates and charges.
(A) If federal laws or regulations are hereafter amended so as to permit City to regulate the grantee’s rates and charges for service to subscribers, City reserves the right and authority to regulate and control such rates and charges to the extent authorized by federal law and to amend this chapter to set forth a procedure for reviewing and approving requests for increases in rates and charges.
(B) Grantee shall provide all subscribers, and the City, with not less than 30 days’ prior written notice of any proposed changes in rates and charges and any proposed reduction or augmentation of programming services. (Ord. 906 § 1, 1991)
5.12.240 Indemnification.
Grantee shall indemnify, defend and hold harmless City, its officers, agents and employees, from any liability, claims, damages, costs or expenses, including reasonable attorney’s fees, arising from injury to persons or damages to property proximately caused by any conduct undertaken by the grantee, its agents, employees, or subcontractors, by reason of the franchise. Grantee shall at its sole cost and expense, upon demand of City, appear in and defend any and all suits, actions or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative or otherwise, instituted by third persons or duly constituted authorities, against or affecting City, its officers, agents or employees, and arising out of or pertaining to the exercise of rights arising under the franchise. (Ord. 906 § 1, 1991)
5.12.250 Insurance requirements.
(A) On or before the commencement of franchise operations, the grantee shall obtain policies of liability, workers’ compensation and property insurance from companies authorized to transact business in this state by the California Insurance Commissioner.
(B) The policy of liability insurance shall:
(1) Be issued to grantee and name City, its officers, agents and employees, as additional insureds.
(2) Indemnify City against all liability for personal and bodily injury, death and damage to property arising from activities conducted and premises used pursuant to the franchise agreement by providing coverage therefor, including the following:
(a) Negligent acts or omissions of grantee or its agents, servants and employees, committed in the conduct of franchise operations; and
(b) Use of motor vehicles.
(3) Provide a combined single limit for comprehensive general liability and comprehensive automobile liability insurance in the amount provided for in the franchise agreement.
(4) Be subject to the review and approval of the City Attorney.
(C) The policy of Workers’ Compensation Insurance shall be in such amount and shall provide such coverage as may be required by the applicable provisions of the California Labor Code.
(D) The policy of property insurance shall provide fire insurance with extended coverage, as well as burglary and theft insurance, on the inventory, trade fixtures, furnishings and equipment to be used by grantee in the conduct of franchise operations in an amount specified in the franchise agreement which is adequate to enable grantee to resume franchise operations following the occurrence of any of the risks covered by said insurance.
(E) Concurrently with grantee’s acceptance of the grant of a new franchise, or the renewal of an existing franchise, grantee shall file with the City Clerk either certified copies of the policies or a certificate of insurance for each of the required policies, executed by the insurance carrier, and certifying that the policy is in force. The following shall be provided with respect to each such policy:
(1) The named insured and any additional insureds;
(2) The policy number;
(3) The date upon which the policy became or will become effective and the date upon which it will expire;
(4) The type and amount or limits of coverage provided by the insurance;
(5) A description of all endorsements that form a part of the policy;
(6) An endorsement providing that written notice shall be given to City at least 30 calendar days prior to termination, cancellation or reduction in coverage of the policy.
(F) If grantee fails to maintain any of the above-described policies in full force and effect, City shall have the right to procure the required insurance and recover the cost thereof from grantee. The City shall also have the right to terminate and revoke the franchise upon grantee’s failure to provide evidence of insurance on or before the commencement of franchise operations or, during the term of the franchise, within 30 days after receipt of written notice requesting such evidence of insurance.
(G) The requirements as to the types and limits of insurance to be maintained by grantee are not intended to and shall not in any manner limit or qualify grantee’s liabilities and obligations under the franchise agreement or this chapter. (Ord. 906 § 1, 1991)
5.12.260 Franchise nontransferable.
(A) Consummation of the following transactions related to any franchise granted by the Council, or involving any grantee of a franchise, shall require the prior consent of the Council expressed by resolution, which consent shall not be unreasonably withheld, and then only under such conditions as may therein be prescribed:
(1) The sale, transfer, lease, assignment or other disposition of the franchise, in whole or in part, whether voluntary or involuntary; provided, however, that such consent shall not be required for a transfer in trust, mortgage or other hypothecation for the purpose of securing an indebtedness of the grantee relating to the construction, reconstruction, operation or maintenance of the cable television system. A transfer, assignment or other disposition of a franchise shall be made only by an instrument in writing, a duly executed copy of which shall be filed in the office of the City Clerk within 30 days after Council adoption of the resolution consenting to such transfer, assignment or other disposition.
(2) Any merger, consolidation, reorganization, business combination, or other transaction wherein or whereby 25 percent or more of the ownership interests in the grantee will be affected and control of the grantee will change or be subject to change. As used herein, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the grantee. A duly executed copy of any written instrument evidencing the closing and consummation of any such transaction shall be filed in the office of the City Clerk within 30 days after Council adoption of the resolution consenting to such transaction.
(B) In determining whether it shall consent to any transfer, assignment or other disposition of the franchise, or to any transaction affecting the control of the grantee, City may evaluate the financial, technical, legal and other qualifications of the proposed transferee or controlling person. Grantee shall ensure that the proposed transferee or controlling person submits an application, in the form required of an initial franchise applicant, not less than 60 days prior to the closing date of the proposed transaction. After considering the financial, technical, legal and other qualifications of the proposed transferee or controlling person, the Council may by resolution authorize the proposed transaction, subject to such conditions as may be in the public interest. City’s consent to any such transaction shall not be unreasonably denied or delayed.
(C) Grantee and its proposed transferee or controlling person shall be jointly and severally responsible for reimbursement to the City of all costs and expenses reasonably incurred in processing and evaluating the application related to the proposed transaction, as provided for in PMC 5.12.070. (Ord. 906 § 1, 1991)
5.12.270 Reports and records required of grantee.
(A) At the request of the City, grantee shall provide to the City a copy of the written report of the results of all annual proof of performance tests conducted pursuant to FCC standards and requirements.
(B) At the request of the City, and within 90 days after the end of each calendar year, grantee shall submit a written annual report in a form approved by the City. The annual report shall include, without limitation, the following information:
(1) A summary of the previous year’s activities in development of the cable television system, including, but not limited to, cable services commenced or discontinued during the previous year, and data concerning subscriber participation in each class or category of service;
(2) A statement of construction costs incurred for component categories of the cable television system;
(3) A list of grantee’s current officers, directors, and principal management personnel;
(4) A list of those stockholders or other equity investors who each own 10 percent or more of the grantee’s voting stock;
(5) A map of those areas where additional cable television service is planned and a schedule describing the anticipated implementation;
(6) Maps or lists indicating where any type of special cable service is available;
(7) The numbers of single-family homes passed, single-family subscribers, multiple-dwelling units passed, multiple-dwelling unit subscribers, commercial subscribers, additional cable television outlets, and saturation;
(8) A description of any expansion of the cable television system during the previous year, including a measure, in miles of cable, of such expansion. Expansions to new developments shall be identified;
(9) Copies of blank forms of current subscriber agreements;
(10) Steps taken to ensure that the privacy rights of individuals are being protected, as required by the provisions of this chapter;
(11) An opinion survey report which identifies subscribers’ satisfaction or dissatisfaction with services offered by grantee. The surveys required to prepare said report shall be conducted by grantee in conformity with such requirements, including supervision, as City may prescribe.
(C) Concurrently with the submission of the annual report, grantee shall also submit to City an annual plant survey report. The report shall include, but not be limited to, an engineering evaluation, including suitable electronic measurements, conducted in conformity with such requirements, including supervision, as City may prescribe. The report shall be in sufficient detail to enable City to ascertain that the FCC technical guidelines or standards and those of the franchise are achieved and maintained. Should the City determine that reasonable grounds exist for concluding that the technical performance of the cable television system is inadequate, then, at the City’s request, grantee and the City shall agree upon the appointment of a qualified independent engineer to evaluate the technical performance of the cable television system. The cost of such evaluation shall be borne by grantee.
(D) Grantee shall submit to City copies of all pleadings, applications and reports submitted by grantee to, as well as copies of all decisions, correspondence and actions by, any federal, state or local court, regulatory agency, or other governmental body related to grantee’s cable television operations within the franchise service area. Grantee shall submit such documents to City simultaneously with their submission to such court, agency or body, or within five days after their receipt from such court, agency or body. Information protected by law from disclosure and so designated by grantee, which is submitted to City, shall be retained in confidence by City and its authorized agents and shall not be made available for public inspection.
(E) During the term of the franchise, and at the request of the City, grantee shall submit to City a quarterly summary of all complaints received in the previous calendar quarter which resulted in a service call, identifying the number and nature of complaints and their disposition.
(F) Grantee shall at all times maintain a complete set of plans and “as-built” maps showing the exact location of all cable television system facilities and equipment installed or in use in the City, excluding subscriber service drops and equipment provided in subscribers’ homes. The plans and maps shall be available to the City for inspection and copying during regular business hours.
(G) Grantee shall prepare and submit to City such other information or reports with respect to its operations, transactions or property as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the City or its officers in connection with the franchise. Such information or reports shall be in such form and submitted at such times as City may reasonably request.
(H) All documents and reports submitted to the City pursuant to this section, except those protected by law from disclosure, shall be available for public inspection in the City’s offices during normal business hours.
(I) All documents and reports required under this section or any provisions of this chapter shall be prepared and submitted at the sole expense of grantee. (Ord. 906 § 1, 1991)
5.12.280 Annual review of system performance and quality of service.
(A) Each year during the term of the franchise, if requested by the City, grantee and the City shall meet publicly to review system performance and quality of service.
(B) Reports submitted by grantee pursuant to the provisions of this chapter shall be utilized as the basis for review. In addition, any subscriber may submit comments or complaints during any review meeting, either orally or in writing, and these shall be considered. Within 30 days after the conclusion of a system performance review meeting, City may issue findings with respect to the adequacy of system performance and quality of service.
(C) If violations are identified, the City may direct grantee to correct the violations within a reasonable period of time. Failure of grantee, after due notice, to correct the violations within a reasonable period of time shall be considered a material breach of the franchise, and City may impose any appropriate penalty authorized by this chapter or the franchise agreement. (Ord. 906 § 1, 1991)
5.12.290 Interim review of system performance and quality of service.
(A) When numerous subscriber complaints are received, or where there exists other evidence which, in the judgment of the City, casts reasonable doubt on the reliability or quality of cable television service, the City shall have the right to compel the grantee to test, analyze and report on the performance of the system in order to protect the public against substandard cable service. Such test or tests shall be made and the report thereof shall be delivered to the City no later than 14 days after the City notifies the grantee that it is exercising such right. Such report shall include the following information: the nature of the complaints which precipitated the special tests; what system component was tested; the equipment used and procedures employed in said testing; the results of such tests; and the procedures by which such complaints were resolved. Any other information pertinent to the test or tests shall be set forth.
(B) If so requested by the City, the tests and analyses shall be supervised, at the expense of the grantee, by a professional engineer who is not affiliated with the grantee and who is mutually acceptable to both parties. The engineer shall sign all records of such tests and forward such records to the City with a report interpreting the results of the tests and recommending actions to be taken. (Ord. 906 § 1, 1991)
5.12.300 Special evaluation sessions.
The City may hold special evaluation sessions at any time during the term of the franchise. The grantee shall be notified of the place, time and date thereof and the topics to be discussed. Such sessions shall be open to the public and advertised in a newspaper of general circulation at least 15 days prior to the scheduled date. (Ord. 906 § 1, 1991)
5.12.310 Remedies for material franchise violations.
(A) Prior to imposing any remedy specified in this section, City shall give grantee written notice and the opportunity to be heard on the matter, in accordance with the following procedure:
(1) The City shall first notify grantee in writing, by certified mail, of the material franchise violation and demand correction within a reasonable time. If grantee fails to correct the material violation within the time prescribed, the City shall then give grantee written notice of not less than 15 days of a public hearing to be held by the Council. The notice shall specify the material violation alleged to have occurred.
(2) At the public hearing, the Council shall hear and consider all relevant evidence, and thereafter render findings and its decision.
(3) If the Council finds that grantee has corrected the material violation, or that no material violation has occurred, the proceedings shall terminate and no penalty shall be imposed.
(4) If the Council finds that the alleged material violation exists and that grantee has not corrected the same in a satisfactory manner, the Council may impose one or more of the remedies specified herein as, in its discretion, may be deemed appropriate under the circumstances.
(B) One or more, or any combination of the following remedies may be authorized by the Council to be imposed for grantee’s violation of its obligations under this chapter or the franchise agreement:
(1) The City may elect to cure the material violation and recover the actual cost thereof from any security fund or performance bond required under the terms of the franchise agreement;
(2) The City may assess against grantee liquidated damages for any material violation in an amount specified in the franchise agreement. By acceptance of a franchise hereunder, grantee agrees to pay such assessment, which may be levied against any security fund or performance bond required under the terms of the franchise agreement. Such assessment shall not constitute a waiver by City of any other right or remedy it may have under the franchise agreement or under applicable law, including without limitation, its right to recover from grantee such additional damages, losses, costs and expenses, including actual attorneys’ fees, as may have been suffered or incurred by City by reason of or arising out of the material violation;
(3) For any violation which is determined to have materially graded the quality of service, the grantee may be ordered to issue rebates in an amount to be determined by the City, to provide monetary relief substantially equal to the reduced quality of service resulting from grantee’s violation;
(4) Where the violation is of a technical nature, or involves noncompliance with FCC rules and regulations, the City may request the FCC to enforce its rules and levy a fine for the violation as provided in the FCC rules;
(5) Where the violation is determined to constitute or involve any of the following, the City shall have the right to terminate and revoke the franchise and all rights and privileges associated with it:
(a) Grantee’s failure to provide, or to maintain in full force and effect, the insurance coverage, performance bond or security fund in the amounts specified in the franchise agreement.
(b) Grantee’s continuing violation of any final order or ruling of any regulatory agency having jurisdiction over the grantee relative to the franchise.
(c) Grantee’s willful attempt to evade compliance with any provisions of this chapter or the franchise agreement, or to practice any fraud or deceit upon the City or subscribers.
(d) Grantee’s persistent failure or refusal to remedy one or more violations for which lesser penalties have previously been imposed.
(e) Grantee’s insolvency, inability to pay its debts, or adjudication as a bankrupt.
(f) Grantee’s falsification of information set forth in its application for a franchise or renewal of a franchise, or in any report required to be submitted to the City pursuant to this chapter.
(g) Grantee’s denial of cable television service to any group of residents within the designated franchise service area because of the income of the residents of the local area in which the group resides.
(6) Termination and revocation of the franchise shall not affect City’s right to pursue any other remedy under this chapter, the franchise agreement, or applicable law. (Ord. 906 § 1, 1991)
5.12.320 Force majeure – Grantee’s inability to perform.
If grantee’s performance of any of the terms, conditions or obligations required by this chapter or by a franchise agreement authorized hereunder is prevented by a cause or event not within grantee’s control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof; provided, however, that such inability to perform shall not relieve grantee from the obligations imposed by this chapter pertaining to refunds and credits for interruptions in service. For the purpose of this section, causes or events not within the control of grantee shall include acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires, but shall not include financial inability if the grantee to perform, failure of the grantee to obtain any necessary permits or licenses from the City or other governmental agencies, failure of the grantee to obtain the right to use the facilities of any public utility or the breach of contractual obligations by those from whom grantee obtains supplies, services or equipment. (Ord. 906 § 1, 1991)
5.12.330 Abandonment and removal of grantee’s property.
(A) If the use of grantee’s property or any portion thereof is discontinued for a consecutive 12-month period, grantee shall be deemed to have abandoned such property.
(B) The City, upon such terms as City may impose, may give grantee permission to abandon, without removing, any underground facilities or equipment laid, constructed, operated or maintained under the franchise. Unless such permission is granted, the grantee shall remove all abandoned underground facilities and equipment upon receipt of written notice from City and, at the time such facilities and equipment are removed, shall restore the street to its former state, so as not to impair its usefulness. In removing its plant, structures and equipment, grantee shall refill, at its own expense, any excavation made by it and shall leave all public ways and places in as good condition as that prevailing prior to such removal and without affecting any electrical or telephone cable wires, poles, or attachments. The City shall have the right to inspect and approve the condition of the public ways, public places, cables, wires, attachments and poles prior to and after removal. The indemnity and insurance provisions of the franchise agreement, and any surety fund or performance bond required therein shall, unless otherwise provided in the franchise agreement, continue in full force and effect during the period of removal and until full compliance by grantee with the terms and conditions of this subsection.
(C) Upon abandonment of any of grantee’s underground property in place, the grantee, if required by the City, shall submit to the City an instrument, satisfactory in form to the City Attorney, transferring to the City the ownership of the underground property as abandoned.
(D) Upon the expiration of the term for which the franchise is granted, or upon its termination or revocation as provided for herein, the City shall have the right to require grantee to remove, at its own expense, all aboveground portions of the cable television system from all streets and public ways within the City. (Ord. 906 § 1, 1991)
5.12.340 Restoration by City – Reimbursement of costs.
Upon grantee’s failure to complete any work required herein or by any other law or ordinance, and after compliance with all notice and hearing requirements of this chapter, City may cause such work to be done. Grantee shall reimburse City the costs thereof within 30 days after receipt of an itemized list of such costs, or City may recover such costs from any security fund or performance bond provided by grantee pursuant to the franchise agreement. (Ord. 906 § 1, 1991)
5.12.350 Extended operation and continuity of services.
Upon either the expiration or revocation of the franchise, the City shall have discretion to permit grantee to continue to operate the cable television system for an extended period of time not to exceed 12 months from the date of such expiration or revocation, unless further extended by resolution of the Council. The grantee shall, on behalf of its successor-in-interest, continue to operate the system under the terms and conditions of this chapter and the franchise agreement and to provide the regular subscriber services and any other services that may be provided at that time. All subscribers shall continue to receive all available services, provided their financial and other obligations to grantee are honored. The grantee shall use all reasonable efforts to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances, including operation of the system during any transitional period following franchise expiration or revocation. (Ord. 906 § 1, 1991)
5.12.360 Receivership and foreclosure.
(A) A franchise granted pursuant to this chapter shall, at the option of City, terminate 120 days after the appointment of a receiver, or trustee, to take over and conduct the business of grantee, whether in a receivership, reorganization, bankruptcy or similar action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:
(1) The receiver or trustee, within 120 days after such appointment, shall have fully complied with all the terms and provisions of this chapter and the franchise agreement, and shall have remedied all defaults under the franchise agreement; and
(2) The receiver or trustee, within said 120 days, shall have executed an agreement duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee shall have assumed and agreed to be bound by each and every term, provision and limitation of the franchise agreement.
(B) In the case of a foreclosure or other judicial sale of the plant, property and equipment of grantee, or any part thereof, including or excluding a franchise, City may serve notice of termination upon grantee and the successful bidder at such sale, in which event the franchise granted and all rights and privileges of the grantee thereunder shall terminate 30 days after the service of such notice, unless:
(1) The City shall have approved the transfer of the franchise in the manner provided by this chapter; and
(2) The successful bidder shall have covenanted and agreed with City to assume and be bound by all the terms and conditions of the franchise agreement. (Ord. 906 § 1, 1991)
5.12.370 Rights reserved to City.
(A) In addition to all rights and powers specifically reserved to the City by this chapter, the City reserves to itself every other right and power required to be reserved under the franchise agreement or the Municipal Code, and the grantee by acceptance of a franchise agrees to be bound thereby and to comply with any action or requirement of the City in its exercise of any such right or power.
(B) The City shall have the right to waive any provisions of the franchise agreement, except those required by federal or state regulation, if the City determines (i) that it is in the public interest to do so, and (ii) that the enforcement of such provision will impose an undue hardship on the grantee or the subscribers. To be effective, such waiver shall be in writing and signed by a duly authorized representative of the City.
(C) The City shall have the right to intervene in any suit or proceeding concerning the franchise to which grantee is a party, and grantee shall not oppose such intervention by City.
(D) The City shall have the right during the term of the franchise to require grantee to increase the amounts of any security fund, performance bond or insurance coverage required by the franchise agreement. Increases may be based upon the Consumer Price Index and may be determined in such manner and at such times as may be specified in the franchise agreement.
(E) Nothing herein shall be deemed or construed to impair or affect, in any manner or to any extent, the right of the City to acquire the property of the grantee, either by purchase or through the right of eminent domain, with compensation calculated as provided in Title 7, Chapter 9, Article 4 of the California Code of Civil Procedure, and nothing herein contained shall be construed to contract away, modify or abridge, either for a term of years or in perpetuity, the City’s right of eminent domain. (Ord. 906 § 1, 1991)
5.12.380 Rights of individuals.
(A) Grantee shall not deny service or access, or otherwise discriminate against subscribers, channel users, or residents on the basis of race, color, religion, national origin, age or sex. Grantee shall comply at all times with all applicable federal, state and local laws and regulations, and all executive and administrative orders, relating to nondiscrimination.
(B) Grantee shall strictly adhere to the equal employment opportunity requirements of the FCC and state and local laws and regulations relating thereto, as they now exist or as they may be amended from time to time.
(C) Neither grantee, nor any other person or entity shall, without a subscriber’s consent, tap, or arrange for the tapping, of any cable, line, signal input device, or subscriber outlet or receiver for any purpose other than routine maintenance of the system, polling with audience participation, or audience surveys to support advertising research regarding viewers.
(D) In providing its services and in pursuing any collateral commercial enterprise relating thereto, grantee shall take all necessary steps to prevent the invasion of a subscriber’s or a resident’s right of privacy and other civil rights as defined by applicable law. Grantee shall not, without lawful court order or other legal authority, utilize any interactive two-way equipment or capability of the cable system for unauthorized personal surveillance of any subscriber or resident.
(E) Except as provided for in 47 U.S.C.A. Section 541 (1990 Supplement), no cable, line, wire, amplifier, convertor, or other equipment owned by grantee shall be installed without first securing the permission of the owner of any real property involved.
(F) For interruptions in service of 24 hours or more not attributable to the conduct of the subscriber, grantee shall credit or refund to the subscriber an amount equal to the subscriber’s monthly charge for service multiplied by the ratio of the days of interrupted service to 30 days. When interruptions continue beyond 24 hours, credit allowance shall be given in successive 24-hour multiples.
(G) A subscriber “bill of rights” approved by the City shall be provided by the grantee to each subscriber at such time or time as may be specified in the franchise agreement.
(H) Unless otherwise expressly authorized by state or federal law, neither the grantee, nor its agents, employees, or subcontractors, shall sell or otherwise make available to any person:
(1) Lists of the names and addresses of subscribers;
(2) Any list which identifies the viewing habits of individual subscribers. This shall not prohibit the grantee from providing to other persons composite ratings of subscriber viewing preferences. (Ord. 906 § 1, 1991)
5.12.382 Fee for support of local cable usage.
A fee paid to the City is hereby established for the support of public, educational, and governmental access facilities and activities within the City. Unless a higher percentage is authorized by applicable state or federal law, this fee shall be one percent of a grantee’s gross receipts, as that term is defined above in PMC 5.12.020, or in the grantee’s franchise agreement, or in applicable provisions of state or federal law. This fee is also applicable to a state video franchise holder operating within the City, which shall pay to the City one percent of its gross revenue, as defined in California Public Utilities Code Section 5860. (Ord. 1314 § 1, 2007; Ord. U-1314 § 1, 2007)
5.12.384 Special provisions applicable to holders of state video franchises.
(A) Franchise Fee. A state video franchise holder operating in the City shall pay to the City a franchise fee that is equal to five percent of the gross revenues of that state video franchise holder. The term “gross revenues” shall be defined as set forth in Public Utilities Code Section 5860.
(B) Audit Authority. Not more than once annually, the City may examine and perform an audit of the business records of a holder of a state video franchise to ensure compliance with all applicable statutes and regulations related to the computation and payment of franchise fees.
(C) Customer Service Penalties Under State Video Franchises.
(1) The holder of a state video franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.
(2) The City shall monitor a state video franchise holder’s compliance with state and federal customer service and protection standards. The City will provide to the state video franchise holder written notice of any material breaches of applicable customer service and protection standards, and will allow the state video franchise holder 30 days from receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period will be subject to the following monetary penalties to be imposed by the City in accordance with state law:
(a) For the first occurrence of a violation, a monetary penalty of $500.00 shall be imposed for each day the violation remains in effect, not to exceed $1,500 for each violation.
(b) For a second violation of the same nature within 12 months, a monetary penalty of $1,000 shall be imposed for each day the violation remains in effect, not to exceed $3,000 for each violation.
(c) For a third or further violation of the same nature within 12 months, a monetary penalty of $2,500 shall be imposed for each day the violation remains in effect, not to exceed $7,500 for each violation.
(3) A state video franchise holder may appeal a monetary penalty assessed by the City within 60 days. After relevant evidence and testimony is received, and staff reports are submitted, the City Council will vote to either uphold or vacate the monetary penalty. The City Council’s decision on the imposition of a monetary penalty shall be final.
(D) City Response to State Video Franchise Applications.
(1) Applicants for state video franchises within the boundaries of the City must concurrently provide to the City complete copies of any application or amendments to applications filed with the California Public Utilities Commission. One complete copy must be provided to the City Clerk.
(2) The City will provide any appropriate comments to the California Public Utilities Commission regarding an application or an amendment to an application for a state video franchise.
(E) PEG Channel Capacity. A state video franchise holder that uses the public rights-of-way shall designate sufficient capacity on its network to enable the carriage of at least three public, educational, or governmental (PEG) access channels.
(1) PEG access channels shall be for the exclusive use of the City or its designees to provide public, educational, or governmental programming.
(2) Advertising, underwriting, or sponsorship recognition may be carried on the PEG access channels for the purpose of funding PEG-related activities.
(3) The PEG access channels shall be carried on the basic service tier.
(4) To the extent feasible, the PEG access channels shall not be separated numerically from other channels carried on the basic service tier, and the channel numbers for the PEG access channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law.
(5) After the initial designation of PEG access channel numbers, the channel numbers shall not be changed without the prior written consent of the City, unless the change is required by federal law.
(6) Each PEG access channel shall be capable of carrying a National Television System Committee (NTSC) television signal.
(F) Interconnection. Where technically feasible, a state video franchise holder and incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG access channel programming. Interconnection may be accomplished by direct cable, microwave link, satellite, or other reasonable method of connection. State video franchise holders and incumbent cable operators shall provide interconnection of the PEG access channels on reasonable terms and conditions and may not withhold the interconnection. If a state video franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the City may require the incumbent cable operator to allow the state video franchise holder to interconnect its network with the incumbent’s network at a technically feasible point on the holder’s network as identified by the holder. If no technically feasible point for interconnection is available, the state video franchise holder shall make an interconnection available to the channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state video franchise holder requesting the interconnection unless otherwise agreed to by the parties.
(G) Emergency Alert System and Emergency Overrides. A state video franchise holder must comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the holder’s network. Provisions in City-issued franchises authorizing the City to provide local emergency notifications shall remain in effect, and shall apply to all state video franchise holders in the City for the duration of the City-issued franchise, or until the term of the franchise would have expired had it not been terminated pursuant to subdivision (m) of Section 5840 of the California Public Utilities Code, or until January 1, 2009, whichever is later. (Ord. 1314 § 2, 2007; Ord. U-1314 § 2, 2007)
5.12.390 Violations.
(A) It is unlawful for any person to establish, operate or to carry on the business of distributing to any person in this City any television signals or radio signals by means of a cable television system unless a franchise therefor has first been obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.
(B) It is unlawful for any person to construct, install or maintain within any public street in the City, or within any other public property of the City, or within any privately owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the City, any equipment or facilities for distributing any television signals or radio signals through a
cable television system, unless a franchise authorizing the use of such street or property or area has first been obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.
(C) It is unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable television system within this City for the purpose of taking or receiving television signals, radio signals, pictures, programs, or sound.
(D) It is unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable television system within this City for the purpose of enabling such person or others to receive any television signal, radio signal, picture, program or sound without payment to the owner of said cable television system.
(E) It is unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound. (Ord. 906 § 1, 1991)