Chapter 5.28


5.28.010    Franchise to operate.

5.28.020    Definitions.

5.28.030    Nature and extent of grant.

5.28.040    Territorial area involved.

5.28.050    Duration of franchise – Termination.

5.28.060    Limitation upon grant.

5.28.070    Franchise acceptance.

5.28.080    Regulation of rates and services.

5.28.090    Franchise payment.

5.28.100    Rights-of-way.

5.28.110    Rights reserved to the city.

5.28.120    Permits and authorizations.

5.28.130    Location of property of grantee.

5.28.140    Removal or abandonment of franchise property.

5.28.150    Change required by public improvements.

5.28.160    Failure to perform street work.

5.28.170    Cable system installation shielding.

5.28.180    Faithful performance bond.

5.28.190    Indemnification of the city.

5.28.200    Hold harmless agreement.

5.28.210    Inspection of property and records.

5.28.220    Operational standards.

5.28.230    Minimum level of service.

5.28.240    Repair service complaint remedies.

5.28.250    Supervision of cable system franchises.

5.28.260    Emergency override.

5.28.270    Renewal of franchise.

5.28.010 Franchise to operate.

The city council may grant a nonexclusive franchise to construct, operate and maintain a cable television system in the city of Pittsburg to any person, firm or corporation offering to furnish and provide the system under the terms of this chapter. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.020 Definitions.

In this chapter, unless the context otherwise requires:

A. “Basic service” means those broadcast signals, including one public access channel, delivered to all subscribers as a group or tier of signals in exchange for a single monthly charge, and which all system subscribers must take in order to have the right to subscribe to additional cable services. “Basic service” does not include optional tiers or services for which a separate charge is made.

B. “Cable television system” or “cable system” or “system” means a facility utilizing:

1. A receiving antenna or antennas;

2. Connecting wire, cable, fiber optics, and other equipment, crossing or occupying the streets; and

3. Associated microwave, satellite relay facilities, or similar radio frequency transmission equipment used in conjunction with the facilities enumerated in subsection (B)(1) and (2) of this section, designed and constructed for the primary purpose of producing, receiving, amplifying, storing, processing, or distributing audio, video, digital or other forms of electronic or electromagnetic signals sold or distributed to subscribers.

C. “City” means the city of Pittsburg, in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form.

D. “Franchise” means the authority granted by this chapter to grantee to construct, maintain and operate a cable system in the city.

E. “Franchise agreement” means an agreement executed by the city and the grantee to implement the provisions of this chapter.

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

G. “Gross receipts” means all compensation received by grantee from the operation of its cable system within the corporate limits of the city. “Gross receipts” includes regular monthly subscriber fees for both standard and premium (pay) services, installation charges, disconnection and reconnection charges, and charges for the use of access, origination or private service channels in either service direction, as reduced by bad debt and copyright fees paid by the grantee. “Gross receipts” does not include refundable deposits or any taxes on the services furnished by the grantee imposed directly on any user or subscriber by any city, state or other governmental unit and collected by the grantee for such governmental unit.

H. “Street” means the surface, the air space above the surface and the area below the surface of any public street, public right-of-way or other place owned by the city or dedicated to public use, including public utility easements.

I. “Subscriber” means a person or entity receiving the cable service of grantee. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.030 Nature and extent of grant.

A nonexclusive franchise granted under this chapter authorizes the grantee to engage in the business of constructing, operating and maintaining a cable 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 such poles, wires, cable, conductors, ducts, conduit, vaults, pedestals, manholes, amplifiers, appliances, attachments, and other property as may be necessary or useful 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 entity franchised or permitted to do business in the city.

The grantee shall not, as to rates, charges, service, services, facilities, rules, regulations, or in any other respect, make or grant any undue preference or advantage to any person, nor subject any person to any prejudice or disadvantage, on the basis of sex, race, color, religion, ancestry or national origin. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.040 Territorial area involved.

A franchise granted by the city council under this chapter shall relate to the territorial limits of the city at the time of the franchise and to any area added during the term of the franchise. However, the grantee is not required to extend cable service to any newly annexed area until the newly annexed area has an average density of eight housing units per mile of street; and provided further, that the grantee is not required to provide service to any newly annexed area that is already receiving cable service or its equivalent. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.050 Duration of franchise – Termination.

A. Duration. No franchise granted under this chapter shall be for a term longer than 15 years from the date of the franchise agreement or the renewal of the agreement; provided, however, that the city council may in its discretion extend the term of a franchise then in effect for an additional term of not more than 10 years.

B. Termination. A franchise may be terminated by the city council before its date of expiration if the grantee fails or refuses to substantially comply with the city’s demand that a violation be corrected of any material provision, term, or condition of this chapter or any franchise of permit issued under this chapter. If the city deems the grantee to be in violation of any provision, term or condition of this chapter or any franchise issued under this chapter, the city shall make a written demand that the grantee correct the deficiency. If the violation continues for a period of 120 calendar days following the written demand without a correction or satisfactory assurance that the correction will be completed within a reasonable time, the city may place the issue of termination of the franchise before the city council. At least 20 calendar days before the date of council meeting, the city shall serve upon the grantee a written notice of intent to consider termination for failure to correct the violation, a statement of the nature and scope of the violation, and the time and place of the meeting. Public notice shall be given of the meeting and the issue which the council is to consider. The city council shall hear and consider the issue, shall hear any person interested in the issue, and shall determine whether or not the alleged violation has occurred. If the city council determines that a violation by the grantee has occurred, it shall also determine whether the violation is the fault of the grantee or was within the grantee’s reasonable control to correct. If the violation is the fault of the grantee and was within the grantee’s reasonable control to correct, the council may declare that the franchise of the grantee be terminated. The council’s decision to terminate the franchise may be reviewed by a court having jurisdiction, provided an action is commenced within 90 calendar days after the grantee receives written notice of the decision to terminate.

If any provision of this chapter becomes invalid or unenforceable because of superseding law, regulation or court decision, and if that provision constitutes a consideration material to the grantee of the franchise, then the parties may reconsider the franchise ordinance and agreement and make amendments mutually agreeable to the parties; provided, however, that any such amendment shall conform to and incorporate relevant provisions of state or federal law. [Ord. 1026A § 1, 1992; Ord. 907 § 2 (Exh. A), 1986.]

5.28.060 Limitation upon grant.

No privileges or exemptions are granted or conferred by this chapter except those specifically prescribed in it. The franchise granted by this chapter is subordinate to any existing lawful public use or any existing franchise or lawful occupancy of any public street if such use, franchise or occupancy would be frustrated by the grantee’s proposed exercise of the rights granted to it by the franchise.

No franchise granted by this chapter may be sold, transferred, leased, assigned, or disposed of without the prior consent of the city expressed in writing, and then only under such conditions as may be prescribed in the consenting agreement; provided, however, that the city shall not unreasonably withhold consent; and provided further, that no such consent shall be required for any transfer in trust, mortgage or other hypothecation, as a whole, to secure an indebtedness.

If the grantee is a corporation, prior approval of the city council, which shall not be unreasonably withheld, is required where ownership or control of more than 30 percent of the voting stock of grantee is proposed to be acquired by a person or group of persons acting in concert, none of whom already own or control 30 percent or more of the voting stock, singularly or collectively. Further, acquisition of stock or equity to increase total ownership to an amount of 30 percent or greater by a person or group of persons acting in concert shall similarly require council approval. Any such acquisition occurring without prior approval of the city council constitutes failure to comply with a material provision of this chapter. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.070 Franchise acceptance.

No franchise granted under this chapter is effective until accepted by both parties. Such acceptance shall be evidenced by the execution of a franchise agreement. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.080 Regulation of rates and services.

A. FCC Regulations. The Federal Cable Television Consumer Protection and Competition Act of 1992 (“the Act”) and the related regulations adopted by the Federal Communications Commission (“FCC”) established regulations limiting rates for basic cable television service, as well as rates and changes for other ancillary services. The city adopts by reference the rate regulations established by the FCC pursuant to the Act, together with any amendments which may occur from time to time.

B. Initial Service Rates. Upon the city becoming certified by the FCC to enforce rate regulations, the city manager shall notify the grantee of the certification. Within 30 days after receipt of the notice, the grantee shall file its schedule of rates and charges for the basic service tier and associated equipment and ancillary rates with the city manager. Said schedule of rates shall be accompanied by a detailed explanation by the grantee of how the rates and charges are consistent with the FCC regulations.

C. Rate Increases. Prior to increasing any rates for basic service and/or associated equipment at any time, the grantee shall file its proposed rates with the city manager. Within seven days of filing its proposed rates, the grantee shall notify its subscribers of its proposed rates, and that written comments may be submitted to the city manager. Such notice shall contain language in substantially the following form:

The Federal Communications Commission provides regulations for the amount of fee increases. If the rates are consistent with such regulations, the City of Pittsburg has no power to disapprove them. The City Manager will determine whether the proposed rates are consistent with the regulations. Written comments on this matter may be directed to the City Manager at 2020 Railroad Avenue, Pittsburg, CA 94565 within twenty (20) days of your receipt of this notice.

D. Form of Applications. If the proposed rates are within the benchmark rates permitted by the FCC regulations, the grantee shall submit the required FCC form. If the proposed rates are greater than the benchmark rates permitted by FCC regulations, the grantee may submit a cost-of-service showing pursuant to FCC regulations. The city manager may request the grantee to submit such additional information as he may reasonably deem necessary to make a determination.

E. Action on Application. The city manager may approve, conditionally approve, or deny a rate increase. A conditional approval may be made pending further review of the rate increase. If the city manager determines from such further review or audit that the rate increase was not justified, a rate rollback or deduction may be ordered. In the event of any conditional approval or denial, the city manager shall submit a written explanation of such decision to the grantee. The city manager shall submit any decision made in writing to the grantee, and shall post such decision in the office of the city clerk and at the city council chambers. Such notice shall remain posted for at least 10 calendar days.

F. Appeal of Manager’s Decision. The grantee, or any interested person, may appeal the city manager’s decision to the city council. Such appeal, to be effective, must be filed with the city clerk in writing within 10 calendar days of the city manager’s decision.

G. Appeal of Council’s Decision. The grantee, or any interested person, may appeal the city council’s decision on appeal to the FCC in accordance with FCC regulations.

H. Complaints Regarding Premium Service Rates. Although the city has no jurisdiction over the rates charged for premium services, the city manager is authorized to file a complaint with the FCC challenging the reasonableness of a grantee’s rate for cable service or any other ancillary charges, at any time that the city manager determines that such complaint may be warranted. [Ord. 1084 § 1, 1994.]

5.28.090 Franchise payment.

During the term of its franchise, a grantee shall pay to the city a sum equal to five percent of the monthly total gross receipts of the grantee as defined in PMC 5.28.020, unless the fee is disapproved by the Federal Communications Commission (“FCC”), in which case the grantee shall pay the amount authorized by the FCC. The payment by the grantee to the city shall be paid semiannually and shall be in lieu of any occupation tax, license tax or similar levy. Grantee may not deduct from the payment any possessory interest tax or similar levy assessed to the grantee. The amount of the franchise fee payment shall not be included in the calculation of rate adjustments under PMC 5.28.080(B) unless the rate includes the amount of the franchise fee payment.

The grantee shall file with the city, within 90 calendar days after the expiration of any calendar year during which such franchise is in force, a financial statement prepared by a certified public accountant showing in detail the total gross receipts of grantee during the preceding calendar year. Grantee shall pay to the city within 15 calendar days after the time for filing such statements any unpaid balance for the calendar year covered by the statements.

The city has the right to inspect the grantee’s records showing its gross receipts, subject to PMC 5.28.210. [Ord. 1026A § 2, 1992; Ord. 907 § 2 (Exh. A), 1986.]

5.28.100 Rights-of-way.

A. Any privilege claimed by the grantee under the franchise in any street or other public property is subordinate to any prior lawful occupancy of the streets or other public property and shall be in conformance with Section 53066 et seq. of the California Government Code.

B. The grantee is subject to all requirements of the municipal code, rules, regulations and specifications of the city enacted or established before or after this chapter takes effect, including those concerning street work, street excavations, use, removal and relocation of property within a street, and other street work, so long as any rule, regulation, or specification enacted after the effective date of this chapter does not materially increase the obligations or burdens assumed by the grantee under this chapter. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.110 Rights reserved to the city.

There is hereby reserved to the city every right and power which is required to be reserved or provided by any ordinance of the city. The grantee, by its acceptance of any franchise, agrees to be bound by it and to comply with any action or requirement of the city in its exercise of such right or power enacted or established before or after this chapter takes effect, that does not materially increase the obligations or burdens assumed by the grantee. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.120 Permits and authorizations.

The grantee shall proceed within 30 calendar days with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including utility joint use attachment agreements and microwave carrier licenses to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable systems or associated microwave transmission facilities. Further, the grantee shall commence the installation within 90 calendar days after having obtained all the necessary permits and authorizations. Subject to the provisions of PMC 5.28.130, grantee shall proceed to render service to subscribers within 90 calendar days following the commencement of installation of the system. Grantee shall pursue the completion of the installation with reasonable diligence thereafter, so that service to all areas designated on the map accompanying the application for franchise shall be provided within one year from the date that service was first provided. Substantial noncompliance with the foregoing requirements shall be grounds for termination of the franchise, unless such noncompliance is due to circumstances or occurrences beyond the grantee’s reasonable control. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.130 Location of property of grantee.

The grantee shall make appropriate arrangements to install cable system facilities with the owner of the property or easement where facilities are to be located. The grantee is not required to pay a fee, or to compensate in any fashion, the owner in order to obtain permission to locate cable system facilities above, below, on or across the owner’s property or easement, nor is grantee required to provide cable service to properties in the vicinity of the owner’s property or easement. Furthermore, if the owner refuses to permit the grantee to locate cable system facilities above, below, on or across the property or easement, the grantee is not required to serve properties in the vicinity by means of an alternative route for the installation of cable system facilities if use of the alternative route would result in construction costs above those which would have been necessary if permission had been granted.

All excavation work performed by grantee within the streets requires an excavation permit. Any poles, wires, cable lines, conduits or other properties of the grantee to be constructed or installed in streets shall be so constructed or installed only at the locations and in the manner as are approved by the city acting in the exercise of its authority and reasonable discretion.

The grantee shall post a cash bond or line of credit from a federal or state of California bank or savings and loan association in the name of the city in the amount of $50,000 for use by the city to repair, replace or restore streets or other public facilities damaged by the grantee’s work. The city has the right to withdraw sufficient funds for such repairs following 15 calendar days’ written notice to the grantee that such repairs are necessary and the grantee’s failure to perform necessary repair. Upon such withdrawals, the grantee shall replenish the bond to its full original amount. Interest from the cash bond shall be reserved to the grantee on terms and conditions approved by the city manager.

The grantee shall not install or erect any facilities or apparatus in or on public streets or rights-of-way or within any privately owned area within the city, except those installed or erected upon public utility facilities now existing, without obtaining the prior written approval of the city manager.

In those areas of the city where the transmission or distribution facilities of the public utilities providing telephone service and electric service are underground or may be placed underground in the future, the grantee shall likewise construct, operate and maintain all of its facilities underground to the extent that the facilities of the existing utilities are underground. For the purpose of this section, “underground” includes a partial underground system. The city is not responsible for any of the grantee’s costs in placing its facilities underground.

The entire cable system of the grantee shall be located or relocated and so erected as not to interfere unreasonably with travel over, in, on or under any street and with reasonable ingress and egress to abutting property. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.140 Removal or abandonment of franchise property.

If (1) the use of any franchise property is discontinued for a continuous period of 12 months, unless such discontinuance is due to circumstances beyond the grantee’s reasonable control; (2) franchise property has been installed in any street without substantially complying with the requirements of this chapter; or (3) the franchise has been terminated or has expired; grantee, at its sole expense, shall promptly remove all franchise property which the city manager may reasonably require to be removed. After removal, grantee shall promptly restore the street or public property from which the franchise property has been removed to a satisfactory condition. All other franchise property shall be deemed abandoned in place and shall become the sole property of the city without any liens or encumbrances on it. Upon abandonment of any franchise property in place, grantee shall submit to the city manager an instrument, satisfactory in form to the city attorney, transferring to city the ownership of the abandoned franchise property. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.150 Change required by public improvements.

The grantee shall at its expense protect, support, temporarily disconnect, relocate in the same street or remove from the street any of its property when required by the city engineer because of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, or installation of sewers, drains, water pipes, power lines, signal lines, tracks or any other type of structures or improvements by public or semipublic agencies. In such cases, the grantee has the privileges and is subject to the obligations of abandoning any of its property in place as provided in PMC 5.28.140. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.160 Failure to perform street work.

Upon the failure of the grantee to complete any work required by law or by this chapter to be done in any street within the time prescribed, and to the reasonable satisfaction of the city engineer, the city engineer may, after reasonable notice to grantee, cause such work to be done, and the grantee shall pay to the city the cost in the itemized amounts reported by the city engineer to the grantee within 30 calendar days after receipt of the itemized report. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.170 Cable system installation shielding.

The grantee shall properly and in a good workmanlike manner, install and maintain adequate shielding, filtering and grounding at affected installations within the cable system to eliminate television interference encountered from fundamental frequency overload by radio amateur transmissions which are in compliance with Federal Communications Commission regulations. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.180 Faithful performance bond.

A. In addition to the cash bond or credit required by PMC 5.28.130 the grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, file with the city clerk and maintain for the term of the franchise a corporate surety bond in a company approved by, and in a form to be approved by, the city attorney, in the amount of $50,000. The bond shall be renewable annually and conditioned upon the faithful performance of grantee, and upon the further condition that if grantee fails to comply with provisions of this chapter or of any franchise issued to the grantee there shall be recoverable jointly and severally from the principal and surety of the bond any damages or loss suffered by the city as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee which may be in default, plus a reasonable allowance for attorney’s fees and costs, up to the full amount of the bond. This condition is a continuing obligation during the franchise and thereafter until the grantee has liquidated all of its obligations with the city that may have arisen from the franchise. The bond shall provide that the city be given 30 calendar days’ prior written notice of intention not to renew, cancellation or material change. The bond requirement may be satisfied by an irrevocable letter of credit maintained with a bank which may similarly be assessed by the city.

B. Neither the provisions of this section, any bond or letter of credit, nor any damages recovered by the city shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under the franchise or limit liability for damages, either to the full amount of the bond or letter of credit or otherwise. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.190 Indemnification of the city.

A. The grantee shall maintain and file with the city a general comprehensive liability insurance policy from a company approved by the city manager and in such form as the city attorney reasonably requires, protecting the city and all persons against liability for loss or damage for personal injury, death and property damage arising from the operations of grantee under the franchise. The policy shall have minimum liability limits of $500,000 for personal injury or death to any one person, and $1,000,000 for personal injury or death of two or more persons in any one occurrence, and $100,000 for damage to property resulting from any one occurrence.

B. The policies required under subsection (A) of this section shall name the city, its officers, boards, commissions, agents and employees as insureds, and shall contain a provision that a written notice of any cancellation or reduction in coverage of the policy shall be delivered to the city at least 20 calendar days before the effective date thereof. If the insurance is provided by a policy which also covers grantee or any entity or person other than those above named, then the policy shall contain the standard cross-liability endorsement.

C. No franchise granted under this chapter is effective unless insurance policies required in this section have been delivered to the city. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.200 Hold harmless agreement.

Grantee shall indemnify and hold harmless the city, its officers, boards, commissions, agents and employees against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damage (including but not limited to damages to city property and damages arising out of copyright infringements, and damages arising out of any failure by grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by grantee’s cable system), costs or liabilities (including costs or liabilities of the city with respect to its employees), of every kind and nature whatsoever, including but not limited to damages for injury or death or damage to person or property, and regardless of the merit of any of the same, and against all liability to others, and against any loss, cost, and expense resulting or arising out of any of the same including any attorney fees, accountant fees, expert witness or consultant fees, court costs per diem expense, traveling and transportation expense, or other costs or expenses arising out of or pertaining to the exercise or the enjoyment of any franchise by grantee or the granting thereof by the city.

Grantee shall, at the sole risk and expense of grantee, upon written demand of the city made by the city attorney, appear in and defend any suit, action, or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative, or otherwise, brought or instituted or had by third persons or duly constituted authorities against or affecting the city, its officers, boards, commissions, agents or employees, and arising out of or pertaining to the exercise or enjoyment of the franchise.

Grantee shall pay and satisfy or shall cause to be paid and satisfied any judgment, decree, order, directive, or demand rendered, made or issued against grantee, the city, its officers, boards, commissions, agents, or employees in any of these premises; and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder, or otherwise; provided, that neither grantee nor city shall make or enter into any compromise, suit or other proceedings, without first obtaining the written consent of the other.

This section shall not apply to indemnity the city against its own wilful misconduct or sole negligence. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.210 Inspection of property and records.

At all reasonable times the grantee shall permit any duly authorized representative of the city to examine all grantee’s property situated within or without the city and to examine and copy any maps and other records maintained by the grantee or under its control which deal with the operations, affairs, transactions or property of the grantee with respect to its compliance with the franchise. This permission is contingent upon the provisions that: (1) the city shall maintain the confidentiality of any trade secrets or other proprietary information in the grantee’s possession; and (2) records shall be exempt from inspection under this section to the extent required by applicable laws regarding subscriber privacy and to the extent such records are protected by law against discovery in civil litigation.

The grantee shall make and keep in the city complete plans and records showing the exact location of all cable system equipment installed or in use in streets and public places in the city. The grantee shall file with the city engineer on or before the last day in March of each year a current map or set of maps drawn to scale to be designated by the city engineer showing all cable system equipment installed in streets and public places of the city during the previous year. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.220 Operational standards.

The cable system shall be installed and maintained in accordance with the highest standards of the industry to the extent that they are economically feasible. In determining the satisfactory extent of such standards the following will apply:

A. The system shall be installed using all-band equipment capable of passing the entire VHF and FM spectrum, and it shall have the further compatibility of converting UHF for distribution to subscribers on the VHF band.

B. The installed system shall be capable of passing standard color TV signals without the introduction of noticeable effects on color fidelity and intelligence.

C. The system and all equipment shall be designated and rated for 24-hour-per-day continuous operation.

D. Throughout the term of the franchise, the grantee shall maintain and upgrade the services distributed over the cable system and the technical performance of the system so as to keep with developments in the state-of-the-art of cable system technology as far as it is economically and technologically feasible to do so in the reasonable opinion of the parties. Factors to be considered by the parties in determining economic feasibility and developments of cable system technology include:

1. The remaining term of the franchise;

2. Performance demonstrating the operational feasibility of any new service;

3. Construction or other directly related costs;

4. The adaptability of the service to the existing cable system facilities; and

5. Potential marketability of the service. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.230 Minimum level of service.

The city adopts, as a minimum level of customer service to be provided by any franchisee or video provider, the Video Customer Service Act, Government Code Section 53088 and following, and any successor legislation, and the Consumer Protection and Customer Standards regulations of the Federal Communications Commission, FCC Regulation 76.309 and successor regulations, as the minimum level of customer service to be provided by the franchisee or video provider. Any violation of any such standards may be enforced by the city in the same manner as if the city had set such regulations in full in this chapter. [Ord. 1084 § 2, 1994.]

5.28.240 Repair service complaint remedies.

A. If service to a subscriber is interrupted due to the failure or malfunction of the system for 24 or more consecutive hours after notice to grantee, except for acts of God, acts beyond the reasonable control of the grantee, and except in circumstances for which prior approval of the interruption is obtained from the city manager, grantee shall provide to affected subscribers a rebate of the monthly fees for those services that have been interrupted as follows:

1. For interruption of 24 through 48 hours: 10 percent rebate;

2. For 48 or more hours: 20 percent rebate for each 48 hours of interrupted service.

B. If the system fails to comply substantially with the performance standards for a three-month period, the grantee shall reduce all affected subscribers’ fees by 25 percent until all performance standards are met. The city manager shall notify the grantee in writing at the beginning of the three-month period that the system has failed to meet the performance standards. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.250 Supervision of cable system franchises.

A. In order to serve and maintain the city’s continuing regulatory jurisdiction and supervision over the operation of outstanding cable system franchises, the city manager shall have general supervisory authority over the franchises, including, without limitation, authority to:

1. Make recommendations to the council on standards and guidelines for the governing of cable system franchises and for amendments to this chapter;

2. Make written recommendations to the council concerning the disposition of specific applications for the granting or renewal of cable system franchises, each such recommendation to be accompanied by a summary of the documents and other evidence considered and the reasons for the recommendation;

3. Make written recommendations to the council on applications for subscriber rate adjustments according to procedures prescribed in this chapter;

4. Make recommendations regarding subscriber complaints which have not been resolved by otherwise prescribed procedures;

5. Monitor the use of access channels and promote citizen participation in local use of available access channels;

6. Review and audit all reports and other material required to be submitted to the city by a cable system grantee and all records and other material required to be maintained and kept available by a cable system grantee and to review a grantee’s operating rules and subscriber service contracts;

7. Conduct performance evaluations of the cable system pursuant to PMC 5.28.220(D);

8. Make appropriate recommendations to a grantee and to the council as to the grantee’s performance under the franchise.

B. The council hereby delegates to the city manager all necessary and proper powers to carry out his or her prescribed duties and responsibilities under this chapter. The city manager has no powers, duties or responsibilities with respect to the censorship of program contents, whether as to off-air broadcast carriage or locally originated programming.

C. During the fifth and tenth years of franchise, the city council may require the grantee to submit a report describing the grantee’s compliance with PMC 5.28.220 and 5.28.230 and comparing its system design and technical performance with that of other cable systems with a similar number of subscribers or with systems in adjacent communities. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.260 Emergency override.

The cable system shall include an emergency alert capability which shall permit the grantee, upon the direction of the appropriate emergency service commander, to override the audio, or to display a video message, on all television signals simultaneously in the case of public emergencies. The grantee shall assist and cooperate with the city in periodic exercises of the emergency override system. [Ord. 907 § 2 (Exh. A), 1986.]

5.28.270 Renewal of franchise.

The franchise renewal procedure is as follows:

A. At any time following the commencement of the thirty-sixth month before the franchise expiration, the city shall at the request of the grantee commence proceedings which afford the public in the city appropriate notice and participation for the purpose of:

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

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

B. Upon completion of a proceeding under subsection (A) of this section, the grantee seeking renewal of a franchise may submit a proposal for renewal. The proposal shall contain such material as the city may require, including proposals for an upgrade of the cable system. The city may establish a date by which the proposal shall be submitted.

C. 1. Upon submittal by the grantee of a proposal to the city for the renewal of a franchise, the city shall provide prompt public notice of the proposal and, during the four-month period which begins upon the completion of any proceedings under subsection (A) of this section, renew the franchise or issue a preliminary assessment that the franchise should not be renewed. At the request of the grantee or on its own initiative the city shall commence an administrative proceeding, after providing prompt public notice of the proceeding to consider whether:

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

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

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

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

2. In any proceeding under subsection (C)(1) of this section, the grantee shall be afforded adequate notice and the grantee and the city shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence and to question witnesses. A transcript shall be made of any such proceeding.

3. At the completion of a proceeding under this section, the city shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding, and transmit a copy of the decision to the grantee. Such decision shall state the reasons for the decision.

D. A denial of a proposal for renewal shall be based on one or more adverse findings made with respect to the factors described in subsection (C)(1)(a) through (d) of this section, pursuant to the record of the proceeding under subsection (C) of this section. The city may not base a denial of renewal on failure to substantially comply with the material terms of the franchise under subsection (C)(1)(a) of this section or on events considered under subsection (C)(1)(b) of this section unless the city has provided the grantee with notice and the opportunity to cure, or in any case in which it is documented that the city has waived its right to object, or has effectively acquiesced.

E. 1. A grantee whose proposal for renewal has been denied by a final decision of the city made under this section, or that has been adversely affected by a failure of the city to act in accordance with the procedural requirements of this section, may appeal the final decision or failure in a court of appropriate jurisdiction.

2. The court shall grant appropriate relief if it finds:

a. An action of the city is not in compliance with the procedural requirements of this section; or

b. In the event of a final decision of the city denying the renewal proposal, the grantee has demonstrated that the adverse finding of the city with respect to each of the factors described in subsections (C)(1)(a) through (d) of this section on which the denial is based is not supported by a preponderance of the evidence based on the record of the proceeding conducted under subsection (C) of this section.

F. In this section the term “franchise expiration” means the date of the expiration of the term of the franchise under the franchise agreement.

G. Notwithstanding the above provisions of this section, the grantee may submit a proposal for the renewal of a franchise at any time and the city may, after affording the public adequate notice and opportunity for comment, grant or deny the proposal at any time including after proceedings pursuant to this section have commenced. The provisions of subsections (A) through (F) of this section shall not apply to a decision to grant or deny a proposal under this subsection (G). The denial of a renewal under this subsection (G) shall not affect action on a renewal proposal that is submitted in accordance with subsections (A) through (F) of this section. [Ord. 907 § 2 (Exh. A), 1986.]


For the statutory provisions regarding the granting of CATV franchises by local governments, see Government Code § 53066.