Chapter 5.28


5.28.010    Definitions.

5.28.020    Grant of authority.

5.28.030    Establishment of franchise requirements.

5.28.040    Franchise area.

5.28.050    Use of public rights-of-way.

5.28.060    Franchise term.

5.28.070    Franchise nonexclusive.

5.28.080    Transfer of ownership or control.

5.28.090    Franchise renewal.

5.28.100    Police powers.

5.28.110    Preemption.

5.28.120    Reimbursement of franchise processing costs.

5.28.130    Franchise agreement.

5.28.010 Definitions.

As used in this chapter:

A. "Agreement" means a franchise award ordinance, or a contractual agreement, containing the specific provisions of the franchise granted, including referenced specifications, franchise applications, franchise requirements, ordinances and other related materials, and all amendments thereof.

B. "Cable television system," also referred to as "system" or "cable system," means a facility, consisting of transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

1. A facility that serves only to retransmit the television signals of one or more television broadcast stations;

2. A facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control or management, unless such facility or facilities uses any public right-of-way;

3. A facility of a common carrier, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or

4. Any facilities of any electric utility used solely for operating its electric utility systems.

C. "City" means the City of San Carlos, California, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

D. "Franchise" means a franchise award ordinance, or a contractual agreement, containing the specific provisions of the franchise granted, including referenced specification, franchise applications, franchise requirements, ordinances and other related materials. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of this City.

E. "Grantee" means any "person" receiving a franchise pursuant to this chapter and its lawful successor, transferee or assignee. (Ord. 1069 § 2 (part), 1991)

5.28.020 Grant of authority.

A. Franchise Grants. The City may at any time in accordance with applicable law grant one or more nonexclusive revocable franchises to construct, operate, maintain and reconstruct a cable system within a franchise area defined by the City. The franchise shall constitute both a right and an obligation to provide a cable system as required by the provisions of the agreement, which may include those provisions of the grantee’s "franchise proposal" which are finally negotiated and accepted by the City and grantee.

B. Any franchise granted under the terms and conditions contained herein shall be consistent with federal laws and regulations and state general laws and regulations.

C. Any franchise granted is made subject to the general ordinance provisions in effect as of the effective date of the ordinance codified in this chapter or thereafter made effective. Nothing in this chapter shall be deemed to waive the requirements of other codes and ordinances of the City regarding permits, fees to be paid or manner of construction.

D. This chapter shall apply to all franchises and franchise renewals granted or renewed after the effective date of the ordinance codified in this chapter. It shall further apply to the extent permitted by applicable federal or state law to all existing franchises granted or renewed prior to the effective date of the ordinance codified in this chapter.

E. No cable system shall be allowed to occupy or use the streets within the limits of the City or in any franchise area within the City or be allowed to operate without a franchise in accordance with the provisions of this chapter and the agreement. (Ord. 1069 § 2 (part), 1991)

5.28.030 Establishment of franchise requirements.

The City may establish appropriate requirements for new franchises or franchise renewals, and may modify these requirements from time to time to reflect changing conditions and state of the art in the cable television industry. Such requirements shall not be retroactive to franchises then in effect, except for franchise obligations which are subject to periodic review as provided in the agreement. (Ord. 1069 § 2 (part), 1991)

5.28.040 Franchise area.

The franchise area to be served shall be the entire territory within the geographic boundaries of the City, as defined in the agreement, subject to any line extension policies set forth in the agreement. (Ord. 1069 § 2 (part), 1991)

5.28.050 Use of public rights-of-way.

For the purpose of operating and maintaining a cable television system in the franchise area, the grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across and along the public rights-of-way and public cables, conductors, ducts, conduits, vaults, manholes, amplifiers, property and equipment as are necessary and appurtenant to the operations of the cable system. The grantee shall comply with all applicable City construction codes and procedures.

Nothing in the agreement shall abrogate the right of the City to perform any public work or public improvement of any description, including, without limitation, all work authorized by applicable law. In the event that the system interferes with the construction, operation, maintenance or repair of any such public work or improvement, the grantee, after reasonable notice from the City, shall, at its own cost and expense, promptly protect, alter or relocate the system, or any part thereof, as directed by the City.

In the event that the grantee refuses or neglects to so protect, alter or relocate all or any part of the system, the City shall have the right in connection with the performance of such public work or public improvement to break through, remove, alter or relocate all or any part of the system without any liability to the grantee except for the City’s wilful misconduct and the grantee shall promptly pay to the City the costs incurred by such breaking through, removal, alteration or relocation. (Ord. 1069 § 2 (part), 1991)

5.28.060 Franchise term.

The term of any franchise granted under this chapter and all rights, privileges, obligations and restrictions pertaining thereto shall not exceed fifteen years from the effective date of the franchise. (Ord. 1069 § 2 (part), 1991)

5.28.070 Franchise nonexclusive.

Any franchise granted shall be nonexclusive. The City reserves the right to grant, at any time, such additional franchises for a cable system as it deems appropriate. (Ord. 1069 § 2 (part), 1991)

5.28.080 Transfer of ownership or control.

A. Any franchise granted under this chapter cannot be sold, transferred, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without the prior consent of the Council expressed by resolution, and then only under such reasonable conditions as may therein be prescribed. In the event that the grantee is a corporation, such prior approval of the Council shall be required where there is an actual change in control. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised.

B. The grantee shall promptly notify the City of any proposed change in, or transfer of, or acquisition by any transfer, or acquisition of control of the grantee and such occurrence shall make the franchise subject to cancellation unless and until the grantor has consented thereto, which consent shall not be unreasonably withheld.

C. In seeking the City’s consent to any change in ownership or control, the grantee shall be required to show to the satisfaction of the City that the proposed transferee is legally, technically and financially qualified to maintain and operate the cable system for the remaining term of the franchise under the existing franchise terms. (Ord. 1069 § 2 (part), 1991)

5.28.090 Franchise renewal.

Franchise renewal shall be in accordance with applicable law. (Ord. 1069 § 2 (part), 1991)

5.28.100 Police powers.

In accepting a franchise, the grantee acknowledges that its rights under this chapter are subject to the police power of the City to adopt and enforce general ordinances necessary to the health, safety and welfare of the public, and it agrees to comply with all applicable general laws and ordinances enacted by the City pursuant to such power. (Ord. 1069 § 2 (part), 1991)

5.28.110 Preemption.

If any area of regulatory authority is preempted from local regulation by federal or state law, and such preemption later ceases, the grantor reserves the right to resume local regulation to the extent permitted; provided, that such regulation shall not conflict with the express terms and conditions of any existing franchise agreement, nor impose additional material financial burden upon the grantee. (Ord. 1069 § 2 (part), 1991)

5.28.120 Reimbursement of franchise processing costs.

For either an initial franchise grant, a franchise renewal or a franchise transfer, the grantee shall reimburse the grantor, within sixty days of receipt of an itemization of costs from the grantor, for the grantor’s reasonable out-of-pocket processing costs, including but not limited to consultant and special legal costs. (Ord. 1069 § 2 (part), 1991)

5.28.130 Franchise agreement.

All other terms, conditions, procedure, rights and obligations of the City and the grantee for any franchise granted pursuant to this chapter shall be specified in an agreement between the City and the grantee. (Ord. 1069 § 2 (part), 1991)