[Ord. #81-6, S20]
As used in this chapter:
a.
CITY – shall mean the City of Firebaugh, a municipal corporation
of the State of California, in its present incorporated form or in
any later reorganized, consolidated, enlarged or re-incorporated form.
b.
COUNCIL – shall mean the governing body of the City of Firebaugh
or any future board constituting the legislative body of the City.
c.
CHIEF ADMINISTRATIVE OFFICER – shall mean the City manager,
City administrator, or other designation of the City's chief
executive officer, or any designee thereof.
d.
FRANCHISE – shall mean and include any authorization granted
hereunder in terms of a franchise, privilege, permit, license or otherwise
to construct, operate and maintain a cable television system within
all or a specified area in the City. Any such authorization, in whatever
form granted, shall not mean and include any license or permit required
for the privilege of transacting and carrying on a business within
the City as required by other ordinances and laws of this City.
e.
PERSON – shall mean any natural person and all domestic and
foreign corporations, associations, syndicates, joint stock corporations,
partnerships of every kind, clubs, business or common law trusts,
and societies.
f.
GRANTEE – shall mean the person, firm or corporation granted
a franchise by the council under this section, and the lawful successor,
transferee or assignee of said person, firm or corporation.
g.
STREET – shall mean the surface, the air space above the surface
and the area below the surface of any public street, other public
right of way or public place, including public utility easements.
h.
PROPERTY OF GRANTEE – shall mean all property owned, installed,
or used within the City by a grantee in the conduct of a cable television
systems business under the authority of a franchise granted pursuant
to this section.
i.
SUBSCRIBER" OR USER – shall mean any person or entity receiving
for any purpose any service of the grantee's cable television
system including, but not limited to, the conventional cable television
system service of retransmission of television broadcast, radio signals,
the grantee's original cablecasting, and the local government,
education and public access channels; and other services, such as
leasing of channels, data and facsimile transmission, pay television,
and police, fire and similar public service communication.
j.
CABLE TELEVISION SYSTEM; CATV; AND CTV; BROADBAND TWO-WAY COMMUNICATIONS
SYSTEM, for the purpose of this section, – are terms describing
a system employing antennae, microwave, wires, waveguides, coaxial
cables, or other conductors, equipment or facilities, designed, constructed
or used for the purpose of:
1.
Collecting and amplifying local and distant broadcast television
or radio signals and distributing and transmitting them;
2.
Transmitting original cablecast programming not received through
television broadcast signals;
3.
Transmitting television pictures, film and videotape programs, not
received through broadcast television signals, whether or not encoded
or processed to permit reception by only selected receivers;
4.
Transmitting or receiving two-way signals or transmissions;
5.
Transmitting and receiving all other signals: digital, voice and
audio-visual; provided, however, that any of the services, permitted
hereunder to be performed, as described above, shall be those performed
by the grantee for subscribers, as herein defined, in the operation
of a cable television or CATV system franchised by the City and not
otherwise.
k.
GROSS REVENUE – shall mean any and all compensation and other
consideration in any form whatever and any contributing grant or subsidy
received directly or indirectly by a grantee from (1) subscribers
or users in payment for television or FM radio signals, reception
or service received within the City, including installation and line
extension charges, (2) any fees or income received by grantee for
carrying advertising or commercial messages over the CATV facilities,
and (3) from any other person or utilization of or connection to the
property of grantee to the extent the City may from time to time legally
impose a franchise payment on account thereof. Notwithstanding the
above, gross annual receipts shall not include any taxes on services
furnished by the grantee and imposed directly on any subscriber or
user by any City, State or other governmental unit and collected by
the grantee for such governmental unit.
1.
SPECIAL SERVICE AREA – shall mean an area(s) of the City designated
by the council, if it so elects, in the franchise agreement, where
the franchisee may charge different rates, or provide different service(s),
than in the remainder of the City.
[Ord. #81-6, S30]
a.
A non-exclusive franchise to install, construct, operate, and maintain
a cable television system on streets within all or a specific portion
of the City may be granted by the council to any person, whether operating
under an existing franchise, who or which offers to furnish and provide
such system under and pursuant to the terms and provisions of this
section.
No provision of this section may be deemed or construed as to
require the granting of a franchise when in the opinion of the council
it is in the public interest to restrict the number of grantees to
one or more.
b.
When and in the event that the grantee of any franchise granted hereunder
uses in his cable television system distribution channels furnished
to the grantee by a telephone company pursuant to tariff or contract
on file with a regulatory body having jurisdiction and said grantee
makes no use of the streets independent of such telephone company-furnished
facilities, said grantee shall be required to comply with all of the
provisions hereof, as a "licensee" and in such event whenever the
term "grantee" is used herein it shall be deemed to mean and include
"licensee."
[Ord. #81-6, S40]
a.
Basic Service. The cable television system permitted to be installed
and operated hereunder shall:
1.
Be operationally capable of relaying to subscriber terminals those
television and radio broadcast signals for the carriage of which the
grantee is now or hereafter authorized by the Federal Communications
Commission;
2.
Be constructed two-way operational from the date of system initiation;
3.
Distribute color television signals which it receives in color;
4.
Provide at least one channel, without charge, for exclusive use of
the City. Additional channels may be required by the City as the need,
in the determination of the City, arises;
5.
Provide a community service channel program, as defined by Government
Code § 53066.1, as amended, plus any additional requirements
which the council may, from time to time, impose; and
6.
Provide, at a minimum, a fully-equipped permanent studio within the
City limits, for public and municipal use, plus such other mobile
and portable studios as are, from time to time, necessary.
7.
Consist of the state of art technology and be at least equivalent
in capacity and capability to those cable television systems constructed
and operated in adjacent cities.
b.
Non-basic Services. The cable television system permitted to be installed
and operated hereunder, may also engage in the business of:
1.
Transmitting original cablecast programming not received through
television broadcast signals;
2.
Transmitting television pictures, film and videotape programs not
received through broadcast television signals, whether or not encoded
or processed to permit reception by only selected receivers or subscribers;
3.
Transmitting and receiving all other signals: digital, voice and
audio-visual.
c.
Subscriber Complaints. In addition to other service regulations adopted
by the council, and excepting circumstances beyond grantee's
control such as Acts of God, riots and civil disturbances, and in
providing the foregoing services, the grantee shall:
1.
Limit system failures to minimum time duration by locating and correcting
malfunctioning promptly, but in no event longer than 24 hours after
occurrence, irrespective of holidays or other non-business hours.
2.
Upon complaint by a subscriber, make a demonstration satisfactory
to the chief administrative officer that a signal is being delivered
which is of sufficient strength and quality to meet the standards
set forth in the regulations of the Federal Communications Commission;
3.
Render efficient service, making repairs promptly and interrupting
service only for good cause and for the shortest time possible. Planned
interruptions, insofar as possible, shall be preceded by notice given
to subscribers 24 hours in advance and shall occur during periods
of minimum use of the system.
4.
Maintain an office in the City, which office shall be open during
all the usual business hours, with its telephone number listed in
directories of the telephone company serving the City, and be so operated
that complaints and requests for repairs or adjustment may be received
at any time day or night, seven days a week, or provide a local telephone
directory listing and "toll free" telephone service maintained on
a seven-day, twenty-four-hour basis for the receipt of consumer complaints.
5.
Maintain a written record, or log, listing date of customer complaints,
identifying the subscriber and describing the nature of the complaint,
and when and what action was taken by the grantee in response thereto;
said record shall be kept at grantee's local office, for a period
of five years from the date of complaint, and shall be available for
inspection during regular business hours without further notice or
demand, by the chief administrative officer.
d.
Municipal Service.
1.
With respect to the local government channel, the grantee shall provide,
at the request of the chief administrative officer, use of grantee's
studio, equipment and technical services for production of live and
video-tape municipal programs, subject to scheduling requirements
of the grantee.
2.
With respect to the basic television services, the grantee shall
provide all subscriber services, and a tie-in connection, without
cost, when the system possesses such facilities and as designated
by the council, subject to the requirements of Federal law to:
e.
Compatibility and Connectibility.
1.
It is the desire of the City that all cable television systems franchised
hereunder shall, insofar as financially and technically possible,
be compatible with another and with systems adjacent to the City.
f.
Uses Permitted. Any franchise granted pursuant to the provisions
of this section shall authorize and permit the grantee to engage in
the business of operating and providing a cable television system
in the City, and for that purpose to erect, install, construct, repair,
replace, reconstruct, maintain and retain in, on, over, under, upon,
across and along any street, such poles, wires, cable, conductors,
ducts, conduit, vaults, manholes, amplifiers, and appliances, attachments,
and other property as may be necessary and appurtenant to the cable
television system; and, in addition, so to use, operate, and provide
similar facilities or properties rented or leased from other persons,
firms or corporations, including but not limited to any public utility
or other grantee franchised or permitted to do business in the City.
[Ord. #81-6, S50]
a.
In consideration of the granting and exercise of a franchise to use
the streets, as herein defined, for the operation of a cable television
system, any grantee shall pay to the City, during the life of the
franchise 3% of the franchisee's gross revenues per year from
all cable services in the community except that, to the extent that
the Federal Communications Commission, in its Rules and Regulations,
at some time in the future allows a City to raise the franchise fee
to 5% absent the showings currently required by § 76.31
of the Rules and Regulations of the Federal Communications Commission,
the City reserves the right to increase the franchise fee to a level
of 5%.
b.
The percentage payments shall be made in the manner, and at times
directed in said franchise or in a council resolution fixing franchise
fees and adopting rules for service and rate regulation.
c.
No acceptance of any payment shall be construed as a release or as
an accord and satisfaction of any claim the City may have for further
or additional sums payable under this section or for the performance
of any other obligation hereunder.
d.
In the event that the above payment is not received by the City within
the specified time, grantee shall pay to the City liquidated damages
of 2% per month on the unpaid balance in addition thereto.
[Ord. #81-6, S60]
a.
The franchise granted by the council under this section shall be
for a maximum term of 15 years from the date of its acceptance by
the grantee. During the last year of the franchise, the grantee may
apply to the council for a renewal of the franchise. Permission to
renew for an additional equal term of 15 years shall not be unreasonably
withheld if the grantee has substantially complied with the terms
and conditions of the existing franchise.
b.
The City may terminate any franchise granted pursuant to the provisions
of this section in the event of the failure, refusal or neglect by
grantee to do or comply with any material requirement or limitation
contained in this section, or any material rule or regulation of the
council or chief administrative officer validly adopted pursuant to
this section.
c.
The chief administrative officer may make written demand that the
grantee do or comply with any such requirement, limitation, term,
condition, rule or regulation. If the failure, refusal or neglect
of the grantee continues for a period of 30 days following such written
demand, the chief administrative officer may place his request for
termination of the franchise upon the next regular council meeting
agenda. The chief administrative officer shall cause to be served
upon such grantee, at least 10 days prior to the date of such council
meeting, a written notice of his intent to request such termination,
and the time and place of the meeting, notice of which shall be published
by the City Clerk at least once 10 days before such meeting in a newspaper
of general circulation within the City.
d.
The council shall consider the request of the chief administrative
officer and shall hear any persons interested therein, and shall determine,
in its discretion, whether or not any failure, refusal or neglect
by the grantee was with just cause.
e.
If such failure, refusal or neglect by the grantee was with just
cause, the council shall direct the grantee to comply within such
time and manner and upon such terms and conditions as are reasonable.
f.
If the council shall determine such failure, refusal or neglect by
the grantee was without just cause, then the council may, by resolution,
declare that the franchise of such grantee shall be terminated and
forfeited unless there be compliance by the grantee within such period
as the council may fix, or reduce the length of the franchise by a
period of time up to the duration of the failure and/or violation.
g.
The termination and forfeiture of any franchise shall in no way affect
any of the rights of the City under the franchise or any provision
of law.
h.
In the event of any holding over after expiration of any franchise
granted hereunder, without the prior consent of the City, expressed
by resolution, the grantee shall pay to the City reasonable compensation
and damages, of not less than 100% of its gross revenue during said
period.
[Ord. #81-6, S70]
a.
Each application for a franchise to construct, operate, or maintain
any cable television systems in this City shall be filed with the
City Clerk and shall contain or be accompanied by the following:
1.
The name, address, and telephone number of the applicant;
2.
A detailed statement of the corporate or other business entity organization
of the applicant, including but not limited to, the following and
to whatever extent required by the City:
(a)
The names, residence and business addresses of all officers,
directors, and associates of the applicants.
(b)
The names, residence and business addresses of all officers,
persons and entities having, controlling, or being entitled to have
or control of 5% or more of the ownership of the applicant and the
respective ownership share of each such person or entity.
(c)
The names and addresses of any parent or subsidiary of the applicant,
namely, any other business entity owning or controlling applicant
in whole or in part by the applicant, and a statement describing the
nature of any such parent or subsidiary business entity, including
but not limited to cable television systems owned or controlled by
the applicant, its parent and subsidiary and the areas served thereby.
(d)
A detailed description of all previous experience of the applicant
in providing cable television system service and in related or similar
fields.
(e)
A detailed and complete financial statement of the applicant,
prepared by an independent certified public accountant, for the fiscal
year next preceding 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 system in the 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 system in this City.
(f)
A statement identifying, by place and date, any other cable
television franchise(s) awarded to the applicant, its parent or subsidiary;
the status of said franchise(s) with respect to completion thereof;
the total cost of completion of such system(s); and the amount of
applicant's and its parent's or subsidiary's resources
committed to the completion thereof.
3.
A detailed description of the proposed plan of operation of the applicant
which shall include, but not be limited to, the following:
(a)
A detailed map indicating all areas proposed to be served, and
a proposed time schedule for the installation of all equipment necessary
to become operational throughout the entire area to be served.
(b)
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.
(c)
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 (§ 76.601 et seq.), of
the Rules and Regulations of the Federal Communications Commission.
(d)
A copy of the form of any agreement, undertaking, or other instrument
proposed to be entered into between the applicant and any subscriber.
(e)
A detailed statement setting forth in its entirety any and all
agreements and undertakings, whether formal or informal, written,
oral, or implied, existing or proposed to exist between the applicant
and any person, firm, or corporation which materially relate or pertain
to or depend upon the application and the granting of the franchise.
4.
A copy of any agreement covering the franchise area, if existing
between the applicant and any public utility subject to regulation
by the California Public Utilities Commission providing for the use
of any facilities of the public utility, including but not limited
to poles, lines, or conduits.
5.
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 (and of its Charter).
6.
An application fee in the sum of $1,500 which shall 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, except to the extent that such fee
exceeds the actual costs incurred by the City in studying, investigating
and otherwise processing the application; provided, that any applicant
who shall deliver to the City Clerk a written withdrawal of or cancellation
of any application hereunder, not later than the seventh day next
following the day such application is received by the City Clerk,
shall be entitled to have returned and refunded the sum of $1,500,
less any actual costs or expenses incurred by the City by reason of
such application.
b.
The council may, by advertisement or any other means, solicit and
call for applications for cable television system franchises, and
may determine and fix any date upon or after which the same shall
be received by the City, or the date before which the same must be
received, or the date after which the same shall not be received,
and may make any other determinations and specify any other times,
terms, conditions, or limitations respecting the soliciting, calling
for, making and receiving of such applications. This may include a
joint application procedure with other jurisdictions and the delegation
of application authority and procedures to another entity as herein
set forth. The franchise hereunder is reserved to the Firebaugh City
Council.
c.
Upon receipt of any application for franchise, the council shall
refer the same to a CATV committee, appointed by the council, who
shall prepare a report and make their recommendations respecting such
application, and cause the same to be completed and filed with the
council.
d.
If the council shall determine to further consider the application,
it shall pass a resolution setting a public hearing for the consideration
of competing applications; fixing and setting forth a day, hour, and
place certain when and where any persons having any interest therein
or objections may file written protests and/or appear before the council
and be heard, and directing the City Clerk to publish said resolution
at least once within 10 days of the passage thereof in a newspaper
of general distribution within the City.
e.
In making any determination hereunder as to any application for a
new franchise, or renewal thereof, the council may give due consideration
to the quality of the service proposed, rates to subscriber, income
to the City, experience, character, background, and financial responsibility
to any applicant, and its management and owners, technical and performance
quality of equipment, willingness and ability to meet construction
and physical requirements, and to abide by policy conditions, franchise
limitations and requirements, and any other considerations deemed
pertinent by the council for safeguarding the interests of the City
and the public.
f.
At the time set for the hearing, or at any adjournment thereof, the
council shall proceed to hear all written protests. Thereafter, the
council shall make one of the following determinations:
g.
The council may reject any and all applications and may, if it so
desires, request new and/or additional proposals.
h.
The council may at any time demand and applicant(s) shall provide
such supplementary, additional or other information as the council
may deem reasonably necessary to determine whether the requested franchise
should be granted.
i.
Any grantee, upon the effective date of its franchise, shall be required
to reimburse the City for its estimated engineering, administrative,
publication and legal expenses incurred in connection with the processing,
evaluation, and preparation of documents relating to such franchise,
as such shall be established in the franchise agreement, in a total
amount not to exceed $15,000.
[Ord. #81-6, S80]
a.
Performance Deposit to City. The grantee, shall concurrently with
the filing of an acceptance of award of the franchise granted under
this section, deposit in a financial institution selected by the City
the sum of $25,000 in a joint account with the grantee and the City
as cosignatories. This sum shall be maintained in an interest bearing
joint account during the period of construction of the cable television
system within the City limits, but in no event in excess of three
years. The return of the sum plus interest to the grantee shall be
conditioned upon the faithful performance of the grantee, and upon
the further condition that in the event the grantee shall fail to
comply with any one or more of the provisions of this section or of
the franchise issued to the grantee hereunder, there shall be recoverable
from this sum any damages or loss suffered by the City as a result
thereof, including the full amount of any compensation, indemnification,
or cost of removal or abandonment of any property of the grantee as
prescribed herein which may be in default, plus a reasonable allowance
for the attorney's fees and costs, up to the full amount of the
account.
b.
Performance Bond for Subscribers. Upon being granted a franchise, and upon filing of the acceptance required under subsection 27-1.8 hereof, the grantee shall file, annually, with the City Clerk and shall thereafter during the entire term of such franchise maintain in full force and effect a corporate surety bond, or other adequate surety agreement, in the amount of $10,000. The bond or agreement shall be so conditioned that in the event such grantee shall fail to comply with any one or more of the provisions of any agreement or undertaking made between grantee and any subscriber, then there shall be recoverable jointly and severally from the principal and surety any damages or costs suffered or incurred by any subscriber as a result thereof, including reasonable attorney's fees and costs of any action or proceeding. Said condition shall be a continuing obligation during the entire term of such franchise and thereafter until grantee shall have satisfied in full any and all obligations to any subscriber which arise out of or pertain to any such agreement or undertaking.
c.
Hold Harmless Agreement. The grantee shall indemnify and hold harmless
the City, its officers, boards, commissions, agents, and employees,
against and from any and all claims, demands, causes of actions, actions,
suits, proceedings, damages (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 television 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
hereunder by grantee, or the granting thereof by the City.
d.
Defense of Litigation. The grantee shall at the sole risk and expense
of grantee, upon demand of the City, made by and through the City
attorney, appear in and defend any and all suits, actions, or other
legal proceedings, whether judicial, quasi-judicial, administrative,
legislative, or otherwise, brought or instituted or had by third persons
or duly constituted authorities, against or affecting the City, its
officers, boards, commissions, agents, or employees, and arising out
of or pertaining to the exercise or the enjoyment of such franchise
or the granting thereof by the City.
The 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 or settlement
of any claim, demand, cause of action, action, suit, or other proceeding,
without first obtaining the written consent of the other.
e.
Insurance Required. Upon being granted a franchise, and upon the filing of the acceptance required under subsection 27-1.8 hereof, the grantee shall file with the City Clerk and shall thereafter during the entire term of such franchise maintain in full force and effect at its own cost and expense each of the following policies of insurance:
1.
General comprehensive liability insurance in the amount of $1,000,000
together with bodily injury liability insurance in an amount not less
than $500,000 for injuries including accidental death, to any one
person, and subject to the same limit for each person in an amount
not less than $1,000,000 on account of any one occurrence, and property
damage liability insurance in an amount not less than $50,000 resulting
from any one occurrence; provided, however, as follows:
[Ord. #81-6, S90]
a.
No franchise granted under this section shall become effective for
any purpose unless and until written acceptance thereof shall have
been filed with the City Clerk. Written acceptance, which shall be
in the form and substance approved by the City attorney, shall also
be and operate as an acceptance of each and every term and condition
and limitation contained in this section, or in such franchise or
otherwise specified as herein provided.
b.
The written acceptance shall be filed by the grantee not later than
12:01 p.m. of the fortieth day next following the effective date of
the ordinance granting such franchise.
c.
In default of the filing of such written acceptance as herein required,
the grantee shall be deemed to have rejected and repudiated the franchise.
Thereafter, the acceptance of the grantee shall not be received nor
filed by the City Clerk. The grantee shall have no rights, remedies,
or redress in the franchise, unless and until the council, by resolution,
shall determine that such acceptance be received or filed, and then
upon such terms and conditions as the council may impose.
d.
In any case, and in any instance, all rights, remedies, and redress
which may or shall be available to the City, shall at all times be
available to the City, and shall be preserved and maintained and shall
continuously exist in and to the City, and shall not be in any manner
or means modified, abridged, altered, restricted, or impaired by agreement
or otherwise.
e.
Any franchise granted and accepted under this section shall be in
lieu of any and all other rights, privileges, powers, immunities,
and authorities owned, possessed, controlled, or exercisable by the
grantee, of or pertaining to the construction, operation, or maintenance
of any cable television systems in the City.
[Ord. #81-6, S100]
a.
Every franchise granted under this section shall be non-exclusive.
b.
No privilege or exemption shall be granted or conferred by any franchise
granted under this section except those specifically prescribed herein.
c.
Any privilege claimed under any such franchise by the grantee in
any street or other public property shall be subordinate to any prior
lawful occupancy to the streets or other public property.
d.
Any such franchise shall be a privilege to be held in personal trust by the original grantee. 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 consent of the council expressed by resolution, and then only under such conditions as may therein be prescribed. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale, or similar document, a duly executed copy of which shall be filed in the office of the City Clerk within 30 days after any such transfer or assignment. The said consent of the council may not be unreasonably refused; provided, however, the proposed assignee must show responsibility as determined by the council utilizing the factors specified in subsection 27-1.6e, and must agree to comply with all provisions of this section; and provided, further, that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation, in whole or in part, to secure an indebtedness, except that when such hypothecation shall exceed 25% of the market value of the property used by the franchisee in the conduct of the cable television system, prior consent of the council shall be required for such a transfer. Such consent shall not be withheld unreasonably.
In the event that the grantee is a corporation, prior approval of the City Council, expressed by resolution, shall be required where there is an actual change in control or where ownership of more than 25% of the voting stock of grantee is acquired by a person or group of persons acting in concert, none of whom already own 50% or more of the voting stock, singly or collectively. Any such acquisition occurring without prior approval of the City Council shall constitute a failure to comply with a provision of this section within the meaning of subsection 27-1.5.
e.
Time shall be of the essence of any such franchise granted hereunder.
The grantee shall not be relieved of his obligation to comply promptly
with any of the provisions of this section by any failure of the City
to enforce prompt compliance.
f.
Any right or power in, or duty impressed upon, any officer, employee,
department, or board of the City shall be subject to transfer by the
City to any other officer, employee, department, or board of the City.
g.
The grantee shall have no recourse whatsoever against the City for
any loss, cost, expense, or damage arising out of any provision or
requirement of this section or of any franchise issued hereunder or
because of its enforcement.
h.
The grantee shall be subject to all requirements of City laws, rules,
regulations, and specifications heretofore or hereafter enacted or
established.
i.
Any such franchise granted shall not relieve the grantee of any obligations
involved in obtaining pole or conduit space from any department of
the City, utility company, or from others maintaining utilities in
streets.
j.
Any franchise granted hereunder, shall be in lieu of any and all
other rights, privileges, powers, immunities, and authorities owned,
possessed, controlled, or exercisable by the grantee, or any successor
to any interest of the grantee, of or pertaining to the construction,
operation, or maintenance of any cable television system in the City;
and the acceptance of any franchise hereunder shall operate, as between
grantee and the City, as an abandonment of any and all of such rights,
privileges, powers, immunities, and authorities within the City, to
the effect that, as between grantee and the City, and all construction,
operation and maintenance by any grantee of any cable television system
in the City shall be, and shall be deemed and construed in all instances
and respects to be, under and pursuant to said franchise, and not
hereunder or pursuant to any other right, privilege, power, immunity,
or authority whatsoever.
[Ord. #81-6, S110]
The City reserves the power to adopt and enforce requirements
and regulations on any or all of the following matters, if and when
deemed necessary and proper in the public interest by the City Council
and are consistent with Rules and Regulations of the Federal Communications
Commission.
a.
Procedures for the periodic fixing of reasonable rates and service
charges to be charged to subscribers by the grantee, and provisions
for the enforcement thereof.
b.
Operational standards pertaining to the quality of audio-visual reception
by subscribers.
c.
Channel capacity requirements.
d.
Requirements for carriage of specified television signals, radio
signals, and supplementary signal carriage services.
e.
Requirements for the provision of equipment and channels for local
production and presentation of cablecast programs, and regulations
pertaining thereto.
f.
Requirements and regulations pertaining to minimum service requirements
and fair business practices by the grantee.
g.
Public safety requirements pertaining to the installation and use
of all CATV equipment.
h.
Procedures for the investigation and resolution of all complaints
by subscribers regarding grantee's CATV operations including
implementation thereof by designated City officers, employees, or
agents.
i.
Public access channels, equipment and facilities.
j.
There is hereby reserved to the City every right and power which
is required to be herein reserved or provided by any law and the grantee,
by its acceptance of the franchise, agrees to be bound thereby and
to comply with any action or requirements of the City in its exercise
of such rights or power, heretofore or hereafter enacted or established.
k.
Nothing herein shall be deemed or construed to impair or affect,
in any way, to any extent, the right of the City to acquire the property
of the grantee, either by purchase or through the exercise of the
right of eminent domain, at a fair and just value, which shall not
include any amount for the franchise itself or for any of the rights
or privileges granted, and nothing herein contained shall be construed
to contract away or to modify or abridge, whether for a term or in
perpetuity, the City's right of eminent domain.
l.
Neither the granting of any franchise nor any provision hereof shall
constitute a waiver or bar to the exercise of any governmental right
or power of the City.
m.
The council may do all things which are necessary and convenient
in the exercise of its jurisdiction under this section and may determine
any question of fact which may arise during the existence of any franchise
granted hereunder. The chief administrative office, with the approval
of the City attorney, is hereby authorized and empowered to adjust,
settle, or compromise any controversy or charge arising from the operations
of any grantee under this section, either on behalf of the City, the
grantee, or any subscriber, in the best interest of the public. Either
the grantee or any member of the public who may be dissatisfied with
the decision of the chief administrative officer may appeal the matter
to the council for hearing and determination. The council may accept,
reject or modify the decision of the chief administrative officer,
and the council may adjust, settle or compromise any controversy or
cancel any charge arising from the operations of the grantee or from
any provision of this section.
n.
In the event that the Federal Communications Commission elects to
deregulate any area of cable communication over which it currently
exercises jurisdiction, or grant authority to municipalities to regulate
in these areas, any franchise issued pursuant to this section shall
be automatically amended, without any additional act by any party
to it, to reflect these new municipal regulatory powers, and the City
may, if it so elects, adopt rules and regulations in these areas.
[Ord. #81-6, S120]
a.
Standards of Operation.
1.
Prior to receiving any application for franchises, the council may
adopt rules, regulations and standards governing the operation of
cable television systems in the City. Such rules, regulations and
standards shall apply to and shall govern the operations of the grantee
of any franchise hereunder and are expressly declared a part of any
franchise hereunder.
2.
Rules, regulations and standards not adopted prior to receiving any
application for a franchise shall be adopted by the council at the
first regular meeting of the council next following the effective
date of this section, by resolution which shall become effective upon
adoption and shall be applicable to any application for a franchise
previously received.
3.
The standards adopted pursuant to these procedures shall be exclusively
in those areas not either expressly or impliedly preempted by the
Federal Communications Commission at the time of adoption.
4.
The council may at any time adopt new rules or regulations or standards,
or may amend, modify, delete, or otherwise change its respective rules
or regulations or standards previously adopted, in the following manner:
The council shall pass its resolution of intention stating or describing
the rules or regulations or standards to be adopted, amended, modified,
deleted, or otherwise changed, and fixing and setting forth a day,
hour, and place certain when and where any persons having any interest
therein or objection thereto may appear before the council and be
heard. Such resolution shall direct the City Clerk to publish the
same at least once within 10 days of passage thereof in a newspaper
of general circulation within the City, and to mail a copy of the
same to any grantee or applicant for a franchise, not more than 30
days nor less than 15 days prior to the time fixed for hearing thereon.
At the time set for such hearing, or at any adjournment thereof,
the council shall proceed to hear and pass upon such comments as may
be presented. Thereafter the council, by its resolution, may adopt,
amend, modify, delete, or otherwise change its respective rules, regulations
and standards. Such determination by the council shall be final and
conclusive. The rules and regulations as amended, modified, deleted,
or otherwise changed by the council shall become effective upon the
tenth day following the adoption of such resolution, unless a longer
period shall be otherwise provided in such resolution.
b.
Rates. Unless and until the City Council adopts an ordinance establishing procedures for the periodic fixing of reasonable rates pursuant to subsection 27-1.10 for the entire City or parts thereof, the following limitations shall apply to the rates charged to subscribers by the grantee:
1.
No increase in rates beyond those represented to a subscriber at
the time of initiation of service to such subscriber shall be applied
to such subscriber for a period of not less than one year thereafter,
except for such additional installations or services as may be requested
by such subscriber during such period.
2.
No increase in rates shall be imposed upon subscribers except after
30 days' prior notice to subscribers.
3.
No charge shall be imposed upon any subscriber for termination of
CATV service or removal of CATV apparatus upon termination of such
service. No rate or charge of any type shall be imposed on a subscriber
after receipt of notice of termination from such subscriber, unless
such subscriber withdraws such notice prior to actual termination
of service.
4.
No charge shall be made to any subscriber by reason of the maintenance,
repair, removal, or replacement of any CATV apparatus, or property
of grantee, unless the same was caused by the deliberate or negligent
act of said subscriber.
5.
Except as otherwise provided by paragraph 6.1 hereinabove, the grantee shall not charge different rates to subscribers within the same class of service, nor shall there be any difference in the services or facilities or in any other respect between subscribers within the same class except as authorized in subsection 27-1.23 and, except that installation charges may vary according to the costs of installation. No grantee shall make or grant any preference to any corporation or person as to rates, charges, services, facilities, or rebates, or in any other respect, nor subject any corporation or person to any prejudice or disadvantage.
6.
The City reserves the power to lower the rates charged subscribers,
whether or not they were initially approved by the City Council.
[Ord. #81-6, S130]
a.
Within 30 days after acceptance of any franchise, the grantee shall
proceed with due diligence to obtain all necessary permits and authorizations
which are required in the conduct of its business including, but not
limited to, any utility joint use attachment agreements, microwave
carrier licenses and any other permits, licenses and authorizations
to be granted by duly constituted regulatory agencies having jurisdiction
over the operation of the cable television systems, or associated
micro-wave transmission facilities. In connection therewith, copies
of all petitions, applications and communications submitted by the
grantee to the Federal Communications Commission, Securities and Exchange
Commission, or any other Federal or State regulatory commission or
agency having jurisdiction in respect to any matters affecting the
grantee's cable television operations, shall also be submitted
simultaneously to the chief administrative officer.
b.
Within 90 days after obtaining all necessary permits, licenses and
authorizations, including right of access to poles and conduits, the
grantee shall commence construction and installation of the cable
television system.
c.
Within 180 days after the commencement of construction and installation
of the system, the grantee shall proceed to render service to subscribers,
and the completion of the installation and construction shall be pursued
with reasonable diligence thereafter, so that service to all of the
areas designated and scheduled on the map and plan of construction
made part of the franchise shall be provided as set forth therein.
The grantee is required to complete construction of the entire City
in a maximum of three years, although a shorter time may be specified
in the franchise.
d.
Grantee shall utilize existing poles, conduits, and other facilities
whenever possible, and shall not construct or install any new, different,
or additional poles, conduits, or other facilities whether on public
property or on privately-owned property unless and until first securing
the written approval of the chief administrative officer.
Whenever the grantee shall not utilize existing poles, conduits
and other facilities, or whenever existing conduits and other facilities
shall be located beneath the surface of the streets, or whenever the
City shall undertake a program designed to cause all conduits and
other facilities to be located beneath the surface of the streets
in any area or throughout the City, in the exercise of its police
power or pursuant to the terms hereof, upon reasonable notice to the
grantee, any such conduits or other facilities or the grantee shall
be constructed, installed, placed, or replaced beneath the surface
of the streets. Any construction, installation, placement, replacement,
or changes which may be so required shall be made at the expense of
the grantee, whose costs shall be determined as in the case of public
utilities.
e.
The City shall have the right, free of charge, to make additional
use, for any public or municipal purpose, whether governmental or
proprietary, of any poles, conduits, or other similar facilities erected,
controlled, or maintained exclusively by or for the grantee in any
street, provided such use by the City does not interfere with the
use by the grantee.
f.
In those areas of the City where the transmission or distribution
facilities of the respective public utilities providing telephone,
communication and electric services are underground or hereafter are
placed underground, the grantee likewise shall construct, operate
and maintain all of his transmission and distribution facilities underground.
The term "underground" shall include a partial underground system;
provided, that upon obtaining the written approval of the chief administrative
officer, amplifiers in the grantee's transmission and distribution
lines may be placed in appropriate housings upon the surface of the
ground.
g.
The grantee at his expense shall protect, support, temporarily disconnect,
relocate, or remove any property of the grantee when, in the opinion
of the chief administrative officer the same is required by reason
of traffic conditions, public safety, street vacation, freeway or
street construction, change or establishment of street grade, installation
of sewers, drains, water pipes, power line, signal line, transportation
facilities, tracks, or any other types of structure or improvements
or governmental agencies whether acting in a governmental or a proprietary
capacity, or any other structure or public improvement, including,
but not limited to, movement of buildings, urban renewal and redevelopment,
and any general program under which the City shall undertake to cause
all such properties to be located beneath the surface of the ground.
The grantee shall in all cases have the privilege, subject to the
corresponding obligations, to abandon any property of the grantee
in place, as herein provided. Nothing hereunder shall be deemed a
taking of the property of the grantee, and the grantee shall be entitled
to no surcharge by reason of anything hereunder.
h.
Upon the failure, refusal, or neglect of the grantee to cause any
work or other act required by law or hereunder to be properly completed
in, on, over, or under any street within any time prescribed therefor,
or upon notice given, where no time is prescribed, the chief administrative
officer may cause such work or other act to be completed in whole
or in part, and upon so doing shall submit to the grantee an itemized
statement of the costs thereof. The grantee shall, within 30 days
after receipt of such statement, pay to the City the entire amount
thereof.
i.
In the event that:
1.
The use of any part of the system of the grantee is discontinued
for any reason for a continuous period of 30 days, without prior written
notice to and approval by the City; or
2.
Any part of such system has been installed in any street or other
area without complying with the requirements hereof; or
3.
Any franchise shall be terminated, cancelled, or shall expire, then
the grantee shall, at the option of the City, and at the expense of
the grantee and at no expense to the City, and upon demand of the
City promptly remove from any streets or other area all property of
the grantee, and the grantee shall promptly restore the street or
other area from which such property has been removed to such condition
as the chief administrative officer shall approve.
The council may, upon written application therefor by the grantee,
approve the abandonment of any of such property in place by the grantee
and under such terms and conditions as the council may prescribe.
Upon abandonment of any such property in place, the grantee shall
cause to be executed, acknowledged, and delivered to the City such
instruments as the City attorney shall prescribe and approve, transferring
and conveying the ownership of such property to the City.
[Ord. #81-6, S140]
a.
The performance of the grantee's cable television system shall
meet the technical standards as set forth in § 76.605 or
any successor section of the Federal Communication Commission's
Rules and Regulations as those standards may exist from time to time.
b.
The grantee shall conduct performance tests in accordance with the
requirements of § 76.601 or any successor section of the
Federal Communication Commission's Rules and Regulations, as
these requirements may apply or be extended from time to time.
[Ord. #81-6, S150]
a.
At all reasonable times, the grantee shall permit any duly authorized
representative of the City to examine all property of the grantee
situated within or without the City, and to examine and transcribe
any and all maps and other records kept or maintained by the grantee
with respect to its franchise. If any such maps or records are not
kept in the City, or upon reasonable request made available in the
City, and if the council shall determine that an examination thereof
is necessary or appropriate, then all travel and maintenance expense
necessarily incurred in making such examination shall be paid by the
grantee.
b.
The grantee shall prepare and furnish to the City manager and the
City Clerk at the times and in the form prescribed by either of said
officers, such reports with respect to its operations, affairs, transactions
or property, as may be reasonably necessary or appropriate to the
performance of any of the rights, functions or duties of the City
of any of its officers in connection with the franchise.
c.
The grantee shall at all times make and keep in the City full and
complete plans and records showing the exact location of all CATV
system equipment installed or in use in streets and other public places
in the City.
d.
The grantee shall file with the City manager, on or before the last
day in March of each year, a current map or set of maps drawn to scale,
showing all CATV system equipment installed and in place in streets
and other public places of the City.
[Ord. #81-6, S160]
Upon the revocation of the franchise, or the expiration of the
terms thereof, and upon payment by the grantor to the grantee of the
fair market value of the grantee's CATV system, the grantor may
purchase, acquire, takeover, or hold said system. For purposes of
this subsection, "fair market value" shall be determined by valuing
the grantee's system as a going concern. No value shall be assigned
to franchise granted hereunder. Immediately upon a determination of
revocation or expiration of the franchise, the grantor and grantee
shall attempt to mutually agree upon the fair market value of the
system. However, if within a reasonable period of time they cannot
agree upon the fair market valuation, then said valuation shall be
determined by a three member board of appraisers, one selected by
the grantor, one selected by the grantee, and one selected by the
appraisers themselves. The cost of said appraisal shall be borne equally
by the grantor and the grantee.
[Ord. #81-6, S170]
The grantor may intervene in any suit or proceeding in which
the grantee is a party, provided that the grantor's interests
are not adequately represented by the existing parties, and provided
further, that the disposition of each suit or proceeding without the
grantor's participation may, as a practical matter, impair or
impede the grantor's ability to protect those interests.
[Ord. #81-6, S180]
a.
In the event any new territory shall be annexed to the City which
is contiguous to only one franchise area in the City, such new territory
shall become, by operation of law, a part of such franchise area immediately
upon the effective date of such annexation.
b.
In the event any new territory shall become annexed to the City which
is contiguous to more than one franchise area in the City or is not
contiguous to any franchise area, then the council shall determine
at a public hearing, which grantee or grantees, if any, shall serve
such new territory.
c.
In the event any portion of the unincorporated territory covered
by an existing franchise or license granted by the County of Fresno
is annexed to the City prior to the time that the grantee of such
county franchise or license has commenced installation of a CATV system
within said territory, all rights acquired by said grantee under its
county franchise or license shall terminate by operation of law as
of the date on which the annexation to the City becomes effective.
d.
In the event any portion of unincorporated territory covered by an
existing franchise or license granted by the County of Fresno is annexed
to the City after the grantee thereof has commenced or completed construction
and installation of a CATV system within said territory, the rights
reserved under such franchise or license to the County of Fresno or
to any officer thereof, shall inure to the benefit of the City and
all regulatory provisions of this section and any other rules and
regulations applicable to CATV systems operating within the City,
whether then in effect or subsequently adopted, shall be applicable
to binding upon said grantee. In addition, the grantee shall be obligated
to pay annually to the City, the percentage of the gross receipts
established by the County of Fresno in said franchise or licenses
which are derived from its operations within the annexed territory
for five years or upon termination of the franchise, whichever is
of the shorter time duration, at which time the council may establish
the percentage of gross receipts to be paid to the City.
[Ord. #81-6, S190]
a.
The grantee shall at all times employ ordinary care and shall install
and maintain in use commonly accepted methods and devices for preventing
failures and accidents which are likely to cause damage, injuries,
or nuisances to the public.
b.
The grantee shall install and maintain its wires, cables, fixtures,
and other equipment in accordance with the requirements of the National
Electrical Code, as it now exists or hereafter may be amended and
in such manner that they will not interfere with any installations
of the City or of a public utility serving the City.
c.
All structures and all lines, equipment, and connections in, over,
under, and upon the streets, sidewalks, alleys, and public ways or
places of the City, wherever situated or located, shall at all times
be kept and maintained in a safe, suitable, substantial condition,
and in good order and repair.
d.
The grantee shall strictly adhere to all building and zoning codes
currently or hereafter in force. The grantee shall arrange its lines,
cables, and other appurtenances on both public and private property,
in such a manner as to cause no unreasonable interference with the
use of said public or private property by any person.
[Ord. #81-6, S200]
Upon termination of service to any subscriber, the grantee shall
promptly remove all its facilities and equipment from the premises
of such subscriber upon his request.
[Ord. #81-6, S210]
Any and all streets and public ways which are disturbed or damaged
during the construction, operation, maintenance, or reconstruction
of the cable television system, shall be promptly repaired by the
grantee, at its expense, to the satisfaction of the grantor.
[Ord. #81-6, S220]
The grantee is expected to make use of existing aerial poles.
However, the grantee shall have the right to erect poles if written
permission is obtained from the grantor. Except as may be permitted,
the grantee shall lease pole space from existing owners for all construction.
The grantor shall utilize its best efforts to assist in arriving at
equitable rental agreement.
[Ord. #81-6, S230]
Services shall be offered to all City residents in accordance
with the provisions of the franchise agreement. The grantee shall
not materially reduce the level of service without permission of the
City, but may at its discretion substitute programming to offer subscribers
an equal or better array of services.
[Ord. #81-6, S240]
As defined in the franchise agreement, the grantee shall be
permitted to charge higher installation fees for areas of low housing
density, commercial areas and/or underground utility areas that require
exceptionally high construction costs.
Upon petition by the grantee, the council may defer or indefinitely
suspend any expansion into such a special service area after a showing
by the grantee that such expansion would cause unreasonable financial
hardship to the grantee. The adequacy of such a showing shall be determined
and weighed against the public interest in system expansion by the
council after a public hearing.
[Ord. #81-6, S250]
Upon the foreclosure or other judicial sale of all or a substantial
part of the CATV system, or upon the termination of any lease covering
all or a substantial part of the CATV system, the grantee shall notify
the City Clerk of such fact, and such notification shall be treated
as a notification that a change in control of grantee has taken place
and the provisions of this section governing the consent of the council
to such change in control of the grantee shall apply.
The grantor shall have the right to revoke the franchise 120
days after the appointment of a receiver, or trustee, to take over
and conduct the business of the grantee, whether in receivership,
reorganization, bankruptcy, or other action or proceeding, unless
such receivership or trusteeship shall have been vacated prior to
the expiration of said 120 days, or unless:
a.
Within 120 days after his election or appointment, such receiver
or trustee shall have fully complied with all the provisions of the
franchise and remedied all defaults thereunder; and
b.
Such receiver or trustee, within said 120 days, shall have executed
an agreement, duly approved by the court having jurisdiction in the
premises, whereby such receiver or trustee assumes and agrees to be
bound by each and every provision of the franchise.
[Ord. #81-6, S260]
In order to preserve the right of the City under the franchise
provided for, and its right to acquire the property of the grantee
by purchase or by eminent domain proceedings at its then fair market
value, at any time during the existence of the franchise, it is especially
provided that if at any time the franchise or the property of the
grantee under the franchise shall become the subject of eminent domain
proceedings by the City, the City reserves and shall have the right
at the time such proceedings are commenced, or at any time thereafter,
to terminate said franchise by resolution.
[Ord. #81-6, S270]
It shall be the right of all subscribers to receive all available
services insofar as their financial and other obligations to the grantee
are honored. In the event that the grantee elects to overbuild, rebuild,
modify, or sell the system, or the grantor revokes or fails to renew
the franchise, the grantee shall do everything in its power to ensure
that all subscribers receive continuous, uninterrupted service regardless
of the circumstances during the lifetime of the franchise. In the
event of purchase by the grantor, or a change of grantee, the current
grantee shall cooperate with the grantor to operate the system for
a temporary period, in maintaining continuity of service to all subscribers.
[Ord. #81-6, S280]
Any individual, partnership or corporation employed by the City
for the purposes of advising the City, its council, commissions, City
manager, or staff, on matters relating to cable television, or reviewing
and evaluating, or assisting the City in reviewing and evaluating,
proposals for the construction and operation of a cable television
system(s), or regulating, or assisting the City in regulating, a cable
television system, shall, as a term condition of their employment,
file within 10 days of the date of employment with the City Clerk
a statement containing:
a.
A listing and description of any financial and/or ownership held
by the consultant in any cable television company, any subsidiary
or affiliate of any cable television company, any company which is
a supplier or customer of any cable television company, or in other
company which owns stock or has any interest in any of those types
of companies which are described in this section. If the consultant
is a partnership, the financial and/or ownership interests in cable
television companies, affiliates, subsidiaries, suppliers, and customers
of any shareholder, officer, or directors must be disclosed.
b.
A listing and description of any cable public document open to inspection
by any person. Failure to file this statement, or the inclusion of
a material misrepresentation or omission within the statement, shall
constitute grounds for the City's termination of the employment
con- tract. This provision shall not apply to individuals who are
subject to the reporting requirements of the "Political Reform Act
of 1974" (California Government Code § 81008 et seq.) under
the local Conflict of Interest Code if the disclosures required by
the Code are substantially similar to those of this section.
[Ord. #81-6, S290]
a.
A franchise granted to provide service within the City may authorize
and permit the grantee to solicit, sell, distribute, and make a charge
to subscribers within the City for connection to the cable television
system of grantee, and shall also authorize and permit the grantee
to traverse any portion of the City in order to provide service outside
the City.
b.
A franchise, easement, license or other permit granted to anyone
other than the grantee to traverse any portion of the City in order
to provide service outside the City shall not authorize nor permit
said person to solicit, sell, distribute or make any charge to subscribers
within the City nor to render any service or connect any subscriber
within the City to the cable television service system of grantee.
c.
No franchise granted under this section shall ever be given any value
by any court or other authority, public or private, in any proceeding
of any nature or character, wherein or whereby the City shall be a
party or affected therein or thereby.
d.
The grantee shall be subject to all provisions of the other ordinances,
rules, regulations, and specifications of the City heretofore or here-
after adopted, including, but not limited to, those pertaining to
works and activities in, on, over, under, and about streets.
Any privilege claimed under any franchise granted pursuant to
this section in any street or other public property shall be subordinate
to any prior lawful occupancy of the streets or other public property.
The grantee also shall be subject to the provisions of general
laws of the State of California, or as hereafter amended, when applicable
to the exercise of any privilege contained in any franchise granted
under this section, including, but not limited to, those pertaining
to works and activities in and about State highways.
e.
The grantee shall be prohibited from directly or indirectly doing
any of the following:
1.
Engaging in the business of selling at retail, leasing, renting,
re- pairing or servicing of television sets or radios.
2.
Imposing a fee or charge for any service or repair to subscriber-
owned receiving devices except for the connection of its service or
for the determination by the grantee of the quality of its signal
to the recipients thereof.
3.
Soliciting, referring, or causing or permitting the solicitation
or referral of any subscriber to persons engaged in any business herein
prohibited to be engaged in by grantee.
4.
Providing information concerning the viewing patterns of identifiable
individual subscribers to any person, group or organization for any
purpose.
f.
If the Federal Communications Commission or the Public Utilities
Commission of the State of California or any other Federal or State
body or agency shall now or hereafter exercise any paramount jurisdiction
over the subject matter of any franchise granted under this section,
then to the extent such jurisdiction shall preempt or preclude the
exercise of like jurisdiction by the City, the jurisdiction of the
City shall cease and no longer exist.
g.
When not otherwise prescribed herein, all matters herein required
to be filed with the City shall be filed with the City Clerk.
h.
No person, firm or corporation within the service area of the grantee,
and where trunk lines are in place, shall be refused service; provided,
however, that the grantee shall not be required to provide service
to any subscriber who does not pay the applicable connection fee or
service charge.
i.
Before providing cable television service to any subscriber, the
grantee shall provide a written notice to the subscriber substantially
as follows:
"Subscriber is hereby notified that in providing cable television
service the Grantee is making use of public rights-of-way within the
City of Firebaugh and that the continued use of such rights-of-way
is in no way guaranteed. In the event the continued use of such rights-
of-way is denied to Grantee for any reason, Grantee will make every
reasonable effort to provide service over alternate routes. By accepting
cable television service, subscriber agrees he will make no claim
nor undertake any action against the City of Firebaugh, its officers,
or its employees if the service to be provided hereunder is interrupted
or discontinued."
j.
The form of the grantee's contract with the subscriber shall
also be subject to approval of the City.
k.
The grantee may be required, at the option of the City, to purchase
from the City any cable television system purchased through a negotiated
sale or taken through eminent domain by the City at a price equal
to the City's total cost, including attorneys' and appraisers'
fees and other costs of negotiation and/or litigation. The grantee
shall be required to operate said system as part of its systems, with-
out interruption of service, subject to the terms and conditions of
the grantee's franchise and this section.
[Ord. #81-6, S300]
In the carrying out of the construction, maintenance and operation
of the cable television system, the grantee shall not discriminate
against any employee or applicant for employment because of race,
creed, color, sex, or national origin.
The grantee shall take affirmative action to ensure that applicants
are employed, and that employees are treated during employment, without
regard to their race, creed, color, sex, or national origin. Such
action shall include, but not be limited to, the following: employment,
upgrading, demotion or transfer, recruitment or recruitment advertising,
layoff or termination, rates of pay or other forms of compensation,
and selection of training, including apprentice- ship.
The grantee shall post in conspicuous places, available to employees
and applicants for employment, notices setting forth the provisions
of this non- discrimination clause.
The grantee shall, in all solicitations, or advertisements for
employees placed by or on behalf of the grantee, state that all qualified
applicants shall receive consideration for employment without regard
to race, creed, color, sex, or national origin.
The grantee shall incorporate the foregoing requirements in
all of its con- tracts for work relative to construction, maintenance
and operation of the cable television system, other than contracts
for standard commercial supplies or raw materials, and shall require
all of its contractors for such work to incorporate such requirements
in all subcontracts for such work.
[Ord. #81-6, S310]
a.
From and after the effective date of this section, it shall be unlawful
for any person to construct, install or maintain within any public
street in the City, or within any other public property of the City,
or within any privately-owned area within the City which has not yet
become a public street but is designated or delineated as a proposed
public street on any tentative subdivision map approved by the City,
any equipment or facilities for distributing any television signals
or radio signals through a cable television system, unless a franchise
authorizing such use of such street or property or area has first
been obtained pursuant to the provisions of this section, and unless
such franchise is in full force and effect.
b.
It shall be unlawful for any person, firm or corporation to make
or use any unauthorized connection, whether physically, electrically,
acoustically, inductively or otherwise, with any part of a franchised
cable television system within this City for the purpose of enabling
himself or others to receive or use any television signal, radio signal,
picture, program or sound, without payment to the owner of said system.
c.
It shall be unlawful for any person, without the consent of the owner,
to wilfully tamper with, remove or injure any cables, wires or equipment
used for distribution of television signals, radio signals, pictures,
programs or sound.
d.
If a subscriber files in writing with the franchisor a complaint
for a service problem which is preventable and reasonably within the
franchisee's or licensee's control, and if such franchisee
or licensee fails within a reasonable period following receipt of
written notice by the franchisor to remedy the problem, the franchisor
may levy a penalty of up to $500 for any occurrence or series of related
occurrences, unless the franchisee or licensee has fewer than 5,000
subscribers, in which case the penalty shall not exceed $200. If the
franchisee or licensee objects to the penalty in writing to the franchisor,
the franchisee or licensee and franchisor shall conduct arbitration
in accordance with the rules of the American Arbitration Association.
The decision of the arbitrator shall be final.
The franchisee or licensee shall provide written notice to each
subscriber at intervals of not more than one year, of the sanctions
provided in this subsection and of the procedure for reporting and
resolving subscriber complaints, including the subscriber's right
to complain in writing to the franchisor of the franchisee's
failure to resolve a service complaint which is preventable and reasonably
within the franchisee's or licensee's control. The proper
address of the franchisor or licensor to which complaints may be directed
shall be included in such notice.
[Ord. #81-6, S320]
If any section, subsection, sentence, clause or phrase of this
section is for any reason held illegal, invalid or unconstitutional,
such decision shall not affect the validity of the remaining portions
hereof. The council hereby declares that it would have passed this
section and each subsection, sentence, clause, and phrase hereof,
irrespective of the fact that any one or more sections, sub-sections,
sentences, clauses, or phrases be declared illegal, invalid or unconstitutional.
The invalidity of any portion of this section shall not abate, reduce
or otherwise affect any consideration or other obligation required
of the grantee of any franchise granted hereunder.
[Added 2-6-2017 by Ord. No. 17-01]
Under state law effective January 1, 2007, the California Public Utilities Commission (PUC) has the sole authority to grant state franchises to provide video service. Pursuant to this state law, the City has certain rights and responsibilities with respect to state franchise holders, which include the receipt of a franchise fee and a fee for public, educational and government (PEG) purposes, and the authority to establish and enforce penalties for violations of customer service rules. The City retains authority to regulate the City's current cable franchise in accordance with Chapter 27 and the cable franchise currently in effect until such time as the cable franchisee no longer holds a City franchise or is no longer operating under a current or expired City franchise.
For the purposes of this article, the following words shall
have the following meanings:
Shall have the meaning ascribed that term in Section 5860
of the California Public Utilities Code.
Shall have the meaning ascribed that term in Section 5830
of the California Public Utilities Code.
Shall have the meaning ascribed that term in Section 5830
of the California Public Utilities Code.
Shall have the meaning ascribed that term in Section 5830
of the California Public Utilities Code.
For any state franchise holder operating within the boundaries
of the City, there shall be a fee paid to the City equal to 5% of
the gross revenue of the state franchise holder.
For any state franchise holder operating within the boundaries
of the City, there shall be a fee paid to the City equal to 1% of
the gross revenue of that state franchise holder, which fee shall
be used by the City for PEG purposes consistent with state and federal
law.
a.
Applicable law. Any state franchise holder shall comply with all
applicable state and federal customer service and protection standards
pertaining to the provision of video service.
b.
Penalties for violation. The City Manager or his or her designee
shall monitor the compliance of the state franchise holders with respect
to state and federal customer service and protection standards. The
City Manager shall provide the state franchise holders written notice
of any material breaches of applicable customer service standards,
and will allow the state franchise holder 30 days from the receipt
of the notice to remedy the specified material breach. Material breaches
not remedied within the thirty-day time period will be subject to
the following penalties to be imposed by the City:
1.
For the first occurrence of violation, a fine of $500 shall be imposed
for each day the violation remains in effect, not to exceed $1,500
for each violation.
2.
For each violation of the same nature within 12 months, a fine of
$1,000 shall be imposed for each day the violation remains in effect,
not to exceed $3,000 for each violation.
3.
For a third or further violation of the same nature within 12 months,
a fine of $2,500 shall be imposed for each day the violation remains
in effect, not to exceed $7,500 for each violation.
c.
Appeal procedure. A state franchise holder may appeal a penalty assessed
by the City Manager to the City Council within 30 days of the assessment.
The City Council shall hear all evidence and relevant testimony and
may uphold, modify, or vacate the penalty. The City Council's
decision regarding the imposition of a penalty pursuant to this section
shall be final. In the absence of any appeal, the imposition of the
penalty shall be deemed final 30 days after the assessment.
a.
Applicants for the state franchises within boundaries of the City
must concurrently provide copies to the City of any application or
amendments to applications filed with the California Public Utilities
Commissioner (PUC). One complete copy must be provided to the City
Manager.
b.
Within 30 days of receipt, the City Manager will provide appropriate
comments to the PUC regarding an application or an amendment to an
application for a state franchise.
State franchisees shall provide the PEG channels required by
California Public Utilities Code Section 5870 and satisfy the interconnectivity
provisions of that section.
Any entity providing video service under an expired franchise
with the City on March 1, 2017, shall hereby have the terms of its
franchise with the City extended on the same terms and conditions
until a state franchise is issued. Any extension made pursuant to
this section does not preclude the City from further modifications,
renewals, extensions or termination of that franchise with the City.
A state franchise shall be mandatory for any entity whose franchise
has expired and for any entity that has a City franchise after a state
franchise is granted for another entity.
