Chapter 5.08


5.08.010    License to operate.

5.08.020    Definitions.

5.08.030    Uses permitted by license – Term.

5.08.040    License fees.

5.08.050    Limitation of license.

5.08.060    Rights reserved to city.

5.08.070    Time of performance.

5.08.080    Location of licensee’s properties.

5.08.090    Removal or abandonment of property of licensee.

5.08.100    Changes required by public improvements.

5.08.110    Failure to perform street work.

5.08.120    Faithful performance bond.

5.08.130    Indemnification of city.

5.08.140    Operational standards.

5.08.150    Miscellaneous provisions.

5.08.160    Application for license.

5.08.170    Compliance with requirements.

5.08.180    Additional services permitted to licensee.

5.08.190    Right of purchase.

5.08.200    Right of inspection.

5.08.210    Extension of service.

5.08.220    Records of applications.

5.08.010 License to operate.

A. A nonexclusive license to construct, operate and maintain a community antenna television system in the city may be granted by the city council to any person, firm or corporation offering to furnish and provide such system under and pursuant to the terms and provisions of this chapter.

B. No provision in this chapter may be construed as to require the granting of a license when in the opinion of the council it is in the public interest to restrict the number of licenses to one or more. (Ord. 92 § 1, 1983)

5.08.020 Definitions.

For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meaning given in this section:

A. “Basic service” means not less than five television channels that are received for the minimum monthly service charge but does not include those premium or auxiliary services for which an additional charge is made.

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

C. “Community antenna television system,” hereinafter referred to as “CATV,” means any facilities which receive, modify or originate television, FM radio or other electrical signals for the purpose of transmitting or distributing such signals by wire, cable, or other means to subscribing members of the public or to selected customers.

D. “Council” means the present governing body of the city or any future board constituting the legislative body of the city.

E. “Gross annual receipts” means any and all compensation or other consideration in any form whatever and any contributing grant or subsidy received directly or indirectly from subscribers or users in payment for television signals received within the city.

“Gross annual receipts” do not include any taxes on the services furnished by the licensee imposed directly on any user or subscriber by any city, state or other government unit and collected by the licensee for such governmental unit.

F. “Licensee” means the person or corporation to whom or which a license under this chapter is granted by the city council and the lawful successor or assignee of the person or corporation.

G. “Local television” means a television broadcasting station whose transmitter is within 15 miles of the post office in the city.

H. “Street” means the surface of and the space above and below any public street, road, highway, freeway, land, alley, court, sidewalk, parkway or drive, now or hereafter existing as such within the city.

I. “Subscribers” means any person or entity receiving for any purpose the CATV service of the licensee herein.

J. “TV” means television. (Ord. 92 § 2, 1983)

5.08.030 Uses permitted by license – Term.

A. Any license granted pursuant to the provisions of this chapter shall authorize and permit the licensee to engage in the business of operating and providing a CATV system in the city, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public 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 CATV 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.

B. The term of the license, or any renewal thereof, granted by the city council under this chapter shall be as set forth in its resolution and such term shall commence on the date of acceptance of such license by the licensee or the renewal thereof.

C. Any such license may be terminated prior to its date of expiration by the city council in the event the council shall have found, after notice and hearing, that:

1. The licensee has failed to comply with any material provision of this chapter, or has, by act or omission, violated any term or condition of any license or permit issued under this chapter; or

2. The provisions of this chapter have become invalid or unenforceable, and the council further finds that such provisions constitute a consideration material to the grant of the licensee; provided, however, that the licensee shall be given at least 30 days’ notice of any proposed termination proceedings. If the licensee cures the alleged violation of any term or condition of the license during the notice period, the termination proceedings called for under subsection (C)(1) of this section shall be cancelled.

D. No provision in this chapter shall be construed to preclude the introduction of program material into a licensed CATV system or a portion thereof. (Ord. 92 § 3, 1983)

5.08.040 License fees.

A. Any licensee granted a license under this chapter shall pay to the city, during the life of such license and at the times hereinafter specified, a sum equal to five percent of the annual total gross receipts of the licensee, and payment by the licensee to the city shall be in lieu of any occupation tax, license or similar levy and shall be paid annually.

B. The licensee shall file with the city, within 60 days after the expiration of any year during which such license is in force, a financial statement prepared by a certified public accountant or a person otherwise satisfactory to the council showing in detail the total annual gross receipts of the licensee, its successors or assigns, during the preceding fiscal year. It shall be the duty of the licensee to pay to the city, within 15 days after the time for filing such statements, any unpaid balance for the year covered by such statements.

C. The city shall have the right of inspection of the licensee’s records showing its gross receipts. (Ord. 198, 2008; Ord. 92 § 4, 1983)

5.08.050 Limitation of license.

A. Any privilege claimed under such license by the licensee in any street shall be subordinate to any prior lawful occupancy of the street, or other public property.

B. Any such license shall be a privilege to be held in personal trust by the original licensee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without prior written consent of the city expressed by resolution, and then only under such conditions as may be therein prescribed; provided, however, that no such consent shall be required for any transfer in trust, mortgage or other hypothecation, as a whole, to secure an indebtedness. The consent of the city may not be arbitrarily refused; provided, however, that proposed assignee must show financial responsibility and must agree to comply with the provisions of this chapter.

C. Time shall be of the essence of any license granted under this chapter. The licensee shall not be relieved of its obligation to comply promptly with any of the provisions of this chapter, or by any failure of the city to enforce prompt compliance.

D. The licensee shall have no recourse whatsoever against the city for any loss, cost, expense of damage, arising out of any provision or requirement of this chapter or its enforcement.

E. The licensee is subject to all requirements of the city ordinances, rules, regulations and specifications of the city heretofore or hereinafter enacted or established, including, but not limited to, those concerning street work, street excavations, use, removal and relocation of property within a street, and other street work. (Ord. 92 § 5, 1983)

5.08.060 Rights reserved to city.

A. There is reserved to the city every right and power which is required to be herein reserved or provided by any ordinance of the city, and the licensee, by its acceptance of this license, agrees to be bound thereby, and to comply with any action or requirement of the city in its exercise of any such right or power, heretofore and hereafter enacted or established.

B. In connection with the issuance of any license under this chapter, the city council may impose such reasonable restrictions, conditions and limitations as to the area or areas of the city to be served by licensee, operation conditions and the cooperative working arrangements relative to local television broadcasting stations serving the Etna area with the best possible television reception. However, every application shall include the entire city. (Ord. 92 § 6, 1983)

5.08.070 Time of performance.

Installation of a CATV system shall be commenced within 120 days after any license is granted under the provisions of this chapter, any extensions and service pursued with due diligence thereafter. Failure to so commence and diligently pursue to completion shall be grounds for termination of this license. The council may extend the time for beginning the installation for additional periods in the event the licensee, acting in good faith, experiences delays by reason of circumstances beyond his control. (Ord. 92 § 7, 1983)

5.08.080 Location of licensee’s properties.

A. Any poles, wires, cable lines, conduits or other properties of licensee to be constructed or installed in streets or public rights-of-way shall be so constructed or installed only at such locations and in such manner as shall be approved by the city council or their designated employee. Upon receipt of a construction or installation request from the licensee, the city council or their designated employee shall reply within 10 business days.

B. The licensee may install or erect any facilities or apparatus on public property or rights-of-way within the city upon obtaining written approval of the city council or their designated employee in advance.

C. In those areas and portions of the city where either the transmission and distribution facilities of the public utility providing telephone service, and those of the utility providing electric service, are underground or hereafter may be placed underground, then the licensee shall likewise construct, operate and maintain all or its transmission and distribution facilities underground. Amplifiers in licensee’s transmission and distribution lines may be in concrete boxes or vaults upon the surface of the ground.

D. Construction or installation of the licensee’s cable lines or conduits in all other public places, owned or controlled by the city, shall be subject to approval of and regulations by the city council in advance. (Ord. 92 § 8, 1983)

5.08.090 Removal or abandonment of property of licensee.

A. In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of 12 months, or in the event such system or property has been installed in any street or public place without complying with the requirements of its license, or the license has been terminated, cancelled or had expired, the licensee shall promptly remove from the streets or public places all such property and poles of such system, other than any which the director of public works may permit to be abandoned in place. In the event of any such removal, the licensee shall promptly restore the street or other area from which such property has been removed, to a condition satisfactory to the director of public works.

B. Any property of the licensee remaining in place 30 days after the termination of the license shall be considered permanently abandoned. The city council or their designated employee may extend this time not to exceed an additional 30 days.

C. Any property of the licensee abandoned in place shall be abandoned in such manner as the director of public works shall prescribe. Upon permanent abandonment of the property of the licensee in place, the property becomes that of the city and the licensee shall submit to the city council or their designated employee an instrument, to be approved by the city attorney, transferring to the city the ownership of such property. (Ord. 92 § 9, 1983)

5.08.100 Changes required by public improvements.

The licensee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street, alley or public place, or remove from the street, alley or public place, any property of the licensee when required by the city council or their designated employee by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by governmental agencies when acting in a governmental proprietary capacity, or any other structures or public improvements; provided, however, that the licensee shall in all such cases have the privileges and be subject to the obligations to abandon any property of the licensee in place, as provided in EMC 5.08.090(A). (Ord. 92 § 10, 1983)

5.08.110 Failure to perform street work.

Upon failure of the licensee to complete any work required by law or by the provisions of this chapter to be done in any street within the time prescribed, and to the satisfaction of the director of public works, the city may cause such work to be done and the licensee shall pay to the city the cost thereof in the itemized amounts reported by the city council or their designated employee to the licensee, within 30 days after receipt of such itemized report. (Ord. 92 § 11, 1983)

5.08.120 Faithful performance bond.

A. The licensee shall, concurrently with the filing of an acceptance of award of any license granted under this chapter, file with the city clerk, and at all times thereafter maintain in full force and effect for the first two years of the term of the license, at the licensee’s sole expense, a corporate surety bond, of a company approved by and in a form approved by the city attorney, in the amount of $5,000, renewable annually, and conditioned upon the faithful performance of the licensee and that in the event the licensee shall fail to comply with any one or more of the provisions of this chapter, that there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the city as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the licensee as prescribed hereby which may be in default, plus a reasonable allowance for attorney’s fees and costs, up to the full amount of the bond; the condition to be a continuing obligation for the duration of this license and thereafter until the licensee has liquidated all of its obligations with the city that may have arisen from the acceptance of this license by the licensee or from its exercise of any privilege herein granted. The bond shall provide that 30 days’ prior written notice of intention not to renew, cancellation or material change be given to the city. At the end of the first two years of the term of this license, the amount of the aforesaid corporate surety bond which the licensee shall maintain in full force and effect for the remainder of the term of the license shall be in the amount of $5,000 but shall correspond in all other particulars to the bond required during the first two years of the term as required in this section, and upon application by the licensee the council may, by unanimous consent, waive the bond required in this section or reduce the amount thereof.

B. Neither the provisions of this section, any bond accepted by the city pursuant thereto, nor any damages recovered by the city thereunder shall be construed to excuse faithful performance by the licensee or limit the liability of the licensee under this license or for damages, either to the full amount of the bond or otherwise.

C. The city may, on application of the licensee, at or prior to the expiration of the first annual bond, reduce the amount thereof or excuse the licensee from the requirement of subsection (A) of this section. (Ord. 92 § 12, 1983)

5.08.130 Indemnification of city.

A. The licensee agrees that at all times during the existence of this license it will maintain in force, furnish and file with the city, at its own expense, a general comprehensive liability insurance policy, in protection of the city, its boards, commissions, officers, agents and employees, in a company authorized to do business in the state of California, and in form to be approved by the city attorney, protecting the city and the persons against liability for loss or damages for personal injury, death and property damage occasioned by the operations of licensee under this license with minimum liability limits of $100,000 for personal injury or death of any one person, and $300,000 for personal injury or death of two or more persons in any one occurrence, and $50,000 for damage to property resulting from any one occurrence.

B. The policies mentioned in subsection (A) of this section shall name the city as an additional insured, and shall also contain a provision that a written notice of any cancellation or reduction in coverage of the policy shall be delivered to the city not less than 10 days in advance of the effective date thereof. If such insurance is provided in either case by a policy which also covers licensee or any other entity or person than those named in this section, then such policy shall contain the standard cross-liability endorsement.

C. No franchise or license granted under this chapter shall be effective unless and until each of the foregoing policies of insurance as required in this section have been delivered to the city. (Ord. 92 § 13, 1983)

5.08.140 Operational standards.

A. Installation and Maintenance. The CATV system shall be installed and maintained in accordance with the highest and best accepted standards of the industry to the effect that subscribers shall receive the best possible service. In determining the satisfactory extent of such standards, the provisions set out in subsection (B) of this section shall apply.

B. Subscriber Visual Carrier Level.

1. Definition. “Subscriber visual carrier level” is 0.707 times the instantaneous peak voltage of the visual carrier, modulated with FCC standard composite visual signal, as delivered to the individual subscriber to a CATV system.

2. Minimum Standard. The visual carrier level at the subscriber’s terminal shall be no less than 500 microvolts at 75 ohms. (The field strength meter actually reads voltage at 75 ohms. The 300 ohm adapter must be used for measuring level at 300 ohm subscriber terminals. Whether reading the level directly at 75 ohms or with the 300 ohm adapter the meter reading shall be no less than 500 microvolts. It is noted that the actual level at 300 ohms will then be approximately 1,000 microvolts minimum. At the present stage of the art, it is considered unnecessary to take account of the adapter loss.)

3. Method of Measurement. The measurement shall be made with the standard field strength meter.

System input signals may be either the normally received TV station signals, or may be derived from a series of signal generators arranged to simulate normal modulated carrier reception conditions.

Systems using single channel, “strip type,” AGC amplifiers, or systems using pilot carrier type AIC may be tested using a single signal generator to simulate one channel at a time. Systems using broad band, multi-channel, AOC amplifiers controlled by some combination of carrier levels must be tested with enough modulated signal generators operating simultaneously to simulate each signal normally received.

a. Normally Received Signals. The level at subscriber terminals shall be measured when all signals are at their normal operating design level measured at the output of the first AGC amplifier.

b. Simulated Signals. The required modulated signal generators are fed to the input of the first amplifier and levels adjusted so that the output of the first AGC amplifier gives the same reading on the standard field strength meter as the normally received signal adjusted to normal operating design level.

c. Specification for the Standard Field Strength Meter.

i. The instrument shall be peak indicating. Indications must be within five percent of the true peak of the FCC standard horizontal sync pulse.

ii. The indicating scale shall be calibrated to read 0.707 times the true peak R.F. voltage.

iii. Selectivity. The selectivity shall permit unattenuated passage of the FCC standard horizontal sync pulse.

Maximum selectivity shall be such that side bands more than plus or minus four and three-tenths MHZ are attenuated 30 db. Care should be exercised to assure that the adjacent lower sound carrier is not affecting the accuracy of measurements.

iv. Input impedance shall be 75 ohms nominal, coaxial terminal, unbalanced. An adapter to 300 ohms nominal, balanced, binding post terminals, shall be supplied either as an accessory or as a built-in feature.

v. Input VSWR at 75 ohms shall not be more than one and two-tenths to one: or a return loss of not less than 21 db.

vi. Overall accuracy of the instrument shall be plus or minus one and seventy-five hundredths db at 75 ohms, and plus or minus two and five-tenths db using the 300 ohms adapter. (Ord. 92 § 14, 1983)

5.08.150 Miscellaneous provisions.

A. All notices provided for in this chapter shall be prepared registered mail addressed to the parties as follows: to the city, to the city clerk, City Hall, Etna, California, with a copy to the city attorney, 201 Fourth Street, Yreka, California; to the licensee as provided by any license granted pursuant to the provisions of this chapter.

All matters herein provided to be filed with the city shall be filed with the city clerk.

B. Any licensee shall submit to the city the form of its service agreement between the licensee and its subscribers and shall also serve upon the city a full schedule of its proposed basic installation and service charges to be paid by subscribers before soliciting from subscribers within the city, and shall serve upon the city any amendments or alterations in the service agreement or schedule of charges; the licensee for one week following the filing of said schedule of charges or amendments thereto shall publish the same daily in a newspaper of general circulation within the city. The basic rate schedule of charges for any agreement or increase thereto to the subscribers must have city approval.

C. The licensee shall pay to the city a sum of money sufficient to reimburse it for all expenses incurred by it in connection with the granting of a license pursuant to the provisions of this chapter, such payment to be made within 30 days after the city shall furnish such licensee with a written statement of such expenses.

D. The licensee shall not engage in the business of selling televisions or other receivers which make use of signals transmitted by its systems, nor shall licensee engage in the repair of such receivers or the sale of parts for the same.

E. Nothing in this chapter or in any license granted under this chapter shall prevent the city from subsequently granting to a licensee hereunder or to any other person, company, corporation or association a franchise or license to distribute service commonly known as “pay TV.”

F. The licensee shall, prior to digging in or opening of any holes, trenches or other openings or installations of any poles or structures in any public way or street in the city, must submit in duplicate to the city council or their designated employee such drawings or maps as may clearly and accurately define the work proposed to be done by licensee. The city council or their designated employee shall, if such proposed work is not objectionable to the city council, grant a permit for the purpose of performing such proposed work.

G. The city council shall have the authority, in the event that any requirement or provision herein may create an undue hardship upon licensee, to extend the time for performance of any act required to be done or to modify the form or method of compliance with any act required to be done by this chapter.

H. The city council shall have the authority, upon notice to licensee, to renegotiate and review the terms and provisions of any license granted under this chapter in the event that the city council shall deem it in the best interests of the city to expand the number of channels for television reception available to the inhabitants of the city or to improve or in any manner modify the standard of service being provided at any time by licensee.

I. The basic rate schedule for any service agreement or increase thereto to subscribers must have the written approval of the city council. (Ord. 92 § 15, 1983)

5.08.160 Application for license.

A. Application for a license under this chapter shall be filed with the city clerk in a form approved by the city and shall contain the following information:

1. The name and address of applicant;

2. A general description of applicant’s proposed CATV operation, including map of areas to be served;

3. A statement or schedule in a form approved by the city of proposed rates and charges to subscribers for installation and services, and a copy of the proposed service agreement between the licensee and its subscribers shall accompany the application;

4. A copy of any contract or contracts, if existing, between applicant and any public utility providing for use of facilities of such public utility, such as poles, lines or conduits;

5. A statement of the corporate organization of applicant, including the names and addresses of its officers, directors and associates, and also including the names of subsidiary companies with a listing of other areas being served by CATV or similar systems;

6. Applicant shall also furnish a financial statement prepared by a certified public accountant as to the company’s or corporation’s financial ability to complete installation and operation of the CATV system;

7. A statement of proposed percentage license fee payment to the city referred to in EMC 5.08.040.

B. Upon consideration of any such application, the city council may grant a license for CATV to such applicant as may appear from the application to be in its opinion best qualified to render proper and efficient CATV service to television viewers and subscribers in the city, regardless of the license fee offered. The council’s decision in the selection will be final.

C. The city council may include any reasonable condition, limitation or restriction which it may deem necessary to impose in connection with such license pursuant to the authority conferred by this chapter.

D. A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any person, firm, group or corporation with respect to the license and the proposed operations. If a license is granted to a person, firm, group or corporation posing as a front or representative for another person, firm, group or corporation and such information is not disclosed in the original application, such license shall be revoked automatically and the council shall consider awarding the license to another qualified applicant. (Ord. 92 § 16, 1983)

5.08.170 Compliance with requirements.

No license issued under this chapter shall become effective until all the requirements of this chapter are fully met, including the filing with the city clerk certificates of insurance required in this chapter. (Ord. 92 § 17, 1983)

5.08.180 Additional services permitted to licensee.

The licensee may use the local CATV system to provide unregulated auxiliary and premium services as long as such service may be lawfully provided by a CATV system to subscribing members of the public or to selected customers. (Ord. 92 § 18, 1983)

5.08.190 Right of purchase.

The city shall have the right at any time during the life of the license granted under this chapter to acquire by purchase for fair market value for the city itself all the property of licensees placed under the licenses within the limits of public property at a fair and just value which shall not include any amount for the license itself, or of any of the rights and privileges herein granted and the licenses shall thereupon terminate. (Ord. 92 § 19, 1983)

5.08.200 Right of inspection.

At all reasonable times, the council may examine all records kept or maintained by the licensee or under its control which treat of the operations, affairs, property or transactions of the licensee within the city, for the serving of subscribers within the city. (Ord. 92 § 20, 1983)

5.08.210 Extension of service.

The licensee shall and will extend its service and facilities to subscribers on each and every street in the city for service upon which street any applicant shall make application. Such licensee shall furnish such service promptly and not later than 60 days after such application. (Ord. 92 § 21, 1983)

5.08.220 Records of applications.

The licensee, upon receipt of any application for service from any person, firm or corporation, shall keep a permanent record of the name and address of the applicant and the date and time of application, which entries shall be signed by the applicant and a duly authorized representative of the licensee and such entry shall be conclusive of the time and date of application for such service. Such records shall at all times be open to examination by the duly constituted representative of the city. In addition to such entry, licensee shall, at the time of the application and entry aforesaid, furnish to each applicant an acknowledgement of the receipt of the application for such service, showing the date of application, the name of the applicant, the address of the applicant and the address for which service is applied. (Ord. 92 § 22, 1983)