Note: Prior ordinance history: Ord. Nos. 1771, 1797, 2028,
and 2158.
A.
Authority.
The City of Garden Grove pursuant to applicable federal and state
law is authorized to grant one or more non-exclusive franchises to
construct, operate, maintain, and reconstruct cable systems within
city limits.
B.
Findings.
The City Council finds that the development of cable systems has the
potential of having great benefit and impact upon the residents of
the City. Because of the complex and rapidly changing technology associated
with cable systems, the City Council further finds that the public
convenience, safety, and general welfare can best be served by establishing
regulatory powers that should be vested in the City or such persons
as the City may designate. It is the intent of this chapter and subsequent
amendments to provide for and specify the means to attain the best
possible cable service for the public and any franchises issued pursuant
to this chapter shall be deemed to include this as an integrated finding
thereof. It is the further intent of this chapter to establish regulatory
provisions that permit the City to regulate cable system franchises
to the extent permitted by federal and state law, including but not
limited to the Federal Cable Communications Policy Act of 1984, the
Federal Cable Television Consumer Protection and Competition Act of
1992, the Federal Telecommunications Act of 1996, applicable Federal
Communications Commission regulations and applicable state law.
(2578 § 2, 2002; 2808 § 1, 2012)
This chapter shall constitute the "cable system regulations"
of the City of Garden Grove and may be referred to as such.
(2578 § 2, 2002; 2808 § 1, 2012)
For the purpose of this chapter, the following terms, phrases,
words, and their derivations shall have the meaning given herein.
Words used in the present tense include the future, words in the plural
number include the singular number, and words in the singular number
include the plural number. Words not defined shall be given their
common and ordinary meaning.
means any service tier that includes the retransmission of
local television broadcast signals.
means any person or group of persons who:
means the total of the following:
means a facility consisting of a set of closed transmission
paths and associated signal generation, reception and control equipment
that is designated to provide cable service that includes video programming
and that is provided to multiple subscribers within a community, but
such term does not include:
A facility that serves only to retransmit television signals
of one or more television broadcast stations;
A facility that serves subscribers without using any public
rights-of-way;
A facility of a common carrier that is subject, in whole or
in part, to the provisions of Title II of the Telecommunications Act
of 1996, except that such facility shall be considered a cable system
(other than for the purposes of Section 621(c)) to the extent such
facility is used in the transmission of video programming directly
to subscribers; unless the extent of such use is solely to provide
interactive on-demand services;
An open video system that complies with Section 635 of Title 6 of the Telecommunications Act of 1996; or
Any facilities of any electric utility used solely for operating
its electric utility systems.
means a portion of the electromagnetic frequency spectrum
or any other means of transmission that is used in a cable system
that is capable of delivering a television channel as defined by the
Federal Communications Commission.
means the City Council of the City of Garden Grove.
means an initial authorization, or renewal thereof, issued
by the City Council, whether such authorization is designated as a
franchise, permit, license, resolution, contract, certificate, agreement,
or otherwise, which authorizes the construction or operation of a
cable system. Any such authorization, in whatever form granted, shall
not supersede the requirement to obtain any other generally applicable,
nondiscriminatory license or permit required for the privilege of
transacting business within the City as required by the other generally
applicable ordinances and laws of the City.
means a franchise grant ordinance or a contractual agreement
containing the specific provisions of the franchise granted, including
references, specifications, requirements, and other related matters.
means any tax, fee, or assessment of any kind imposed by
the City or other governmental entity on a grantee or subscriber or
both as compensation for the grantee's use of the public rights-of-way.
The term "franchise fee" does not include:
Any tax, fee, or assessment of general applicability (including
any such tax, fee, or assessment imposed on both utilities and cable
operators or their services, but not including a tax, fee, or assessment
that is unduly discriminatory against cable operators or cable subscribers);
Capital costs that are required by the franchise to be incurred
by grantee for public, educational, or governmental access facilities;
Requirements or charges incidental to the awarding or enforcing
of the franchise, including without limitation payments for bonds,
security funds, letters of credit, insurance, indemnification, penalties,
or liquidated damages; or
Any fee imposed under Title 17 of the United States Code.
means any "person" receiving a franchise pursuant to this
chapter and under the granting franchise ordinance or agreement, and
its lawful successor, transferee, or assignee.
means the City of Garden Grove as represented by the City
Council or any delegate acting within the scope of its jurisdiction.
means the annual gross revenues received by a grantee from
the operations of the cable system within the City to provide cable
service utilizing the public rights-of-way for which a franchise is
required, excluding any monies collected by the grantee from subscribers
for PEG purposes pursuant to this franchise, refundable deposits,
rebates, or credits, and any sales, excise, user utility taxes, or
other charges imposed externally to the franchise, and collected for
direct pass-through to local, state, or federal government.
means the connection of the system to subscribers' terminals
and the provision of service.
means those service conditions that are within the control
of the grantee. Those conditions that are not within the control of
the grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages, and severe
or unusual weather conditions. Those conditions that are ordinarily
within the control of the cable operator include, but are not limited
to, special promotions, pay-per-view event rate increases, regular
peak or seasonal demand periods, and maintenance or upgrade of the
cable system.
means an individual, partnership, association, joint stock
company, trust, corporation, or governmental entity.
means the total of the following:
means any section, subsection or provision of this chapter.
means the entire geographic area within the municipal boundaries
of the City as it is now constituted or may in the future be constituted,
unless otherwise specified in the franchise.
means a category of cable service provided by the cable operator
and for which a separate rate is charged.
means the State of California.
means each of the following that have been dedicated to the
public or hereafter dedicated to the public and maintained under public
authority or by others and located within the service area: streets,
roadways, highways, avenues, lanes, alleys, sidewalks, easements,
rights-of-way, and similar public property.
means any person who or that elects to subscribe to, for
any purpose, cable service provided by the grantee by means of or
in connection with the cable system, and who pays the charges therefor.
(2578 § 2, 2002; 2808 § 1, 2012)
A.
Franchise
purpose. A franchise granted by the City under the provisions of this
chapter shall encompass the following purposes:
1.
To
permit the grantee to engage in the business of providing cable service
and such other services as may be permitted by law that grantee provides
to subscribers within the designated service area.
2.
To
permit the grantee to erect, install, construct, repair, rebuild,
reconstruct, replace, maintain, and retain cable lines, related electronic
equipment, supporting structures, appurtenances, and other property
in connection with the operation of the cable system in, on, over,
under, upon, along, and across streets or other public places within
the designated service area subject to further written consent of
the City as to design, placement, and location.
3.
To
permit the grantee to maintain and operate said franchise properties
for the origination, reception, transmission, amplification, distribution,
and delivery of cable services.
4.
To
set forth the obligations of the grantee under the franchise.
B.
Franchise
required. After the effective date of this chapter it shall be unlawful
for any person to construct, install, or operate a cable system in
the City within any public way without a properly granted franchise
awarded pursuant to the provisions of this chapter.
C.
Term
of the franchise.
1.
A
franchise granted hereunder shall be for a term established in the
franchise agreement commencing on the grantor's adoption of an ordinance
or resolution authorizing the franchise.
2.
A
franchise granted hereunder may be renewed upon application by the
grantee pursuant to the provisions of applicable state and federal
law.
D.
Franchise
territory. Any franchise shall be valid within all the municipal limits
of the City, and within any area added to the City during the term
of the franchise, unless otherwise specified in the franchise agreement.
E.
Federal
or state jurisdiction. This chapter shall be construed in a manner
consistent with and shall be subject to all applicable federal and
state laws, and shall apply to all franchises granted or renewed after
the effective date of this chapter to the extent permitted by applicable
law.
F.
Franchise
nontransferable.
1.
The
grantee shall not sell, transfer, lease, assign, or dispose of, in
whole or in part, either by forced or involuntary sale, or by ordinary
sale, contract, consolidation, or otherwise, the franchise or any
of the rights or privileges therein granted, without the prior consent
of the City Council which consent shall not be unreasonably denied,
withheld or delayed. Any attempt to sell, transfer, lease, assign,
or otherwise dispose of the franchise without consent of the council
shall render the franchise null and void.
2.
The
requirements of subdivision 1 of this subsection shall apply to any
change in control of grantee. The word "control" as used herein includes
majority ownership, and actual working control in whatever manner
exercised. In the event that grantee is a corporation, prior consent
of the City Council shall be required where ownership or control of
more than 35% of the voting stock of the grantee is acquired by a
person or group of persons acting in concert, none of whom own or
control the voting stock of the grantee as of the effective date of
the franchise, singularly, or collectively.
3.
The
grantee shall notify grantor in writing of any foreclosure or any
other judicial sale of all or a substantial part of the franchise
property of the grantee or upon the termination of any lease or interest
covering all or a substantial part of said franchise property. Such
notification shall be considered by grantor as notice that a change
in control or ownership of the franchise has taken place and the provisions
under this section governing the consent of the grantor to such change
in control or ownership shall apply.
4.
For
the purpose of determining whether it shall consent to such change,
transfer, or acquisition of control, the grantor may inquire into
the legal, technical, and financial qualifications of the prospective
transferee or controlling party, and the grantee shall assist the
grantor in such inquiry. In seeking the grantor's consent to any change
of ownership or control, the grantee shall have the responsibility
of insuring that the grantee and/or the proposed transferee completes
an application in accordance with Federal Communications Commission
Form 394 or equivalent. An application shall be submitted to the grantor
not less than 120 days prior to the proposed date of transfer. If
the grantor has not taken action on the grantee's request for transfer
within 120 days after receiving such request, the grantor's consent
to such transfer shall be deemed given. The consent of the grantor
to such transfer shall not be unreasonably denied or delayed.
5.
Notwithstanding
anything to the contrary herein contained, no consent to transfer
or change in control shall be required for any transfer to a person
controlling, controlled by, or under the same common control as grantee,
provided that the transferee certifies to the grantor at the time
of such transfer the transferee:
a.
Is duly authorized to do business in California,
b.
Shall assume the obligations and liabilities of the transferor with
respect to the franchise,
c.
Is under the same operational control as the grantee, and
d.
Has the financial ability to provide the services, facilities, and
equipment as required by the franchise agreement.
6.
Any
such certification provided shall be deemed a material provision of
this agreement.
G.
Geographical
coverage.
1.
The
grantee shall design, construct, and maintain the cable system to
have the capability to pass every residential dwelling unit in the
service area, subject to any service area line extension requirements
of the franchise agreement.
2.
After
service has been established by activating trunk and/or distribution
cables for any service area, the grantee shall provide service to
any requesting subscriber within the service area within 30 days from
the date of request, provided that the grantee is able to secure all
rights-of-way, permits, and landlord agreements necessary to extend
service to such subscriber within such 30 day period on reasonable
terms and conditions.
H.
Nonexclusive
franchise. Any franchise granted pursuant to this chapter shall be
nonexclusive. The grantor specifically reserves the right to grant,
at any time, such additional franchises for a cable system, as it
deems appropriate, subject to applicable state and federal law and
the terms of any existing franchise.
I.
Multiple
franchises.
1.
The grantor may grant any number of franchises subject to the provisions of subsection H of this section and applicable state and federal law. The grantor may limit the number of franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations, such as:
a.
The capacity of the public rights-of-way to accommodate multiple
cables, conduits, and pipes to the utility systems, such as electrical
power, telephone, gas, and sewerage.
b.
The benefits that may accrue to subscribers as a result of cable
system competition, such as lower rates and improved service.
c.
The disadvantages that may result from cable system competition,
such as requirements for multiple pedestals on residents' property,
and the disruption arising from numerous excavations of the public
rights-of-way.
2.
The
grantor may require that any new entrant, non-incumbent grantee be
responsible for its own underground trenching and the costs associated
therewith, if, in the grantor's opinion, the public rights-of-way
in any particular area cannot feasibly and reasonably accommodate
additional cables.
(2578 § 2, 2002; 2808 § 1, 2012)
A.
Filing
of applications. Any person desiring an initial franchise for a cable
system shall file an application with the City. A reasonable nonrefundable
initial application fee established by the City shall accompany the
initial franchise application to cover all validly documented reasonable
costs associated with processing and reviewing the application, including,
without limitation, costs of administrative review, financial, legal,
and technical evaluation of the applicant, consultants (including
technical and legal experts and all costs incurred by such experts),
notice and publication requirements with respect to the consideration
of the application, and document preparation expenses. In the event
such validly documented reasonable costs exceed the application fee,
the selected applicant(s) shall pay the difference to the City within
30 days following receipt of an itemized statement of such costs.
B.
Applications—contents.
An application for an initial franchise for a cable system shall contain,
where applicable:
1.
A
statement as to the proposed franchise and service area;
2.
A
résumé of prior history of the applicant including the
expertise of applicant in the cable system field;
3.
A
list of the partners, general and limited, of the applicant, if a
partnership, or the percentage of stock owned or controlled by each
stockholder having a five percent or greater interest, if a corporation;
4.
A
list of officers, directors, and managing employees of the applicant,
together with a description of the background of each such person;
5.
The
names and addresses of any parent or subsidiary of the applicant or
any other business entity owning or controlling the applicant in whole
or in part, or owned or controlled in whole or in part by the applicant;
6.
A
current financial statement of the applicant verified by a certified
public accountant audit or otherwise certified to be true, complete,
and correct to the reasonable satisfaction of the City;
7.
A
proposed construction and service schedule; and
8.
Any
reasonable relevant additional information that the City deems applicable.
C.
Consideration
of initial applications.
1.
Upon
receipt of any application for an initial franchise, the City Manager
or a delegate shall prepare a report and make recommendations respecting
such application to the City Council.
2.
A
public hearing shall be set prior to an initial franchise grant, at
a time and date approved by the City Council. Within 60 days after
the close of the hearing, the City Council shall make a decision based
upon the evidence received at the hearing as to whether or not the
initial franchise(s) should be granted, and, if granted, subject to
what conditions. The City Council may grant one or more franchises,
or may decline to grant any franchise.
D.
Franchise
renewal. Franchise renewals shall be in accordance with applicable
law. The grantor and grantee, by mutual consent, may enter into renewal
negotiations at any time during the term of the franchise.
(2578 § 2, 2002; 2808 § 1, 2012)
A.
Operational
standards.
1.
Except
as otherwise provided in the franchise agreement, the grantee shall
maintain the necessary facilities, equipment, and personnel to comply
with the following consumer protection and service standards under
normal operating conditions:
a.
Sufficient toll-free telephone line capacity during normal business
hours to assure that telephone answer time by a customer service representative,
including wait time, shall not exceed 30 seconds; and callers needing
to be transferred shall not be required to wait more than 30 seconds
before being connected to a service representative. Under normal operating
conditions, a caller shall receive a busy signal less than three percent
of the time.
b.
Emergency toll-free telephone line capacity on a 24-hour basis, including
weekends and holidays. After normal business hours, the telephone
calls may be answered by a service or an automated response system,
including an answering machine. Calls received after normal business
hours must be responded to by a trained company representative on
the next business day. During periods when an answering service or
machine is used, the grantee shall provide on-call personnel who shall
contact the answering service or machine, at a minimum, every four
hours to check on requests for service or complaints.
c.
A conveniently located local business and service and/or payment
office open during normal business hours where the grantee provides
adequate staffing to accept subscriber payments and respond to service
requests and complaints. Normal business hours shall include some
evening hours, at least one night per week, and/or some weekend hours.
The grantee may petition the grantor to reduce its business hours
if the extended hours are not justified by subscriber demand, and
grantor may not unreasonably deny the petition.
d.
An emergency system maintenance and repair staff, capable of responding
to and repairing major system malfunction on a 24-hour-per-day basis.
e.
An installation staff, capable of installing service to any subscriber
requiring a standard installation within seven days after receipt
of a request, in all areas where trunk and feeder cable have been
activated. "Standard installations" shall be those that are located
up to 125 feet from the existing distribution system, unless otherwise
defined in any franchise agreement.
f.
The grantee shall schedule, within a specified four hour time period
during normal business hours, all appointments with subscribers for
installation of service, service calls, and other activities at the
subscriber location. The grantee may schedule installation and service
calls outside of normal business hours for the express convenience
of the customer. The grantee shall not cancel an appointment with
a customer after the close of business of the business day prior to
the scheduled appointment. If a grantee representative is running
late for an appointment with a customer and will not be able to keep
the appointment as scheduled, the customer shall be contacted and
the appointment rescheduled, as necessary, at a time that is convenient
for the customer.
2.
Under
normal operating conditions, the standards of paragraphs (1)(a) and
(b) of this subsection shall be met not less than 90% of the time
measured on a quarterly basis. The standards of paragraphs (1)(d)
through (f) of this subsection shall be met not less than 95% of the
time measured on a quarterly basis.
3.
The
grantee shall not be required to acquire equipment or perform surveys
to measure compliance with the telephone answering standards above
unless a historical record of complaints indicates a clear failure
to comply.
B.
Service
standards.
1.
The
grantee shall render efficient service, make repairs promptly, and
interrupt service only for good cause and for the shortest time possible.
Scheduled interruptions, insofar as possible, shall be preceded by
notice and shall occur only during a period of minimum use of the
cable system, preferably between midnight and 6:00 a.m. local time.
2.
The
grantee shall maintain a repair force of technicians normally capable
of responding to subscriber requests for service within the following
time frames:
a.
For a system outage: within two hours, including weekends, of receiving
subscriber calls or requests for service that, by number, identify
a system outage of sound or picture of one or more channels affecting
at least 10% of the subscribers of the system.
b.
For an isolated outage: within 24 hours, including weekends, of receiving
requests for service identifying an isolated outage of sound or picture
for one or more channels that affects five or more subscribers. On
weekends, an outage affecting fewer than five subscribers shall result
in a service call no later than the next business day.
3.
The
grantee shall be deemed to have responded to a request for service
under the provisions of this section when a technician arrives at
the service location and begins work on the problem. In the case of
a subscriber not being home when the technician arrives, the technician
shall leave written notification of arrival.
4.
The
grantee shall not charge for the repair or replacement of defective
or malfunctioning equipment provided by grantee to subscribers, unless
the defect was caused by the subscriber, or the equipment owned by
the subscriber requires repair or replacement.
C.
Billing
and information standards.
1.
Subscriber
bills shall be clear, concise, and understandable. Bills shall be
fully itemized with itemizations including, but not limited to, basic
and premium service charges and equipment charges. Bills shall also
clearly delineate all activity during the billing period, including
optional charges, rebates, and credits.
2.
In
case of a billing dispute, the grantee shall respond to a written
complaint from a subscriber within 30 days.
3.
The
grantee shall, upon request, provide credits or refunds to such subscribers
whose service has been interrupted for four consecutive hours or more.
In the event that the grantee has improperly or inadvertently disconnected
cable services to a subscriber, the grantee shall provide for restoration
without charge to subscriber as soon as possible, but no later than
within two days of discovery of the disconnection. The grantee shall,
upon request, credit to any subscriber improperly or inadvertently
disconnected from receiving cable services for the period of time
without cable service. All credits and refunds for service shall be
issued no later than the customer's next billing cycle following the
determination that the credit is warranted. For subscribers terminating
service, refunds shall be issued promptly, but no later than 30 days
after the return of grantee-supplied equipment.
4.
The
grantee shall provide written information on each of the following
areas at the time of the installation of service, at least annually
to all subscribers, and at any time upon request:
a.
Products and services offered;
b.
Prices and options for programming services and conditions of subscription
to programming and other services;
c.
Installation and service maintenance policies;
d.
Channel positions of programming carried on the system; and
e.
Billing and complaint procedures, including the address and telephone
number of the grantor office designated for dealing with cable-related
issues.
5.
Subscribers shall be notified of any changes in rates, programming services, or channel positions as soon as possible in writing and in accordance with state and federal law. Notice must be given to subscribers a minimum of 30 days in advance of such changes if the change is within the control of the grantee. In addition, the grantee shall notify subscribers 30 days in advance of any material changes in the information required in subsection (C)(4) of this section.
D.
Verification
of compliance with standards.
1.
Upon 30 days prior written notice, the grantee shall respond to a request for information made by the grantor regarding the grantee's compliance with any or all of the standards required in subsections A, B, or C of this section. The grantee shall provide reasonably sufficient documentation to permit the grantor to verify grantee's compliance.
3.
Should the grantee have its own telephone equipment that can report on telephone line(s) usage, the grantee, upon request of the grantor, shall submit such report from its own system. The grantor, pursuant to subsection (A)(3) of this section may require the grantee to acquire equipment to determine compliance with the telephone answering standards of that section.
4.
The
grantee shall take necessary steps to ensure that adequate telephone
lines and/or staffing are available to permit grantee to satisfy its
obligations under this chapter and the franchise. Consideration shall
be given for periods of promotional activities or outages. The monthly
billing period shall be considered as a normal, daily activity for
purposes of determining the availability of adequate telephone lines
and/or staffing.
E.
Subscriber
complaints and disputes.
1.
The
grantee shall establish written procedures for receiving, acting upon,
and resolving subscriber complaints without intervention by the grantor.
The written procedures shall prescribe the manner in which a subscriber
may submit a written complaint specifying the subscriber's grounds
for dissatisfaction. Upon request, the grantee shall file a copy of
these procedures with the grantor. The written procedures shall include
a requirement that the grantee respond to any written complaint from
a subscriber within 30 days of receipt.
2.
Upon
prior written request, the grantor shall have the right to review
the grantee's response to any subscriber complaints in order to determine
the grantee's compliance with the franchise requirements, subject
to the subscriber's right to privacy.
3.
Subject
to applicable law, it shall be the right of all subscribers to continue
receiving cable services insofar as their financial and other obligations
to the grantee are honored.
4.
In
the event of a change in control of the grantee, or in the event a
new operator acquires the system, the original grantee shall cooperate
with the grantor, the new grantee, or the operator in maintaining
continuity of service to all subscribers. During such period, the
grantee shall be entitled to the revenues for any period during which
it operates the system.
5.
The
grantee response to subscriber complaints, as well as complaints made
by subscribers to the grantor and provided by the grantor to the grantee,
shall be initiated within one business day of receipt by the grantor
under normal operating conditions. The resolution of subscriber complaints
shall be effected by the grantee not later than three business days
after receipt of the complaint. Should a grantee supervisor not be
available when requested by a subscriber, a supervisor shall respond
to the subscriber's complaint at the earliest possible time, and in
no event later than the end of the next business day. For complaints
received by the grantor and provided by the grantor to the grantee,
the grantee shall notify the grantor of the grantee's progress in
responding to, and resolving, said complaints.
F.
Other
requirements.
1.
In
the event the grantee fails to operate the system for seven consecutive
days other than for reasons beyond the control of the grantee, without
prior approval or subsequent excuse of the grantor, the grantor may,
at its sole option, operate the system or designate an operator until
such time as the grantee restores service under conditions acceptable
to the grantor or a permanent operator is elected. If the grantor
should fulfill this obligation for the grantee, then, during such
period as the grantor fulfills such obligation, the grantor shall
be entitled to collect all revenues from the system, and the grantee
shall reimburse the grantor for all reasonable costs or damages in
excess of the revenues collected by the grantor that are the result
of the grantee's failure to perform.
2.
All
officers, agents, and employees of the grantee or its contractors
or subcontractors who, in the normal course of work, come into contact
with members of the public or who require entry onto subscribers'
premises shall carry a photo-identification card. The grantee shall
account for all identification cards at all times. Every vehicle of
the grantee or its major subcontractors shall be clearly identified
as working for the grantee.
3.
Subject
to applicable law, additional service standards and standards governing
consumer protection and response by the grantee to subscriber complaints
not otherwise provided for in this chapter may be established in the
franchise agreement or by separate ordinance, to the extent expressly
permitted by the franchise agreement. A verified and continuing pattern
of repeated and substantial noncompliance may be deemed a material
breach of the franchise, provided that the grantee shall receive due
process, including prior written notification and a reasonable opportunity
to cure, prior to any sanction being imposed.
(2578 § 2, 2002; 2808 § 1, 2012)
A.
Franchise
fee.
1.
Following
the issuance and acceptance of the franchise, the grantee shall pay
to the grantor a franchise fee on gross annual revenues in the amount
and at the times set forth in the franchise agreement.
2.
The
grantor, on an annual basis, shall be furnished a statement within
120 days of the close of the calendar year, either audited and certified
by an independent certified public accountant or certified by an officer
of the grantee, reflecting the total amounts of gross revenues for
the period covered by the payment. Within three years of the payment
of any franchise fee and upon 30 days' prior written notice, the grantor
shall have the right to conduct an independent financial audit of
the grantee's gross annual revenue and franchise fee records, in accordance
with generally accepted accounting procedures (GAAP), and if such
audit indicates a franchise fee underpayment of four percent or more,
the grantee shall assume all reasonable documented costs of such audit.
3.
Except
as otherwise provided by law and subject to the right to audit within
three years of the payment of any franchise fee, no acceptance of
any payment by the grantor shall be construed as a release or as an
accord and satisfaction of any claim the grantor may have for further
or additional sums payable as a franchise fee under this chapter or
for the performance of any other obligation of the grantee.
4.
In
the event that any franchise fee payment or payment of any adjustment
to any franchise fee is not made on or before the dates specified
in the franchise agreement, unless otherwise excused, the grantee
shall pay an interest charge, computed from such due date, at an annual
rate of 10%
5.
Franchise
fee payments shall be made in accordance with the schedule indicated
in the franchise agreement.
B.
Security
fund.
1.
The
grantor may require the grantee to provide a security fund, in an
amount and form established in the franchise agreement. The amount
of the security fund shall be established based on the extent of the
grantee's obligations under the terms of the franchise.
2.
The
security fund shall be available to the grantor to satisfy all claims,
liens and/or taxes due to the grantor from the grantee that arise
by reason of construction, operation, or maintenance of the system,
and to satisfy any actual or liquidated damages arising out of material
breach of the franchise agreement, subject to procedures, and amounts
designated in the franchise agreement.
3.
If
the security fund is drawn upon by the grantor in accordance with
the procedures established in this chapter and the franchise agreement,
the grantee shall cause the security fund to be replenished to the
original amount no later than 30 days after receiving written confirmation
from the bank where such security fund is deposited that the grantor
has made a draw against the security fund. Failure to replenish the
security fund shall be deemed a material breach of the franchise.
(2578 § 2, 2002; 2808 § 1, 2012)
A.
The
grantee shall not construct any cable system facilities until the
grantee has secured the necessary permits from the grantor, or other
responsible public agencies. The grantee shall be subject to all permit
and bonding requirements generally applicable to contractors working
within the public rights-of-way. No provision of this chapter or the
franchise agreement shall be deemed a waiver of the obligation of
a grantee to pay the grantor generally applicable, non-discriminatory
fees for the issuance of a permit.
B.
In those
areas of the City where transmission lines or distribution facilities
of the public utilities providing telephone and electric power service
are underground, the grantee likewise shall construct, operate, and
maintain its transmission and distribution facilities underground.
C.
In those
areas of the City where the grantee's cables are located on the above-ground
transmission and distribution facilities of the public and/or municipal
utility providing telephone or electric power services, and in the
event that the facilities of both the telephone and electric power
utilities subsequently are placed underground, then the grantee likewise
shall reconstruct, operate, and maintain its transmission and distribution
facilities underground, at the grantee's cost unless the grantor reimburses
any person for such undergrounding, in which event the grantee shall
be similarly reimbursed. Certain of grantee's equipment, such as pedestals,
amplifiers and power supplies that normally are placed above ground,
may continue to remain in above-ground enclosures, unless otherwise
provided in the franchise agreement.
D.
Any
changes in or extensions of any poles, anchors, wires, cables, conduits,
vaults, laterals, or other fixtures and equipment (herein referred
to as "structures"), or the construction of any additional structures,
in, upon, along, across, under, or over the streets, alleys and public
ways shall be made under the direction of the Public Works Director
or a designee, who shall, if the proposed change, extension, or construction
conforms to the provisions hereof, issue written permits therefor.
The height above public thoroughfares of all aerial wires shall conform
to the requirements of the California regulatory body having jurisdiction
thereof.
1.
All
transmission and distribution structures, lines, and equipment erected
by the grantee shall be located so as not to interfere with the proper
use of the public rights-of-way, and to cause minimum interference
with the rights and reasonable convenience of property owners who
adjoin any of the said public rights-of-way, and not to materially
interfere with existing public and municipal utility installations.
2.
In
the event that any property or improvement of the grantor in the public
rights-of-way is disturbed or damaged by the grantee or any of its
contractors, agents, or employees in connection with undertaking any
and all work pursuant to the rights granted to the grantee pursuant
to this chapter and the franchise agreement, the grantee shall promptly,
at the grantee's sole cost and expense, restore to the grantor's satisfaction
said property or improvement that was so disturbed or damaged. If
such property or improvement shall within two years (or in the case
of street improvement, until the street is resurfaced, if resurfaced
prior to the expiration of two years) of the date the restoration
was completed, become uneven, unsettled, or otherwise require additional
restorative work, repair, or replacement because of the initial disturbance
or damage of the property by the grantee, then the grantee, as soon
as reasonably possible, shall, promptly upon receipt of written notice
from the grantor and at the grantee's sole cost and expense, restore
to grantor's reasonable satisfaction said property or improvement
that was disturbed or damaged. Any such restoration by the grantee
shall be made in accordance with the grantor's generally applicable
standards.
3.
Prior
to commencing any work on the system in the public rights-of-way,
the grantee shall obtain any and all generally applicable non-discriminatory
permits, licenses, and authorizations lawfully required for such work.
If emergency work on the system in the public right-of-way is required,
the grantee shall, with all due diligence, seek to obtain any and
all such required permits, licenses, and authorizations within three
working days after commencing such emergency work. Prior to performing
any work in the public right-of-way, the grantee shall give appropriate
notice to the Underground Service Alert (USA), or any similar type
service provider.
4.
There
shall be no unreasonable or unnecessary obstruction of the public
rights-of-way by the grantee in connection with any of the work provided
for herein. The grantee shall maintain any barriers, signs, and warning
signals during any work performed on or about the public rights-of-way
or adjacent thereto as may be necessary to reasonably avoid injury
or damage to life or property.
5.
If
the grantor lawfully elects to alter or change the grade or location
of any public right-of-way, the grantee, in concert with other users
of the rights-of-way, shall, upon reasonable notice by the grantor,
and in a timely manner, remove, relay, and relocate its poles, wires,
cables, underground conduits, manholes, and other fixtures at its
own expense. If the grantor reimburses any person for such relocation,
the grantee shall be similarly reimbursed.
6.
The
grantee shall not place poles, conduits, or other fixtures above or
below ground where the same will unreasonably interfere with any existing
gas, electric, telephone fixtures, water hydrants, or other utility,
and all such poles, conduits, and other fixtures placed in any street
shall be so placed as to comply with all generally applicable ordinances
of the grantor.
7.
The
grantee, on request of any person holding a moving permit issued by
the grantor, shall temporarily raise or lower its wires or fixtures
to permit the moving of buildings. The expense of such temporary raising
or lowering of wires or fixtures shall be paid by the person requesting
the same, and the grantee shall have the authority to require payment
in advance. The grantee shall be given not less than five business
days' prior written notice to arrange for the temporary wire or equipment
changes.
8.
Subject
to provisions of the Municipal Code, the grantee shall have all authority
to trim any trees or other natural growth overhanging the public rights-of-way
so as to prevent the branches of such trees or other natural growth
from coming into contact with the grantee's wires, cables, and other
equipment. The grantor may require all trimming of trees and natural
growth to be done under its supervision and direction, at the expense
of the grantee.
9.
The
grantee shall be subject to any and all generally applicable, reasonable
requirements established by the grantor with regard to the placement,
location, size, color, design and screening of grantee's facilities
and equipment located in the public rights-of-way. In establishing
such requirements, the grantor shall in good faith take into account,
but shall not be bound by, practices common to the industry. Such
requirements may include, but not be limited to, use of landscaping
to screen pedestals and cabinets and requiring that construction be
flush with the natural grade of the surrounding area.
(2578 § 2, 2002; 2808 § 1, 2012)
A.
The
grantee shall operate and maintain its cable system in a manner consistent
with the Federal Communications Commission (FCC) technical standards.
In addition, the grantee shall provide to the grantor, upon written
request, a written report of the results of the grantee's periodic
proof of performance tests conducted pursuant to FCC and franchise
standards and guidelines.
B.
Should
the FCC no longer require proof of performance tests, the grantee
shall make and submit proof of performance or like tests and reports
in response to a written request from the grantor documenting substantiated
complaints from subscribers. Such report shall be submitted to the
grantor within 30 days of issuance of the grantor request.
(2578 § 2, 2002; 2808 § 1, 2012)
A.
Hold
harmless. The grantee shall indemnify, defend and hold the grantor,
its officers, agents, and employees harmless from any liability, claims,
damages, costs, or expenses, to the extent provided in the franchise
agreement.
B.
Insurance.
1.
On
or before commencement of franchise operations, the grantee shall
furnish to the grantor certificates of insurance for liability, workers'
compensation, and property insurance from insurance companies with
an AM Best insurance rating of A- or better, which shall be "admitted"
in the State of California. The certificates of insurance shall provide
that the insurance is in force and will not be cancelled or modified
without 30 days' prior written notice to the grantor. The certificates
of insurance shall be issued on the industry standard form. The grantee
shall maintain at its cost throughout the term of the franchise, the
insurance required herein and in the franchise agreement.
2.
The
policy of commercial general liability insurance shall:
a.
Include the grantor, its officers, agents, and employees as additional
insureds;
b.
Indemnify for all liability from personal and bodily injury, death
and damage to property arising from activities conducted and premises
used pursuant to this chapter by providing coverage therefor, including
but not limited to negligent acts or omissions of the grantee, and
its agents, servants, and employees, committed in the conduct of franchise
operations; and
c.
Provide a combined single limit for bodily injury and property damage
in the amount provided for in the franchise agreement.
3.
Commercial
automobile liability shall provide a combined single limit for bodily
and property damage in the amount provided for in the franchise agreement
that includes the grantor, its officers, agents, and employees as
additional insureds.
4.
The
policy of workers' compensation insurance shall comply with the laws
of the State of California.
5.
The
policy of property insurance shall provide fire insurance with extended
coverage on the franchise property used by the grantee in the conduct
of franchise operations in an amount equal to the replacement cost
value that will enable the grantee to resume franchise operations
following occurrence of any risk covered by the insurance.
6.
The
certificate of insurance shall include the following information:
a.
The policy number;
b.
The date upon which the policy will become effective and the date
upon which it will expire;
c.
The names of the primary insureds and any additional insureds required
by the franchise agreement;
d.
The subject of the insurance (aka certificate holder);
e.
The type of coverage provided by the insurance; and
f.
The amount or limit of coverage provided by the insurance.
g.
If the certificates of insurance do not provide all of the above
information, the grantor reserves the right to inspect the relevant
insurance policies.
7.
The
commencement of franchise operations shall not begin until the grantee
has complied with the aforementioned provisions of this section.
8.
In
the event the grantee fails to maintain any of the above-described
policies in full force and effect, the grantor shall, upon 10 days'
written notice to the grantee, have the right to procure the required
insurance and recover the cost thereof from the grantee. The grantor
shall also have the right to suspend the franchise during any period
that the grantee fails to maintain said policies in full force and
effect. In order to account for increases in consumer prices, no more
than once during any five year period, the grantor shall have the
right to order the grantee to increase the amounts of the insurance
as provided in the franchise agreement to reflect increases in the
Consumer Price Index. Such order may be made by the grantor after
conducting a duly noticed public hearing.
(2578 § 2, 2002; 2808 § 1, 2012)
A.
Records
required.
1.
The
grantee shall at all times maintain:
a.
A written or computer-stored record of all service calls and interruptions
or degradation of service experienced for the previous two years,
provided that such complaints result in or require a service call,
subject to the subscriber's right of privacy.
b.
A set of plans showing the location of trunk and feeder of the cable
system installed or in use in the City, exclusive of subscriber service
drops and equipment provided in subscriber's homes.
c.
If requested by the grantor, a summary of service calls, identifying
the number, general nature, and disposition of such calls, on a quarterly
basis. A summary of such service calls shall be submitted to the grantor
within 30 days following any written request by the grantor, in a
form reasonably acceptable to the grantor and prepared by the grantee
in the ordinary course of business.
2.
Upon
reasonable advance written notice, and during normal business hours,
the grantee shall permit examination by any duly authorized representative
of the grantor of all:
a.
Franchise property and facilities, together with any appurtenant
property and facilities of the grantee situated within the service
area; and
b.
Records relating to the franchise, provided they are necessary to
enable the grantor to determine the grantee's compliance with the
material terms of this chapter or the franchise. The grantee shall
have the right to be present at any such examination.
B.
Reports.
1.
Within
90 days after the end of the calendar year, the grantee shall submit
a written report to the grantor with respect to the preceding calendar
year including the following information:
a.
A summary of the previous year's (or in the case of the initial reporting
year, the initial year's) activities in development of the cable system,
including but not limited to, services begun or discontinued during
the reporting year;
b.
A list of the grantee's officers and members of its board of directors
if there have been any changes since the last filing;
c.
A list of stockholders or other equity investors holding five percent
or more of the voting interest in the grantee if there has been any
change since the last filing;
e.
A set of plans showing the location of trunk and feeder cable of
the cable system installed or in use in the City, exclusive of subscriber
service drops and equipment provided in subscriber's homes. After
the initial submission of a set of drawings, the grantee may satisfy
the provisions of this section by providing updated portions of those
sections of the drawings that have changed.
2.
Information
otherwise confidential by law, and so designated by the grantee, which
is submitted to the grantor, shall be retained in confidence by the
grantor and its authorized agents and shall not be made available
for public inspection unless disclosure is required by applicable
law. To the extent possible, the grantee may provide the grantor with
summaries of any required documents or copies thereof with trade secrets
and proprietary matters deleted therefrom. The burden of proof shall
be on the grantee to establish the confidential nature of any information
submitted, to the reasonable satisfaction of the grantor.
3.
The
willful refusal, failure, or willful negligence of the grantee to
file any of the material required as and when due under this chapter,
may be deemed a material breach of the franchise agreement if such
reports are not provided to the grantor within 30 days after written
request therefor, and may subject the grantee to all remedies, legal
and equitable, which are available to the grantor under this chapter
or the franchise agreement.
4.
Any
materially false or misleading statement or representation made knowingly
and willfully by the grantee in any report required under this chapter
or under the franchise agreement may be deemed a material breach of
the franchise and may subject the grantee to all remedies, legal,
or equitable, which are available to the grantor.
(2578 § 2, 2002; 2808 § 1, 2012)
A.
Periodic
review.
1.
Every
five years throughout the term of the franchise, if reasonably requested
by prior written notice from the grantor, the grantor and the grantee
shall meet publicly to review system performance and quality of service.
The various reports required pursuant to this chapter, results of
technical performance tests, the record of subscriber complaints and
the grantee's response to those complaints, and the information acquired
in any subscriber surveys, shall be utilized as the basis for review.
In addition, any subscriber may submit comments or complaints during
review meetings, either orally or in writing, and these shall be considered.
Within 30 days after the conclusion of such a review meeting, the
grantor may issue findings with respect to the cable system's franchise
compliance and quality of service.
2.
If
the grantor determines that the grantee is not in compliance with
the material requirements of this chapter or the grantee's franchise
agreement, the grantor shall provide the grantee, in the form of written
findings, the specific details of each alleged noncompliance. The
grantor may then direct the grantee to correct the areas of noncompliance
within a reasonable period of time. Failure of the grantee, after
due notice, to:
a.
Correct the area(s) of noncompliance within the period specified
therefor;
b.
Commence compliance within such period and diligently achieve compliance
thereafter; or
c.
Demonstrate that the allegations of noncompliance are incorrect;
shall be considered a material breach of the franchise; and the grantor
may exercise any remedy within the scope of this chapter and the franchise
agreement considered appropriate under the circumstances.
B.
Special
review. When there have been extensive complaints made or where there
exists other demonstrative evidence that, in the reasonable judgment
of the grantor, casts reasonable doubt on the reliability or quality
of cable service to the effect that the grantee is not in compliance
with the material requirements of this chapter or its franchise, the
grantor shall have the right to compel the grantee to test, analyze,
and report on the performance of the cable system in order to protect
the public against substandard cable service. The grantor may not
compel the grantee to provide such tests and reports unless and until
the grantor has provided the grantee with at least 30 days' prior
written notice of its intention to exercise its rights under this
subsection and has provided the grantee with an opportunity to be
heard prior to the exercise of such rights. Such test or tests shall
be made and the report shall be delivered to the grantor no later
than 30 days after the grantor notifies the grantee in writing that
it is exercising such right, and shall be made at the grantee's sole
cost if the results demonstrate that the grantee has failed to meet
FCC technical standards. If the results demonstrate that the grantee's
system meets FCC technical standards, the grantor shall be responsible
for the costs. Such report shall include the following information:
the nature of the complaints that precipitated the special tests,
what system component was tested, the equipment used and procedures
employed in said testing, the results of such tests, and the method
by which such complaints were resolved. Any other information pertinent
to the special test shall be recorded.
(2578 § 2, 2002; 2808 § 1, 2012)
A.
Remedies
for violations. If the grantee fails to perform in a timely manner
any material obligation required by this chapter or the franchise
granted hereunder, following reasonable written notice from the grantor
and a reasonable opportunity to cure such nonperformance in accordance
with the provisions of this section and the franchise, the grantor
may at its option and in its sole discretion:
1.
Cure
the violation and recover the actual cost thereof from the security
fund established in the franchise agreement if such violation is not
cured within 30 days after written notice to the grantee of the grantor's
intention to cure and draw upon the security fund;
2.
Assess
against the grantee liquidated damages in an amount set forth in the
franchise agreement for any such violation(s) if such violation is
not cured, or if the grantee has not commenced a cure within 30 days
after written notice to the grantee of the grantor's intention to
assess liquidated damages. Such assessment may be withdrawn from the
security fund, and shall not constitute a waiver by the grantor of
any other right or remedy it may have under the franchise or applicable
law, including without limitation, its right to recover from the grantee
such additional damages, losses, costs, and expenses, including reasonable
attorney's fees, as may have been suffered or incurred by the grantor
by reason of or arising out of such material breach of the franchise.
In no event shall the foregoing be construed to permit a double recovery
by the grantor for the same violation.
B.
Procedure
for remedying franchise violations. Prior to imposing any remedy or
other sanction against the grantee specified in this chapter, the
grantor shall give grantee written notice and opportunity to be heard
on the matter, in accordance with the following procedures:
1.
The
grantor shall first notify the grantee of the alleged violation in
writing by personal delivery or registered or certified mail, and
demand correction, or evidence of non-violation, within a reasonable
time that shall not be less than 15 business days in the case of the
failure of the grantee to pay any undisputed sum or other amount due
the grantor under this chapter or the grantee's franchise, and 30
business days in all other cases. If the grantee fails to:
a.
Correct the alleged violation within the time prescribed;
b.
Commence correction of the alleged violation within the time prescribed
and diligently remedy such alleged violation thereafter; or
c.
Provide evidence that there is no violation, the grantor shall then
give, by personal delivery or registered or certified mail written
notice of not less than 30 days of a public hearing to be held before
the City Council. Said notice shall set forth in detail each of the
violations alleged to have occurred.
2.
Subsequent
to the public hearing, the City Council shall hear and consider all
other relevant evidence, and thereafter render findings and its decision.
3.
If
the City Council finds that the grantee has corrected the alleged
violation; diligently commenced correction of such alleged violation
after notice thereof and is diligently proceeding to fully remedy
such alleged violation; or no material violation has occurred; the
proceedings shall terminate and no penalty or other sanction shall
be imposed.
4.
If
the City Council finds that material violations exist and that the
grantee has not corrected the same in a satisfactory manner, or has
not diligently commenced correction of such violation after notice
thereof and is not diligently proceeding to fully remedy such violation,
then the City Council may impose one or more of the remedies provided
in this chapter and the franchise agreement as it, in its discretion,
deems appropriate under the circumstances. In no event shall the foregoing
be construed to permit a double recovery by the grantor for the same
violation.
C.
Grantor's
power to revoke.
1.
The
grantor may revoke any franchise granted pursuant to this chapter
and rescind all rights and privileges associated with it in the following
circumstances, each of which shall represent a default by the grantee
and a material breach under the franchise:
a.
If the grantee fails to perform any of the material obligations under
this chapter or the franchise agreement and continues such failure
to perform after receipt of due written notice and a reasonable opportunity
to cure;
b.
If the grantee fails to provide or maintain in full force and effect
the insurance coverage or security fund as required in the franchise
agreement;
c.
If the grantee violates any order or ruling of any federal or state
regulatory body having jurisdiction over the grantee relative to the
grantee's franchise, unless such order or ruling is being contested
by the grantee in good faith in an appropriate proceeding;
d.
If the grantee knowingly practices any material fraud or deceit upon
the grantor; or
e.
If the grantee becomes insolvent, unable, or unwilling to pay its
debts, or is adjudged a bankrupt.
2.
After completing the procedures set forth in subsection B of this section, the grantor may make a formal request before the City Council that the grantee's franchise be revoked. The City Council shall cause to be served on the grantee written notice of its intent to consider revoking the grantee's franchise. Such notice shall be served on the grantee at least 30 days prior to the date of the public hearing on the issue. The notice shall contain the time and place of the hearing and shall be published at least once in a newspaper of general circulation within the franchise area 10 days prior to the hearing date.
3.
The
City Council shall hear any person(s) interested in the revocation
and, within 90 days after the date of hearing, shall make its determination
whether the grantee has committed a material breach of the franchise.
4.
If
the grantor determines that the grantee has committed a material breach,
then the grantor may:
5.
The
termination and forfeiture of the grantee's franchise shall in no
way affect any right of the grantor to pursue any remedy under the
franchise or any provision of law.
(2578 § 2, 2002; 2808 § 1, 2012)
In the event that the grantee's performance of any of the terms,
conditions, or obligations required by this chapter or a franchise
granted hereunder is prevented by a cause or event not within grantee's
control, such inability to perform shall be deemed excused and no
penalties or sanctions shall be imposed as a result thereof; provided,
however, that such inability to perform shall not relieve the grantee
from the obligations pertaining to refunds and credits for interruptions
in service. For the purposes of this section, causes or events not
within the control of the grantee shall include without limitation
acts of God, war, strikes, sabotage, riots or civil disturbances,
labor disputes, restraints imposed by order of a governmental agency
or court, explosions, acts of public enemies, and natural disasters
such as floods, earthquakes, landslides, and fires, but shall not
include financial inability of the grantee to perform.
(2578 § 2, 2002; 2808 § 1, 2012)
A.
Abandonment
or removal.
1.
If
the grantee discontinues the use of any of its property within the
public rights-of-way for a continuous period of 12 months, such property
shall be deemed to have been abandoned by the grantee. Any part of
the cable system that is parallel or redundant to other parts of the
system and is intended for use only when needed as a backup for the
system or a part thereof, shall not be deemed to have been abandoned
because of lack of use.
2.
The
grantor, upon such reasonable terms as the grantor may lawfully impose
as to all users of the public rights-of-way, may give the grantee
permission exercised in a non-discriminatory manner as to all users
of the public right-of-way to abandon, without removing, any facility
or equipment laid, directly constructed, operated, or maintained under
the franchise. Unless such permission is granted or unless otherwise
provided in this chapter, the grantee shall remove all abandoned above-ground
facilities and equipment upon receipt of written notice from the grantor
and shall restore to the grantor's satisfaction any affected public
right-of-way. In removing its plant, structures, and equipment, the
grantee shall refill, at its own expense, any excavations that shall
be made by it and shall leave all public rights-of-way in as good
condition as that prevailing prior to such removal without materially
interfering with any electrical or telephone cable or other utility
wires, poles, or attachments. The grantor shall have the right to
inspect and approve the condition of the public rights-of-way, cables,
wires, attachments, and poles prior to and after removal. The liability,
indemnity and insurance provisions of this chapter and the security
fund as provided herein shall continue in full force and effect during
the period of removal and until full compliance by the grantee with
the terms and conditions of this subsection.
3.
Upon
the approved abandonment of any franchise property, the grantee, if
required by the grantor, shall submit to the grantor an instrument,
satisfactory in form to the grantor, transferring to the grantor the
ownership of the abandoned franchise property.
4.
At
the expiration, without renewal or extension, of the term for which
the franchise is granted, or upon its revocation as provided herein,
the grantor shall have the right to require the grantee to remove,
at its own expense, all above-ground portions of the cable system
from all streets and public ways within the service area within a
reasonable period of time, which shall not be less than 180 days.
5.
Notwithstanding
anything to the contrary set forth in this chapter, the grantee may
abandon any underground franchise property in place so long as it
does not materially interfere with the use of public rights-of-way
in which such property is located or with the use thereof by any public
utility or other franchise holder.
B.
Restoration
by grantor—reimbursement of costs. Upon reasonable written notice
and upon the failure of the grantee to commence, pursue, or complete
any work to be done in any public right-of-way required by law or
by the provisions of this chapter or the franchise agreement within
the time prescribed and to the reasonable satisfaction of the grantor,
the grantor may cause the work to be commenced and/or completed. The
grantor shall provide to the grantee an itemized work order setting
forth in detail the exact nature of the work completed and the supplies
used in such work. The grantee shall pay to the grantor the reasonable
costs for such work no later than 30 days after receipt of the itemized
work order.
C.
Receivership
and foreclosure.
1.
At
the option of the grantor and subject to applicable law, a franchise
granted hereunder may be revoked 120 days after appointment of a receiver(s)
or trustee(s) to take over and conduct the business of the grantee,
whether in receivership, reorganization, bankruptcy, or other action
or proceeding, unless:
a.
The receivership or trusteeship shall have been vacated within said
120 days;
b.
Such receivers or trustees within said 120 days shall have remedied
all defaults under the franchise or provided a plan for the remedy
of such defaults that is satisfactory to the grantor; or
c.
Such receivers or trustees shall, within said 120 days, have executed
an agreement duly approved by the court having jurisdiction whereby
such receivers or trustees assume and agree to be bound by each and
every term, provision, and limitation of the franchise.
2.
In
the case of a foreclosure or other judicial sale of the cable system,
in whole or in part, the grantor may serve notice of revocation upon
the grantee and the successful bidder at such sale, and all rights
and privileges of the grantee hereunder shall be revoked 30 days after
service of such notice, unless:
(2578 § 2, 2002; 2808 § 1, 2012)
A.
Reservation
of grantor rights. In addition to any rights specifically reserved
to the grantor by this chapter, the grantor reserves to itself every
right and power that is required to be reserved by a provision of
any ordinance or under the franchise.
B.
Waiver.
1.
The
grantor shall have the right to waive any provision of the franchise,
except those required by federal or state regulation, if the grantor
determines:
2.
To
be effective, such waiver shall be evidenced by a statement in writing
signed by a duly authorized representative of the grantor. Waiver
of any provision in one instance shall not be deemed a waiver of such
provision subsequent to such instance nor be deemed a waiver of any
other provision of the franchise unless the statement so recites.
3.
The
grantee shall not be excused from complying with any of the requirements
of this chapter or the franchise agreement by any failure of the grantor
on any one or more occasions to require or seek compliance with any
such terms and conditions.
C.
Rights
of individuals.
1.
The
grantee shall not deny service, deny access, or otherwise discriminate
against subscribers, or general citizens, on the basis of race, color,
religion, national origin, age, sex, or marital status. The grantee
shall comply at all times with all other applicable federal and state
laws and regulations relating to nondiscrimination.
2.
Nothing
in this chapter or the franchise shall limit the right of the grantee
to deny service to any household or individual that has a negative
credit or service history with the grantee, which may include nonpayment
of bills or theft or damage to the grantee's equipment, or who has
threatened or assaulted employees of the grantee in the course of
their employment.
3.
The
grantee shall adhere to the applicable equal employment opportunity
requirements of federal and state regulations, as now written or as
amended from time to time.
4.
Neither
the grantee, nor any person, agency, or entity shall, without the
subscriber's consent, tap, or arrange for the tapping, of any cable,
line, signal input device, or subscriber outlet or receiver for any
purpose, except routine maintenance of the system, detection of unauthorized
service, polling with audience participation, or audience viewing
surveys to support advertising research regarding viewers where individual
viewing behavior cannot be identified.
5.
In
the conduct of providing its cable services or in pursuit of any collateral
commercial enterprise resulting therefrom, the grantee shall take
reasonable steps to prevent the invasion of a subscriber's or general
citizen's right of privacy or other personal rights through the use
of the system, as such rights are delineated or defined by applicable
law. The grantee shall not without lawful court order or other applicable
valid legal authority utilize the system's interactive two-way equipment
or capability, if such equipment or capability exists, for unauthorized
personal surveillance of any subscriber or general citizen.
6.
No
cable line, wire amplifier, converter, or other piece of equipment
owned by the grantee shall be installed by the grantee in the subscriber's
premises other than in appropriate easements, without first securing
any required consent. If a subscriber requests service, permission
to install upon subscriber's property shall be deemed granted.
7.
The
grantee, or any of its agents or employees, shall not sell, or otherwise
make available to any party without consent of the subscriber pursuant
to state and federal privacy laws:
(2578 § 2, 2002; 2808 § 1, 2012)
If any provision of this chapter is held by any court or by
any federal or state agency of competent jurisdiction, to be invalid
as conflicting with any federal or state law, rule or regulation now
or hereafter in effect, or is held by such court or agency to be modified
in any way in order to conform to the requirements of any such law,
rule, or regulation, such provision shall be considered a separate,
distinct, and independent part of this chapter, and such holding shall
not affect the validity and enforceability of all other provisions
hereof. In the event that such law, rule, or regulation is subsequently
repealed, rescinded, or amended or otherwise changed, so that the
provision thereof that had previously been held invalid or modified
is no longer in conflict with such law, rule, or regulation, said
provision shall thereupon return to full force and effect and shall
thereafter be binding on the grantor and the grantee, provided that
the grantor shall give the grantee 30 days' written notice of such
change before requiring compliance with said provision or such longer
period of time as may be reasonably required for the grantee to comply
with such provision.
(2578 § 2, 2002; 2808 § 1, 2012)
