CHAPTER 34 – Cable Communications
Article 1 Cable Communication Franchise Procedures
34-1 Intent
34-2 Definitions.
34-3 Programming and Channel Capacity.
34-4 Franchise - Required and Duration.
34-5 Franchise - Application.
34-6 Franchise - Review of Application.
34-7 Franchise - Contents of Proposal and Review.
34-8 Legal Qualifications.
34-9 Limitations of Franchise.
34-10 Non-Exclusive Franchise and Competition Encouraged.
34-11 Other Limitations of Franchise.
34-12 No Waiver.
34-13 Amendments to Ordinance and Franchise Agreement.
34-14 Conditions of Street Occupancy.
34-15 Consumer Protections - General.
34-16 Rate Regulation.
34-17 Franchise Fees.
34-18 Protection of City and Enforcement - Liability Insurance.
34-19 Protection of City and Enforcement - Performance Bond.
34-20 Protection of City and Enforcement - Security Fund.
34-21 Indemnification.
34-22 Remedies - Liquidated Damages.
34-23 Termination.
34-24 Transfers.
34-25 Miscellaneous.
Article 2 Cable Television Customer Service Standards
34-26 Notices.
34-27 Local Operations.
34-28 Installations, Response to Inquiries, Service Calls.
34-29 Particular Rights Regarding Service Alteration or Disconnection.
34-30 Right to Refunds.
34-31 Deposits.
34-32 Procedure for Disconnection for Cause.
34-33 Payment / Service Charges for Late Payments.
34-34 Complaint Resolution.
34-35 Privacy.
Article 3 State Video Service Franchises (Ord 3410; 05/2008)
34-36 General Provisions
34-37 Definitions
34-38 Franchise Fees
34-39 Customer Service
34-40 Permits and Construction
34-41 Emergency Alert
34-42 Public, Educational, and Government Access Channel Capacity, Interconnection, Signal Carriage and Support
34-43 Notices
ARTICLE 1
Cable Communication Franchise Procedures
Sections:
34-1 Intent
34-2 Definitions.
34-3 Programming and Channel Capacity.
34-4 Franchise - Required and Duration.
34-5 Franchise - Application.
34-6 Franchise - Review of Application.
34-7 Franchise - Contents of Proposal and Review.
34-8 Legal Qualifications.
34-9 Limitations of Franchise.
34-10 Non-Exclusive Franchise and Competition Encouraged.
34-11 Other Limitations of Franchise.
34-12 No Waiver.
34-13 Amendments to Ordinance and Franchise Agreement.
34-14 Conditions of Street Occupancy.
34-15 Consumer Protections - General.
34-16 Rate Regulation.
34-17 Franchise Fees.
34-18 Protection of City and Enforcement - Liability Insurance.
34-19 Protection of City and Enforcement - Performance Bond.
34-20 Protection of City and Enforcement - Security Fund.
34-21 Indemnification.
34-22 Remedies - Liquidated Damages.
34-23 Termination.
34-24 Transfers.
34-25 Miscellaneous.
SECTION 34-1 INTENT
34-1.1 General Findings. The City of Monterey, California (hereinafter called the “City”) finds that cable communication systems have the potential of benefiting its residents if properly regulated. The City further finds that the public convenience, safety, and general welfare are served through a franchising process that specifies certain conditions for review but allows for future flexibility to meet cable-related needs and interests.
34-1.2 Purpose. It is the City’s purpose to promote the public health, safety, and general welfare by granting one or more Franchises for the construction, upgrade, operation, and repair of cable communication systems within the City; to regulate (to the extent not expressly prohibited by law) each cable communication system within the City; to require each Grantee to pay a franchise fee to the City for the use of streets; to promote availability of quality cable service to City residents, businesses, the City, and other public institutions; to encourage the development of and to improve local programming including public, educational, and governmental access programming; to promote competitive cable rates and services; to provide safe and efficient use of streets and rights of way; to optimize the use of public property; to provide a diversity of information to the community; to provide a wide range of programming services which individually may not be desired by all subscribers, but collectively improve the overall value of a cable communication system; to maximize channel capacity, facilities, and programming access for governmental and educational agencies, as well as other groups and individual members of the general public, so as to promote open government, educational opportunity, and a diversity of community information and opinion; and to allow flexibility to respond to changes in technology, subscriber interests, and competitive factors within the cable communication service market and the larger market for entertainment and information.
SECTION 34-2 DEFINITIONS
34-2.1 List of Defined Terms. The following terms, phrases, words, and their derivations shall have the meaning given herein.
“Access” means the availability of the cable system(s) (as it relates to PEG access) for use by various agencies, institutions, organizations, groups, and individuals in the community, including the City and its designees, to acquire, create, and distribute programming not under a Grantee’s editorial control, including, but not limited to:
(A) “Public access” means access where organizations, groups, or individual members of the general public, on a non-discriminatory basis, are the primary or designated programmers or users having editorial control over their programming;
(B) “Educational access” means access where schools are the primary or designated programmers or users having editorial control over their programming;
(C) “Governmental access” means access where governmental institutions or their designees are the primary or designated programmers or users having editorial control over their programming; and
(D) “PEG access” means public access, educational access, and governmental access, collectively.
“Access Channel” means any channel, or portion thereof, designated for access purposes or otherwise made available to facilitate or transmit access programming.
“Affiliate” when used in relation to any entity shall mean another person, firm, corporation, partnership, or other entity that owns or controls, is owned or controlled by, or is under common ownership or control with such entity.
“Applicant” means any person who files a written application for a Franchise under this Ordinance.
“Basic Service” means any service tier regularly provided to all subscribers which includes the retransmission of local television broadcast signals or such other definition as may be adopted by federal law. It shall include all PEG access channels.
“Cable Act” means the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, and as further amended.
“Cable Service” or “Cable Communication Service” means the transmission of video or other service over a cable system to, from, or between subscribers.
“Cable System” means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable communication service which includes video programming and which is provided to multiple subscribers within the City. The term “cable system” does not include (a) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (b) a facility that serves only subscribers in one or more multiple dwelling units under common ownership, control, or management, unless such facility uses any public right of way; or (c) any facilities of any electric utility used solely for operating its electric utility system. The foregoing definition of cable system is not intended to limit the authority of the City to regulate the activities of any other communication system or provision of communication services. Any reference to a Grantee’s cable system includes the cable system as a whole, or any part, facility, device, or fixture which constitutes or is used as part of that cable system, including converters.
“Designated Access Provider” means the entity or entities designated by the City under Section 34-3.7.A.
“Construction” means any new construction, reconstruction, rebuild, or upgrade of the system.
“Document” or “Record” means those materials normally generated, used and retained in the operation and management of a cable system, in whatever form stored, including but not limited to computerized records and programs, paper records, and video or audio-taped records.
“Downstream Channel” means a channel capable of carrying a transmission from the headend to remote points on the cable system or to interconnection points on the cable system.
“Fiber Optic” means the transmission medium of optical fiber, along with all associated electronics and equipment capable of carrying cable services by means of electric lightwave impulses.
“Franchise” means the non-exclusive authorization granted pursuant to this Cable Ordinance by the City to a Grantee to construct, rebuild, maintain, and operate a cable system under, on, and over streets within all or specified areas of the City. The terms and conditions of this Cable Ordinance and any franchise agreement between a Grantee and the City collectively constitute the Franchise. The term “Franchise” does not include any other license, permit, or agreement that may be required for the privilege of transacting and carrying on a business within the City or for disturbing the surface of any street.
“Franchise Agreement” means a contract between the City and a Grantee, entered into in accordance with the terms of this Ordinance, and which, together with this Ordinance, constitute the Franchise.
“Franchise Area” means the geographic area for which a Franchise is issued. The franchise area may be specified to authorize provision of service not only in areas within the existing City limits, but also in other areas, as those areas are annexed in the future.
“Grantee” means any person to whom a Franchise is granted by the City Council.
“Gross Revenues” means all cash, credits, property, or other consideration of any kind or nature received directly or indirectly by a Grantee, its affiliates, or by any other entity that operates a Grantee’s cable system, from any source whatsoever arising from, attributable to, or in any way derived from the Grantee’s operation of a cable system, including the studios and other facilities associated therewith, to provide cable services. Gross Revenues include, but are not limited to, fees charged to subscribers for basic service; fees charged to subscribers for any optional, premium, per-channel, or per-program service; monthly fees charged to subscribers for any tier of service other than basic service; installation, disconnection, re-connection, and change-in-service fees; leased channel fees; fees, payments, or other payment received as consideration from programmers for carriage of programming on the cable system; converter rentals or sales; studio rental, production equipment, and personnel fees; advertising revenues, including a per capita share of advertising revenues for advertising carried on more than one cable system; revenues from home shopping channels; sales of programming guides; and such other revenue sources as may now exist or hereafter develop. The definition shall be interpreted in a manner which permits the City to collect the maximum Franchise fee permitted by law, irrespective of the source of revenue. Gross Revenues, however, shall not include any bad debt (defined as unpaid subscriber or advertiser accounts), any taxes on services furnished by a Grantee which are imposed directly upon any subscriber or user by the state, City, or other governmental unit and which are collected by a Grantee on behalf of said governmental unit (the franchise fee is not a tax). The amount paid as a Franchise fee shall not be deducted from gross revenues unless required to be deducted under federal law.
“Headend” means a Grantee’s facility for signal reception and dissemination on the cable system, including cable, antennas, wires, satellite dishes, monitors, switchers, modulators, processors for television broadcast signals, equipment for the interconnection of the cable system with adjacent cable systems and interconnection of any separate networks which are part of the cable system, and all other related equipment and facilities.
“Interconnect” or “Interconnection” means the provision by a Grantee of technical, engineering, physical, and all other necessary components to accomplish, complete, and adequately maintain a physical linking of a Grantee’s cable system and cable services or any designated channel or signal pathway thereof, with any other designated cable system or programmer so that cable services of technically adequate quality may be sent to and received from such other systems.
“Local Origination Channel” means any channel used to provide local origination programming.
“Local Origination Programming” means any local programming or communications under the editorial control of a Grantee which is produced, selected, and cablecast by the Grantee on the Grantee’s cable system.
“Ordinance” shall refer to this Monterey Cable Enabling Ordinance.
“Person” means any individual, sole proprietorship, partnership, association, corporation, or other form of organization authorized to do business in the State of California, and includes any natural person.
“Programmer” means any person responsible for programming on the cable system, including, without limitation, any person who produces or otherwise provides programming material for transmission on the cable system.
“Programming” means the process of causing television programs or other patterns of signals in video, voice, or data formats to be transmitted on the cable system, and includes all programs or patterns of signals transmitted or capable of being transmitted on the cable system.
“Public Property” means any real property owned by the City or any other governmental unit that is not otherwise defined herein as a street.
“Rebuild” means to alter a cable system through the replacement of cable, amplifiers, passive devices, and headend electronics as necessary so as to increase the channel capacity of the system by at least twenty channels.
“Residential Services” means cable services delivered to single or multiple dwelling units.
“Residential Subscriber” means any subscriber receiving residential services.
“School” means any accredited primary school, secondary school, college, and university.
“Service Tier” means a category of cable service provided by a Grantee and for which a separate charge is made by the Grantee.
“Street” means the surface of and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, right of way, easement, or other public way, now or hereafter existing within the City which may be properly used for the purpose of installing, maintaining, and operating a cable system.
“Subscriber” means any person who is lawfully receiving, for any purpose or reason, any cable service or services provided by a Grantee by means of or in connection with the cable system, whether or not a fee is paid for such service.
“Transfer” means the sale, lease, assignment, mortgage, consolidation, merger, or any other disposition of a Franchise, or any change in the ownership or control of a Grantee or any person which owns, controls, or manages the Grantee directly or through one or more intervening partnerships or corporations.
“Upgrade” means an improvement in channel capacity or other technical aspect of cable system capacity which may be accomplished without a rebuild of the cable system.
“Upstream Channel” means a channel capable of carrying a transmission to the headend from remote points on the cable system or from interconnection points on the cable system.
34-2.2 Other Terms. Words not defined herein shall be given the meaning set forth in the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq. as amended.
SECTION 34-3 PROGRAMMING AND CHANNEL CAPACITY
34-3.1 Grantee Compliance. A Grantee shall meet or exceed the programming and channel capacity requirements set forth in this Ordinance.
34-3.2 Initial Channel Capacity.
A. A Grantee shall provide a cable system which uses at least 550-MHz equipment of high quality and reliability. At minimum, a Grantee shall integrate optical fiber into any cable system construction and design in a manner which permits it to take full advantage of the benefits of that technology, including increased reliability and improved system performance.
B. At minimum Grantee shall install and activate the return portion of the cable system in the sub-low frequency spectrum of 5 MHz to 30 MHz.
C. A Grantee shall initially include a sufficient number of Downstream and Upstream channels with sufficient capability and technical quality to enable the implementation and performance of all the requirements of this Ordinance, including but not limited to, remote access transmissions and transmissions to and from access centers and interconnection points, as set forth in, but not limited to, this Ordinance.
34-3.3 Broad Programming Categories. A Grantee shall provide at least the following initial broad categories of programming:
(1) Educational programming;
(2) News and information;
(3) Sports;
(4) General entertainment (including movies);
(5) Children/family-oriented;
(6) Arts, culture, and performing arts;
(7) Foreign language;
(8) Science/documentary;
(9) Weather information;
(10) Ethnic programming;
(11) Minority programming;
(12) National, state, and local government affairs;
(13) PEG access programming; and
(14) Audio programming (including local radio signals).
34-3.4 Deletion or Reduction of Programming Categories. A Grantee shall not delete or so limit as to effectively delete any broad category of programming identified in this section and within its control without the consent of the City or as otherwise authorized by law.
34-3.5 Leased Access Channels. A Grantee shall meet the leased access channel requirements imposed by federal law.
34-3.6 Broadcast Channels. To the extent required by federal law, a Grantee shall provide to all residential subscribers the signals of:
A. local commercial television stations and qualified low-power stations; and
B. qualified local non-commercial educational television stations.
34-3.7 PEG Access.
A. Designated PEG Access Providers.
1. The City may designate PEG access providers, including itself for governmental access purposes, to control and manage the use of any or all access facilities provided by a Grantee under this Ordinance. To the extent authorized by the City, the designated access provider shall have sole responsibility for operating and managing such access facilities.
2. A Grantee shall cooperate with designated access providers in the use of the cable system and access facilities for the provision of PEG access. A Grantee may enter into operating agreements with designated access providers under which the designated access providers will facilitate and coordinate the provision of PEG access services.
B. PEG Channel Capacity and Technical Capability.
1. A Grantee shall provide a minimum of three (3) Downstream channels for PEG access.
2. A Grantee shall install, maintain, and replace as necessary, a dedicated, bi-directional fiber optic link between the primary access center and the headend.
3. A Grantee shall install, maintain, and replace activated two-way cable plant and all headend, cable plant, and node equipment required to make it operable so that City and County government buildings, buildings of accredited educational institutions, and all designated PEG access centers and access facilities will be able to send and receive signals (video, audio, and data) using the activated two-way cable plant.
4. If PEG access channels are not being used for access purposes, a Grantee may request the City to establish rules and procedures to permit the Grantee to use such channel capacity for other services, together with rules and procedures providing for such use to cease when the channel capacity is required for access purposes.
C. Access Interconnections. A Grantee shall ensure that technically adequate signal quality, routing systems, and switching and/or processing equipment are initially and continuously provided for all access interconnections both within Grantee’s cable system and with other cable systems throughout the duration of this Ordinance.
D. Change in Technology. In the event a Grantee makes any change in the cable system and related equipment and facilities or in the Grantee’s signal delivery technology which directly or indirectly substantially affects the signal quality or transmission of access programming, the Grantee shall at its expense take necessary steps or provide necessary technical assistance, including the acquisition of all necessary equipment, to ensure that the capabilities of access programmers are not diminished or adversely affected by such change.
E. Technical Quality.
1. A Grantee shall maintain all access channels (both Upstream channels and Downstream channels) and all interconnections of access channels at the same level of technical quality and reliability required by this Ordinance and all other applicable laws, rules, and regulations for residential subscriber channels.
2. A Grantee shall have no responsibility for the production quality of the access programming distributed on the access channels.
SECTION 34-4 FRANCHISE -- REQUIRED AND DURATION
34-4.1 Franchise Required. No person may use the streets of the City to construct, operate, or repair a cable system, and no operator may provide cable service within the City without a Franchise. Any person may apply for a Franchise. An independent contractor does not need a Franchise to install a cable system for a Grantee.
34-4.2 Description of Authorization. Any non-exclusive Franchise granted pursuant to the provisions of this Ordinance shall authorize and permit a Grantee to engage in the business of operating and providing a cable system in the City of Monterey, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, and retain in, on, over, under, upon, across, and along any street or highway, such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the cable system; and in addition, so to use, operate, and provide similar facilities or properties rented or leased from a public utility franchised or permitted to do business in the City of Monterey, except that an encroachment permit shall be required for work or encroachment on public property or in the public rights of way. The construction, operation, and repair of the cable system shall be subject to all existing and future ordinances and regulations of the City, including zoning ordinances and ordinances establishing construction standards or procedures for use of the streets.
34-4.3 Duration. Unless a different term is specified in a Grantee’s franchise agreement, a Franchise shall be for eight (8) years. A Franchise does not confer rights other than as provided by this Ordinance and the Franchise Agreement, or as mandated by federal or state law.
34-4.4 Owner Consent Required. A Franchise does not authorize a Grantee to construct, operate, or repair any other type of system, or to provide service to, or install its cable system upon private property without owner consent, or to use publicly or privately owned conduits or poles without a separate agreement with the owners, except that nothing in this section limits any rights the Grantee may have to use compatible easements pursuant to Section 621 of the Cable Act, 47 U.S.C. § 541(a)(2).
34-4.5 Grantee’s Expense. Unless otherwise specifically stated in a Franchise or required by law, all acts which a Grantee is required to perform under the Franchise or applicable law must be performed at the Grantee’s expense.
SECTION 34-5 FRANCHISE -- APPLICATION
34-5.1 Filing. An application for a new Franchise or for a renewal Franchise must be filed with the City Clerk. New Franchises and renewal Franchises that are not subject to the formal renewal provisions of the Cable Act, 47 U.S.C. § 546(a)-(g), shall be reviewed as provided in Section 34-6.1. Applicants that submit proposals subject to the formal renewal provisions of the Cable Act shall be reviewed as provided in Section 34-6.2.
34-5.2 Application Requirements. An application for a Franchise shall contain the following information:
A. The name, address, and telephone number of the applicant.
B. A detailed statement of the form or business organization of the applicant including but not limited to the following:
1. the names, residence and business addresses of all officers, directors, and associates of the applicant;
2. the names, residence and business addresses of all officers, persons, and entities having, controlling, or being entitled to have or control 5% or more of the ownership of the applicant, and respective ownership share of each such person or entity;
3. the names and addresses of any affiliate of the applicant and a statement describing the nature of any such affiliate, including but not limited to the cable communication systems owned or controlled by the applicant and its affiliates, and the areas served thereby;
4. if the applicant is a partnership the name, residence and business addresses of each general partner; if a general partner is a corporation or partnership, the name and address of such corporation or partnership, and provide the same information for that corporation or partnership that is required of an applicant under this Section 34-5.2.B (if the partnership is scheduled to dissolve at a particular time, the time for dissolution shall be stated); and
5. if the applicant is a corporation, the application shall show the names, residence and business addresses of its officers and directors; if the corporation is a subsidiary of another corporation or partnership, the application shall show the name and address of such other corporation or partnership and provide the same information for that corporation or partnership that is required of an applicant under this Section 34-5.2.B.
C. A listing of all City employees, officials, or appointees that have any interest, direct or indirect, in the applicant or any affiliate.
D. A copy of each written agreement and a description of every oral agreement or understanding the applicant has with any other person relating to the proposed Franchise, that gives such person the right to manage, control, or to obtain the right to manage or control a Grantee or its Monterey cable system. If a Franchise is granted to a person acting on behalf of or as the representative of another person, and such information is not disclosed in the original application, such Franchise shall be deemed void and of no force and effect whatsoever.
E. A detailed description of all previous experience of the applicant in providing cable communication system service and in related or similar fields.
F. A detailed and complete financial statement of the applicant, prepared by an independent certified public accountant, for the fiscal year just prior to the date of the Application hereunder; or a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and the Council, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed cable system in this City; or a statement from a certified public accountant, certifying that the applicant has available sufficient free, net, and uncommitted cash resources to construct and operate the proposed cable system in this City.
G. A statement identifying, by place and date, any other cable franchise(s) awarded to the applicant or its affiliate; the status of said franchise(s) with respect to completion thereof; the total cost of completion of such cable system(s); and the amount of the applicant’s and its affiliate’s resources committed to the completion thereof.
H. A detailed description of the proposed plan of operation of the applicant which shall include, but not be limited to, the following:
1. A precise description of the franchise area for which a Franchise is sought and a map specifically showing the proposed service area or areas within which the applicant proposes to provide cable service. A proposed time schedule for the installation of all equipment necessary to become operational or for the completion of upgrades or improvements in the cable plant throughout the entire area to be served.
2. A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of said classifications, including installation charges and service charges.
3. A detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant and that such standards of operations are in compliance with those contained in Title 47, Subpart K (Section 76.601 et seq.) of the Rules and Regulations of the Federal Communications Commission.
4. A detailed, informative, and referenced statement describing the actual or minimum channels/spectrum, equipment, facilities, and services proposed by the applicant to provide for PEG access for Monterey.
I. Any other details, statements, information, or references pertinent to the subject matter of such application which shall be required or requested by the Council, or by any provision of any other Ordinance of the City.
J. A declaration by the applicant that the application is true and complete, that no person not shown in the application has any interest in the application for a Franchise, and that the applicant has read this Cable Ordinance and will abide by its provisions.
34-5.3 Application Fee Required. At the time it applies for an initial or renewal Franchise, an applicant shall submit an application fee in an amount to be set by the City Council which shall be in the form of cash, certified or cashier’s check, or money order, to pay the costs of studying, investigating, and otherwise processing such application, and which shall be in consideration thereof, and not returnable or refundable in whole or in part.
SECTION 34-6 FRANCHISE -- REVIEW OF APPLICATION
34-6.1 Initial Franchise or Non-formal Renewal. In the case of an application for an initial Franchise or for a renewal Franchise that is not governed by the formal renewal provisions of the Cable Act:
A. The City may advertise for additional applicants and issue a request for proposals (hereinafter “RFP”).
B. The City may give public notice when it receives a properly completed Franchise proposal. After receiving a proposal that contains the required information, the City may schedule a meeting or meetings to determine whether a Franchise should be granted. In making this determination, the City may consider:
1. the extent to which an applicant for renewal has substantially complied with the applicable law and the material terms of any existing cable Franchise for Monterey;
2. whether the applicant for renewal’s quality of service under its existing Franchise, including signal quality, response to customer complaints, billing practices, and the like has been reasonable in light of the needs of the community;
3. where the applicant has not previously held a Franchise for Monterey, whether the applicant’s record in other communities indicates that it can be relied upon to provide high-quality service throughout any Franchise term;
4. whether the applicant has the financial, legal, and technical ability to provide the services, facilities, and equipment set forth in a proposal satisfying any minimum requirements established by the City;
5. whether the applicant’s application is reasonable to meet the future cable-related needs and interests of Monterey, taking into account the cost of meeting such needs and in light of the requirements established by the City;
6. whether issuance of a Franchise is warranted in the public interest considering the immediate and future effect on streets, public property, and private property that will be used by the applicant’s cable system, including the extent to which installation or maintenance as planned would require replacement of property, involve disruption of property or public services, or interfere with the use of streets or public property; the effect of granting the Franchise on the ability of the proposed cable service to meet the cable-related needs and interests of the community, including PEG access channel capacity, facilities, and financial support; and whether the applicant has the financial, technical, and legal qualifications to provide the proposed cable service.
C. The City need not review any proposal that does not include information required by this Ordinance.
34-6.2 Formal Renewal Applications. Applications for renewal governed by the formal renewal provisions of the Cable Act shall be submitted in accordance with this section. A Grantee which intends to exercise rights under 47 U.S.C. § 546(a)-(g) shall submit a notice in writing to the City in a timely manner clearly stating that it is activating the formal renewal procedures of the Cable Act. At the same time it submits this notice, it shall also submit the required application fee. A Grantee which has applied for renewal under the formal renewal provision of the Cable Act shall submit all information requested by the City within the time frame delineated by the City.
34-6.3 Standing Not Granted. This Ordinance is not intended and shall not be interpreted to grant any applicant or Grantee standing to challenge the issuance of a Franchise to another applicant or Grantee. Nothing in this Section 34-6 prohibits the City from relying on studies or proceedings previously conducted in drafting an RFP, if the City Attorney concludes that those studies or proceedings continue to reflect community needs and interests. Nothing in this section prohibits an applicant for renewal from submitting a proposal under 47 U.S.C. § 546(h).
34-6.4 Final Franchise Agreement Required. If, considering the factors set forth above, the City determines that a Franchise should issue to an applicant, the City may promptly prepare a final franchise agreement for approval and signature by the applicant and the City. In addition to other matters that may or must be addressed therein consistent with the Cable Act, the Franchise Agreement shall specify (1) the franchise area for which the Franchise is awarded, and the terms and conditions under which the Grantee must extend service to persons within that franchise area; (2) the term of the Franchise; (3) requirements for cable system design and performance; (4) equipment and facilities requirements; and (5) requirements related to channels, facilities, and equipment for PEG access and community use (including institutional uses). The franchise area may be larger, smaller, or the same as the franchise area identified by the applicant. No Franchise shall be effective or shall issue until the applicant has entered into a franchise agreement with the City, the franchise agreement has been approved by the City, and the applicant has filed an unconditional acceptance of the Franchise in a form acceptable to the City Attorney.
SECTION 34-7 FRANCHISE -- CONTENTS OF PROPOSAL AND REVIEW
34-7.1 Request For Proposal -- Requirements. Every RFP, including a request for a renewal proposal issued pursuant to 47 U.S.C. § 546(b), shall specify minimum requirements that an applicant must satisfy for facilities and equipment, including access facilities and equipment; channel capacity for PEG access use; and such other requirements as the City may establish in an RFP under the Cable Act. The RFP shall attach a draft franchise agreement and shall invite comments on that draft franchise agreement. In addition, the RFP shall require each applicant to provide at least the information necessary to determine the degree to which granting the Franchise is likely to result in damage to streets, public property, or private property or disrupt use of or require replacement of streets, public property, or private property; and information required to permit the City to determine whether the applicant has the financial, legal, and technical qualifications to operate a cable system in Monterey. The RFP shall require each applicant to provide information required to assess its proposal. It may also contain or refer to other information that may assist an applicant in preparing a proposal. The information sought shall include at least the following:
A. Changes to the information submitted with the application.
B. The names and addresses of the ten (10) largest holders of an ownership interest in the applicant, and all persons with two percent (2%) or more ownership interest, including the names and addresses of affiliates holding such ownership interests directly or indirectly; the persons who control the applicant; all officers and directors of the applicant; and any other business affiliation and cable system ownership interest of each named person; and a statement describing the applicant, its officers and directors, and its partners or major shareholders, indicating business experience and other pertinent information, including experience and performance in the cable communication system and service field showing any interest in other franchises, the date such franchises were granted, and the status of installation and operation thereof, and the value, size, and character of the operations under the other franchises.
C. Information showing that the applicant, any person controlling the applicant, and any other entity which will constitute a cable operator of the cable system under the Cable Act are legally qualified to hold the Franchise, applying the standards sets forth in Section 34-8.
D. A demonstration of the applicant’s technical and financial ability to construct and/or operate the proposed cable system, including identification of key personnel.
E. A statement prepared by a certified public accountant regarding the applicant’s financial ability to perform as proposed.
F. A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, headend, and access facilities, especially PEG access facilities; such description should specify the model and make of the system components the applicant intends to use or, if the applicant has not selected a particular brand of equipment, the minimum manufacturer’s specifications which the components used must meet.
G. A detailed description of the procedures the applicant intends to follow in constructing, operating, and maintaining the cable system. If the applicant plans to upgrade or rebuild an existing cable system, the description should explain the steps which will be taken to upgrade the cable system, the cable service disruptions which are expected to result, the steps the applicant intends to take in order to minimize such service disruptions, and how the applicant intends to compensate affected subscribers for such service disruptions.
H. An estimate of plant mileage that will be installed and its location, the proposed construction schedule, and information on the availability of space in conduits and on poles in the areas to be served, including an estimate of the cost of any necessary rearrangement of existing facilities.
I. A schedule of the maximum initial rates and charges to subscribers (including late fees, disconnect fees, and fees for each cable service the applicant intends to provide) and a description of the service that will be provided for those rates.
J. A narrative description of the future cable-related needs and interests of Monterey; a showing that the proposal will adequately meet those needs and interests, including, particularly, how the proposed cable system will provide for PEG access and how it will be upgraded or rebuilt to take advantage of changes in technology during the Franchise term; and a copy of any community needs assessment conducted or relied upon by the applicant.
K. Pro forma financial projections for the proposed cable system for ten years, including a statement of projected income and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules.
L. An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the proposal meets all federal and state requirements.
M. If an applicant proposes to provide cable service to an area already served in whole or in part by an existing cable franchisee, the identification of the area where the overbuild would occur and the potential subscriber density in the area which would encompass the overbuild.
N. The effect construction of the cable system is likely to have on streets, public property, and private property that will be used by the applicant’s cable system; the extent to which construction, installation, or maintenance as planned would require replacement of property or involve disruption of property or public services (including cable service) or use of streets; and the expected effect of granting the Franchise on the ability of the proposed cable service to meet the cable-related needs and interests of the community.
O. A declaration by the applicant that the application is true and complete, and that no person not shown in the application has any interest in the application for a Franchise.
34-7.2 Request For Proposal -- Authorization. The City Council may authorize the issuance of any RFP by Resolution.
34-7.3 Request For Proposal -- Instructions. The City may prepare instructions and furnish the same to all interested persons stating how a proposal shall be submitted.
34-7.4 Cable-related Needs to be Met. It is the obligation of an applicant to submit a proposal that shows that, if granted a Franchise, the applicant will meet the reasonable cable-related needs and interests of the community. An applicant shall submit additional information it deems appropriate to the consideration of its proposal, whether the information is required or not.
34-7.5 Bid Bond and Deadline. The City Manager may establish a deadline for the receipt of proposals from any interested applicants. Each applicant shall submit 15 copies of its proposal. Each proposal shall be accompanied by a bid bond in the amount of $30,000. If a Franchise is not awarded to an applicant, the applicant’s bid bond will be returned. If the Franchise is awarded, the bond will be used to pay all reasonable costs incurred by the City in evaluating the applicant’s proposal, and the remainder shall be returned.
34-7.6 Additional Information. The City may request additional information from any applicant as required to understand or evaluate the applicant’s proposal.
SECTION 34-8 LEGAL QUALIFICATIONS
34-8.1 Legal Ability to Perform. In determining whether an applicant has the necessary legal ability to perform as promised and to assist the City in evaluating the past performance of the applicant under 47 U.S.C. § 546 or Section 34-7 above, the City shall evaluate the applicant’s proposal in light of this section:
A. The City shall not grant a Franchise to any applicant which submitted a request for a Franchise or for renewal of a Franchise pursuant to Section 34-6.1 or Section 34-6.2 where the request was denied, or any challenges to the franchising decision were finally resolved on a date three years or less preceding the submission of the new request where the previous denial was on grounds that the applicant failed to propose a cable system which met the needs and interests of the community; or that the applicant did not meet the requirements of Section 34-8.1.E; or, in the case of a renewal request, that the applicant had failed to comply with the requirements of its Franchise, or failed to provide adequate service to subscribers.
B. Every applicant must have the necessary authority under California law to operate a cable communication system. An applicant shall show that it is qualified to obtain, the necessary federal licenses or waivers required to operate the cable system proposed.
C. An applicant must be authorized by federal law to hold a Franchise.
D. An applicant shall not be issued a Franchise if, at any time during the five years prior to the issuance of the RFP to which the applicant responds, the applicant engaged in acts or omissions of such character that the applicant cannot be relied upon to deal truthfully with the City and the subscribers of the cable system; or to substantially comply with lawful obligations under the Franchise or obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anti-competitive acts, fraud, racketeering, or other, similar conduct.
E. An applicant shall not be issued a Franchise if it files materially misleading information in response to an RFP issued by the City, or intentionally withholds information which the applicant lawfully is required to provide.
F. For purposes of Section 34-8.1.A, Section 34-8.1.D, and Section 34-8.1.E, the term applicant includes any affiliate.
34-8.2 Opportunity to Explain. The City may provide an opportunity to any applicant which has engaged in acts or omissions which may provide the basis for denying a request for a Franchise under Section 34-8.1.D to show that it would be inappropriate to base a decision on the act or omission, by virtue of: the particular circumstances surrounding the act or omission and given the steps taken by the applicant to cure all harms flowing from the act or omission and to prevent its recurrence; the involvement of applicant’s principals, owners, or managers; or the remoteness of the act or omission from the operation of cable communication systems.
34-8.3 Cable Act Renewal Provisions Prevail. This section shall not be interpreted to require the City to take any action that would be inconsistent with 47 U.S.C. § 546.
SECTION 34-9 LIMITATIONS OF FRANCHISE
34-9.1 No Implied Rights. No privilege or exemption shall be granted or conferred by a Franchise except those specifically prescribed therein.
34-9.2 Reservation of Rights. The City reserves every right and power which is reserved to it by this Ordinance or by any Ordinance or resolution of the City, and a Grantee, by its acceptance of a Franchise, agrees to be bound thereby and to comply with any action or requirements of the City in its exercise of any of its rights or powers.
SECTION 34-10 NON-EXCLUSIVE FRANCHISE AND COMPETITION ENCOURAGED
34-10.1 Non-exclusive Franchises Only. Franchises granted under this Ordinance shall be non-exclusive.
34-10.2 Reservation by City. The City reserves the right to grant a Franchise to another person at any time, or to construct, operate, or repair a cable system itself. Competition among cable companies is encouraged.
34-10.3 Exclusive Contracts for Cable Service Prohibited. No person who holds a Franchise may enter into an exclusive contract for the provision of cable service to any person or building, or demand the exclusive right to serve a person or building as a condition of extending service.
34-10.4 Parity of Franchises. A Franchise and the right it grants to use and occupy the public right of way shall not be exclusive and do not explicitly or implicitly preclude the issuance of other franchises to operate cable systems or other communications systems within the City, affect the City’s right to authorize use of the public right of way by other persons to operate cable systems or other communications systems or for other purposes as the City determines appropriate, or affect the City’s right itself to construct, operate or maintain a cable system or other communications system, with or without a franchise.
In the event that, after the effective date of a Franchise, the City grants a franchise to another person or persons to use and occupy the public right of way for the purpose of operating a cable system or other communications system that is comparable in scope to a Franchise, the material terms and conditions of such additional franchise or franchises shall be reasonably comparable to the materials terms and conditions of the Franchise, taking into consideration all of the circumstances in existence at the time such additional franchise or franchises are granted, including without limitation any applicable legal limitations on the City’s regulatory authority.
SECTION 34-11 OTHER LIMITATIONS OF FRANCHISE
34-11.1 No Expectancy of Renewal. Nothing in this Ordinance shall be interpreted to create an expectancy of renewal or to in any respect entitle any Grantee to renewal or extension of a Franchise, except as may be expressly required by applicable law.
34-11.2 Prior Lawful Occupancy Prevails. Any privilege claimed under any Franchise by a Grantee in any street or other public property shall be subordinate to any prior lawful occupancy and to the city’s regulation of the street or other public property, subject to Section 34-14.
34-11.3 Delegation of Authority. The City may transfer or delegate any right, power, or duty from any officer, employee, department, or body of the City to any other officer, employee, department, or body of the City.
34-11.4 Non-recourse against City. A Grantee shall have no recourse against the City for any loss, cost, expense, or damage arising out of any provision or requirement of this Ordinance or of any Franchise issued hereunder or because of its enforcement or non-enforcement.
34-11.5 Grantee Subject to City Police Powers. A Grantee shall at all times be subject to the exercise of the police power of the City, including but not limited to the power of the City to adopt consumer protection laws regarding cable communication.
34-11.6 Public Interest Promoted. The provisions of any Franchise shall be liberally construed in favor of the City in order to promote the public interest.
SECTION 34-12 NO WAIVER
34-12.1 Failure Not Waiver. The failure of the City, upon one or more occasions, to exercise a right or to require compliance or performance under a Franchise or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing.
34-12.2 Waivers Are Specific. Waiver of a breach of a franchise agreement or this Ordinance is not a waiver of any similar or different breach. Neither the granting of a Franchise nor any provision herein shall constitute a waiver or bar to the exercise of any governmental right or power of the City, including without limitation the right of eminent domain.
SECTION 34-13 AMENDMENTS TO ORDINANCE AND FRANCHISE AGREEMENT
34-13.1 Ordinance Not a Contract. This Ordinance shall not constitute a contract between a Grantee and the City. The City may amend any provision of this Ordinance and may adopt regulations consistent with this Ordinance. This includes, without limitation, the right to alter the insurance and security fund requirements herein, to account for inflation or changes in the risk to the City.
34-13.2 Amendment of Franchises. A franchise agreement may authorize a Grantee to provide services in addition to those authorized by Section 34-3, subject to appropriate additional conditions to protect the public interest. The City may amend any franchise agreement upon the application of a Grantee when necessary to enable the Grantee to take advantage of developments in the field of telecommunication that, in the opinion of the City, will afford the Grantee an opportunity to serve its customers more efficiently, effectively, and economically. Such amendments shall be subject to such conditions as the City determines are appropriate to protect the public interest.
SECTION 34-14 CONDITIONS OF STREET OCCUPANCY
34-14.1 Installation - Location. A cable system shall be installed only on the property of a Grantee, on existing pole facilities that the Grantee may use under a valid pole attachment agreement or order of the City, on the property of a subscriber, in compatible easements that the Grantee is entitled to use, or under the streets of the City. Installation of new poles on the streets is forbidden without the prior written consent of the City. A Grantee’s placement of its cable system pursuant to its Franchise shall not be deemed to give the Grantee a property interest in any particular location on the streets or upon public property. The City reserves the right to designate where a cable system is to be placed on the streets and upon public property including any public utility easements. The cable system shall be placed in public utility easements unless otherwise designated by the City.
34-14.2 Installation - Timing. A Grantee shall begin the installation, upgrade, or rebuild of its cable system within a reasonable length of time after the effective date of its Franchise, which date shall be specified in the franchise agreement. A Grantee shall be obligated to complete the construction of its cable system promptly and within a time specified in the franchise agreement, which time shall be reasonable in light of the nature of the construction required to build the cable system proposed by the Grantee. A Grantee is obligated to obtain all permits, licenses, approvals, and contracts required in order for it to begin and complete its cable system in accordance with its franchise agreement.
34-14.3 General Construction and Operational Practices
A. The construction, operation, and repair of every cable system in the City and all parts thereof shall be performed in an orderly and workmanlike manner. To this end, each person who constructs, operates, or repairs a cable system shall do so in accordance with all applicable federal, state, local, and industry codes now or hereafter in effect. Without limiting the foregoing, the installation of any cable system shall be in accordance with the requirements of the National Electrical Safety Code (or any superseding code) of the American Insurance Association (or successor organization) and all applicable laws affecting electrical installations and buildings, now or hereafter in effect. A franchise agreement may identify specific construction codes that a Grantee must satisfy in addition to this general requirement. In the event of a conflict among codes and standards, the most stringent code requirement or standard shall apply. The City may adopt reasonable additional standards as required to ensure that work continues to be performed in an orderly and workmanlike manner, or to reflect changes in standards which may occur over the term of a Franchise, after consultation with each affected Grantee.
B. The construction, operation, and repair of the cable system shall be performed by experienced personnel who shall keep the cable system in a safe and suitable condition and in good order and repair. All installations shall be durable and use equipment of good quality.
C. Each Grantee shall construct, operate, and repair its cable system so as not to endanger or unduly interfere with the property of the City; any gas, electric, or telephone fixture or other public utility property, including any water or sewer lines or fixtures; or the lives or property of persons; or to unnecessarily hinder or obstruct the use of streets. A Grantee shall protect (at its expense) public property and private property from damage caused by the construction, operation, and repair of its cable system, and promptly repair damage the Grantee causes or compensate the owner of the property for damage the Grantee causes. It shall repair damaged property or pay compensation within no later than ten (10) days of the date of the damage. Each Grantee shall construct, operate, and maintain its cable system with due care for the safety and integrity of persons and property, and shall use appropriate safety devices, warning signs, barricades, and lights to prevent harm to persons or property.
D. A Grantee shall notify any person whose property is damaged by that Grantee within four hours of the time the damage is discovered. At a minimum, this section requires a Grantee to place a prominent notice in a prominent place on the damaged property, and to make diligent efforts to contact the property owner or resident directly.
E. All excavation shall be performed so as to create the least inconvenience to the public, and in accordance with permits issued by the City. The City shall have the right to supervise all excavation.
F. If a Grantee disturbs any street, public property, or private property during the course of constructing, operating, or repairing its cable system, that Grantee shall, at its expense, replace and restore the street or property to as good condition as before said work was commenced as is possible to the reasonable satisfaction of the City (in the case of streets or public property) or the owner (in the case of private property). Each Grantee shall at all times comply with the requirements of 47 U.S.C. § 541(a)(2)(A)-(C). If any utility property is affected, including gas, electric telephone, water, sewer, or storm drain, the owner shall be notified immediately and repairs shall immediately be made under the direction of the affected utility. The streets, public property, or private property affected shall be replaced or restored promptly, no later than within ten (10) days of the date of the disturbance.
G. In any area where any electric and telephone systems are underground, a Grantee shall install its cable system underground. If, after a Grantee installs its cable system, electric or telephone systems are relocated so that any electric and telephone systems in an area are underground, the Grantee shall place its cable system in that area underground. Between a street and a subscriber’s residence, if either electric or telephone utility wiring is aerial, a Grantee may install aerial cable except where a property owner or resident requests underground installation and agrees to bear the additional cost of such installation over and above the cost of aerial installation.
H. A Grantee shall maintain records of the location of its cable system for both underground and aerial cables. A Grantee shall provide information regarding the location of its cable system upon request of the City or any authorized governmental body for engineering design purposes. Location information shall be provided within 30 days of request.
I. Notwithstanding any requirements of underground service alert, Grantee shall pothole underground facilities at its expense upon request of the City or any authorized governmental body for engineering design purposes to ascertain the vertical and horizontal location of said facilities. Potholes shall be provided within 30 days of request. Requester shall be notified 48 hours in advance of the pot-holing operation, and when the underground facility is exposed for measurement. After requester obtains measurements, Grantee shall fill, compact, and pave pothole to the satisfaction of the City.
J. Grantee shall perform all tasks of an “operator” under California Government Code 4216 (Underground Service Alert) and shall be a member of Underground Service Alert of Northern California and Nevada.
K. A Grantee shall initially provide to the City an electronic map in AUTOCAD format of the Grantee’s cable system within the public right-of-way. This electronic map shall be compatible with the City’s system, shall be updated semi-annually, and shall at all times be provided at no cost to the City.
34-14.4 Relocation of Facilities.
A. For Governmental Bodies. A Grantee is required to remove, relay, and relocate its cable system at its expense whenever the City (on its own behalf or on behalf of an assessment district) or any authorized governmental body requires it to do so for reasons of traffic conditions; public health and safety, and protection of property; or because the City or authorized governmental body elects to change or alter the grade, align or widen a street, or sell or vacate any street or public property, to move any building or structure, or to construct, operate, or repair any water pipes, lines, or mains, sanitary and storm sewers, watercourses, drainage ditches, conduits, playgrounds, power lines, tracks, traffic control devices, or other public improvement, public utility, public structure or facility, which change, alteration, sale, vacation, movement, construction, operation, or repair will be aided by removal, relaying, or relocation of a Grantee’s cable system. An affected Grantee shall be given written notice requesting the removal, relaying, or relocation of its cable system at least fifteen (15) days in advance of the date removal, relaying, or relocation of the cable system must be completed.
B. For Other Authorized Entities. If any removal, relaying, or relocation is required to accommodate the construction, operation, or repair of the facilities of another person which is authorized to use the streets or public property, a Grantee shall, after fifteen (15) days advanced written notice, take action to implement the necessary changes requested by the responsible entity. The City may resolve disputes as to responsibility for costs associated with removal, relaying, or relocation of facilities among entities authorized to install facilities in the streets or on public property if such entities are unable to do so themselves.
C. For Third Persons. A Grantee shall, upon the request of any person holding a building moving permit issued by the City, temporarily raise, lower, relay, relocate, or remove its wires, cables, and other facilities to accommodate the moving of the building, as the Grantee shall determine. The expense of such temporary raising or lowering, relaying, relocation, or removal of a Grantee’s facilities shall be paid by the person requesting the same, and the Grantee shall have the authority to establish the reasonable cost of such changes and require such payment in advance. A Grantee shall temporarily move its cable system as required under this Section 34-14.4.C if required payments are made and the Grantee is given at least forty-eight (48) hours advance written notice to arrange for such temporary changes.
34-14.5 Failure to Remove, Replace, or Restore. If a Grantee fails to remove, relay or relocate its cable system as required or within the time period specified in Section 34-14.4; or if a Grantee fails to restore, repair, or replace streets or public property as required and within the time period specified in Section 34-14.3; the City may perform the work itself or hire someone to perform the work, and the Grantee shall compensate the City for all reasonable expenses it incurs. In the event a Grantee fails to restore, replace, or repair private property as required and within the time period specified by Section 34-14.3, the owner may perform the work itself or hire someone to perform the work, and the Grantee shall compensate the owner for all reasonable expenses incurred. If a Grantee fails to protect streets or public property as required by its Franchise, the City may do so, and the Grantee shall compensate the City for all reasonable expenses incurred thereby. The Grantee shall pay expenses incurred by the City or property owner within ten (10) days of receipt of an itemized account of such expenses.
34-14.6 Removal or Relocation in Event of Emergency. In event of emergency, or where a cable system creates or is contributing to an imminent danger to health, safety, or property, the City may remove, relocate, or relay that cable system without prior notice at Grantee’s expense.
34-14.7 Authority to Trim Trees. A Grantee shall comply with the City tree ordinance if and when it trims trees and shrubbery upon and overhanging streets and other public property. If the City requests it, trimming shall be done under the supervision and direction of the City.
34-14.8 No Guarantee of Accuracy of Maps. The City does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing structures. In streets, where necessary, the location shall be verified by excavation by Grantee at its expense.
34-14.9 Contractors. All contractors or subcontractors shall be properly licensed, and each contractor or subcontractor shall have the same obligations with respect to its work as a Grantee would have under its Franchise and applicable laws if the work were performed by the Grantee. Each Grantee shall be responsible for ensuring that the work of its contractors and subcontractors is performed consistent with the Franchise and applicable law, shall be fully responsible for all acts or omissions of its contractors or subcontractors, and shall be responsible for promptly correcting acts or omissions by any of its contractors or subcontractors.
SECTION 34-15 CONSUMER PROTECTION -- GENERAL
34-15.1. Customer Protection Requirements. A Grantee shall meet or exceed requirements for customer protection established by the City of Monterey, whether adopted before or after its franchise was issued. The standards initially applicable are appended to this Ordinance as Article 2. The City Manager may from time to time propose amendments to the rules as necessary to ensure that high-quality customer service is provided by each Grantee. The City Manager shall provide a copy of amendments to the standards to every person holding such a Franchise and to every person which has a pending application for a cable Franchise at the time the draft standards are developed. The City Manager shall provide each such person the opportunity to submit written comments on the amendments to the standards. After reviewing the comments, the City Manager shall submit the standards to the City Council for approval.
34-15.2 Enforcement in Franchise Agreement. In the case of any Franchise issued after the effective date of this Ordinance, the franchise agreement shall provide for enforcement of specified customer service standards of a Grantee, which standards must meet or exceed the standards established by the City under Section 34-15.1.
34-15.3 Uniform Standards. The standards developed under Section 34-15.1 shall require a uniform level of service to all subscribers within the City at a reasonable cost. The standards may recognize the fact that different standards may apply to smaller systems or systems serving areas of low density which may not be required to meet standards reasonably applied to larger systems, because such smaller systems and systems serving areas of low density may not be able to satisfy certain obligations without substantially increasing costs to subscribers. Moreover, the standards may recognize that a cable system serving fewer subscribers may have fewer calls or demands for service from subscribers, which difference may justify certain differences in standards.
34-15.4 Failure to Meet Standards. Any Grantee which fails to satisfy the standards adopted by the City under Section 34-15.1 shall be given notice that it may be found to have failed to provide adequate service within the meaning of 47 U.S.C. § 546(c)(1)(A) or (B), as appropriate.
34-15.5 Right of Privacy. A Grantee shall maintain the right of privacy of any subscriber, programmer, or any other person resulting from any device or signal associated with the cable system. A Grantee shall not place in the building, structure, or any facility of any subscriber any equipment capable of two-way communications without the written consent of the subscriber, revocable at the discretion of the subscriber, and shall not use the two-way communications capability of the cable system for unauthorized or illegal subscriber surveillance of any kind. For purposes of this subsection, tenants who occupy premises shall be deemed to be subscribers, regardless of who actually pays for the service. Written consent, as required herein, shall not be required of any subscriber by a Grantee as a condition of receiving cable services.
34-15.6. City’s Rights Not Limited. Nothing in this section shall be read to limit the City’s right to adopt other consumer protection laws.
SECTION 34-16 RATE REGULATION
34-16.1 Uniform Charges. All charges to subscribers and users shall be uniform throughout the franchise area with a written schedule of fees for all services offered available upon request. A Grantee shall be required to inform in writing each new subscriber of all applicable fees and charges for providing cable-related services.
34-16.2 Non-Discrimination of Fees. A Grantee shall not, with regard to fees, discriminate or grant any preference or advantage to any person; provided, however, that a Grantee may establish different rates for different classes or types of subscribers based upon cost-of-service differentials provided that a Grantee not discriminate among subscribers of the same class.
34-16.3 Rate Regulation Consistent with Law. The City may regulate rates except to the extent it is prohibited from doing so by state or federal law. Any regulated rate shall be adopted by resolution.
34-16.4 Review of Initial Rates. If the City chooses to regulate rates, all materials pertaining to the review of initial rates or any proposed rate increase subject to the City’s regulatory authority shall be submitted to the City for review and approval. Final determinations will be made by the City Council and will take into consideration public comment as required by the Cable Act.
SECTION 34-17 FRANCHISE FEES
34-17.1 Franchise Fee Rate. A Grantee shall pay to the City an amount equal to five (5) percent of the gross revenues derived from the operation of its cable system in the City, or the maximum fee permitted by federal law, if larger.
34-17.2 Late Payment Fee. A Grantee shall pay interest as a late payment fee on all overdue payments. The interest shall be the maximum permitted by California law, unless otherwise provided in the Franchise.
34-17.3 Franchise Fee is Separate Fee. The Franchise fee shall be paid in addition to fees, charges, or assessments required by the City (including, but not limited to, business license fees), unless such fee, charge, or assessment must be treated as a Franchise fee under the Cable Act.
34-17.4 Audit. The City may arrange for and conduct an audit of the financial records of a Grantee, its contractors, subcontractors, or affiliates for the purpose of verifying Franchise fee payments. The City shall notify the Grantee in writing at least seven (7) days prior to the date of the audit, and the Grantee shall make available for inspection and copying its books and records, and those of any affiliate as may be relevant to the determination of gross revenues and Franchise fees due. Grantee shall make the records available to the City at the Grantee’s expense at the Monterey City Hall.
SECTION 34-18 PROTECTION OF CITY AND ENFORCEMENT -- LIABILITY INSURANCE
34-18.1 Unless otherwise provided in the Franchise, the following will prevail:
34-18.2 Public Liability & Property Damage Insurance. Grantee shall, during the continuance of this Ordinance and at no expense to City, maintain public liability and property damage insurance, including products liability and completed operations, and contractual liability coverage, in the amount of $1,000,000 per occurrence on account of bodily or personal injuries, including death, or on account of property damage, arising from, or caused, directly or indirectly, by the performance under this Ordinance. This insurance shall be a per occurrence policy.
34-18.3 Business Automobile Insurance. Grantee shall during the continuance of this Ordinance and at no expense to City, maintain business automobile insurance, in the amount of $1,000,000 per occurrence on account of bodily or personal injuries, including death, or on account of property damage arising from or cause, directly or indirectly, by the performance under this Ordinance. This insurance shall be a per occurrence policy.
34-18.4 Named Insureds. Under the public liability, property damage and automobile liability insurance required in Section 34-18.2 and Section 34-18.3 above, City, its officers, agents and employees shall be named as additional insured by endorsement and as to such additional insured, the insurance herein required shall be primary and the policies shall contain by endorsement a cross liability clause.
34-18.5 Workers’ Compensation Insurance. Grantee shall during the continuance of this Ordinance and at no expense to City, maintain workers’ compensation insurance, as required by law, for all Grantee’s officers and employees.
34-18.6 Certificates of Insurance.
A. The insurance required by Section 34-18.2, Section 34-18.3, and Section 34-18.4 above shall be evidenced by certificate or certificates submitted to City which shall be executed by the insurance company or companies involved and which shall state that the insurance evidenced thereby may not be terminated without 30 days prior written notice thereof being received by City. The certificate(s) shall be submitted to City before or at the time Grantee executes a Franchise Agreement.
B. Grantee shall file certificates of insurance which shall certify the total limits of coverage in effect. If such limits are higher than the limits required by the City herein, the higher limits shall be certified and shall apply to the coverage afforded to the City
34-18.7 Additional Insurance. Grantee, in addition to all other insurance requirements herein, shall maintain insurance in the type and amount as may be required in any license, permit or agreement obtained in connection with the construction, operation, or repair of its cable system and which is necessary to complete any construction, operation, or repair (e.g., Highway Permit, Railroad Crossing Agreement, Corps of Engineers Permit), regardless of who secured the license, permit, or agreement.
SECTION 34-19 PROTECTION OF CITY AND ENFORCEMENT -- PERFORMANCE BOND
Within ninety (90) days of the effective date of a Franchise, a Grantee shall establish in the City’s favor a performance bond in an amount no less than ten (10) percent of the estimated cost of constructing, upgrading, or rebuilding the cable system required by the franchise agreement.
SECTION 34-20 PROTECTION OF CITY AND ENFORCEMENT -- SECURITY FUND
An applicant for a grant of a franchise, franchise renewal, franchise modification, or franchise transfer shall, prior to the City’s execution of the aforementioned, provide the City either a cash security deposit or an irrevocable letter of credit. The cash security deposit or irrevocable letter of credit shall be in an amount to be determined by the City Manager, but not less than one hundred thousand dollars ($100,000) and shall be from a financial institution in a form satisfactory to the City Manager. The amount of the deposit shall be based on the scope of the applicant’s existing and proposed cable operations in the City, the applicant’s technical and financial qualifications, and the applicant’s history of compliance with its franchise agreements in the City and elsewhere. The security deposit or letter of credit shall be used to ensure the faithful performance of the franchise agreement; compliance with this ordinance; applicable federal, state, and local law; all orders and permits; and the payment of any claims liens, fees, or taxes due the City that arise by reason of the construction, operations, repair or maintenance of the cable system. The City may withdraw funds from the security deposit or make demand for payment upon the letter of credit for the monetary amount of any remedy imposed pursuant to this Ordinance or the Franchise Agreement.
SECTION 34-21 INDEMNIFICATION
34-21.1 General Indemnity. Grantee agrees to accept responsibility for loss or damage to any person or entity, and to defend, indemnify, hold harmless and release the City, its officers, and employees, from actions, claims, damages, disability or the cost of litigation that are asserted by any person or entity to the extent arising out of the negligent acts or omissions or willful misconduct in the performance by the Grantee hereunder, whether or not there is concurrent negligence or willful misconduct of the City but excluding liability due to the sole active negligence or misconduct of the City. This indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for Grantee or its agents, under workers’ compensation acts, disability benefits acts or other employees’ benefits acts.
34-21.2 City Property. Grantee shall be liable to City for any loss of or damage to City property arising from Grantee’s actions, negligence or willful misconduct.
SECTION 34-22 REMEDIES -- LIQUIDATED DAMAGES
A franchise agreement may specify liquidated damages, for the City or third party beneficiaries of any franchise agreement.
SECTION 34-23 TERMINATION
34-23.1 Removal of Cable System. Upon revocation or cancellation of a Grantee’s Franchise, or upon any other termination of a Franchise by passage of time or otherwise, the City shall have the right to require the Grantee to remove, at the Grantee’s expense, its cable system from streets, public property, and any private property occupied pursuant to the revoked, canceled, or terminated Franchise. The City shall notify the Grantee in writing that the cable system should be removed, and identify any period during which the Grantee will be required to continue to operate the cable system as provided in the Franchise. In removing its cable system, a Grantee shall refill and compact, at its expense, any excavation that shall be made and shall leave all streets, public property, and private property in as good a condition as that prevailing prior to the Grantee’s removal of the cable system. The Insurance, Indemnity, and Damage provisions of the Grantee’s Franchise shall remain in full force and effect until the cable system is removed.
34-23.2 City’s Right to Purchase System. Upon revocation or cancellation of a Franchise, or upon any other termination of a Franchise by passage of time or otherwise, the City shall have the alternative right to buy the Grantee’s cable system. If the Franchise is terminated for cause, the City may purchase the cable system at an equitable price, within the meaning of the Cable Act; otherwise, the cable system may be purchased at fair market value, less the value of the Franchise, within the meaning of the Cable Act. The Grantee shall sell its cable system subject to such warranties and terms as are appropriate under the circumstances.
34-23.3 Transfer or Abandonment. If the City does not purchase a Grantee’s cable system as provided in Section 34-23.2, and the Grantee has failed to commence removal of its cable system within ninety (90) days after termination of the Franchise, or such other date specified by the City under the Franchise, or if the Grantee has failed to complete such removal within six months after removal is required to have begun, the City may:
A. declare all right, title, and interest to the Grantee’s cable system to be in the City or its designee with all right of ownership including, but not limited to, the right to operate the cable system or transfer the cable system to another for operation by it (upon such declaration by the City, the Grantee shall be entitled to receive an equitable price from the City for the value of the cable system, less any costs and damages suffered by the City as a result of the delay in removal); or
B. declare the cable system abandoned and cause the cable system, or such part thereof as the City shall designate, to be removed at no cost to the City (the cost of said removal shall be recoverable pursuant to Sections 34-18 - Section 34-20 herein, or from the Grantee directly).
SECTION 34-24 TRANSFERS
34-24.1 Prior Written Approval Required. Prior written approval of the City Council shall be required before a Franchise is assigned or transferred, either in whole or in part, or leased, sublet, or disposed of in any manner, directly or indirectly, either by forced or involuntary sale, voluntary sale, merger, consolidation or otherwise; and before title thereto, either legal or equitable, or any right, interest, or property therein, passes to or vests in any person or persons. A change in control of a Grantee or any person that manages, owns, or controls the Grantee is a transfer within the meaning of this section.
34-24.2 Applications. The proposed transferee shall make a written request of the City for approval of the transfer. The application shall provide complete information regarding the proposed transfer, including (a) all documents embodying the transaction, (b) financing documents, (c) documents identifying any person who will be responsible, through any arrangement, for managing or controlling the cable system, (d) documents showing that the proposed transferee has the financial, technical, and legal ability to operate the cable system after the transfer so as to satisfy all its obligations under a Franchise without adversely affecting subscribers, (e) information regarding the length of time that a Grantee has held the Franchise(s) involved in the transfer so that the City may make a determination under the FCC anti-trafficking rules 47 C.F.R. § 76.502, and (f) the information required by Sections 34-5.2.A, 34-5.2.C-E, 34-7.1.B-C, 34-7.1.I, and 34-7.1.K. The proposed transferee shall also pay all reasonable costs incurred by the City in reviewing and evaluating the application.
34-24.3 City Response. Upon receiving a transfer application, the City may require additional information from the Grantee or the proposed transferee as required to evaluate the proposed transaction, and both shall cooperate to provide the information to the City. The City shall be under no obligation to transfer the Franchise if the Grantee’s acts or omissions make the Franchise subject to revocation; nor shall the City be required to transfer the Franchise unless it is fully satisfied that any interests it or the public has in the Franchise will be fully preserved and protected, that past non-performance will be corrected, and that the proposed transferee has the ability and is likely to comply with the Franchise in the future. Under no circumstances shall the Franchise be transferred unless the proposed transferee agrees to accept all the terms and conditions of the Franchise, agrees that the transfer does not constitute a waiver of any rights by the City or indication that the prior Grantee is or has been in compliance with the Franchise, and agrees to assume all the obligations and liabilities of the prior Grantee. The City may conduct such public hearings as it deems appropriate to consider the transfer request.
34-24.4 Change in Control. A “change in control,” for purposes of Section 34-24 - Section 34-25, includes a change in actual working control in whatever manner exercised and shall be deemed to have occurred whenever there is a disposition of five percent or more of any interest in a Grantee or any person that, through any arrangement, manages or controls the Grantee.
34-24.5 Evidence of Transfer. A Grantee, upon transfer, shall within sixty (60) days thereafter file with the City a copy of the deed, agreement, mortgage, lease, or other written instrument evidencing transfer of ownership control or lease of the cable system, certified and sworn to as correct by the Grantee.
34-24.6 Transfer Null Without Authorization. Any transfer made without the authorization required herein renders a Franchise null and void from the time of the transfer.
SECTION 34-25 MISCELLANEOUS
34-25.1 Connections to a Grantee’s System; Use of Antennas. It shall be unlawful for any person, firm, or corporation to make any unauthorized connection, whether physically, acoustically, inductably, or otherwise, with any part of a Grantee’s cable system or facilities, for the purpose of enabling the reception of any television, radio, picture, program, sound, or data signals, or other services, without payment to and authorization from the Grantee, except that subscribers shall have the right to attach devices to the Grantee’s cable system to allow them to transmit signals or services for which they have paid to VCRs, television sets, or other terminal devices; and subscribers shall have the right to use their own remote control devices, converters, and other similar equipment, and the Grantee shall provide information to subscribers which will allow them to adjust such devices so that they may be used with the Grantee’s cable system. It shall also be unlawful for any person, without the consent of the Grantee, to willfully tamper with, remove, or injure any cables, wires, or equipment of the Grantee used for the distribution of television, radio, picture, program, sound, or data signals, or other services, unless the Grantee fails to remove such devices from the property of such person if the person chooses not to take service, or if the Grantee places such devices on any property where it has no right to place such devices. The Grantee shall not, as a condition to providing service, require a subscriber or potential subscriber to remove or disconnect any existing antenna, except at the express direction of the subscriber or potential subscriber, or prohibit or discourage a subscriber from installing an antenna switch, provided such equipment and installations are consistent with applicable codes.
34-25.2 Warranties and Guarantees. The City may require a Grantee to provide guarantees and warranties from any entity that manages, owns, or controls it, as required to ensure compliance with any Franchise issued to the Grantee.
ARTICLE 2
Cable Television Customer Service Standards
Sections:
34-26 Notices.
34-27 Local Operations.
34-28 Installations, Response to Inquiries, Service Calls.
34-29 Particular Rights Regarding Service Alteration or Disconnection.
34-30 Right to Refunds.
34-31 Deposits.
34-32 Procedure for Disconnection for Cause.
34-33 Payment / Service Charges for Late Payments.
34-34 Complaint Resolution.
34-35 Privacy.
SECTION 34-26 NOTICES
34-26.1 The Grantee must provide to each subscriber: (1) prior to initiation of service; (2) upon reconnection or at time of installation; (3) at least annually; and (4) at any time upon request; written information on each of the following areas:
34-26.1.1 Products and services offered;
34-26.1.2 Prices and options for programming services and conditions of subscription to programming and other services;
34-26.1.3 Installation and service maintenance policies, including the procedures for scheduling a service call;
34-26.1.4 Instructions on how to use the cable service and the converter;
34-26.1.5 Instructions on how to interact cable and the subscriber’s VCR
34-26.1.6 A current channel card listing all the channels offered on the system;
34-26.1.7 Billing and complaint procedures, including the name or title of the person responsible for resolving complaints;
34-26.1.8 Subscriber termination policies;
34-26.1.9 A notice of subscriber privacy rights as required by federal law;
34-26.1.10 Federal theft of service law,
34-26.1.11 The cable system’s office hours and local phone number;
34-26.1.12 The telephone number of the City office responsible for administering the Franchise, along with a statement that the office can be called to register a complaint if the subscriber is dissatisfied with the actions taken by the Grantee;
34-26.1.13 The cable system’s policies on deposits; and
34-26.1.14 The subscriber right to obtain a parental control device.
34-26.1.15 Outage refund policy.
34-26.2 On an annual basis, the Grantee shall publish in a daily newspaper of general circulation in Monterey a notice containing the following information: the cable system’s office hours and local phone number; the name or title of the person responsible for resolving complaints; the telephone number of the City office responsible for administering the Franchise and dealing with complaints from subscribers who are dissatisfied with actions take by the Grantee; the current channel card listing all the channels offered on the system and the price of all services being offered by the cable system; and the right of subscribers to obtain a parental control device. The notice shall be published twice in two consecutive weeks and shall be an easily readable display advertisement style of at least one-quarter page in size.
34-26.3 Subscribers will be notified of any changes in rates, programming services or channel positions as soon as possible through announcements on the cable system and in writing. Notice must be given to subscribers a minimum of thirty (30) days in advance of such changes. In addition, Grantee shall notify subscribers a minimum of thirty (30) days in advance of any significant changes in the other information required by Section 34-26.1 above.
34-26.4 Subscriber bills will be dear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also dearly delineate all activity during the billing period, including optional charges, rebates and credits.
34-26.5 All Grantee promotional material shall dearly and accurately disclose the price and conditions under which the service will be provided.
34-26.6 The Grantee shall maintain a public file containing all annual notices provided to subscribers under these customer service standards. A separate file shall also be maintained containing a copy of promotional material submitted to subscribers for a period of two years.
SECTION 34-27 LOCAL OPERATIONS
34-27.1 Any local office of the Grantee must be conveniently located and must be open and staffed during normal business hours at least 52 hours per week for purposes of receiving payments, complaints, and inquiries; receiving and replacing returned equipment; taking orders, and modifying service and terminating service, connecting service and scheduling service calls and similar matters. The term “normal business hours” means those hours during which most similar businesses in the community are open to serve customers. In any event, “normal business hours” must include some evening hours at least one night per week and some weekend hours.
34-27.2 Telephone service.
34-27.2.1 A local, toll-free telephone number must be staffed by trained Grantee representatives to receive complaints and inquiries, to modify, terminate and connect service, to schedule service calls and to address other similar matters during normal business hours, no less than 59 hours per week including weeknights and weekend hours.
34-27.2.2 Toll-free telephone lines, either staffed or with answering capability, providing at least emergency referrals, must be operational 24 hours a day, seven days a week. Inquiries received after normal business hours must be responded to by a trained Grantee representative no later than the next business day.
34-27.2.3 Under normal operating conditions, ninety-seven percent (97%) of calls to the Grantee, as measured on an annual basis, will not encounter a busy signal or delay in reaching a customer service representative or any automated answering equipment. The term “normal operating conditions” means those service conditions which are within the control of the Grantee. Those conditions which are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the Grantee include, but are not limited to, special promotions, pay-per-view events rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.
34-27.2.4 Under normal operating conditions, the telephone answer time by a customer service representative, including wait time and time required to transfer the call, shall not exceed thirty (30) seconds when the connection is made. These standards shall be met no less than ninety (90) percent of the time under normal operating conditions, measured on a quarterly basis.
34-27.2.5 If automated answering equipment is used, the equipment will limit the number of routine rings to four (4) or fewer. The rate of lost calls shall not exceed four and one-half percent (4.5%).
SECTION 34-28 INSTALLATIONS, RESPONSE TO INQUIRIES, SERVICE CALLS
34-28.1 Standard installations will be performed within seven (7) business days after an order has been placed.
34-28.2 The Grantee shall provide installation and normal repair service at least during all hours the local office is open. The Grantee shall respond to events Which may endanger the health, safety or property of persons, and to outages whenever those events or outages occur.
34-28.3 Repair and maintenance for service interruptions or other repairs not requiring on-premises (in the home) work must be completed within 24 hours of receipt of the inquiry or complaint. The term “service interruption” means the loss of picture or sound on one (1) or more cable channels. All other repairs or maintenance, except for scheduled maintenance which does not affect service or public health, safety or welfare, must be completed within 48 hours of receipt of the inquiry or complaint or scheduled at the convenience of the subscriber.
34-28.4 For the purposes of scheduling installations, service calls, and other installation activities, the Grantee shall give the customer a four-hour block of time for a service appointment Monday through Saturday. The Grantee may schedule service calls and installation activities outside of normal business hours for the express convenience of the customer. The Grantee may not cancel an appointment with a customer after the dose of business on the business day prior to the scheduled appointment. If, at any time, an installer or technician is running late, an attempt to contact the customer must be made prior to the time of the appointment. The appointment must be rescheduled, as necessary, at a time which is convenient for the customer.
34-28.5 The Grantee shall respond to all other inquiries (including billing inquiries), and respond to written complaints within five business days of the receipt of the inquiry or complaint.
34-28.6 With particular regard to needs of physically-disabled subscribers, on subscriber request, the Grantee shall arrange for pick-up and/or replacement of converters or other equipment at subscriber’s address, or else a satisfactory equivalent (such as provision of a postage-prepaid mailer).
SECTION 34-29 PARTICULAR RIGHTS REGARDING SERVICE ALTERATION OR DISCONNECTION
34-29.1 The Grantee shall comply with all applicable federal or state law or regulations if it sends or provides to subscribers unsolicited goods or services, or changes or restructures the way goods and services are being provided. If federal and state law impose different requirements, the Grantee shall comply with the most stringent requirements unless state requirements have been preempted by federal legislation. Grantee shall comply with these laws and regulations as they are now in effect or as they may be changes in the future.
34-29.2 In addition to other notices required by the Franchise, before it alters services, or the manner in which services are provided, the Grantee must provide a reasonably simple and dear notice explaining the substance and full effect of the alteration, including the effect on rates and of service options.
34-29.3 To the extent not precluded by the FCC’s rate regulations, the Grantee may not levy a surcharge or any other fee (whether nominated an upgrade or downgrade charge, or otherwise) which has the effect of making the price of receiving basic service alone more expensive than the price of basic service when coupled with another tier of service. However, a downgrade charge may be levied in the case where a promotion requires a subscriber to take a service for a set period of time in order to qualify for the promotion. In such cases the subscriber shall be notified in the promotional materials that a downgrade charge will result if the subscriber downgrades before the end of the designated period and the amount of the downgrade charge.
34-29.4 To the extent not precluded by the FCC’s rate regulations, Grantee shall not levy a disconnect fee except in documentable cases of repeated subscriber abuse of special promotional offers which require subscriber to maintain service for a defined period of time in order to qualify for the special offer.
34-29.5 Except in the case where a subscriber requests a disconnect for a future date, no charge shall be made for the delivery of any service after the day the Grantee is notified orally or in writing that a subscriber wishes to disconnect the service. The Grantee may continue to levy a pro-rata equipment charge on any equipment the subscriber is required to return to it, if the equipment is not returned within three business days of the date the subscriber notifies the Grantee it intends to disconnect service.
34-29.6 Grantee may not levy a charge for reconnection where the subscriber is improperly disconnected. Reconnection charges may not be higher than the installation charge being paid at the time of reconnection by similarly situated new subscribers.
SECTION 34-30 RIGHT TO REFUNDS
34-30.1 Except for planned outages where subscribers are given at least forty eight (48) hours advance notice, cases in which the outage occurs during service conditions which are not within the control of the Grantee, for any day where the Grantee’s basic service is interrupted or substantially impaired for any one hour or more during the period 7:00 p.m. - 11:00 p.m. or four hours or more during any 24-hour period, the Grantee shall, upon request, credit the charge for the affected service tier or 1/30th of the charge for any service sold on a per-channel basis. For planned outages, except at cutover, refunds shall be required for any one hour interruption during the period 7:00 p.m. - 11:00 p.m. or for any 12 hour interruption during any 24-hour period. The Grantee may be granted a waiver to this section upon demonstrated need. The charge for any program sold on a per-program basis shall be refunded in full at any time that the Grantee fails to deliver the program in substantially the form promised.
34-30.1.1 Any subscriber who calls the Grantee to request a credit and whose service was impaired as described in Section 34-30.1, or any subscriber who calls the Grantee to report or complain about impaired service as delineated in Section 34-30.1 shall receive a credit. Credits for service will be issued no later than the customer’s next billing cycle following the determination that a credit is warranted.
34-30.2 If any subscriber terminates service prior to the end of a prepaid period and provides Grantee with forwarding address, a pro-rata portion of any prepaid service fee, using the actual number of days in the month as a basis, shall be refunded by the Grantee. However, in the case of a subscriber who has in their possession Grantee equipment, any refund or prepaid period or balance due, shall be computed at the time equipment is returned in satisfactory condition.
34-30.3 All refunds and credits shall be made promptly, but not later than either: (a) the customer’s next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or (b) the return of the equipment supplied by the Grantee if service is terminated. The Grantee shall pay a subscriber a late charge equal to the late charge that the Grantee imposes upon the subscriber for late payment.
SECTION 34-31 DEPOSITS
34-31.1 The Grantee may require a reasonable, non-discriminatory deposit on equipment provided to subscribers. Deposits shall be placed in an interest-bearing account. On termination of service (and except where the subscriber owes the Grantee money or has damaged or failed to return the equipment) the Grantee shall return the deposit, plus interest earned to the date of repayment to the subscriber within the earlier of thirty (30) days or the date which had been scheduled for the subscriber’s next billing cycle.
SECTION 34-32 PROCEDURE FOR DISCONNECTION FOR CAUSE
34-32.1 The Grantee may disconnect for cause:
34-32.1.1 If at least thirty (30) days have elapsed from the due date of the bill; and
34-32.1.2 If the Grantee has provided at least ten (10) days written notice to the affected subscriber prior to disconnection, specifying the effective date after which cable services are subject to disconnection; and
34-32.1.3 There is no pending inquiry regarding bill to which the Grantee has not responded in writing; or
34-32.1.4 At any time and without notice if the Grantee in good faith determines subscriber has tampered with or abused Grantee’s equipment, or is or may be engaged in theft of cable service.
34-32.2 The Grantee shall reconnect a subscriber on request in accordance with the Franchise, after the subscriber pays amounts due plus a reconnect charge to the Grantee and ceases practices which prompted disconnection for cause.
SECTION 34-33 PAYMENT / SERVICE CHARGES FOR LATE PAYMENTS
34-33.1 The Grantee may not levy unreasonable charges for late payments.
34-33.2 No late payment fee may be imposed for payments until twenty two (22) days after commencement of the billing period.
SECTION 34-34 COMPLAINT RESOLUTION
34-34.1 The Grantee or any subscriber may ask the City to interpret any part these Customer Service Standards and the interpretation, unless unreasonable, shall bind the Grantee and the subscriber in the resolution of any complaint.
34-34.2 The Grantee shall establish dear procedures for resolving complaints, involving at least the following elements:
34-34.2.1 A simple procedure for making complaints orally or in writing, consistent with these standards, and identification of a person responsible for resolving complaints.
34-34.2.2 Notice to subscribers that they may file any complaint with the City if not resolved to the subscriber’s satisfaction after thirty (30) days, and that the City may recommend a resolution.
34-34.2.3 The Grantee must provide its initial response to a complaint within five (5) days of its receipt and final written response to any unresolved complaint (other than a complaint about the carriage or the lack of carriage of a particular programming service or about the content of a programming service or about the level of any unregulated rate) within thirty (30) days of the date the complaint is made.
34-34.3 Nothing in this agreement shall limit the rights of a subscriber to initiate a court action to enforce these standards. This paragraph shall not be interpreted to limit the rights of the City to enforce the Customer Service Standards.
SECTION 34-35 PRIVACY
34-35.1 The Grantee shall at all times comply with the privacy provisions of the Cable Act.
34-35.2 No penalties or extra charges may be invoked for a subscriber’s failure to grant permission under the privacy provision of the Cable Act.
ARTICLE 3
STATE VIDEO SERVICE FRANCHISES (Ord 3410; 05/2008)
Sections:
34-36 General Provisions
34-37 Definitions
34-38 Franchise Fees
34-39 Customer Service
34-40 Permits and Construction
34-41 Emergency Alert
34-42 Public, Educational, and Government Access Channel Capacity, Interconnection, Signal Carriage and Support
34-43 Notices
SECTION 34-36 GENERAL PROVISIONS
34-36.1 Purpose
This Article 3 is intended to be applicable to state franchise holders who have been awarded a state video franchise under the California Public Utilities Code section 5800 et seq. (the Digital Infrastructure and Video Competition Act of 2006 [“DIVCA”]), to serve any location(s) within the incorporated boundaries of the City. It is the purpose of this Article to implement within the incorporated boundaries of the City the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated there under that are applicable to a “local franchising entity” or a “local entity” as defined in DIVCA.
34-36.2 Rights Reserved.
A. The rights reserved to the City under this Article 3 are in addition to all other rights of the City, whether reserved by Article 3 or authorized by law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the City.
B. Except as otherwise provided by DIVCA, a state franchise shall not include, or be a substitute for:
1. compliance with generally applicable requirements for the privilege of transacting and carrying on a business within the City, including, but not limited to, compliance with the conditions that the City may establish before facilities may be constructed for, or providing, non-video services;
2. any permit or authorization required in connection with operations on or in public rights-of-way or public property, including, but not limited to, encroachment permits, street work permits, pole attachment permits and street cut permits; and
3. any permit, agreement or authorization for occupying any other property of the City or any private person to which access is not specifically granted by the state franchise.
C. Except as otherwise provided in DIVCA, a state franchise shall not relieve a state franchisee of its duty to comply with all laws, including the ordinances, resolutions, rules, regulations, and other laws of the City, and every state franchisee shall comply with the same.
34-36.3 Compliance with Article 3
Nothing contained in this Article 3 shall ever be construed so as to exempt a state franchise holder from compliance with all ordinances, rules or regulations of the City now in effect or which may be hereafter adopted which are consistent with this Article or California Public Utilities Code section 5800 et seq.
SECTION 34-37 DEFINITIONS
34-37.1 Definitions Generally -- Interpretation of Language.
For purposes of this Article 3, the following terms, phrases, words, and their derivations shall have the meaning given in this Section 34-37. Unless otherwise expressly stated, words not defined in this Article 3 shall be given the meaning set forth in Section 34-2 of the Monterey City Code as may be amended from time to time, unless the context indicates otherwise. Words not defined in this Section 34-37 or Section 34-2 of the Monterey City Code shall have the same meaning as established in (1) DIVCA, and if not defined therein, (2) Commission rules implementing DIVCA, and if not defined therein, (3) Title VI of Title 47 of the Communications Act of 1934, as amended, 47USC § 521 et. seq., and if not defined therein (4) their common and ordinary meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and “including” and “include” are not limiting. The word “shall” and “will” are always mandatory. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.
A. “Access,” “PEG access,” “PEG use,” or “PEG” means the availability of a cable or state franchise holder’s system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including the City and its designated access providers, to acquire, create, and distribute programming not under a state franchise holder’s editorial control.
B. “Gross revenues” means all revenues actually received by the holder of a state franchise that are derived from the operation of the holder’s network to provide cable service or video service within the incorporated areas of the City, subject to the specifications of California Public Utilities Code section 5860.
C. “State franchise holder” or “State Franchisee” means a cable operator or video service provider that has been issued a franchise by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in California Public Utilities Code section 5830, within any portion of the incorporated limits of the City.
SECTION 34-38 FRANCHISE FEES
34-38.1 State Franchise Fees.
Any state franchise holder operating within the incorporated areas of the City shall pay to the City a state franchise fee equal to five percent (5%) of gross revenues.
34-38.2 Payment of Franchise Fees.
The state franchise fee required pursuant to this Section 34-38 shall each be paid quarterly, in a manner consistent with California Public Utilities Code section 5860. The state franchise holder shall deliver to the City, by check or other means, which shall be agreed to by the City, a separate payment for the state franchise fee not later than forty-five (45) days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the payment was calculated, and shall include such additional information on the appropriate form as designated by the City.
34-38.3 Audits.
The City may audit the business records of the holder of a state franchise in a manner consistent with California Public Utilities Code section 5860(i).
34-38.4 Late Payments.
In the event a state franchise holder fails to make payments required by this section on or before the due dates specified in this section, the City shall impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent (1%).
34-38.5 Lease of City-Owned Network.
In the event a state franchise holder leases access to a network owned by the City, the City may set a franchise fee for access to the City-owned network separate and apart from the franchise fee charged to state franchise holders pursuant to Section 34-38, which fee shall otherwise be payable in accordance with the procedures established by this section.
SECTION 34-39 CUSTOMER SERVICE
34-39.1 Customer Service Standards.
A state franchise holder shall comply with Sections 53055, 53055.2, 53055.2 and 53088.2 of the California Government Code; the FCC customer service and notice standards set forth in Sections 76.309, 76.1602, 76.1603, and 76.1619 of Title 47 of the Code of Federal Regulations; Section 637.5 of the California Penal Code; the privacy standards of Section 551 of Title 47 of the United States Code; and all other applicable state and federal customer service and consumer protection standards pertaining to the provision of cable service or video service, include any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this paragraph shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.
34-39.2 Penalties for Violations of Standards.
The City shall enforce the compliance of state franchisees with respect to the state and federal customer service and consumer protection standards set forth above in subsection 34-39.1. The City will provide a state franchisee with a written notice of any material breaches of applicable customer service or consumer protection standards, and will allow the state franchisee 30 days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period will be subject to the following penalties to be imposed by the City:
A. For the first occurrence of a material breach, a fine of $500 may be imposed for each day the violation remains in effect, not to exceed $1,500 for each violation.
B. For a second material breach of the same nature within 12 months, a fine of $1,000 may be imposed for each day the violation remains in effect, not to exceed $3,000 for each violation.
C. For a third material breach of the same nature within 12 months, a fine of $2,500 may be imposed for each day the violation remains in effect, not to exceed $7,500 for each violation.
34-39.3 Any penalties imposed by the City shall be imposed in a manner consistent with California Public Utilities Code section 5900.
SECTION 34-40 PERMITS AND CONSTRUCTION
34-40.1 Except as expressly provided in this Article 3, all provisions of Monterey City Code Sections 34-14 (“Conditions of Street Occupancy”), 34-18 (“Protection of City and Enforcement -- Liability Insurance”), 34-19 (“Protection of City and Enforcement -- Performance Bond”), 34-20 (“Protection of City and Enforcement -- Security Fund”) and 34-21 (“Indemnification”) shall apply to all work performed by or on behalf of a state franchise holder on any City public rights-of-way, public property, or City easement.
34-40.2 Permits.
Prior to commencing any work for which a permit is required by this Section 34-40, a state franchise holder shall apply for and obtain a permit in accordance with the provisions referred to above in subsection 34-40.1 and shall comply with all other applicable laws and regulations, including but not limited to all applicable requirements of Division 13 of the California Public Resources Code, section 21000, et seq. (the California Environmental Quality Act).
34-40.3 The City Manager or his/her designee shall either approve or deny a state franchise holder’s application for any permit required above in subsection 34-40.1 within sixty (60) days of receiving a completed permit application from the state franchise holder.
34-40.4 If the City Manager or his/her designee denies a state franchise holder’s application for a permit, the City Manager or his/her designee shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial.
34-40.5 A state franchise holder that has been denied a permit by final decision of the City Manager or his/her designee may appeal the denial to the City Council. Upon receiving a notice of appeal, the City Council shall take one of the following actions:
A. Affirm the action of the City Manager or his/her designee without any further hearing; or
B. Refer the matter back to the City Manager or his/her designee for further review with or without instructions; or
C. Set the matter for a de novo hearing before the City Council.
34-40.6 In rendering its decision on the appeal, the City Council shall not hear or consider any argument or evidence of any kind other than the record of the matter received from the City Manager or his/her designee unless the City Council is itself conducting a public hearing on the matter.
SECTION 34-41 EMERGENCY ALERT
34-41.1 Emergency Alert Systems.
Each state franchise holder shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the state franchise holder’s network.
34-41.2 To the extent consistent with California Public Utilities Code section 5880, each state franchisee shall provide the system capability to transmit an emergency alert signal to all participating subscribers, in the form of an emergency override capability to permit the City to interrupt and cablecast an audio message on all channels simultaneously in the event of a disaster or public emergency. Each state franchisee shall be exempt from all liability for the use of the emergency alert, and the City shall indemnify and hold each state franchisee harmless from any claims and damages arising out of any such use.
SECTION 34-42 PUBLIC, EDUCATIONAL, AND GOVERNMENT ACCESS CHANNEL CAPACITY, INTERCONNECTION, SIGNAL CARRIAGE AND SUPPORT
34-42.1 PEG Channel Capacity.
A. A state franchisee that has been authorized by the California Public Utilities Commission to provide video service in the City shall designate and activate three (3) PEG channels within three months from the date that the City requests that the state franchisee designate and activate these PEG channels. However, this three-month period shall be tolled for such a period, and only for such a period, during which the state franchisee’s ability to designate or provide such PEG capacity is technically infeasible, as set forth in Sections 5870(a), 5870(c) and 5870(h) of the California Public Utilities Code.
B. A state franchisee shall provide an additional PEG channel when the standards set forth in Section 5870(d) of the California Public Utilities Code are satisfied by the City or any entity designated by the City to manage one or more of the PEG channels.
34-42.2 PEG Support.
A. Amount of PEG Support Fee. Any state franchise holder operating within the City shall pay to the City’s designated PEG provider a PEG fee equal to 1.96% of gross revenues, an amount equivalent to the level of PEG funding remitted by the incumbent cable operator to the City’s designated PEG provider during the period of January 1, 2006 to December 30, 2006.
B. The PEG support fee shall be used for PEG purposes, in a manner that is consistent with the terms of the incumbent cable operator’s franchise during the period of January 1, 2006 to December 30, 2006.
C. A state franchisee shall remit the PEG support fee to the City’s designated PEG provider on a quarterly basis, within forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the PEG support fee was calculated.
D. If a state franchisee fails to pay the PEG support fee when due, or underpays the proper amount due, the state franchisee shall pay a late payment charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent (1%), to the extent that such a late payment charge is deemed to be consistent with DIVCA. (Ord. 3448 C.S. § 1, 2010)
34-42.3 PEG Carriage and Interconnection.
A. As set forth in Sections 5870(b) and 5870(g)(3) of the California Public Utilities Code, state franchisees shall ensure that all PEG channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a state franchisee shall be of similar quality and functionality to that offered by commercial channels, shall be capable of carrying a National Television System Committee (NTSC) quality television signal, and shall be carried on the state franchisee’s lowest cost tier of service. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the lowest cost tier of service and the channel numbers for the PEG channels shall be the same channel numbers used by any incumbent cable operator, unless prohibited by federal law. After the initial designation of the PEG channel numbers, the channel numbers shall not be changed without the agreement of the City unless federal law requires the change.
B. As set forth in Section 5870(h) of the California Public Utilities Code, the holder of a state franchise and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. If a state franchisee and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the City shall require the incumbent cable operator to allow the state franchisee to interconnect its network with the incumbent cable operator’s network at a technically feasible point on the state franchisee’s network as identified by the state franchisee. If no technically feasible point of interconnection is available, the state franchisee shall make interconnection available to each PEG channel originator programming a channel in the City and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state franchisee requesting the interconnection unless otherwise agreed to by the parties.
SECTION 34-43 NOTICES
34-43.1 Each state franchise holder or applicant for a state franchise shall file with the City a copy of all applications or notices that the state franchise holder or applicant is required to file with the California Public Utilities Commission.
34-43.2 Unless otherwise specified in this Article 3, all notices or other documentation that a state franchise holder is required to provide to the City under this Section or the California Public Utilities Code shall be provided to both the City Manager and the City staff person in charge of cable and telecommunications, or their successors or designees.