Chapter 5.20
CABLE TELEVISION SYSTEMS

Sections:

Article 1. General Provisions

5.20.005    Definitions.

5.20.010    Filing of documents with city clerk.

5.20.015    Equal employment opportunity—Affirmative action.

5.20.020    Severability.

5.20.025    Interpretation of provisions.

Article 2. Franchise

5.20.030    Limitations on grantee liability.

5.20.035    Standards of operation generally.

5.20.040    Rules and regulations—Adoption and amendment.

5.20.045    Rules and regulations—Purposes.

5.20.050    Inspection of records.

5.20.055    Applicability of other provisions.

5.20.060    City acquisition of grantee property—Authority.

5.20.065    City acquisition of grantee property—Property valuation.

5.20.070    City acquisition of grantee property—Equitable price.

5.20.075    City acquisition of grantee property—Procedures.

5.20.080    Controversy—Hearing.

5.20.085    Damages—Due process.

5.20.090    Nonexclusivity.

5.20.095    Telephone facility use.

5.20.100    Uses permitted generally.

5.20.105    Term.

5.20.110    Termination—Grounds.

5.20.115    Termination—Procedures.

5.20.120    Termination—Rights.

5.20.125    Receivership—Effect.

5.20.130    Expiration.

5.20.135    Renewal—Procedures.

5.20.140    Renewal—Decision.

5.20.145    Renewal—Denial.

5.20.150    Renewal—Informal.

5.20.155    Fee.

5.20.160    Hold-harmless agreement.

5.20.165    City use of facilities.

5.20.170    Defense of litigation.

5.20.175    Satisfaction of judgments.

5.20.180    Insurance.

5.20.185    Workers compensation.

5.20.190    Performance bond.

5.20.195    No limitation of liability.

5.20.200    Nontransferable.

5.20.205    Change in control—Procedures.

5.20.210    Change of control—Notice.

5.20.215    Change in control—Approval.

5.20.220    Prompt compliance required.

5.20.225    Transfer by city.

5.20.230    No recourse against city.

5.20.235    Survey of community needs.

5.20.240    Modifications.

5.20.245    Rearrangement, replacement or removal of services—Conditions.

5.20.250    Rearrangement, replacement or removal of services—Rate considerations.

5.20.255    Rearrangement, replacement or removal of services—Prohibited when.

5.20.260    Rearrangement, replacement or removal of services—Commercial impracticability.

5.20.265    Recordkeeping.

5.20.270    Performance testing reports.

5.20.275    Costs to be borne by grantee.

5.20.280    Solicitation.

5.20.285    Annexation—Effect.

Article 3. Construction, Maintenance and Operation

5.20.290    Construction, operation and maintenance generally.

5.20.295    Poles and conduits—Easements.

5.20.300    Poles and conduits—Additional use.

5.20.305    Technical standards.

5.20.310    Local origination equipment.

5.20.315    Public works projects—Grantee cooperation.

5.20.320    Work performed by city.

5.20.325    Property removal for abandonment or noncompliance.

5.20.330    Other permits, licenses and authorizations.

5.20.335    Construction plans and schedules.

5.20.340    Commencement of construction.

5.20.345    Commencement of service.

5.20.350    Time limits for completion.

5.20.355    Intracity network.

5.20.360    Notice of construction work to residents.

5.20.365    Employee identification badges.

5.20.370    Liaison.

5.20.375    Inspections and tests.

5.20.380    Completion notice.

5.20.385    Extensions.

5.20.390    Multiple dwelling units.

5.20.395    Delays—Reduction of franchise term.

5.20.400    Utilization of existing facilities.

5.20.405    Underground construction.

5.20.410    System maps.

5.20.415    Channel capacity.

5.20.420    Government channel.

5.20.425    Underground alert service.

5.20.430    Exemptions for acquisition of existing systems.

5.20.435    Service extensions.

5.20.440    Line extensions.

5.20.445    Interconnection.

5.20.450    System failures.

5.20.455    Notice to new subscribers.

5.20.460    Nondiscrimination.

5.20.465    Continuity of service.

5.20.470    Takeovers—Operation and management.

5.20.475    Complaints and inquiries—Service representatives and office hours.

5.20.480    Complaints—Response and recordkeeping.

5.20.485    Complaints—Tests.

5.20.490    Complaints—Remedies.

5.20.495    Complaints—Resolution.

5.20.500    Refunds.

5.20.505    Service contracts.

5.20.510    Customer service representatives.

5.20.515    Disconnection for cause.

5.20.520    Reconnection.

5.20.525    Converters and terminals.

5.20.530    Policy on obscene programming.

5.20.535    Availability of programming.

5.20.540    Leased access channel allocation.

5.20.545    Subscriber privacy protection.

Article 4. Rates

5.20.550    Billing periods.

5.20.555    Regulation.

5.20.560    Adjustments.

5.20.565    Cost-of-living adjustments.

5.20.570    Services for the hearing-impaired—Nondiscrimination.

5.20.575    Establishment and modification.

Article 1. General Provisions

5.20.005 Definitions.

For the purposes of this chapter, the following terms, phrases, words, abbreviations, and their derivations shall have the meanings given in this section. When not inconsistent with the context, words used in the present tense shall include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number:

“Basic cable service” means the service tier which includes the retransmission of local television broadcast signals for which the lowest monthly service charge is assessed for access to the cable television system for receipt of television programming.

“Cable television system” means a system composed of, without limitation, antenna, cables, wires, lines, towers, wave guides, or any other conductors, converters, equipment, or facilities designed, constructed or wired for the purpose of:

1.    Producing, receiving, amplifying and distributing by coaxial cable audio and/or visual radio, television, electronic or electrical signals to and from persons, subscribers and locations in the franchise area;

2.    Transmitting original cablecast programming not received through television broadcast signals;

3.    Transmitting television pictures, film and video tape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers;

4.    Transmitting and receiving all other signals: digital, voice and audio-visual. Any of the services permitted hereunder to be performed, as described above, shall be those performed by the grantee for subscribers in the operation of a cable television system franchised by the city and not otherwise.

“City” means the city of San Jacinto, a municipal corporation of the state of California, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

“City manager” means the city’s chief administrative officer or any designee thereof. “Council” means the present governing body of the city of San Jacinto or any future board constituting the legislative body of the city.

“Franchise” means and includes any authorization granted under this chapter in terns of a franchise, privilege, permit, license, agreement, or otherwise to construct, operate and maintain a cable television system within all or a specified area in the city. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the city as required by other city ordinances.

“Grantee” means any person to whom or which a franchise is granted by the council under this chapter and the lawful successor, transferee or assignee of such person.

“Grantor” means the city or its designee. “Gross receipts” means any and all compensation and other consideration in any form whatever and any contributing grant or subsidy received by a grantee for its cable television services authorized under its franchise and delivered in the city; provided, however, that there shall be deducted from gross receipts as so determined:

1.    Refunds made to subscribers in connection with such services; and

2.    Bad debts written off by the grantee in the usual and ordinary course of business, in each case to the extent that the revenue with respect thereto or the amount thereof, as the case may be, has been included in gross receipts. Gross receipts shall not include:

a.    Amounts received from subscribers in the nature of refundable security deposits, or

b.    Sales, excise or other taxes or payments collected for direct pass-through to federal, state, or local governments.

“Person” means any natural person and all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, business or common law trusts, and societies.

“Property of the grantee” means all property owned, installed, or used within the city by the grantee in the conduct of the cable television system business under the authority of this chapter.

“Street” means the surface, the air space above the surface, and the area below the surface of any public street, other public right-of-way, or public place, including public utility easements.

“Subscriber” or “user” means any person or entity that pays to receive for any purpose any service of the grantee’s cable television system including, but not limited to, the conventional cable television system service of retransmission of television broadcast and radio signals, the grantee’s original broadcasting, and any local government, education, or public access channels, and other services such as leasing of channels, data and facsimile transmission, pay television, and police, fire, and similar public service communication.

“Two-way capability” means the capability of the cable television system to receive signals from and transmit signals to a subscriber terminal, provided that this definition shall not mean that such two-way capability is operational.

“Upstream channel” means a channel through which signals emanating from a subscriber’s location or any other location except the main transmitting facility of the grantee are transmitted via the cable television system to the system headend or other appropriate point. (Prior code § 5.60.005)

5.20.010 Filing of documents with city clerk.

When not otherwise prescribed in this chapter, all matters required herein to be filed with the city shall be filed with the city clerk. (Prior code § 5.60.010)

5.20.015 Equal employment opportunity—Affirmative action.

A.    In the carrying out of the construction, maintenance, and operation of the cable television system, the grantee shall not discriminate against any employee or applicant for employment because of race, creed, color, sex or national origin.

B.    The grantee shall comply with all applicable equal employment opportunity and affirmative action requirements of the federal and state governments. (Prior code § 5.60.015)

5.20.020 Severability.

If any of the provisions of this chapter are held invalid or unenforceable by a competent court having jurisdiction, such invalidity shall not affect other provisions of this chapter which can be given effect without the invalid provision. To this end the provisions of this chapter are declared severable. If any section of this chapter or the application thereof to any person or circumstance is held to be invalid or preempted by federal or state laws or regulations which is determined by the council to be a material consideration for the grant of the franchise to the grantee, the grantor and grantee shall negotiate in good faith for the purpose of executing the appropriate modifications to the grantee’s franchise to provide reasonable relief from such invalidity or preemption. (Prior code § 5.60.020)

5.20.025 Interpretation of provisions.

A.    This chapter and any franchise granted hereunder shall, in all respects, be interpreted and applied so as to be consistent with:

1.    The Cable Communications Policy Act of 1984, as from time to time amended (47 U.S.C. Section 521 et seq.), and as interpreted by judicial decisions and the FCC, and all rules and regulations thereunder;

2.    Other federal law, proceedings, or judicial decisions applicable to the regulation of cable television; and

3.    Applicable California law.

B.    If any provision of this chapter or its application should be inconsistent with the Cable Communications Policy Act of 1984, other federal law, administrative proceedings, or judicial decisions, or applicable California law, said Act, law, proceedings or decisions shall prevail. (Prior code § 5.60.025)

Article 2. Franchise

5.20.030 Limitations on grantee liability.

Notwithstanding anything to the contrary contained in any other section of this chapter or any franchise issued pursuant to this chapter, the grantee shall not be liable or responsible for any failure or delay in the performance of any of its obligations under this chapter or any franchise granted pursuant hereto if such failure or delay arises from any cause or causes beyond the reasonable control of the grantee, including without limitation labor dispute, strike, other labor or industrial disturbances, acts of God, floods, lightning, shortage of materials, inability to secure necessary parts or materials, inability to secure financing, rationing, utility or communication failures, earthquakes, casualty, war, acts of a public enemy, riots, insurrections, freight or other embargoes, blockages or actions, restrictions, regulations, orders or quotas imposed by any government, agency or subdivision thereof, or any similar or dissimilar causes. The time for performance of any such obligation of the grantee shall be extended by the period of delay occasioned by such cause or causes. (Prior code § 5.60.030)

5.20.035 Standards of operation generally.

A. Prior to receiving any applications for franchises, the council may adopt rules, regulations and standards governing the operation of cable television systems in the city. Such rules, regulations and standards shall apply to and shall govern the operations of the grantee of any franchise granted pursuant to this chapter and are expressly declared a part of any such franchise.

B.    The standards adopted shall govern the engineering, construction, installation, service and maintenance of all cable television systems in the city. (Prior code § 5.60.035)

5.20.040 Rules and regulations—Adoption and amendment.

The council may at any time adopt new rules, regulations or standards, or may amend, delete or otherwise change those rules, regulations or standards previously adopted by it, subject to the following:

A.    The council shall pass its resolution of intention to adopt, amend, delete or otherwise change such rules, regulations or standards stating or describing the rules, regulations or standards to be adopted, amended, deleted, or otherwise changed and fixing and setting forth a day, hour and place certain when and where any persons having any interest can be heard.

B.    Such resolution shall direct the city clerk to publish the same at least once within ten days of the passage thereof in a newspaper of general circulation within the city, and to mail a copy of the same to any grantee or applicant for a franchise not more than thirty (30) days nor less than fifteen (15) days prior to the time fixed for hearing thereon.

C.    At the time set for such hearing, or at any adjournment thereof, the council shall proceed to hear and pass upon such comments as may be presented. Thereafter, the council by its resolution may adopt, amend, delete or otherwise change its respective rules, regulations and standards. Such determination by the council shall be final and conclusive.

D.    Any rule, regulation or standard as adopted, amended, deleted or otherwise changed by the council shall be come effective upon the tenth day following the adoption of such resolution, unless a longer period shall be otherwise provided in such resolution.

E.    No such rule, regulation or standard adopted after the grant of a franchise to the grantee pursuant to this chapter, nor any amendment or modification of any rule, regulation or standard enacted prior to such grant but amended or modified after such grant, shall materially or adversely conflict with any privilege of the grantee under this chapter or any franchise granted pursuant to this chapter and, provided further, that no such rule, regulation or standard, or any amendment or modification thereof, shall require the grantee to redesign or reconstruct its cable television system, except as may be necessary to protect the public health, safety and welfare from any material and imminent harm. (Prior code § 5.60.040)

5.20.045 Rules and regulations—Purposes.

Section 5.20.040 of this chapter applies to new rules, regulations or standards adopted, amended, deleted or otherwise changed to:

A.    Ensure that any franchise granted pursuant to this chapter conforms with federal and state cable television statutes, rules and regulations; or

B.    Improve or alter the operations and quality of cable television services, provided such rules, regulations, or standards or any amendments, deletions or changes thereto are first approved by the grantee. (Prior code § 5.60.045)

5.20.050 Inspection of records.

At all reasonable times upon prior written notice to the grantee, the city shall have the right to inspect and audit the grantee’s records showing the gross receipts from which its franchise payments are computed, provided that such inspection and audit shall extend to no other books or records of the grantee. If any independent audit of the grantee’s records directed by the city shows a franchise fee error in excess of five percent in the city’s favor, the grantee shall assume all reasonable costs for said audit. 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 additional sums payable under this section or for the performance of any other obligation hereunder. (Prior code § 5.60.050)

5.20.055 Applicability of other provisions.

A.    The grantee shall be subject to all provisions of the ordinances, rules, regulations and specifications of the city heretofore or hereafter adopted, including but not limited to those pertaining to works and activities in, on, over, under and about streets.

B.    In the event the terms of this chapter or any franchise granted pursuant to this chapter are inconsistent with any other rule, regulation or resolution of the city, the terms of this chapter or such franchise shall prevail.

C.    In the event of any inconsistency between the terms of this chapter and the terms of any franchise granted pursuant to this chapter, the terms of such franchise shall prevail.

D.    Any privilege claimed under this chapter or any franchise granted pursuant to this chapter related to any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property. (Prior code § 5.60.055)

5.20.060 City acquisition of grantee property—Authority.

The grantor may in any lawful manner purchase, condemn, acquire, take over, and hold the property of the grantee in whole, but not in part, except by way of condemnation or exercise of the right of eminent domain. (Prior code § 5.60.060)

5.20.065 City acquisition of grantee property—Property valuation.

A.    If the renewal of the grantee’s franchise is denied and the city acquires ownership of the cable television system or effects the transfer of ownership of the system to another person, any such acquisition or transfer shall be at fair market value as determined on the basis of the cable television system valued as a going concern but with no value allocated to the franchise itself.

B.    In the event that the city shall terminate the franchise for cause and the city acquires ownership of the cable television system or effects a transfer of ownership of the system to another person, any acquisition or transfer shall be at an equitable price.

C.    For all other causes by which the city may acquire the property of the grantee not listed in subsections A and B of this section, the acquisition or transfer shall be at fair market value determined on the basis set forth in subsection A of this section. (Prior code § 5.60.065)

5.20.070 City acquisition of grantee property—Equitable price.

For the purpose of Section 5.20.065(B) of this chapter, the equitable price for the grantee’s cable television system shall be defined as the fair market value of the tangible assets of the system. No value shall be assigned to either the franchise itself or any right, privilege or expectancy arising out of the privilege to transact business under the franchise, nor shall any value be assigned to good will or as a going concern. Such price shall be determined in accordance with the appraisal procedure set forth in Section 5.20.075 of this chapter. (Prior code § 5.60.070)

5.20.075 City acquisition of grantee property—Procedures.

In the event the city wishes to acquire the cable television system of the grantee either by purchase, franchise termination or exercise of the right of eminent domain, the city shall notify the grantee in writing of its intention to acquire said property no less than one hundred twenty (120) days before the proposed acquisition date. Upon notification of the intent to acquire said property, the city and the grantee shall attempt to mutually agree upon the value of the system in accordance with the provisions of this section. If within thirty (30) days from the date of such notification no agreement is made regarding valuation of the system, then said valuation shall be similarly determined by a three-member board of appraisers, one selected by the city, one by the grantee, and one selected by the appraisers themselves. Either the city or the grantee may commence appraisal proceedings by delivering written notice to the other after the expiration of such thirty (30) day period, which notice shall specify the appraiser selected by the person giving such notice. The other person shall select its appraiser within ten days after receipt of such notice and shall advise in writing the person originally providing notice of the commencement of appraisal proceedings of the appraiser so selected. The two appraisers so selected shall select a third appraiser within ten days after the selection of the second appraiser. If the two appraisers are unable to agree on a third appraiser within such ten-day period, the presiding judge of the Superior Court of Riverside County, acting in his or her individual and not his or her judicial capacity, shall select such third appraiser upon request of either the city or the grantee. Each appraiser shall have substantial experience in appraising cable television systems similarly situated. Each appraiser shall produce an appraisal of the valuation of the cable television system of the grantee based upon the applicable valuation mechanism set out in Section 5.20.065 of this chapter within thirty (30) days after the selection of the third appraiser. The appraisal having the greatest difference in value from the other two appraisals shall be disregarded and the two appraisals closest in value shall be averaged and such average shall be the valuation of the system. Each person shall bear the cost of the appraiser selected by it, and the cost of the third appraiser shall be borne equally by the city and the grantee. (Prior code § 5.60.075)

5.20.080 Controversy—Hearing.

A.    The council may do all things which are necessary and convenient in the exercise of its jurisdiction, and may determine any question of fact which may arise by reason of the existence of any franchise granted pursuant to this chapter.

B.    The city manager is authorized and empowered to adjust, settle or compromise any controversy or charge arising from the operations of the grantee under such franchise, either on behalf of the city, the grantee, or any subscriber, in the best interest of the public.

C.    Either the grantee or any member of the public who may be dissatisfied with any decision of the city manager may appeal the matter to the council for hearing and determination. A hearing on any such matter shall be held within thirty (30) days after the city clerk shall have received a written appeal of the decision of the city manager, and the council shall render a written decision, stating its reasons therefor, within fifteen (15) days after such hearing. The grantee shall have the rights set forth in Section 5.20.135(E) of this chapter with respect to any such hearing. The council may accept, reject or modify the decision of the city manager, and the council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of the grantee. (Prior code § 5.60.080)

5.20.085 Damages—Due process.

As a condition precedent to the imposition of any fines, penalties, damages, infractions, liquidated damages, or sanctions for violations of any franchise granted pursuant to this chapter related to performance standards, construction schedules, or other requirements for which such remedies exist, the following steps shall apply:

A.    Written notice of the violation shall be provided to the grantee.

B.    The grantee shall be entitled to meet with a designated city staff member to review the problem. The grantee may present its position, present documentation, and review relevant materials utilized by the grantor in support of the charges.

C.    The designated staff member shall prepare a recommended ruling to the city manager who shall make a decision to be served on the grantee.

D.    The grantee may appeal any decision of the city manager to the council in accordance with the procedures set forth in Section 5.20.080 of this chapter.

E.    The grantor shall give the grantee a period to cure or correct the violation detailed in the written notice provided in subsection A of this section at least equivalent to the period allowed under Section 5.20.110(A) of this chapter for the correction of the violation by the grantee of any material provision of the grantee’s franchise. (Prior code § 5.60.085)

5.20.090 Nonexclusivity.

A nonexclusive franchise authorizing the grantee to install, construct, operate and maintain a cable television system on streets within all or specific portions of the city may be granted by the council by resolution to any person who or which offers to furnish and provide a cable television system in the city subject to the terms and conditions of this chapter. (Prior code § 5.60.090)

5.20.095 Telephone facility use.

When and in the event that the grantee uses in its cable television system distribution channels furnished to the grantee by a telephone company pursuant to tariff or contract on file with a regulatory body having jurisdiction over such usage and said grantee makes no use of the streets independent of such telephone company-furnished facilities, said grantee shall be required to comply with all of the provisions hereof as a licensee and in such event whenever the term “grantee” is used in this chapter it shall be deemed to mean and include “licensee.” (Prior code § 5.60.095)

5.20.100 Uses permitted generally.

This chapter shall authorize and permit the grantee to engage in the business of operating and providing a cable television system in the city, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street such poles, wires, cable conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments, and other property and accessory equipment which is part of the cable television system; and, in addition, so to use, operate and provide similar facilities or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other grantee franchised or permitted to do business in the city. (Prior code § 5.60.100)

5.20.105 Term.

The franchise term shall be for a period of fifteen (15) years from the date of acceptance of the franchise or the renewal thereof by the grantee. (Prior code § 5.60.105)

5.20.110 Termination—Grounds.

In addition to any rights set out elsewhere in this chapter, the grantor reserves the right to revoke a franchise and all rights and privileges pertaining hereto in the event that:

A.    The grantee violates any material provision of its franchise or any material provision of any rule or regulation of the council or city manager validly adopted pursuant to this chapter, provided that such violation is not corrected within thirty (30) days following receipt of written notice from the council specifying such violation or, if more than thirty (30) days are reasonably required to correct such material violation, the grantee has not diligently commenced to cure the same within such thirty (30) day period and completed such cure within ninety (90) days thereafter, provided, however, that the council may extend the time for such cure in the event the grantee, acting in good faith and with reasonable diligence, is unable to complete such cure for any cause not within the grantee’s control;

B.    The grantee’s construction schedule is delayed as set forth in its franchise;

C.    The grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged as bankrupt; or

D.    The grantee is found to have practiced any fraud or deceit upon the grantor. (Prior code § 5.60.110)

5.20.115 Termination—Procedures.

A.    The city manager shall provide written notice to the grantee of the city’s intent to terminate the franchise upon the occurrence of one or more of the events set forth in Section 5.20.110 of this chapter. Such notice shall state the reasons for termination and, whenever feasible, provide compliance demands as to what the grantee must do to avoid termination. If cause for termination cannot be cured pursuant to the notice of intent to terminate, the city manager shall transmit all material pertinent to the termination to the council for its final action. The city manager shall cause to be served upon the grantee, at least ten days prior to the date of such council meeting, written notice of his or her intent to request such termination, and the time and place of the meeting, notice of which shall be published by the city clerk at least ten days before such meeting in a newspaper of general circulation within the city.

B.    The council shall consider the request of the city manager and shall hear any interested persons prior to making a decision. The council may:

1.    Terminate the franchise;

2.    Allow it to continue; or

3.    Decide on action contained in subdivisions 1 or 2 of this subsection subject to the grantee’s compliance with conditions established by the council.

C.    The council’s decision shall be reflected in a resolution to be prepared by the city attorney. (Prior code § 5.60.115)

5.20.120 Termination—Rights.

A.    Upon termination and forfeiture of a franchise, all rights of the grantee as set forth in the franchise shall immediately be divested without further action upon the part of the grantor, and the grantee shall, promptly following receipt of written notice from the grantor as to such termination and forfeiture, commence to remove its structures and property from the streets and restore said streets and affected property, public or private, to the condition in which it existed prior to the erection or construction of the system, including any improvements made to such property subsequent to the construction of the system, to the extent reasonably practicable.

B.    Such removal shall be diligently pursued and shall be completed within six months after the grantee’s receipt of notice of termination and forfeiture of its franchise; provided, however, that the council or the director of public works for the city may extend the time for removal for such reasonable additional period as shall be required to complete the same in the event the grantee, acting in good faith, cannot reasonably remove its cable television system within such six-month period or by reason of any circumstance beyond the grantee’s control.

C.    Upon failure to restore said streets and property as required by the grantor within the time allowed therefor under this section, the grantor may perform the work and collect the costs thereof from the grantee. The costs thereof shall be a lien upon all plant, property, or other assets of the grantee wherever located.

D.    The grantee may abandon any such property in place under such terms and conditions as the director of public works shall reasonably require. Upon abandonment of any such property, the grantee shall cause to be executed, acknowledged, and delivered to the city such instruments as the city attorney shall prescribe and approve, transferring and conveying the ownership of such property to the city.

E.    The termination and forfeiture of any franchise shall in no way affect any of the rights of the city under such franchise or any provisions of law. In the event of any holding over after expiration or other termination of any franchise granted hereunder without the prior consent of the city expressed by resolution or ordinance, the grantee shall pay to the city reasonable compensation and damages of not less than one hundred (100) percent of its gross profits during the holdover period. (Prior code § 5.60.120)

5.20.125 Receivership—Effect.

The grantor shall have cause to revoke a franchise one hundred twenty (120) days after the appointment of a receiver or trustee and to take over and conduct the business of the grantee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:

A.    Within one hundred twenty (120) days after his or her election or appointment such receiver or trustee shall have fully complied with all of the provisions of the franchise and remedied all defaults thereunder; and

B.    Such receiver or trustee, within said one hundred twenty (120) days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of the franchise. (Prior code § 5.60.125)

5.20.130 Expiration.

For purposes of this chapter, the term “franchise expiration” means the date of the expiration of the term of the franchise, as provided under the franchise. (Prior code § 5.60.130)

5.20.135 Renewal—Procedures.

A.    Commencement of Proceedings. During the six-month period which begins with the thirty-sixth month before the franchise expiration, the grantor may on its own initiative, and shall within thirty (30) days following the request of the grantee, commence, and shall within one hundred eighty (180) days after commencement complete, proceedings which afford the public in the franchise area appropriate notice and participation for the purpose of

1.    Identifying the future cable-related community needs and interests; and

2.    Reviewing the performance of the grantee under the franchise during the then-current franchise term.

B.    Proposal for Renewal. Upon completion of a proceeding under subsection A of this section, the grantee may on its own initiative or at the request of the grantor submit a proposal for renewal.

C.    Content of Proposal. Any such proposal shall contain such material as the grantor may require, including proposals for an upgrade of the cable television system. The grantor may establish a date by which such proposal shall be submitted.

D.    Evaluation of Proposal and Performance. Upon submittal of a proposal for the renewal of a franchise, the grantor shall provide prompt public notice of such proposal and, during the four-month period which begins on the completion of any proceedings under subsection A of this- section, renew the franchise or issue a preliminary assessment that the franchise should not be renewed and, at the request of the grantee or on its own initiative, commence an administrative proceeding, after providing prompt public notice of such proceeding, to consider whether:

1.    The grantee has substantially complied with the material terms of the existing franchise and with applicable law;

2.    The quality of the grantee’s service, including signal quality, response to consumer complaints, and billing practices, but without regard to the mix, quality or level of cable services or other services provided over the system, has been reasonable in light of community needs;

3.    The grantee has the financial, legal and technical ability to provide the services, facilities and equipment as set forth in the grantee’s proposal; and

4.    The grantee’s proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests.

E.    Due Process. In any proceeding under subsection D of this section, the grantee shall be afforded adequate notice and the grantee and the grantor, or its designee, shall be afforded fair opportunity for full participation, including the right to introduce evidence (including evidence related to issues raised in the proceeding provided in subsection A of this section), to require the production of evidence, and to question witnesses. A transcript shall be made of any such proceeding. (Prior code § 5.60.135)

5.20.140 Renewal—Decision.

At the completion of a proceeding under Section 5.20.135(D) of this chapter, the grantor shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding and transmit a copy of such decision to the grantee. Such decision shall state the reasons therefor. (Prior code § 5.60.140)

5.20.145 Renewal—Denial.

A.    Any denial of a proposal for renewal shall be based on one or more adverse findings made with respect to the factors described in Section 5.20.135(D) of this chapter, pursuant to the record of the proceeding under said subsection.

B.    The grantor may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under Section 5.20.135 (D)(1) of this chapter or on events considered under Section 5.20.135(D)(2) of this chapter unless the grantor has provided the grantee with notice and the opportunity to cure such noncompliance or event in the manner provided in Section 5.20.110(A) of this chapter or in any case in which it is documented that the grantor has waived its right to object or has effectively acquiesced.

C.    Appeal of Denial. In the event that the grantee’s proposal for renewal has been denied by a final decision of the grantor made pursuant to this section or has been adversely affected by a failure of the grantor to act in accordance with the procedural requirements of this section, the grantee may appeal such final decision or failure to act within one hundred twenty (120) days after receiving notice of such determination which may be brought in:

1.    The district court of the United States for any judicial district in which the cable television system is located; or

2.    In any state court of general jurisdiction having jurisdiction over the grantor and grantee.

D.    Judicial Relief. The court shall grant appropriate relief if the court finds that:

1.    Any action of the grantor is not in compliance with the procedural requirements of this section or applicable law;

2.    In the event of a final decision of the grantor denying the renewal proposal, the grantee has demonstrated that the adverse finding of the grantor with respect to each of the factors described in Section 5.20.135(D) of this chapter on which the denial is based is not supported by a preponderance of the evidence based on the record of the proceeding conducted under said subsection.

E.    Final Decision. Any decision of the grantor on a proposal for renewal in which such renewal is denied shall not be considered final unless all applicable administrative review by the state has occurred or the opportunity therefor has lapsed. (Prior code § 5.60.145)

5.20.150 Renewal—Informal.

A.    Notwithstanding the provisions of Sections 5.20.135 through 5.20.145 of this chapter, the grantee may submit a proposal for the renewal of a franchise pursuant to this section at any time and the grantor may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The provisions of Sections 5.20.135 through 5.20.145 of this chapter shall not apply to a decision to grant or deny a proposal under this section.

B.    The denial of a renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with Sections 5.20.135 through 5.20.145 of this chapter. (Prior code § 5.60.150)

5.20.155 Fee.

A.    For each calendar year during the term of the franchise, the grantee shall pay to the grantor a franchise fee of five percent of the grantee’s gross receipts derived during such period from the operation of the cable television system.

B.    If during any part of the franchise term there is in effect a federal or state limit regulating the franchise fee to a lesser amount, such a limitation shall apply but only for that time period that such limit is legally in effect.

C.    Franchise fee payments by the grantee shall be made semiannually to the city manager’s office.

D.    Franchise fees required hereunder shall be in lieu of any business license, occupation tax, or similar levy.

E.    The grantee shall file with the finance director, within forty-five (45) days after the expiration of June and December of each calendar year or portion thereof during which the franchise is in force, a statement of gross receipts received by the grantee for each such semiannual period certified by an authorized officer of the grantee. It shall be the duty of the grantee to pay to the city, within fifteen (15) days after the time for filing each such statement, the franchise fee required with respect to the gross receipts for each such period or any unpaid balance thereof for the period covered by such statement.

F.    Within two hundred forty (240) days after the expiration of each calendar year or portion thereof during which such franchise is in force, the grantee shall file with the city a statement prepared by an independent certified public accountant for the grantee setting forth the gross receipts for such calendar year or portion thereof. If the amount of the gross receipts reported by such independent certified public accountant exceeds the amount thereof as reported in the statements prepared by the grantee for each semiannual period of such calendar year, the grantee shall pay to the city, within fifteen (15) days after the time for filing the statement certified by such independent certified public accountant, the amount of the additional franchise fee due for such calendar year or portion thereof; if the amount of the gross receipts reported by such independent certified public accountant is less than the amount thereof as reported in such semiannual statements prepared by the grantee, the city shall pay to the grantee, within fifteen (15) days after the time for filing the statement certified by such independent certified public accountant, the amount by which the franchise fee was overpaid or, at the option of the city, such overpayment shall be credited against the franchise fee next becoming due and payable to the city. (Prior code § 5.60.155)

5.20.160 Hold-harmless agreement.

The grantee shall indemnify and hold harmless the city, its officers, boards, commissions, agents and employees against and from any and all claims, demands, causes of action, actions, suits, proceedings, damages (including but not limited to damages to city property, damages arising out of copyright infringements, and damages arising out of any failure by the grantee to secure consents from the owners, authorized distributors, or licensees of programs to be delivered by the grantee’s cable television system), costs or liabilities (including costs or liabilities of the city with respect to its employees), including but not limited to damages for injury or death or damage to person or property, and regardless of the merit of any of the same, and against all liability to others, and against any loss, cost and expense resulting or arising out of any of the same, including any reasonable attorney fees, arising out of or pertaining to the exercise or the enjoyment by the grantee of any franchise granted hereunder to the extent such claims, demands, causes of action, actions, suits, proceedings, damages, costs or liabilities are due directly to the acts or omissions of the grantee or its employees; provided, however, that the indemnity obligations of the grantee under this section shall not apply if any such claims, damages, causes of action, actions, suits, proceedings, costs or liabilities are due to the acts or omissions of the city, its officers, employees or agents or the acts or omissions of any third party. (Prior code § 5.60.160)

5.20.165 City use of facilities.

The city may use for any public or municipal purpose any poles or conduits maintained exclusively by or for the grantee in any street, provided such use by the city does not interfere with any use thereof by the grantee and, provided further, that the city shall indemnify, hold harmless, and defend the grantee against and from any and all claims, demands, causes of action, suits, proceedings, damages, costs or liabilities arising out of the city’s, its officers’, employees’ or agents’ use of the grantee’s poles and conduits. (Prior code § 5.60.165)

5.20.170 Defense of litigation.

The grantee shall at the sole risk and expense of the grantee, upon demand of the city, made by and through the city attorney, appear in and defend any and all suits, actions, or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative, or otherwise, brought or instituted or had by third persons or duly constituted authorities against or affecting the city, its officers, boards, commissions, agents or employees and arising out of or pertaining to the exercise or the enjoyment of such franchise, or the granting thereof by the city, but only with respect to claims, demands, causes of actions, actions, suits, proceedings, damages, costs or liabilities for which the grantee is required to indemnify the city under Section 5.20.160 of this chapter. (Prior code § 5.60.170)

5.20.175 Satisfaction of judgments.

The grantee shall pay and satisfy and shall cause to be paid and satisfied any final judgment, decree, order, directive or demand rendered, made, or issued against the grantee or the city, its officers, boards, commissions, agents or employees with respect to any claim, demand, cause of action, action, suit, proceeding, damage, cost or liability for which the grantee is required to indemnify the grantor under Section 5.20.160 of this chapter. Such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder or otherwise; provided, however, that neither the grantee nor the city shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit or other proceeding for which one is obligated to indemnify the other under this section without first obtaining the written consent of the other which shall not be unreasonably withheld. (Prior code § 5.60.175)

5.20.180 Insurance.

A.    The grantee shall at all times during the existence of its franchise maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, including but not limited to coverage for premises operations, explosion and collapse hazard, underground hazard, broad-form property damage, independent contractors, personal injury, and automobile liability comprehensive form, in protection of the city, its officers, boards, commissions, agents and employees, in a company approved by the city manager and a form satisfactory to the city attorney, protecting the city against liability for loss or damage for personal injury, death and property damage occasioned by the operations of grantee under its franchise, with minimum liability limits of not less than five hundred thousand dollars ($500,000.00) for personal injury or death of any one person, one million dollars ($1,000,000.00) for personal injury or death of two or more persons in any one occurrence, and one hundred fifty thousand dollars ($150,000.00) for damage to property resulting from any one occurrence.

B.    The council may reduce such limits upon satisfactory evidence presented by the grantee that such limits are not required in view of the nature and extent of the grantee’s operations under its franchise or where such limits would effect a materially adverse hardship upon the grantee.

C.    The city shall be named as an additional insured in any of said insurance policies. Where such insurance is provided by a policy which also covers the grantee or any other entity or persons, it shall contain the standard cross-liability endorsement.

D.    Such policies shall contain a provision that a written notice of cancellation or reduction in coverage of said policy shall be delivered to the city clerk thirty (30) days in advance of the effective date thereof.

E.    The grantee shall, concurrently with the filing of an acceptance of award of its franchise granted pursuant to this chapter, furnish to the city and file with the city clerk a certificate or certificates of insurance evidencing the insurance required under this section.

F.    The insurance policy shall contain the following endorsements in substantially the form indicated, to the extent reasonably available to the grantee:

1.    The naming of the city as an additional insured shall not affect any recovery to which such additional insured would be entitled under the policy if not named as such additional insured; and

2.    The provisions of the policy will not be changed, suspended, canceled, or otherwise terminated as to the interest of the city without first giving the city thirty days’ written notice. (Prior code § 5.60.180)

5.20.185 Workers compensation.

The grantee shall also, concurrently with the filing of an acceptance of the award of any franchise granted under this chapter, furnish to the city and file with the city clerk a certificate of workers compensation insurance and at all times during the existence of any franchise granted hereunder maintain in full force and effect, at its own cost and expense, a policy of workers compensation insurance. (Prior code § 5.60.185)

5.20.190 Performance bond.

A.    The grantee shall, concurrently with the filing of an acceptance of any franchise granted under this chapter, file with the city clerk, and at all times hereafter maintain in full force and effect for the term of such franchise or any renewal thereof, at the grantee’s sole expense, a corporate surety bond in a company and in a form approved by the city attorney, in an amount to be fixed by the council in the grantee’s franchise, renewable annually and conditioned upon the faithful performance of the grantee under its franchise and upon the further condition that in the event the grantee shall fail to comply with any one or more of the provisions of this chapter, or of any franchise issued to the grantee pursuant to this chapter, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the city as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee as prescribed hereby which shall not have been removed or abandoned when and in the manner provided in this chapter following termination of the grantee’s franchise as provided in this chapter, plus a reasonable allowance for attorney’s fees and costs, up to the full amount of the bond; said condition to be a continuing obligation for the duration of such franchise and any renewal thereof and thereafter until the grantee has liquidated all of its obligations with the city that may have arisen from the acceptance of said franchise or renewal by the grantee or from its exercise of any privilege therein granted.

B.    The bond shall provide that thirty (30) days’ prior written notice of intention not to renew, cancellation, or material change be given to the city to the extent reasonably available to the grantee. (Prior code § 5.60.190)

5.20.195 No limitation of liability.

Neither the provisions of this section nor any bond accepted by the city pursuant hereto, nor any damages recovered by the city thereunder, shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise issued hereunder or for damages, either to the full amount of the bond or otherwise. (Prior code § 5.60.195)

5.20.200 Nontransferable.

Any franchise granted pursuant to this chapter shall not be sublet, assigned or transferred, either in whole or in part, either by act of the grantee or by operation of law, without the prior written consent of the grantor, which consent shall not be unreasonably withheld, provided that such franchise or any interest therein may be assigned or transferred without the consent of the grantor to any entity controlling, controlled by, or under common control with the grantee or its parent. The granting of such consent shall not render unnecessary any subsequent consent. (Prior code § 5.60.200)

5.20.205 Change in control—Procedures.

A. The grantee shall promptly notify the grantor of any proposed change in control of the grantee with respect to which the consent of the grantor is required.

B.    The change in control shall make the franchise null and void unless and until the grantor has consented thereto. For the purpose of determining whether it will consent to such change, transfer or acquisition of control, the grantor may inquire into the qualifications of the prospective controlling party. The grantee shall assist the grantor in any such inquiry.

C.    If necessary to assure compliance with the terms of this chapter, the grantor may condition said transfer upon terms and conditions consistent with the terms and conditions of this chapter.

D.    For the purposes of this section, a presumptive change of control will exist upon sale or transfer of twenty-five (25) percent or more of the grantee’s stock ownership or other control. (Prior code § 5.60.205)

5.20.210 Change of control—Notice.

The grantee, prior to or concurrently with any transfer as heretofore described, shall file with the grantor a copy of the deed, bill of sale, or other written instrument evidencing such sale or transfer certified and sworn to as correct by the grantee. (Prior code § 5.60.210)

5.20.215 Change in control—Approval.

Every such transfer as heretofore described, whether voluntary or involuntary, shall be deemed void and of no effect unless the grantee has filed such notice as is required and until the grantor has given approval of such transfer where such approval is required. (Prior code § 5.60.215)

5.20.220 Prompt compliance required.

Time shall be of the essence of any franchise granted pursuant to this chapter. The grantee shall not be relieved of its obligation to promptly comply with any of the provisions of such franchise because of any failure of the city to enforce prompt compliance. (Prior code § 5.60.220)

5.20.225 Transfer by city.

Any right or duty impressed upon any officer, employee, department, or city board or commission shall be transferable by the city to any other city officer, employee, department, or board or commission. The grantor shall notify the grantee within a reasonable period prior to such delegation. (Prior code § 5.60.225)

5.20.230 No recourse against city.

Except to the extent that the grantor violates the provisions of this chapter or any franchise granted pursuant to this chapter or to the extent any such loss, cost, expense or damage is due to the acts or omissions of the city, its officers, employees, or agents, the grantee shall have no recourse whatsoever against the city for any loss, cost, expense or damage arising out of any provision or requirement of this chapter or any franchise granted pursuant to this chapter. (Prior code § 5.60.230)

5.20.235 Survey of community needs.

No more than once every five years beginning five years after the acceptance by the grantee of its franchise granted pursuant to this chapter, the grantor may require that the grantee research, prepare, and submit a survey which details community needs and concerns relative to cable television services and programs. Said survey shall be conducted at no cost to the grantor. Survey methods, which shall be determined by mutual consent of the grantee and the grantor, shall include, but not be limited to, the following:

A.    Polling of subscribers;

B.    Sample polling of nonsubscribers;

C.    Consulting with community leaders and representatives;

D.    Review of subscriber complaints and the grantee’s response to said complaints;

E.    Review of the grantee’s construction schedule, if applicable, and its compliance with the same;

F.    Analyze the state of the art, including telecommunications construction, reception, and programming equipment and resources. (Prior code § 5.60.235)

5.20.240 Modifications.

A.    During the term of its franchise, the grantee may obtain from the grantor modifications of the requirements in such franchise:

1.    In the case of any such requirement for facilities or equipment, including public, educational, or governmental access facilities or equipment, if the grantee demonstrates that:

a.    It is commercially impracticable for the grantee to comply with such requirement, and b. The proposal by the grantee for modification of such requirement is appropriate because of commercial impracticability; or

2.    In the case of any such requirement for services, if the grantee demonstrates that the mix, quality and level of services required in its franchise at the time it was granted will be maintained after such modification.

B.    Period for Decision. Any final decision by the grantor under this section shall be made in a public proceeding. Such decision shall be made within one hundred twenty (120) days after the grantor’s receipt of such request from the grantee, unless such one hundred twenty (120) day period is extended by mutual agreement of the grantor and the grantee.

C.    Judicial Modification. If the grantor denies the grantee’s request, the grantee may obtain modification of such franchise requirements pursuant to the provisions of Section 635 of the Cable Communications Policy Act of 1984 (47 U.S.C. Section 555), as amended.

D.    Judicial Modification-Facilities or Equipment. In the case of any proposed modification of a requirement for facilities or equipment, the court shall grant such modification only if the grantee demonstrates to the court that:

1.    It is commercially impracticable for the grantee to comply with such requirement; and

2.    The terms of the modification requested are appropriate because of commercial impracticability.

E.    Modification-Services. In the case of any proposed modification of a requirement for services, the court shall grant such modification only if the grantee demonstrates to the court that the mix, quality and level of services required by the franchise at the time it was granted will be maintained after such modification. (Prior code § 5.60.240)

5.20.245 Rearrangement, replacement or removal of services—Conditions.

Notwithstanding Section 5.20.240 of this chapter the grantee may, upon thirty (30) days’ advance notice to the grantor, rearrange, replace or remove a particular cable service required by the franchise if:

A.    Such service is no longer available to the grantee; or

B.    Such service is available to the grantee only upon the payment of a royalty required under 17 U.S.C. Section 801(b)(2) which the grantee can document:

1.    Is substantially in excess of the amount of such payment required on the date of the grantor’s offer to provide such service, and

2.    Has not been specifically compensated for through a rate increase or other adjustment. (Prior code § 5.60.245)

5.20.250 Rearrangement, replacement or removal of services—Rate considerations.

Notwithstanding Section 5.20.240 of this chapter, the grantee may take such actions to rearrange a particular service from one service tier to another or otherwise offer the service if the rates for all of the service tiers involved in such actions are not subject to regulation under Sections 5.20.555 through 5.20.575 of this chapter. (Prior code § 5.60.250)

5.20.255 Rearrangement, replacement or removal of services—Prohibited when.

The grantee may not obtain modification under this chapter of any requirement for services relating to public, educational or governmental access. (Prior code § 5.60.255)

5.20.260 Rearrangement, replacement or removal of services—Commercial impracticability.

For purposes of this section, the term “commercially impracticable” means, with respect to any requirement applicable to a grantee, that it is commercially impracticable for the grantee to comply with such requirement as a result of a change in conditions which is beyond the control of the grantee and the non-occurrence of which was a basic assumption on which the requirement was based. (Prior code § 5.60.260)

5.20.265 Recordkeeping.

There shall be kept in the grantor’s offices a separate record for each franchise granted pursuant to this chapter, which record shall show the amount collected annually from system users of the grantee’s cable television services. The grantee shall provide such information in such form as may be reasonably required by the grantor for said records. (Prior code § 5.60.265)

5.20.270 Performance testing reports.

A.    The grantee shall perform the annual cable television system proof of performance tests from time to time required by the FCC and such tests shall be made available to the grantor upon its reasonable request.

B.    Each such test shall be certified by an authorized officer of the grantee to be true and correct and to the effect that the system complies with the FCC’s then-applicable proof of performance requirements or, if the system does not so comply, stating the reasons therefor and the actions to be taken by the grantee to correct such noncompliance.

C.    If the FCC should no longer require a proof of performance test, the grantee shall develop a performance test designed to evaluate the technical performance of the system containing such standards and to be performed at such intervals as the grantee reasonably determines to be necessary to evaluate system performance.

D.    All such reports as are provided to the city shall be provided at no cost to the city. (Prior code § 5.60.270)

5.20.275 Costs to be borne by grantee.

In addition to those costs listed elsewhere in this chapter to be borne by the grantee, the grantee shall assume the following reasonable costs associated with its franchise:

A.    Costs of publication of its franchise as such publication is required by law;

B.    All fees directly related to construction of the cable television facilities, including but not limited to city excavation permit fees and construction inspection fees;

C.    Reasonable costs, as mutually agreed to by the city and the grantee, of enforcing the grantee’s obligations under this chapter and its franchise. (Prior code § 5.60.275)

5.20.280 Solicitation.

This chapter shall authorize and permit the grantee to solicit, subject to the city’s solicitation ordinance, sell, distribute, and make a charge to subscribers within the city for connection to the cable television system of the grantee, and shall also authorize and permit the grantee to traverse any portion of the city in order to provide service outside the city. (Prior code § 5.60.280)

5.20.285 Annexation—Effect.

In the event any new territory shall be annexed to the city which is contiguous to only one franchise area in the city, such new territory shall become, by operation of law, a part of said franchise area immediately upon the completion of such annexation, provided that the city shall give the grantee prompt written notice thereof and shall identify the area which has been so annexed. (Prior code § 5.60.285)

Article 3. Construction, Maintenance and Operation

5.20.290 Construction, operation and maintenance generally.

All cable television system construction, operation, and maintenance in the city shall be deemed and construed in all instances and respects to be under and pursuant to this chapter and as such is not under or pursuant to any other right, privilege, power, immunity or authority whatsoever except applicable federal and state law regulating cable television systems. (Prior code § 5.60.290)

5.20.295 Poles and conduits—Easements.

This chapter shall not relieve the grantee of any obligations involved in obtaining the necessary pole or conduit space easements and agreements from any department of the city or any appropriate utility company. (Prior code § 5.60.295)

5.20.300 Poles and conduits—Additional use.

In the event that the city desires to make additional use for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits or similar facilities erected, controlled or maintained exclusively by or for the grantee in any street, the city and the grantee shall meet to negotiate in good faith to determine the proper arrangements necessary for such usage. (Prior code § 5.60.300)

5.20.305 Technical standards.

A.    The cable television system shall be designed, installed, maintained and tested in accordance with the technical performance standards contained in Exhibit A attached to the ordinance codified in this chapter, on file in the office of the city clerk.

B.    In addition, should the Federal Communications Commission (the FCC), or other federal authority having jurisdiction impose cable television system technical performance standards either outside the scope of the technical performance standards contained herein or requiring a higher level of cable television system performance, those standards are incorporated herein by reference. The grantee shall not be required to comply with any such standards, whether specified in this section or otherwise, until the cable television system has been engineered for and rebuilt to at least thirty-five (35) channels. If, for any reason, the referenced FCC or other technical performance standards shall become reduced in scope or service level, the more stringent standards set forth in Exhibit A shall remain in effect. (Prior code § 5.60.305)

5.20.310 Local origination equipment.

Upon a demonstrated need for local origination and public access equipment as evidenced through subscriber or community surveys or other equivalent evidence, the grantor and the grantee shall negotiate in good faith for the purpose of establishing the requirements for such equipment, including studio facilities and the like. (Prior code § 5.60.310)

5.20.315 Public works projects—Grantee cooperation.

The grantee at its expense shall protect, support, temporarily disconnect, relocate or move any property of the grantee when, in the opinion of the city manager, the same is required for reasons of urban renewal, projects of the San Jacinto redevelopment agency, or any other public works project of the city or another governmental agency or public utility; provided, however, that where public funds or funds from property owners are available for such work of protection, support, disconnection or relocation pursuant to statute or otherwise, the grantee shall be reimbursed in full for the relocation of its facilities so affected by such work. (Prior code § 5.60.315)

5.20.320 Work performed by city.

A.    Upon the failure, refusal or neglect of the grantee to cause any work or other act required by this chapter or its franchise granted pursuant to this chapter to be properly completed in, on, over or under any street within any time prescribed by this chapter or such franchise, the city manager may cause such work or other act to be completed in whole or in part if such work is not completed within thirty (30) days after receipt by the grantee of written notice from the city manager specifying such failure or within such longer period of time as the city manager may allow therefor; provided, however, that the city manager shall not be required to give notice of any such failure in circumstances of emergency causing or threatening to cause material and imminent harm to the public health, safety or welfare.

B.    If the city manager causes such work or other act to be completed, he or she shall submit to the grantee an itemized statement of the costs thereof. The grantee shall, within thirty (30) days after receipt of such statement, pay to the city the entire amount thereof. (Prior code § 5.60.320)

5.20.325 Property removal for abandonment or noncompliance.

A. In the event that:

1.    The use of the entire cable television system of the grantee is abandoned for any reason for a continuous period of six months without prior written notice to and approval by the city and the city terminates the grantee’s franchise; or

2.    Any part of such system has been installed in any street or other area without complying with the requirements of this chapter or the grantee’s franchise, provided that the city shall have given the grantee notice and an opportunity to cure such noncompliance in accordance with the procedures of Section 5.20.110A of this chapter, and the city terminates such franchise after the failure of the grantee to cure such noncompliance within the period allowed therefor; or

3.    This franchise is otherwise terminated, canceled or expires; then the grantee shall, at the option of the city and at the expense of grantee, commence forthwith to remove its property from the streets and restore the streets from which the property has been removed to such condition as existed prior to the erection or construction of the cable television system, including any improvements made to such property subsequent to the construction or installation of the system as approved by the city manager, to the extent reasonably practicable.

B.    Such removal and restoration shall be undertaken in the manner and completed within the time set forth in Section 5.20.120 of this chapter.

C.    The grantee may abandon any such property in place under such reasonable terms and conditions as the director of public works may propose. Upon abandonment of any such property, the grantee shall cause to be executed, acknowledged, and delivered to the city such instruments as the city attorney shall prescribe and approve, transferring and conveying the ownership of such property to the city. (Prior code § 5.60.325)

5.20.330 Other permits, licenses and authorizations.

Within sixty (60) days after acceptance of a franchise granted pursuant to this chapter, the grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business. Said permits and authorizations shall include, but not be limited to, joint use utility attachment agreements, microwave carrier licenses, satellite communications agreements, and licenses and authorizations granted by duly constituted regulatory agencies which have jurisdiction over the operation of cable television systems. (Prior code § 5.60.330)

5.20.335 Construction plans and schedules.

Within ninety (90) days after the acceptance of such franchise, the grantee shall provide a detailed construction plan indicating a progress schedule, area construction maps, test plan, and projected dates for offering service. (Prior code § 5.60.335)

5.20.340 Commencement of construction.

A.    Within one hundred twenty (120) days after the acceptance of such franchise, the grantee shall commence physical construction and installation of the cable television system.

B.    Upon the close of each thirty-day period after the start of construction, the grantee shall provide the city with a written update which details the construction activity of that thirty (30) day period. (Prior code § 5.60.340)

5.20.345 Commencement of service.

Within twelve (12) months after the acceptance of such franchise, the grantee shall make basic cable service available to subscribers within the areas of the city which the grantee has undertaken to serve as indicated in its construction plans, except that the grantee shall not be required to provide cable television services to those sections of the city within the existing activated cable services of another franchisee. (Prior code § 5.60.345)

5.20.350 Time limits for completion.

All production equipment and facilities, including all of the equipment and facilities required under the grantee’s franchise, shall be completed, installed, and available for use by local residents within eighteen (18) months after the acceptance of such franchise. (Prior code § 5.60.350)

5.20.355 Intracity network.

Within five years after the acceptance of such franchise, the grantee shall be required to provide, at the request of the city, an institutional network (shadow trunk/feeder/extensions) between city facilities. Said institutional network shall be completed within a reasonable period of time as determined by the council. (Prior code § 5.60.355)

5.20.360 Notice of construction work to residents.

A.    Prior to the commencement of any construction as required under Section 5.20.340 of this chapter, the grantee shall place at every residence within the construction area, at a conspicuous location, a notice developed by the grantee and approved by the grantor informing residents of any construction activity. The notice shall include at a minimum the name, address, and phone number of the grantee, information on how and where to file complaints against any construction-related activities, the date that the construction activity is scheduled to take place, and general information regarding the extent, purpose and description of the construction scheduled to take place. The notice shall be placed at each residence located within two blocks of the construction activity no less than forty-eight (48) hours prior to the commencement of construction and no more than two weeks prior to the commencement of construction.

B.    The grantee shall also be required to conduct a general media campaign utilizing local newspapers to inform city residents on a continued and regular basis of the grantee’s construction schedules. (Prior code § 5.60.360)

5.20.365 Employee identification badges.

All persons associated with the grantee’s construction, including all subcontractors of the grantee, shall wear at all times while on city streets a badge which clearly identifies them as employees of the grantee. (Prior code § 5.60.365)

5.20.370 Liaison.

The grantee shall designate a person throughout the entire duration of the construction activity who shall be responsible to address all complaints related to the construction within the time limits as specified in this chapter. The designated person shall be adequately trained and informed to be capable of providing accurate information regarding all phases of construction to the grantor or city residents. (Prior code § 5.60.370)

5.20.375 Inspections and tests.

The grantor shall have the right to inspect all construction or installation or other physical work performed by the grantee in connection with the franchise, and to make such tests as it shall find necessary to ensure compliance with the terms of the franchise and other pertinent provisions of law. (Prior code § 5.60.375)

5.20.380 Completion notice.

The grantee shall notify the grantor in writing when the construction requirements of this chapter are complete. Any construction or schedule required under this section shall be considered complete only upon written notice from the grantor to the grantee finding that the work has been completed in a manner satisfactory to the grantor as specified in this chapter. No construction requirement or schedule shall be considered as being complete until said letter has been executed by the grantor. In the event the grantor fails to respond to the grantee’s notification of construction completion within sixty (60) days of receipt thereof, the construction of the system shall be deemed complete. Said sixty (60) days from the time required for the city’s approval or disapproval shall not be counted against the grantee’s construction schedule. (Prior code § 5.60.380)

5.20.385 Extensions.

A.    In the event that the grantee’s failure to meet any construction deadlines as specified in this chapter is due to an unforeseeable cause beyond the reasonable control of the grantee, including utility pole attachment clearances which have been properly applied for by the grantee, the grantee must notify the city manager of the time and nature of the delay within ten days after the delay occurs.

B.    In the event that an extension to the construction schedule as specified in the franchise is requested by the grantee, the extension must be requested from the city manager in writing within fourteen (14) days prior to the scheduled deadline. Such request must specify the exact reason for the extension and the total number of extension days requested. (Prior code § 5.60.385)

5.20.390 Multiple dwelling units.

A.    All construction schedules heretofore detailed in this chapter shall apply to multiple dwelling units as defined in this code, except that, upon demonstration of good cause, which shall include the grantee’s inability to obtain necessary building access, if such effort was made by the grantee in good faith, the grantor may extend the construction schedules relative to multiple dwelling units only.

B.    The grantee must state the reasons for the requested extension in writing to the city manager prior to the scheduled deadline. Said request shall detail the amount of time estimated for the continuance and the completion of construction. The city manager may, in writing, authorize the appropriate time extensions. (Prior code § 5.60.390)

5.20.395 Delays—Reduction of franchise term.

By acceptance of any franchise granted pursuant to this chapter, the grantee agrees that failure to comply with any time requirements referred to in this chapter, as extended by the council, shall be cause for the grantor to reduce the franchise term four days for each and every day’s delay beyond the time prescribed for completion of any of the acts required to be done by this chapter, as extended by the council. (Prior code § 5.60.395)

5.20.400 Utilization of existing facilities.

The grantee shall utilize existing poles, conduits, and other facilities whenever possible and shall not construct or install any new, different, or additional poles, conduits, or other facilities, whether on public property or on privately owned property, unless and until first securing such building permits as may be required therefor by applicable city ordinances. (Prior code § 5.60.400)

5.20.405 Underground construction.

A.    Where the existing conduits and transmission or distribution facilities of the respective public utilities providing telephone, communication, and electric services are underground, or hereafter are placed underground, or whenever the city shall undertake a program designed to cause all conduits and other facilities to be located beneath the surface of the streets, the grantee shall likewise construct, operate and maintain all of its transmission and distribution facilities underground with the exception of active electronic equipment, which, upon design and location approval from the city manager, maybe placed aboveground; provided, however, that where public funds or funds from property owners are available for such work of undergrounding or relocation pursuant to statute or otherwise, the grantee shall be reimbursed in full for the relocation of its transmission and distribution facilities so affected by such work.

B.    Whenever any active electronic component is so located above the surface of the ground, all efforts will be undertaken by the grantee to ensure that such location does not physically detract from the surroundings and does not endanger the public safety or public welfare.

C.    The term “underground” shall include a partial underground system.

D.    The method of underground construction to be utilized by the grantee, whether by trenching, boring, cutting, or other method, and the restoration of streets, parkways, alleys, and other city rights-of-way utilized for the placement of the grantee’s conduits and/or ancillary equipment must first be submitted to the city manager for approval. The construction methods approved will be subject to the required permit fees and city inspection as may be required by other ordinances, rules, regulations and specifications of the city heretofore or hereafter adopted, including but not limited to those pertaining to works and activities in, on, over, under and about streets. (Prior code § 5.60.405)

5.20.410 System maps.

A.    The grantee shall make and keep in its local office full and complete plans and records as of a reasonably current date accurately showing, as of such date, the location of the cable television system then constructed and installed or in place in the streets and other public places in the city.

B.    Within thirty (30) days following the written request of the city manager, the grantee shall provide a reasonably current map or set of maps drawn to scale accurately showing, as of the date or dates of such map or maps, the location of the cable television system then constructed and installed or in place in the streets and other public places of the city. (Prior code § 5.60.410)

5.20.415 Channel capacity.

A.    The cable television system shall have a capacity of thirty-five (35) channels, provided that such capacity need not be made available until the system has been engineered, reconstructed and rebuilt to accommodate that number of channels.

B.    The grantee shall commence construction of the system rebuild promptly following the completion of system mapping and shall use its best efforts to complete such rebuild on or before the date provided in the grantee’s franchise. For purposes of this section, “best efforts” shall not be deemed to require the grantee to undertake unusual or extraordinary measures to complete the system rebuild by such date, including but not limited to prosecution of legal proceedings, addition of construction crews, or expenditure of funds in excess of those budgeted for such system rebuild or from time to time available to the grantee therefor from such sources as the grantee contemplates financing such system rebuild.

C.    Upon the occurrence of any cause or causes set forth in Section 5.20.030 of this chapter, such date shall be extended by the period of delay occasioned by such cause or causes. (Prior code § 5.60.415)

5.20.420 Government channel.

The grantee shall make available for use by the city and any other franchising or licensing authority providing the grantee with a franchise or license to operate a cable television system in any area contiguous to or in reasonable proximity of the city a six megahertz frequency on its cable television system equivalent to one channel on such system, provided that such frequency shall not be made available until the cable television system has been engineered for and rebuilt to a capacity of at least thirty-five (35) channels. Such channel shall be subject to the following:

A.    All costs associated with the use of such channel by the city shall be borne by the city, including but not limited to facilities cabling, interconnect equipment, engineering, equipment, labor, and facilities necessary to provide and activate interactive or two-way capability or two-way operations, installing any institutional or local area network, and all devices, apparatus, and personnel required for the operation of such channel for the purpose and in the manner specified by the city.

B.    The city shall coordinate with each other franchising or licensing authority to which the grantee has made such channel available with respect to the times and dates of each use of such channel by the city.

C.    The grantee shall be entitled to use such channel during periods when not in actual use by the city or any other such franchising or licensing authority.

D.    The city and the grantee shall negotiate in good faith for the purpose of establishing the operational, technical, and procedural requirements for the use of such channel by the city prior to the actual use thereof by the city.

E.    The city shall assume full responsibility for its use of such channel and shall indemnify, defend and hold the grantee, its parent, and their respective officers, directors, employees, and agents harmless from and against any and all claims, demands, causes of action, actions, suits, proceedings, damages, costs or liabilities of whatever nature arising from or in any manner related to the use of such channel by the city, its officers, employees or agents or anyone authorized by the city to use such channel. (Prior code § 5.60.420)

5.20.425 Underground alert service.

The grantee shall be a member of the Underground Alert Service and utilize such services prior to the commencement of any underground activities, provided there exists such a service in the area served by the grantee under any franchise granted pursuant to this chapter. (Prior code § 5.60.425)

5.20.430 Exemptions for acquisition of existing systems.

The provisions of Sections 5.20.335 through 5.20.365, inclusive, and Sections 5.20.380 through 5.20.395, inclusive, shall not apply to any grantee acquiring an existing, operating cable television system located in the city from a prior grantee. (Prior code § 5.60.430)

5.20.435 Service extensions.

A.    Service Connections. The grantee shall extend cable television service to any existing or new residence located in any residential area of the city served by energized trunk cable which requires only the connection or a tap or drop to make such service available, including those residences serviced by underground utilities, at a standard rate if the resident requests such service.

B.    If the service connection requires no more than a one hundred fifty (150) foot aerial drop line, the grantee shall provide a connection for such service at the standard rate for the initial one hundred fifty (150) feet. The grantee may charge any new subscriber for the grantee’s actual cost of all labor, equipment and materials for:

1.    All positions of any aerial service connection in excess of one hundred fifty (150) feet;

2.    The entire length of any service connection installed underground; and

3.    The entire length of any service connection to remote or relatively inaccessible subscribers.

C.    Prior to installing any service connection for which the grantee will charge a potential subscriber on a time and materials basis, the grantee must present the prospective subscriber with a detailed, itemized statement of its estimated costs for the service connection. (Prior code § 5.60.435)

5.20.440 Line extensions.

The grantee shall be required to extend energized trunk cable from any existing terminus of the cable television system in the city to any area immediately adjacent thereto located in the city having a density of at least forty single-family residential dwelling units per cable mile; provided, however, that the grantee shall not be obligated to service areas to which it is unable to obtain pole line facilities located in a direct route to such areas and the grantee shall not be required to erect or obtain the use of pole line facilities along an indirect or circuitous route, nor is the grantee required to use underground conduit where underground conduit is not in use in order to supply service to any such areas and, provided further, that the grantee shall not be required to make any such line extension until the system has been engineered for and rebuilt to a capacity of thirty-five (35) channels. (Prior code § 5.60.440)

5.20.445 Interconnection.

When technically and economically feasible in the reasonable judgment of both the grantor and the grantee, the grantor and the grantee shall negotiate in good faith to determine the requirements for the interconnection of the grantee’s cable television system with cable television systems in adjacent communities for the purpose of sharing locally originated public, educational, and other programming. (Prior code § 5.60.445)

5.20.450 System failures.

A.    In the event that the cable television system fails to meet any of the performance standards as contained in this chapter or other tests as contained in the grantee’s franchise, the grantor shall give notice of the deficiency to the grantee and the grantee shall correct such deficiency within the period allowed for the cure of a material violation of this chapter as set forth in 5.20.110(A) of this chapter. The grantee will notify the grantor when such correction has been made and the engineering firm employed in the previous tests, if any, will be contacted to evaluate compliance. In the event the resulting tests reveal that the grantee has failed to correct such deficiency, or if the period allowed for correction of the deficiency has elapsed and the grantee has not corrected the deficiency, the grantee shall, in addition to the remedies listed above, provide all subscribers in the affected area requesting the same a full day’s rebate for each tier of service affected for each and every day (partial or full) beyond the period of time allowed for correction of such deficiency under this section that the system deficiency has not been corrected.

B.    Performance Damages. In the event that the grantee has failed to correct said deficiency within sixty (60) days after expiration of the period allowed for correction of the deficiency under subsection A of this section, or such longer period of time as is approved by the grantor, the grantee shall pay to the city one thousand dollars ($1,000.00) per day for each and every day that the deficiency exists after the expiration of such sixty (60) day period.

D.    Applicability. The provisions of subsections A and B of this section shall apply only after the cable television system operated by the grantee has been engineered for and rebuilt to thirty-five (35) channels. (Prior code § 5.60.450)

5.20.455 Notice to new subscribers.

A.    Before providing cable television service to any new subscriber, the grantee shall provide a written notice to the subscriber substantially as follows:

The subscriber is hereby notified that the cable television services provided by the cable operator make use of public rights of way whose continued use is not guaranteed. But, by accepting service, the subscriber agrees to make no claim or undertake any action against the grantor, its officers, commissions, or employees if service is interrupted or discontinued. In the event of unresolved disputes between the subscriber and the cable operator, the subscriber may register a complaint with the grantor.

B.    The grantee shall have a reasonable period of time following the grant of its franchise pursuant to this chapter to prepare such notice. (Prior code § 5.60.455)

5.20.460 Nondiscrimination.

A.    No person in the existing service area of the grantee shall be arbitrarily refused cable television service; provided, however, that the grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or monthly service charge.

B.    The grantee shall not discriminate either in favor of or against any subscriber or potential subscriber of cable television services on the basis of sex, age, race, creed, color, or national origin. (Prior code § 5.60.460)

5.20.465 Continuity of service.

A.    It shall be the right of all subscribers to receive all available services insofar as their financial and other obligations to the grantee are honored.

B.    In the event that the grantee elects to overbuild, rebuild, modify or sell the cable television system, the grantee shall use its best efforts to minimize the period of any interruptions in service resulting from such overbuild, rebuild, modification or sale and to provide affected subscribers with prior notice of such interruption.

C.    In the event of purchase by the grantor, or a change of the grantee, the current grantee shall cooperate with the grantor to operate the system for a temporary period to maintain continuity of service to all subscribers on terms mutually satisfactory to the grantor and grantee. (Prior code § 5.60.465)

5.20.470 Takeovers—Operation and management.

A.    During any take-over of operation of the grantee’s cable television system after termination and nonrenewal of its franchise, the grantor shall attempt to cause as little disruption of operations as is consistent with the maintenance of continuing service to subscribers.

B.    Notwithstanding the foregoing, the grantor shall, as it may deem necessary, make any changes in any aspect of operations desirable, in the grantor’s sole judgment, for the preservation of quality of service and its continuity. The grantor shall further, during any such take-over, maintain to the best of its ability the system’s records, physical plant, financial integrity and funds, and other details and activities normally involved in operations.

C.    Management During Take-Over. The grantor may, upon taking over operation of a cable television system franchised hereunder in accordance with subsection A of this section, appoint a manager to act for it in the overall as well as detailed direction and conduct of the system’s affairs. Such manager shall have the authority delegated to him or her by the grantor in its order of take-over and shall be solely responsible to the grantor for management of the system. (Prior code § 5.60.470)

5.20.475 Complaints and inquiries—Service representatives and office hours.

A.    Telephone Answering Service. The grantee shall provide a sufficient number of telephone lines to its office so as to assure that only a minimum of callers shall receive busy signals when telephoning the office. Sequencers shall be employed to provide for the handling of telephone calls in the order received.

B.    Service Representatives. A sufficient number of customer service representatives will be provided so that callers are not required to wait beyond a reasonable time for service. The telephone number of the grantee’s local office shall be listed in the telephone directories serving the city. Such telephone service shall be operable to accept complaints twenty-four (24) hours a day, seven days a week. Inquiries and complaint calls shall be accepted in person over the telephone between the hours of nine a.m. to five p.m. from Monday through Friday, excepting legal holidays.

C.    Office Hours. The grantee shall maintain regular office hours staffed by personnel well-trained to handle subscriber complaints and inquiries between the hours of nine a.m. to five p.m. from Monday through Friday, excepting legal holidays.

D.    Technical Staff. The grantee shall maintain a fully trained technical staff qualified to correct system deficiencies and make all necessary repairs to the cable system. (Prior code § 5.60.475)

5.20.480 Complaints—Response and recordkeeping.

The following procedure shall be adhered to in the event of subscriber complaints by city residents:

A.    Any complaint made by a subscriber to the grantee concerning billing, employee courtesy, programming, safety, or company policy will be handled immediately upon receipt of the complaint and will normally be resolved within forty-eight (48) hours.

B.    Service complaints involving system construction, customer dissatisfaction with any installation, reconnection or disconnection, or complaints related to loss of or interference with service or any system leakage affecting amateur radio/TV operators will be handled in the sequence that they are received. Immediately upon receiving such a complaint, the grantee’s service representative will set an appointment with the subscriber that will enable the grantee’s service technician to examine and resolve the subscriber’s complaint if such appointment is deemed necessary, in the reasonable judgment of the grantee, to resolve such complaint. In the event that the subscriber is not available to allow the grantee access to its property at the time scheduled for the appointment, the grantee shall set an appointment with the subscriber on subsequent request therefor by the subscriber to inspect and resolve the complaint at the subscriber’s earliest convenience.

C.    In the event that any subscriber is not satisfied with any services as required by this section, the subscriber’s complaint will be referred to management personnel who will normally resolve the complaint within forty-eight (48) hours. Nothing shall prevent the grantee’s local management from extending credits or refunds as compensation for a subscriber’s poor, inadequate, or interrupted service.

D.    Complaint Log. The grantee shall maintain a written record, or “log,” listing date and time of subscriber complaints, identifying the subscriber and determining the nature of the complaint, and when and what action was taken by the grantee in response thereto; such records shall be kept at the grantee’s local office reflecting the operations to date and for a period of three years prior thereto, and shall be available for inspection during regular business hours upon the reasonable request of the city manager. (Prior code § 5.60.480)

5.20.485 Complaints—Tests.

When there have been similar complaints made or where there exists other evidence which in the reasonable judgment of the city manager casts doubt on the reliability or quality of the cable television system, or the grantee’s ability to meet the technical standards herein adopted, the city manager shall have the right and authority to compel the grantee to test, analyze and report on the performance of that part of the system involved in the problem. Such test or tests shall be made and the report of such test or tests shall be delivered to the city no later than forty-five (45) days after the city formally notifies the grantee. Such report shall include the following information:

A.    The nature of the complaint which precipitated the special test;

B.    What system component was tested;

C.    The equipment used and procedures employed in such testing;

D.    The names of the individuals performing and witnessing the testing;

E.    The date, time and location of testing;

F.    The results of such tests; and

G.    The method in which such complaints were resolved. (Prior code § 5.60.485)

5.20.490 Complaints—Remedies.

A.    In the event that any tier of service provided to any subscriber is interrupted for over twenty-four (24) consecutive hours, except for acts of God or any other event beyond the reasonable control of the grantee, and except in circumstances for which prior approval of the interruption is obtained from the city, the grantee shall, upon request by such subscriber, provide a full day’s rebate of rates for each tier of service affected for each and every day (partial or full) that the service is interrupted. The grantee shall provide its subscribers with notice of such rebate policy.

B.    For the purpose of this section, loss of service shall mean any loss of service or distortion of service so that the service does not materially comply with the performance standards set forth in this chapter. (Prior code § 5.60.490)

5.20.495 Complaints—Resolution.

The city manager shall have the authority to resolve any and all complaints and to require that the grantee effect any system repairs to assure compliance with the technical standards of this chapter, in each case in accordance with the provisions of this chapter. Said requirements shall be presented to the grantee in writing and shall detail the schedule for completion. (Prior code § 5.60.495)

5.20.500 Refunds.

When a subscriber voluntarily discontinues service, the grantee shall, upon request by the subscriber, refund the unused portion of any advance payments made by the subscriber after deducting any charges currently due by such subscriber. Refunds shall, be based upon the number of days during the period to which such advance payment relates that the subscriber receives service in relation to the total number of days in such period. (Prior code § 5.60.500)

5.20.505 Service contracts.

Prior to any installation or delivery of services and subject to the provisions of this section, all new subscribers shall sign and deliver to the grantee a written agreement for service. Such agreement shall describe in detail all charges for installation and services, the method of payment and schedule of payment, and any grace periods, late charges, or any other information which will affect the total amount the subscriber is to be charged. The grantee shall provide a copy of the service contract for grantor review on request by the grantor. The grantee shall have a reasonable period of time following the grant of its franchise pursuant to this chapter to prepare the form of such subscriber agreement. (Prior code § 5.60.505)

5.20.510 Customer service representatives.

The grantee shall advise each subscriber as may be set forth in the franchise that the grantor’s representative is the official to whom complaints of poor service should be made if such complaints of poor service are not resolved by the grantee to the satisfaction of each subscriber. (Prior code § 5.60.510)

5.20.515 Disconnection for cause.

The grantee may disconnect a subscriber for cause which shall include but not be limited to:

A.    Payment delinquency;

B.    Wilful damage to or misappropriation of the grantee’s property;

C.    Refusal, for more than ten days, to admit the grantee to the subscriber’s premises to service the grantee’s equipment;

D.    Unauthorized monitoring, tapping or tampering with the grantee’s system, signals or services. (Prior code § 5.60.515)

5.20.520 Reconnection.

The grantee shall, upon a subscriber’s written request, reconnect service which has been disconnected for payment delinquency when payment has removed the delinquency. A published standard charge may be made for reconnection. The grantee shall not be required to make more than two reconnections for the same subscriber if the disconnections involved were caused by payment delinquency within the past twelve (12) months. (Prior code § 5.60.520)

5.20.525 Converters and terminals.

A.    At such time as a converter or terminal becomes necessary for subscribers to have access to all services on the grantee’s cable television system, the grantee shall make them available to subscribers.

B.    The grantee may not require subscribers to accept such devices if the converter’s sole purpose is to enable the reception of premium services.

C.    The grantee may require each subscriber who elects to take a converter to furnish a security deposit therefor.

D.    Each converter remote or terminal device owned by the grantee and not sold to any other person shall be and remain the property of the grantee.

E.    The grantee shall be responsible for maintenance and repair of each converter owned by it and may replace it from time to time, except that any subscriber to whom a converter is given shall be responsible for loss of or damage to any such device while in his or her possession.

F.    Upon termination or cancellation of a subscriber’s service, said subscriber shall promptly return the grantee’s property to the grantee in the same condition as received, with the exception of reasonable wear and tear as normally accepted.

G.    The grantee may apply the security deposit received for such converter, if any, against any sum due it from the subscriber for loss of or damage to such converter or for any other amounts due the grantee from such subscriber. If the grantee has no claim against the deposit, the grantee shall return it, or the balance thereof, to the subscriber. (Prior code § 5.60.525)

5.20.530 Policy on obscene programming.

The grantee, in its acceptance of any franchise granted hereunder, shall declare its policy against the carriage of obscene programming and programming which is otherwise unprotected by the Constitution of the United States. (Prior code § 5.60.530)

5.20.535 Availability of programming.

A.    The grantee shall make time available to the public on a designated channel or channels for public, educational and governmental programming.

B.    The grantee shall make available at least fifteen (15) hours per week for such programming on such channels, at such times, on such days, and subject to such terms and conditions as are mutually satisfactory to the grantor, the grantee, and each other franchising or licensing authority providing the grantee with a franchise or license to operate a cable television system in any area contiguous to or in reasonable proximity of the city. If such available time is in use at least eighty (80) percent of such days for at least eighty (80) percent of the time allocated to each such day over a period of ten consecutive weeks, the grantee shall make additional hours and/or days available on such terms as shall be mutually satisfactory to the grantor, the grantee, and each such other franchising or licensing authority. The availability of such time shall be subject to the following:

1.    Such time shall not be made available until the cable television system has been engineered for and rebuilt to a capacity of thirty-five (35) channels;

2.    All costs associated with such programming and the use of such channel or channels as are provided by the grantee therefor shall be borne by the person or persons providing such programming or utilizing such channel or channels for such purposes;

3.    Such channel or channels as are provided for such programming shall be downstream only;

4.    The grantee shall be entitled to use such channel or channels at all times when not reserved for use for such programming, as well as during any such period when so reserved provided no such use is then scheduled for such period.

C.    Until sufficient programming develops to require the availability of separate channels, the grantee may require that such public, educational, and governmental programming be carried on the government channel set forth under Section 5.20.420 of this chapter. (Prior code § 5.60.535)

5.20.540 Leased access channel allocation.

The grantee shall allocate leased access channel capacity over its cable television system consistent with the terms and conditions of Section 612 of the Cable Communications Policy Act of 1984 (47 U.S.C. Section 532), as amended. (Prior code § 5.60.540)

5.20.545 Subscriber privacy protection.

All matters related to subscriber privacy shall be subject to the provisions of the Cable Communications Policy Act of 1984 (47 U.S.C. Section 521 et seq.). (Prior code § 5.60.545)

Article 4. Rates

5.20.550 Billing periods.

The grantee may, at its option, charge subscribers for service and installation no more than two months in advance. Billing periods shall not exceed two months. Bills may be due and payable upon mailing and shall not become delinquent sooner than twenty (20) days after mailing. All billing statements must contain a fully itemized fee schedule for the services received by the subscriber in question. (Prior code § 5.60.550)

5.20.555 Regulation.

The city council, by resolution, shall establish and fix the rates for the provision of basic cable service, including multiple tiers of basic cable service, and regulate the rates for the initial installation or the rental of one set of the minimum equipment which is necessary for the subscriber’s receipt of basic cable service. Once established, such rates shall not be changed at any time prior to December 25, 1986, except as authorized by the council. (Prior code § 5.60.555)

5.20.560 Adjustments.

A.    The grantee shall have the authority to request adjustments to the rates for those services indicated in Section 5.20.555 of this chapter.

B.    Upon receipt of a written proposal indicating the proposed new rates, the council shall announce by written notice published in a newspaper of general circulation the time and date of a public hearing which shall be for the purpose of establishing rates. Said announcement shall be published at least ten consecutive days before the date of the hearing. In addition, the grantee shall notify all subscribers through its cable system of the proposed rate changes and the public hearing time and date.

C.    If the council finds that the changing of any rates as detailed in Section 5.20.555 of this chapter will be fair to the grantee and not detrimental or injurious to the best interest and welfare of the subscribers and of the city, then the council, by resolution, shall authorize the change of rates of the grantee to subscribers as so determined. Such resolution shall thereupon become and shall be part of the grantee’s franchise.

D.    In the event that the council fails to take final action on approving or disapproving the rate proposal as submitted by the grantee within one hundred (100) days after receipt of such proposal, the proposed rates shall be deemed to be granted, unless the one hundred (100) day period is extended by mutual agreement of the grantor and grantee. (Prior code § 5.60.560)

5.20.565 Cost-of-living adjustments.

In addition to any other rate increase which is subject to the approval of the grantor, any rates subject to regulation pursuant to this section may be increased at the discretion of the grantee by an amount not to exceed five percent per year. Nothing in this section shall be construed to limit the grantee from increasing any rate at its discretion; provided, however, the aggregate increases per year shall not exceed five percent unless authorized by the council. (Prior code § 5.60.565)

5.20.570 Services for the hearing-impaired—Nondiscrimination.

Nothing in this chapter shall be construed as prohibiting any discrimination among subscribers of basic cable service or requiring and regulating the installation or rental of equipment which facilitates the reception of basic cable services by hearing-impaired individuals. (Prior code § 5.60.570)

5.20.575 Establishment and modification.

Notwithstanding anything to the contrary contained in this chapter or any franchise granted pursuant to this chapter, the grantee may establish, adjust and modify the rates and charges assessed by it for any services, facilities and equipment provided by the grantee pursuant to its franchise or otherwise without the consent of the council if the rules and regulations of the FCC adopted pursuant to 47 U.S.C. Section 543(b), as amended, provide that the grantee is subject to effective competition or if any federal or state authority, whether legislative, administrative, judicial or otherwise, should prohibit or make unlawful the regulation of the rates and charges assessed by the grantee for its services provided pursuant to its franchise. (Prior code § 5.60.575)