Ordinance No. 341 shall be known and may be cited as the "Cable
Communications Franchise Ordinance."
(Ord. 341 Exhibit "A,"
1994)
For the purpose of this Chapter, the following words, terms,
phrases, and their derivations shall have the meanings given herein.
When not inconsistent with the context, words used in the present
tense include the future tense, words in singular number include the
plural number. The word "shall" is always mandatory and
not merely directory.
means each Person who falls into one or more of the following
categories: (i) each person having, directly or indirectly, control
or a controlling interest in the Grantee; (ii) each person in which
the Grantee has, directly or indirectly, control or a controlling
interest; (iii) each officer, director, general partner, joint venturer
or joint venture partner, of the Grantee; (iv) each person, directly
or indirectly, controlling, controlled by, or otherwise related to
the Grantee by common ownership, common management or common control.
means a subscriber who receives a service in a government
or public agency, school, or non profit corporation facility.
means the City Manager or designee.
means the point at which Grantee's drop attaches to
subscriber owned equipment.
means the service tier which includes the retransmission
of local television broadcast signals.
means the signal of a broadcast television station licensed
by the FCC.
means the Cable Communications Policy Act of 1984.
means the Cable Television Consumer Protection and Corporation
Act of 1992.
means the 1984 Cable Act and the 1992 Cable Act, as amended.
means a system within the City of Indian Wells of antennas,
cables, amplifiers, towers, microwave links, cablecasting studios,
and any other conductors, converters, terminals, equipment or facilities,
designed and constructed for the primary purpose of distributing television
programming to subscribers or users, and for the secondary purpose
of producing, receiving, amplifying, storing, processing, or distributing
audio, video, digital, or other forms of electronic or electrical
signals, but not including telephone systems regulated by the Public
Utilities Commission.
means the one-way transmission to subscribers of (i) video
programming, or (ii) other programming service, and subscriber interaction,
if any, which is required for the selection of such video programming
or other programming service; provided, however, that this definition
shall be deemed to be amended to conform to any changes in the definition
of Cable Service in the Cable Act and shall be interpreted accordingly,
provided that the amendment is applicable to franchises granted prior
to its date of adoption. By agreeing to this definition of Cable Service,
the Grantor is expressly reserving the full extent of whatever regulatory
powers it may possess subsequent to said amendment and it is not the
intent of the parties through waiver or burden of proof to affect
how the applicability of an amendment to the Cable Act would otherwise
be interpreted. Neither party waives any rights which such amendment
may confer on either party with respect to whether franchises granted
prior to the effective date of adoption of such amendment are grandfathered
or preempted. It is not the intent of the parties to place the burden
of proof with respect to grandfathering or preemption on one party
or the other.
means a non-profit, public corporation, hereinafter further
defined, established or authorized by the Grantor, whose duties shall
include the management and operation of services designated by the
Grantor.
means a non-broadcast signal of the Cable Communications
System, whether from a live or recorded source.
means services provided to institutional users on an individual
or collective basis. The information contained in such a service may
or may not be simultaneously available to other system subscribers
or users.
means a frequency band capable of carrying a standard video
signal or some combination of video signals, or a frequency band assigned
to carry a non-standard video signal or some combination of such video
signals.
means a subscriber who is offered for reception residential
service in a place of business, or anyone whose service is utilized
in a business, trade, or profession, including but not limited to
hotels, motels, bars, restaurants and other similar establishments.
means a billing dispute or service call in which a subscriber
is notifying Grantee of an outage and/or degradation in picture quality.
means the acquisition of sufficient dominance to determine
the operational and financial policies of the Company, including disposition
of its assets. As used herein "Control" or "Controlling
Interest" may be held simultaneously by more than one person
or group of persons. A rebuttable presumption that a transfer of Control
has occurred shall arise upon the acquisition or accumulation by any
person or group of persons acting in concert of the beneficial ownership,
directly or indirectly, of over 25% of any of the voting shares of
stock of the Grantee.
means a device which converts signals from one frequency
to another.
means a channel transmitted from the headend to a subscriber.
means the cable and related equipment connecting the system's
plant to equipment at the subscriber's premises.
means any non commercial channel where educational institutions
are the primary designated programmers.
means the Federal Communications Commission or its designated
representative(s)
means a written legal undertaking or action of the Grantor
which awards permission to a specific named person or entity to use
the streets and public ways for the purpose of installing, operating
and maintaining a Cable Communications System.
means any non commercial channel where local government agencies
are the primary designated programmers.
means the entity to which a franchise is granted for the
construction, operation, maintenance, and reconstruction of a Cable
Communications System and the lawful successors, transferees, or assignees
of said entity.
means the entity establishing this Chapter for territory
within its present and future jurisdiction, its elected governing
body, and/or such representative person or entity as it may designate
to act on cable communication matters in its behalf.
means the annual total monies or revenues, actually received
by the Grantee related to, or stemming from, any Indian Wells operations,
programming, channel leasing, advertising, interconnection or retransmission
of signals to/from other cable systems, without exclusion for any
amounts paid to Grantor as franchise fees or otherwise and except
for taxes imposed directly upon subscribers and collected by the Grantee
on behalf of taxing authorities.
means that central portion(s) of the system where signals
are introduced into and received from the balance of the system.
means a system or portion of a system intended primarily
to service non-residential subscribers.
means any channel leased pursuant to Section 612 of the Cable
Act.
means any channel where the Grantee is the primary designated
programmer.
means observing or receiving a signal, or the absence of
a signal, where the observer is neither the sending nor receiving
party and is not authorized by the sending and/or receiving party
to observe said signal, whether the signal is observed or received
by visual, electronic, or any other means whatsoever.
means a signal that is not involved in over the air broadcast
for general public reception.
means a channel which shall not be sold or leased for profit
and/or upon which advertising shall not be sold; provided, however,
nothing herein shall prevent or limit the solicitation of funds by
way of on-camera promotions, underwritings, or otherwise to be used
to offset the costs of operating said channel.
means any channel that can be received by all subscribers,
without the use of special equipment not normally possessed by, or
available to, anyone who may become a subscriber.
means signals for which there is a fee or charge to users
on a per channel or per program basis; provided, however, the sale
or lease of studio facilities, equipment, and/or tapes to local users
shall not be deemed pay or premium services.
means a Public, Education or Government Channel.
means any individual, or any association, firm, partnership,
joint venture, corporation, or other legally recognized entity, whether
for profit or not for profit, but shall not mean the City.
means the transmitting medium and related equipment which
transmits signals between the headend and subscribers, excluding drops.
means any channel carrying material available in intelligible
form only to subscribers provided with special equipment to receive
such signals and render them intelligible.
means the information content of a signal and the act or
process of creating such content, whether that content is intended
to be pictures and sound, sound only, or any other form of information
whatsoever.
means any person or entity who or which provides program
material or information for transmission by means of a system.
means all property owned "or leased within the franchise
area by Grantee in the conduct of its system business under a franchise
granted hereunder.
means any channel for which any member of the general public
or any community organization may provide non commercial programming
on a non discriminatory basis.
means any person residing in the franchised area or as otherwise
defined by applicable law.
means a home, mobile home, condominium, apartment, cooperative
unit and any other individual dwelling unit.
means that portion of the Cable Communications System connected
to residential dwelling units within the City.
means cable service delivered to subscriber on the residential
network.
means a subscriber who receives a service in a dwelling unit,
and whose service is not utilized in a business, trade or profession.
means any elementary, secondary or post secondary educational
institution, public or private.
means any section, subsection, or provision of this Chapter,
or of a franchise hereunder.
means a complete disruption in cable service or a complete
disruption in any channel thereof.
means any activity or function associated with the production
or distribution of any service over the system, including, without
limitation, advertising sales, use of studio or other facilities or
equipment, production services, billing, audience promotion or installation
or lease of equipment.
shall mean as defined in the Cable Act.
means the surface and the space above and below any public
street, sidewalk, alley, or other public way or right-of-way of any
type whatsoever.
means any person or other entity electing to subscribe to,
for any purpose, a service provided by Grantee by means of or in connection
with its cable system.
means a discrete place where system services are used, such
as a residence, apartment, office, store, etc.
is a channel transmitted from a subscriber or user's
location to the headend.
means any person or entity who either receives services from
a cable system or who accomplishes any purpose by, in part or in whole,
transmitting or receiving information via a cable system, or who creates
programming for that purpose, or who receives and uses programming.
means a specific year or part of a year referred to, or a
full calendar year.
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Terms not defined. Words, terms, or phrases not defined herein
shall first be defined as in the Cable Act and second mean their special
meanings or connotations in any industry, business, trade or profession
where they commonly carry such special meanings. In the event such
special meanings are not common, they shall mean their standard definitions
as set forth in commonly used and accepted dictionaries of the English
language.
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(Ord. 341 Exhibit "A,"
1994)
(a)
Authority
to Grant Franchise. The Grantor may grant a franchise to any person
who offers to provide a system under and pursuant to this Chapter.
(b)
Form.
A franchise may, at Grantor's sole option, take the form of
an ordinance, license, permit, contract, agreement, resolution or
any other form elected by Grantor; provided that the form, but not
necessarily the substance or content, of all franchises shall be the
same for all Grantees.
(c)
Grants
Not Required. Consistent with applicable State and Federal law, no
provision of this Chapter shall require the granting of a franchise
when, in the opinion of the Grantor, it is in the public interest
not to do so.
(d)
Purpose.
The purpose of a franchise shall be to identify and authorize its
specific Grantee and to identify and specify those terms, conditions,
definitions, itemizations, specifications and other particulars of
the agreement between the Grantor and Grantee which it represents.
In so doing a franchise may clarify, extend and interpret the provisions
of this Chapter. Where a franchise and this Ordinance conflict both
shall be liberally interpreted to achieve a common meaning or requirement.
In the event this is not possible within reasonable limits, the franchise
shall prevail.
(e)
Intentionally
Omitted.
(f)
Compliance
with Law. Neither this Chapter nor a franchise granted under it relieves
Grantee of any requirement of Grantor or of any ordinance, rule, regulation,
or specification of Grantor now or hereafter in effect, including,
but not limited to, the payment of all normal permit and inspection
fees so long as said ordinance, rules, regulations or specifications
do not materially conflict with or alter the express terms of this
Chapter and the franchise.
(g)
Franchise
Non-Exclusive. Grantor may, at its option, grant one or more franchises
to construct, operate, maintain, and reconstruct a Cable Communications
System. Said franchises shall constitute both a privilege and an obligation
to provide the system and services required by this Chapter and the
Franchise.
(h)
Limitation.
No privilege shall be granted or conferred by a franchise except those
specifically prescribed herein.
(i)
Duration.
The term of any franchise, and all rights, privileges, obligations
and restrictions pertaining thereto shall be specified in the franchise
agreement. The effective date of any franchise shall be as specified
in the Franchise.
(j)
Status.
Any franchise granted shall be non exclusive. The Grantor specifically
reserves the right to grant, at any time, such additional franchises
as it deems appropriate.
(k)
Use
of Public Streets and Ways. For the purposes of operating and maintaining
a Cable Communications System in the franchised area, a Grantee may
place and maintain within the public rights-of-way such property and
equipment as are necessary and appurtenant to the operation of the
Cable Communications System. Prior to construction or alteration of
plant in public rights-of-way, the Grantee shall apply for and receive
all necessary permits.
(l)
Use
of Other Utilities. Any person or entity who provides a system or
services as defined herein shall be deemed a Grantee and shall not
do so except in accordance with a franchise granted hereunder. If
such Grantee uses distribution channels furnished by a telephone company
or other public utility, said Grantee shall be required to comply
with all of the provisions hereof as a "Licensee," and
the term "Grantee" herein shall include "Licensee"
in its meaning.
(m)
Non-Transferable.
Except for transfers between and among affiliated persons of Grantee,
the franchise shall not be sublet or assigned, nor shall any of the
rights or privileges therein granted or authorized be leased, assigned,
sold or transferred, either in whole or in part, nor shall title thereto,
either legal or equitable, or any right, interest or property therein,
pass to or vest in any person, except the Grantee, either by act of
the Grantee or by operation of law, without the prior written consent
of the Grantor, which consent shall not be unreasonably withheld.
The granting of such consent shall not render unnecessary any subsequent
consent.
(n)
Change
in Control and Management Contracts.
(1)
The Grantee shall promptly notify Grantor of any proposed change
in control of the Grantee. Except for transfers between and among
affiliated persons such change in control shall make the franchise
null and void unless and until the Grantor shall have consented thereto,
which consent shall not be unreasonably withheld. The Grantor may
condition said transfer upon reasonable terms and conditions.
(2)
The Grantee shall notify the Grantor in writing at least 60 days
prior to entering into a management contract for the management of
the cable system or changing the entity which possesses a management
contract for the management of the cable system. The consent of the
Grantor, which consent shall not be unreasonably withheld, shall not
be required for entering into a management contract or changing the
managing entity so long as the new managing entity (i) is an affiliated
Person, or (ii) is an experienced cable television operator, the management
of which has sufficient experience in cable television operations
so as to possess the expertise to manage the system, has technical
experience in building and maintaining a Cable System, is deemed financially
solvent by possessing a positive new worth, possesses a proven track
record in the areas of customer service response and system quality
equal or better than that of the Grantee, and has legal experience
in cable television operations. In the event of a dispute over interpretation
of these qualifications, the Grantor and Grantee reserve the right
to seek a judicial determination as to whether the new managing entity
satisfies the qualifications set forth in this Section.
(o)
Sales
Notice. Except as provided in preemptive law, the Grantee, at least
90 days prior to any franchise transfer or change in control as heretofore
described, shall file with the Grantor a Notice of Intent to enter
into said transfer and then file a Notice of Closing within 90 days
of closing.
(p)
Sales
Approval. Every such transfer or change in control as heretofore described,
whether voluntary or involuntary, shall be deemed void and of no effect
unless Grantor has given written approval by resolution of the City
Council.
(q)
Violation.
If the Grantee shall violate this Section, this Franchise shall terminate
subject to all applicable due process safeguards.
(Ord. 341 Exhibit "A,"
1994)
(a)
Reservation.
There is hereby reserved to Grantor every right it may have in relation
to its power of eminent domain over Grantor's franchise and
property.
(b)
Non-Waiver
or Bar. Neither the granting of any franchise, nor any provisions
hereof, shall constitute a waiver or bar to the exercise of any governmental
right or power by Grantor.
(c)
Delegation
of Powers. Any right or power in, or duty retained by or imposed upon
Grantor, or any commission, officer, employee, department, or board
of Grantor, may be assigned or transferred by Grantor to any officer,
employee, department or board of Grantor.
(d)
Right
of Inspection of Construction. The Grantor shall have the right to
visually inspect all construction or installation or other physical
work performed by Grantee in connection with the Franchise, and to
make such tests as it shall find necessary to ensure compliance with
the terms of the Franchise and other pertinent provisions of law,
so long as Grantee is given reasonable notice, and said testing does
not unreasonably interfere with Grantee's operations and an
employee of Grantee is present at said testing.
(e)
Right
to Removal of Property. Consistent with applicable law, at the expiration
of the term for which the franchise is granted, or upon its lawful
revocation, expiration, or termination, the Grantor shall have the
right to require the Grantee to remove, at Grantee's expense,
all portions of its System and any other property from all streets
and public ways within the franchise area within a reasonable period
of time.
(f)
Right
of Intervention. The Grantor shall have the right of intervention
in any suit, proceeding or other judicial or administrative proceeding
in which the Grantor has any material interest, to which the Grantee
is party, and the Grantee shall not oppose such intervention by the
Grantor.
(g)
Place
of Inspection. The Grantor shall have the right to inspect and receive
copies of all relevant information that is reasonably necessary for
the exercise of Grantor's regulatory authority upon reasonable
notice on Grantee's local premises at any time during normal
business hours, and any Grantee records kept at another place shall,
within 10 days of Grantor's request be made available at Grantee's
premises within Riverside County for Grantor's inspection and/or
copying, so long as said inspection does not unreasonably interfere
with Grantee's operations.
(Ord. 341 Exhibit "A,"
1994)
(a)
Discriminatory
Practices Prohibited. The Grantee shall not deny cable television
service or otherwise discriminate against subscribers, or others on
the basis of race, color, religion, physically handicapped, marital
status, national origin, sex, or age. The Grantee shall strictly adhere
to the equal employment opportunity requirements of federal, State
or local governments and shall comply with all applicable laws and
executive and administrative orders relating to non discrimination.
(b)
Television
Sets. The Grantee shall not directly do any of the following acts
in the jurisdiction of Grantor:
(1)
Engage in the business of selling at retail, leasing, renting, repairing
or servicing of television sets or radios;
(2)
Solicit, refer or cause or permit the solicitation or referral of
any subscriber to persons engaged in any business herein prohibited
to be engaged in by Grantee; provided, however, that the above provisions
of this Section shall not apply to modifications made to permit two
way communications.
(c)
Tapping
and Monitoring. The Grantee shall not tap or monitor or permit any
other person controlled by Grantee to tap or monitor any cable, line,
signal input device or subscriber outlet or receiver for any purpose
whatsoever without the express written consent of the subscriber or
a court order therefor; provided, however, that the Grantee shall
be entitled to conduct system wide or individually addressed "sweeps"
for the purpose of verifying system integrity, controlling return
path transmission, or checking for unauthorized connections to the
cable television system or service levels or billing for services.
(d)
Data
Collection.
(1)
Except for its own internal use, the Grantee shall not permit its
system to be used for data collection purposes, nor shall it otherwise
collect data which would reveal the commercial product or other preferences
or opinions of individual subscribers, members of their families,
or their guests, licensees or employees, unless affirmatively authorized
in writing by the Subscriber.
(2)
In any event, the Grantee shall not reveal or permit the release
or sale of data on individual subscribers; but may reveal or permit
the release or sale of aggregate data only.
(e)
Revealing
Subscriber Preferences.
(1)
Grantee shall not reveal individual subscriber preferences, viewing
habits, beliefs, philosophy, creeds or religious beliefs to any unaffiliated
third person, firm, agency, governmental unit or investigating agency
except for directly cable related purposes, without court authority
or prior written consent of the subscriber.
(2)
Such written consent, if given, shall be limited to a period of time
not to exceed one year.
(3)
The Grantee shall not condition the delivery or receipt of cable
services to any subscriber on any such consent.
(4)
Such a subscriber may revoke without penalty or cost any consent
previously made by delivering to the Grantee in writing a substantial
indication of his intent to so revoke.
(f)
Revealing
Subscriber Lists. The Grantee shall not reveal, or sell, or permit
the release or sale of its subscriber list, or any part thereof; provided
that Grantee may use its subscriber list as necessary for the construction,
marketing, and maintenance of the Grantee's services and facilities
authorized by a Franchise, and the concomitant billing of subscribers
for said services.
(g)
Other Persons Affected. The prohibitions contained in Sections 5.16.050(a) and 5.16.050(c) to 5.16.050(g) inclusive of this Section 5.16.030 shall extend and apply to all of the foregoing as well as to the Grantee:
(1)
Officers, directors, employees and agents of the Grantee;
(2)
General and Limited Partners of the Grantee;
(3)
Any person or combination of persons owning holding or controlling
5% or more of any corporate stock or other ownership interest of the
Grantee;
(4)
Any affiliated or subsidiary entity owned or controlled by Grantee,
or in which any officer, director, stockholder, general or limited
partner or person or group of persons owning, holding or controlling
any ownership interest in the Grantee, shall own, hold or control
5% or more of any corporate stock or other ownership interest; and
(5)
Any person, firm or corporation acting or serving in the capacity
of holding or controlling company of the Grantee.
(h)
Subscriber
Bill of Rights. Grantee shall provide, at the time of initial connection
and annually thereafter to all subscribers a notice, or relevant portion
of an integrated notice, in a form provided to Grantor at least 30
days prior to use by Grantee delineating and describing, in clear
and understandable language, the consumer rights granted herein and
in other applicable law.
(i)
Notice
to New Subscribers. Before providing cable television service to any
subscriber, Grantee shall provide a written notice to the subscriber
substantially as follows:
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"The City of Indian Wells requires that we provide the
following notice: Subscriber is hereby notified that services provided
make use of public rights-of-way whose continued use is not guaranteed.
If use is denied for any reason, [insert name of Grantee] will make
every reasonable effort to continue service. But, by accepting service,
subscriber agrees to make no claim or undertake any action against
the Grantor, its officers, commissions, or employees if service is
interrupted or discontinued. In the event of unresolved disputes between
subscriber and [insert name of Grantee], subscriber may register a
complaint with the Grantor."
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(j)
Complaint
Advice. Grantor may require that Grantee advise each subscriber as
may be set forth in the franchise that the Grantor's representative
is the official to whom complaints of poor service should be made
if such complaints of poor service are not resolved by Grantee to
the satisfaction of each subscriber.
(Ord. 341 Exhibit "A,"
1994)
(a)
Payments
to the Grantor.
(1)
As compensation for any franchise to be granted, and in consideration
of permission to use the streets and public ways of Grantor for the
construction, operation, maintenance, and reconstruction of a Cable
Communications System, the Grantee shall pay to the Grantor such amounts
as specified in the franchise.
(2)
Payments due the Grantor under this provision shall be computed quarterly
for the succeeding quarter, and shall be paid within 30 days of the
close of each calendar quarter. The payment shall be accompanied by
a report, on a form to be provided by Grantor, showing the basis for
the computation and such other relevant facts as may be reasonably
required by the Grantor to determine the accuracy of a said payment.
(3)
In the event that any franchise payment or recomputed amount is not
made on or before the dates specified herein, Grantee shall pay as
additional compensation the sum of the following:
(i)
An interest charge, computed from such due date, at the annual rate
equal to the prevailing commercial prime interest rate in effect upon
the due date.
(ii)
A sum of money equal to 10% for each month or part thereof of
delay beyond the tenth (10th) day beyond which said payment is due
which sum shall also bear interest from the due date at an annual
rate equal to the prevailing commercial prime interest rate in effect
upon the due date.
(b)
Security
Fund.
(1)
Within 30 days after the effective date of the Franchise, the Grantee
shall deposit into a bank account established by the Grantor, and
maintain on deposit through the term of the franchise, a sum specified
in the franchise as security for the faithful performance by it of
all of the provisions of the franchise, and compliance with this ordinance,
and compliance with all orders, permits and directions of any agency
of the Grantor having jurisdiction over its acts or defaults, and
the payment by the Grantee of any claims, fees, liens, taxes due the
Grantor which arise by reason of the construction, operation or maintenance
of the system.
(2)
Except as provided in the Franchise Agreement, if the Grantee fails,
after 20 days notice to pay to the Grantor any fees due and unpaid,
or fails to repay within such 20 days, any damages, costs or expenses
which the Grantor shall be compelled to pay by reason of any act or
default of the Grantee in connection with its franchise; or fails,
after 30 days notice of such failure to comply with any provision
of the franchise which the Grantor reasonably determines can be remedied
by an expenditure of the security, the Grantor may immediately withdraw
the amount thereof, with interest and any liquidated damages, from
the security fund. Upon such withdrawal, the Grantor shall notify
the Grantee of the amount and the date thereof.
(3)
Within 30 days after notice to it that any amount has been withdrawn
by Grantor from the security fund, the Grantee shall deposit a sum
of money sufficient to restore such security fund to the original
amount.
(4)
Grantee shall be entitled to the return of such security fund, or
portion thereof, with interest, as remains on deposit at the expiration
of the franchise, or its termination, once all amounts due to the
Grantor have been paid.
(5)
The rights reserved to the Grantor with respect to the security fund
are in addition to all other rights of the Grantor and no action,
proceeding or exercise of a right with respect to such security fund
shall affect any other right the Grantor may have.
(c)
Faithful
Performance Bond. Within 30 days after the effective date of the Franchise,
the Grantee shall furnish proof of the posting of a faithful performance
bond in favor of the Grantor, with surety approved by the Grantor
in the sum specified in the Franchise conditioned that the Grantee
shall well and truly observe, fulfill, and perform each term and condition
of the franchise, provided, however, that such bond shall not be required
upon certification by Grantor of completion of construction of Grantee's
cable system. As defined in the Franchise Agreement, during the course
of construction, the amount of the bond may from time to time be reduced
as provided in the Franchise. Written evidence of payment of premiums
shall be filed and maintained with the Grantor.
(d)
Letter
of Credit.
(1)
At the option of the Grantor, it may allow, in lieu of Security Fund
and/or Faithful Performance Bond, an irrevocable letter of credit,
issued by a bank reasonably approved by the Grantor, in the amount
specified in the Franchise. Said letter of credit shall incorporate
wording approved by the Grantor enabling it to draw such sums from
time to time as the Grantor may find necessary to satisfy any defaults
of Grantee or to meet any payments due Grantor under or in connection
with Grantee's franchise. Said letter of credit shall further
provide for 60 days written notice by certified mail by its issuer
to Grantor of any pending expiration or cancellation, or other language
acceptable to the City Attorney, and said notice shall, unless Grantee
provides a substitute letter of credit from a bank and in a form reasonably
approved by the City Attorney within 30 days of said notice, constitute
a permitted reason under the original or substitute Letter of Credit
for the Grantor to draw the full sum to be held in its own accounts
until such letter shall be re established in good and satisfactory
form to Grantor.
(2)
If Grantor shall require such a letter of credit, Grantee shall pay
all fees or other charges required to keep it in force and shall,
within 30 days of any draw by Grantor, restore its face value to the
original amount.
(3)
All provisions herein applying to bonds or security funds shall also
apply to letters of credit.
(Ord. 341 Exhibit "A,"
1994)
(a)
Public
Usage of the System. To the extent specified in the Franchise Agreement,
the Grantor may utilize a portion of the cable system capacity, and
associated facilities and resources, to develop and provide cable
services that will be in the public interest. In furtherance of this
purpose, the Grantor may establish a non-profit or cooperative corporation,
and adopt by laws, to receive and allocate facilities, support funds
and other considerations provided by the Grantee, and/or others. Such
a public corporation, if established, may be delegated the following
responsibilities:
(1)
Receive, and utilize or reallocate for utilization, channel capacity,
facilities, funding and other support provided specifically for public
usage of the cable system.
(2)
Review the status and progress of each service developed for public
benefit.
(3)
Report to the Grantor annually on the utilization of resources, the
new public services developed and the benefits achieved for the Grantor
and its residents. Grantor shall provide a copy of said report to
Grantee.
(4)
Reallocate resources on a periodic basis to conform with changing
priorities and public needs.
(b)
Grantee
Support for Local Cable System Usage. Grantee shall provide to the
Grantor or the Cable Usage Corporation, at Grantor's election,
equipment, facilities, and channel capacity as provided in the Franchise.
(Ord. 341 Exhibit "A,"
1994)
(a)
Information
to the Public. Grantee shall annually poll subscribers to determine
subscriber viewing preferences for services and/or programs not currently
offered by Grantee. Results of said poll shall be provided to Grantor
within 30 days of receipt by Grantee.
(b)
Services
to be Provided. A franchised system shall provide, as a minimum, the
services and broad programming categories listed in the Franchise
Agreement.
(c)
Changes
in Services. Grantee shall inform telephonically or in writing the
Grantor at least 45 days and subscribers at least 30 days in advance
of making any change, deletion, reduction or retiring of a service,
except for changes not known sufficiently in advance by Grantee and
not under Grantee control.
(d)
Non-Discrimination.
Grantee shall not discriminate between subscribers within one type
or class in the availability of services at either standard or differential
rates according to published rate schedules. No charges, except for
City-wide special promotions, may be made for services except as listed
in published schedules which are available to inspection by anyone
at Grantee's office, quoted by Grantee on the telephone, and
displayed or communicated to all potential subscribers.
(e)
Prepayment.
Upon completion of system construction and/or system reconstruction,
Grantee may, at its option, charge subscribers for services no more
than one month in advance unless an individual subscriber requests
a longer period. Bills may be due and payable upon mailing but shall
not be delinquent, and no late charge penalties shall be assessed,
until the later of: (1) 30 days from the bill date; or (2) service
has actually been provided for the billed period. All bills and billing
Statements shall clearly indicate the billing period, the actual due
date, and the delinquent or late penalty or assessment, if any.
(f)
Disconnect
for Cause. Grantee may disconnect a subscriber only for cause, which
shall be limited to:
(g)
Reconnection.
Grantee shall, upon subscriber's written request, reconnect
service which has been disconnected for payment delinquency when payment
has removed the delinquency. Grantee shall not be required to make
more than three reconnections for the same subscriber if the disconnections
involved were caused by payment delinquency within the past 24 months.
(h)
Installations.
(1)
Grantee shall promptly provide and maintain service to the residential,
commercial, and industrial structures as provided in the Franchise
Agreement, in the service area as defined in the Franchise Agreement,
upon request of the lawful occupant or owner.
(2)
In the case of a new drop, Grantee shall advise each subscriber that
he has the right to require his installation be done over any route
on his property, and in any manner he may elect which is technically
feasible and consistent with proper and usual construction practices.
Grantee may, if it so elects, require that any such request be made
in writing. If the subscriber requests installation other than a standard
installation, then the subscriber may be required to pay a standard
installation fee plus an additional fee.
(3)
For purposes of this subscription, a standard installation shall
include installation of drop cable with fittings up to one hundred
and fifty feet (150') from the CATV distribution system measured
along the cable from the center line of the street or utility easement
through the house wall or at the customer's option through the
floor from a house vent or crawl space directly to the customer's
television set with five feet (5') of cable from the wall or
floor entry to the TV set. Also included as part of a standard installation
is the grounding cable, fine tuning of the television set and the
provision of the appropriate literature.
(i)
Converters/Terminals.
At such time as a converter or terminal becomes necessary for subscribers
to have access to all services on its system, Grantee shall make them
available to subscribers.
(1)
Grantee shall be responsible for maintenance and repair of all equipment
owned by Grantee and may replace it as he may from time to time elect,
except that subscriber shall be responsible for loss of or damage
to any such device while in his possession.
(2)
Upon termination or cancellation of subscriber's service, subscriber
shall within five business days return Grantee's property to
Grantee in the same condition as received, reasonable wear and tear
excepted.
(3)
Grantee may apply the security deposit against any sum due from subscriber
for loss of or damage to such converter exceeding reasonable wear
and tear. In the event that no security deposit has been required,
the Grantee may charge the subscriber for any such damage exceeding
reasonable wear and tear.
(4)
If Grantee has no claim against the deposit, Grantee shall return
it, or the balance, to the subscriber.
(j)
Non-Standard
Installations. For each non-standard drop installed not needed for
service connection, the Grantee may charge the subscriber in excess
of that for a standard drop. Grantee shall provide each subscriber
a written quotation of all charges prior to installation and obtain
subscriber's written authorization in advance for all non-standard
drop charges.
(Ord. 341 Exhibit "A,"
1994)
(a)
System
Construction. The system shall be constructed in accordance with the
provisions of the Franchise Agreement.
(b)
Construction
Components and Techniques. Construction components and techniques
shall be in accordance with the Franchise and all applicable law.
(c)
Technical
and Performance Standards. Consistent with applicable law, system
technical and performance standards shall be in accordance with the
Franchise.
(d)
Construction
Codes. The Grantee shall strictly adhere to all building and zoning
codes currently or hereafter in force and obtain all necessary permits.
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 property by any
person. In the event of such interference, the Grantor may require
the removal of the Grantee's lines, cables, and appurtenances
from the property in question. Grantee shall give at least a 48 hour
advance notice to all property owners and the Grantor prior to installing
any aboveground and underground structures upon easements located
on private property. Grantor shall not modify its construction requirements
subsequent to the completion of construction so as to require reconstruction
or retrofit unless the public health and safety so requires.
(f)
Geographical
Coverage. The Grantee shall design and construct the system to have
the capability to service every residential structure within the service
area of the franchise and any annexations thereto, as defined and
provided by the Franchise Agreement, with any exceptions requiring
specific Grantor approval. Service shall be provided to subscribers
in accordance with the schedules and policies specified in the franchise
agreement.
(g)
Provision
of Service. After service has been established for any area, the Grantee
shall provide service to any requesting subscriber within that area
within times set forth in the Franchise agreement.
(h)
Construction
Default. Upon the failure, refusal or neglect of Grantee to cause
any repair work to comply with the terms of the construction permit,
Grantor may (but shall not be required to) cause such work to be completed
in whole or in part, and upon so doing shall submit to Grantee itemized
Statement of costs thereof. Grantee shall be given reasonable notice
of Grantor's intent to exercise this power and 15 days to cure
thereafter. Grantee shall, within 30 days of billing, pay to Grantor
the actual costs thereof.
(i)
Vacation
or Abandonment. In the event any street, alley, public highway or
portion thereof used by the Grantee shall be vacated by the Grantor,
or the use thereof discontinued by the Grantee, upon reasonable notice,
the Grantee shall forthwith remove its facilities therefrom unless
specifically permitted to continue the same, and on the removal thereof
restore, repair or reconstruct the area where such removal has occurred,
to such condition as may be required by the Grantor not in excess
of the condition prior to removal. In the event of failure, neglect
or refusal of the Grantee, after 30 days' notice by the Grantor
to do such work, Grantor may cause it to be done, and the cost thereof
shall be paid by the Grantee within 30 days and collection may be
made by Grantor.
(j)
Abandonment
in Place. Grantor may, upon written application by Grantee, approve
the abandonment of any property in place by Grantee, under such terms
and conditions as Grantor may approve. Upon Grantor approved abandonment
of any property in place, Grantee shall cause to be executed, acknowledged,
and delivered to Grantor such instruments as Grantor shall prescribe
and approve, transferring and conveying the ownership of such property
to Grantor.
(k)
Removal
of System Facilities. In the event that Grantee's plant is deactivated
for a continuous period of 30 days except for reasons outside Grantee's
control, without prior written notice to and approval by Grantor then
Grantee shall, at Grantor's option, and at the expense of Grantee
and at no expense to Grantor, and upon demand of Grantor, promptly
remove from any streets or other area all property of Grantee, and
Grantee shall promptly restore the area from which such property has
been removed to its condition prior to removal, provided that Grantee
shall not be required to remove conduit from underground, where Grantor
may determine no damage to the surface of any structures may result
from such non removal.
(l)
Movement
of Facilities. In the event it is necessary to temporarily move or
remove any of the Grantee's property at Grantor's direction
for a public purpose in order lawfully to move a large object, vehicle,
building or other structure, Grantee, upon reasonable notice, shall
move, at the expense of Grantee, its property as may be required to
facilitate such movements. No such movement shall be deemed a taking
of Grantee's property. Nothing herein shall limit the right
of Grantee to seek reimbursement and prepayment from any party other
than Grantor.
(m)
Undergrounding
of Cable. Cables shall be installed underground at Grantee's
cost where all existing utilities are already underground. Previously
installed aerial cable shall be installed underground at Grantee's
pro rata cost in concert with utilities when all such utilities may
convert from aerial to underground construction.
(n)
Facility
Agreements. No Franchise shall relieve Grantee of any obligations
involved in obtaining pole or conduit space from any department of
Grantor, utility company, or from others maintaining utilities in
streets.
(o)
Extension
of Franchise Area. If Grantor elects to grant one or more franchises
hereunder, and if thereafter one or more of the franchises expires
or is otherwise ended, Grantor may, if it so elects, require a remaining
Grantee, or more than one, to extend its system to provide service
to the area served by the ended franchise provided that Grantee shall
not be required to overbuild any existing system. The terms and requirements
of such extension shall not exceed those contained herein or in Grantee's
franchise.
(p)
Repair
of Streets and Public Ways. Any and all streets and public ways disturbed
or damaged by the Grantee or its contractors, during the construction,
operation, maintenance, or reconstruction of the System, shall be
restored within the time frame and limits specified by Grantor or
agent of Grantor, at Grantee's expense, to their prior condition
unless otherwise authorized in writing by Grantor.
(q)
Erection
of Poles Prohibited. The Grantee shall not, without the express written
consent of the Grantor, erect any pole on or along any street or public
way in an existing aerial utility system. If additional poles in an
existing aerial route are required, Grantee shall first negotiate
with the public utility or City for their installation. Any such installation
shall require the advance written approval of the Grantor. Subject
to applicable federal and State law, the Grantee shall negotiate the
lease of pole space and facilities from the existing pole owners for
all aerial construction, under mutually acceptable terms and conditions.
(r)
Trimming
of Trees. Grantee may cut or trim any trees in any street, alley,
or public highway if said tree interferes with its Cable System, or
access thereto, but by so doing indemnifies and holds the Grantor
harmless from any and all claims, and defense cost, related to said
acts or omissions.
(s)
Reservations
of Street Rights. Nothing in a Franchise shall prevent the Grantor
from constructing, repairing and/or altering any public work. All
such work shall be done, insofar as practicable, in such manner as
not to unnecessarily obstruct, injure or prevent the free use and
operation of any property of Grantee. However, if any such property
of Grantee shall interfere with the construction, maintenance or repair
of any public improvement, all such property shall be removed or replaced
in such manner as directed by Grantor so that the same shall not interfere
with the said public work, and such removal or replacement shall be
at the expense of the Grantee.
(Ord. 341 Exhibit "A,"
1994)
(a)
Maintenance
and Complaints.
(1)
Location of Cable System Office. The Grantee shall maintain an office
within 10 miles of the City. Grantee's office shall be open
during all usual business hours, but in no case less than 40 hours
per week including at least some evening hours at least one night
per week and/or some weekend hours.
(2)
Cable System Office Hours and Telephone Availability.
(i)
The Grantee will maintain a local, toll -free or collect call telephone
access line which will be available to its subscribers 24 hours a
day, seven days a week. Trained company representatives will be available
to respond to customer telephone inquiries 24 hours per day.
(ii)
Under normal operating conditions, telephone answer time by
a customer representative, including wait time, shall not exceed 30
seconds when the connection is made. If the call needs to be transferred,
transfer time shall not exceed 30 seconds. These standards shall be
met no less than 90% of the time under normal operating conditions
measured on a quarterly basis.
(iii)
The Grantee will not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards
above unless an historical record of complaints indicates a clear
failure to comply.
(iv)
Under normal operating conditions, the subscriber will receive
a busy signal less than 3% of the time.
(v)
Customer service center and bill payment locations will be open at
least during normal business hours and will be conveniently located.
(3)
Installations, Outages, and Service Calls. Under normal operating
conditions, each of the following four standards will be met no less
than 95% of the time measured on a quarterly basis.
(i)
Standard installations will be performed within seven business days
after an order has been placed. "Standard" installations
are those that are located up to 150 feet from the existing distribution
system.
(ii)
Excluding conditions beyond the control of the Grantee, the
Grantee will begin working on "service interruptions"
promptly and in no event later than 24 hours after the interruption
becomes known. The Grantee must begin actions to correct other service
problems the next day after notification of the service problem.
(iii)
The "appointment window" alternatives for installations,
service calls, and other installation activities will be either a
specific time or, at maximum, a four-hour time block during normal
business hours. (The Grantee may schedule service calls and other
installation activities outside of normal business hours for the express
convenience of the Subscriber.)
(iv)
The Grantee may not cancel an appointment with a customer after
the close of business on the business day prior to the scheduled appointment.
(v)
If the Grantee representative is running late for an appointment
with a Subscriber and will not be able to keep the appointment as
scheduled, the customer will be contacted. The appointment will be
rescheduled, as necessary, at a time which is convenient for the Subscriber.
(4)
Communications Between the Grantee and Cable Subscribers.
(i)
The Grantee shall provide written information on each of the following
areas at the time of 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)
Instructions on how to use the cable service;
(E)
Channel positions of programming carried on the system; and,
(F)
Billing and complaint procedures, including the address and
telephone number of the local franchise authority's cable office.
(ii)
Subscribers will be notified of any changes in rates, programming
services or channel positions as soon as possible through announcements
on the Cable System and in writing. 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 significant changes in the other
information required by the preceding paragraph.
(5)
Billing.
(i)
Bills will be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and
premium service charges and equipment charges. Bills will also clearly
delineate all activity during the billing period, including optional
charges, rebates and credits.
(ii)
In case of a billing dispute, the Grantee must respond to a
written complaint from a Subscriber within 30 days.
(7)
Credits. Credits for service will be issued no later than the Subscriber's
next billing cycle following the determination that a credit is warranted.
(8)
FCC Standards. In the event that the FCC deletes or lessens any of its customer service standards, the Grantee shall continue to comply with the customer service standards set forth in Section 5.16.100(a) above. In the event that the FCC amends its customers service standards so as to impose a stricter standard than set forth in Section 5.16.100(a) Grantee shall comply with the stricter FCC standard.
(b)
Procedures
for Handling Complaints. Grantee's complaint handling procedures
shall be designed to accomplish the following:
(1)
Receipt and acknowledgement of any complaint made in person during
normal business hours, or by telephone anytime, within four hours,
regardless of the time the complaint is made.
(2)
Acknowledgement of any complaint received by mail at Grantee's
office within five business days of the date such complaint is received.
(3)
Maintain a record available, subject to State and federal privacy
laws, to Grantor upon Grantor's request, of all complaints,
including the complainants' name, address and telephone number,
the date of its acknowledgement, and information given as to how the
complaint would be resolved, and the action taken.
(4)
Complaints not resolved within 24 hours of receipt shall be listed
in a log which shall give the information above including the detailed
reasons for non-resolution within the 24 hour period.
(5)
Provide complete information to the complainant regarding his ability
to take his complaint to the Grantor's representative if it
is not resolved by the Grantee.
(6)
Grantee shall respond within eight business hours to complaints made
or referred by Grantor.
(c)
Remedies
for Inadequate Performance. The following remedies for loss of service
are hereby established:
(1)
Except for rebuild outages for which Grantee provides prior notification
to Grantor or outages which are the result of unforeseen and unforeseeable
acts of third parties, in the event that any subscriber service is
interrupted for two or more hours between 7:00 p.m. and 11:00 p.m.,
or four consecutive hours at any time, or eight non-consecutive hours
within any 24 hour period, Grantee shall provide a credit of one day
service upon written or oral request of the affected subscriber.
(2)
In the event that the system fails to meet any material technical
performance standards based upon a system-wide test as specified in
the Franchise Agreement, for a full six month period after being put
on written notice from Grantor, for any reason within Grantee's
control, Grantor may require Grantee to reduce all affected subscribers'
fees by 25% until all performance standards are met. The Grantor shall
notify Grantee in writing during the first month of the six month
period that the system has failed to meet performance standards.
(d)
Triennial
Audit of Performance.
(1)
Grantee will provide to Grantor copies of annual FCC proof of performance
results. If and only if periodic technical testing is not conducted
pursuant to the Franchise Agreement, Grantor may require, at its option,
that performance audits of the system be conducted as often as every
three years by an independent technical consultant, selected and employed
by Grantor and at Grantor's sole expense unless said inspection
demonstrates non-compliance with the technical standards contained
within the Franchise Agreement, in which case Grantee shall reimburse
Grantor for such costs. Periodic technical testing, if provided for
in the Franchise Agreement and actually conducted pursuant thereto,
shall eliminate this performance audit.
(2)
Upon completion of a performance audit, the Grantor and Grantee shall
meet to review the performance of the Cable Television System. The
reports required herein regarding subscriber complaints and the records
of performance tests shall be utilized as the basis for review. In
addition, any subscriber may submit complaints during the review meetings,
either orally or in writing, and these shall be considered.
(3)
Within 30 days after the conclusion of the system performance review
meetings, Grantor shall issue findings with respect to any failure
to meet the provisions of this ordinance or the Franchise Agreement.
If such failures are found, Grantor may direct Grantee to correct
them within a reasonable period of time.
(4)
Grantor's and Grantee's participation in this process
shall not waive any rights they may possess under applicable Federal
and/or State law.
(5)
In addition to the Triennial Audit described above, Grantor may conduct
an annual audit of the same magnitude, at its sole expense, when and
if determined necessary or appropriate by Grantor.
(e)
System
Technical Data. Grantee shall maintain and provide to Grantor within
10 days of its request at no cost a complete and up-to-date set of
as-built system maps and drawings upon completion of construction
or reconstruction, equipment specification and maintenance publications,
and signal level diagrams for each active electronic piece of equipment
in the system. As built drawings show all lines and installed equipment,
and tap values and spigots. The scale of maps and drawings shall be
sufficient to show the required details in easily readable form and
size. Technical data at the office shall also include approved pole
applications, details and documentation of satellite and microwave
equipment, mobile radio units, heavy construction vehicles and equipment,
computer systems and their program documentation, video and audio
equipment, and all other equipment and facilities normally used in
the operation of the system.
(f)
Availability
of Technical Data. All technical data shall be available to Grantor's
inspection during normal business hours, upon reasonable notice, and,
in the event of system failure or other operating emergency, at any
time, so long as the provision of said data does not unreasonably
interfere with Grantee's operations.
(g)
Emergency
Repair Capability. It shall be Grantee's responsibility to assure
that its personnel qualified to make repairs are available at all
reasonable times and that they are supplied with keys, equipment location
instructions, and technical information necessary to begin repairs
upon notification of need to maintain or restore continuous service
to the system.
(h)
Customer
Service Standards and Procedures.
(1)
Information to Customers. The Grantee shall, at the time service
is initiated, provide each new customer written information covering:
(i)
The time allowed to pay outstanding bills.
(ii)
Grounds for termination of service.
(iii)
The steps the Grantee must take before terminating service.
(iv)
How the customer can resolve billing disputes.
(v)
The steps necessary to have service reconnected after involuntary
termination.
(vi)
The fact that customer service personnel shall identify themselves
by first names immediately.
(vii)
The fact that customers shall have the right to speak with a
supervisor, and if none is available, a supervisor shall return the
customer call within one working day.
(viii)
The appropriate regulatory authority with whom to register a
complaint and how to contact such authority.
In addition, at least once each calendar year, Grantee shall
notify each customer that information is available upon request concerning
items (i) through (viii) above.
(2)
Written Notices. Written notices of all terms of customer agreement,
of all equipment and fee options, of name, address and telephone number
of company, availability of parental control devices, company practices
with respect to privacy of customer, and other relevant information
shall be made by Grantee to customers before service is begun, at
least once each calendar year and at any time upon the request of
the customer. Disclosure should include but not be limited to: availability
of A/B switches, as may be required by law, any reduced rates for
seniors or other subscribers, company billing and credit practices,
the telephone numbers for customer complaints of the company and the
City, company practices regarding protection of customer privacy.
Notices should be sent to the Grantor of current policies and practices
at least once a year and whenever changes are made.
(3)
Advanced Notices. Except as provided in applicable law, advance notices
of changes, including increases in fees or charges and in channel
lineup of stations or services, shall be sent to Grantor and to subscribers
promptly, that is, at least 45 days to Grantor and 30 days to subscribers
before the changes are made, except for changes not known sufficiently
in advance by company and not under company control. Notices should
be clearly identified and in print large enough to be easily readable.
(4)
Billing.
(i)
Monthly Billing. Except as provided in Section 8.5, bills for service
shall be rendered monthly, unless otherwise authorized by the customer
and the Grantee or unless service is rendered for a period less than
one month. All bills shall contain a telephone number and a mailing
address for billing inquiries or disputes and shall clearly delineate
all charges and the basis for those charges.
(ii)
Disputed Bills. In the event of a dispute between the customer
and the Grantee regarding the bill, the Grantee shall promptly make
such investigation as is required by the particular case and report
the results to the customer. In the event the dispute is not resolved
to the satisfaction of both parties, the Grantee shall inform the
customer of the complaint procedures of the Grantee, including any
written filing required therein. If the customer wishes to obtain
the benefits of this subsection, notification of the disputed bill
must be given to the Grantee in writing within 30 days after the bill
date.
The customer shall not be required to pay the disputed portion
of the bill until the earlier of the following: (1) Resolution of
the dispute, (2) Expiration of the 45 day period beginning on the
date of issuance, provided that the procedures established in 5.16.100(h)(4)(ii)
above have been followed.
Pending resolution of the bill dispute, no termination notices
shall be issued for the disputed portions of the bill, nor shall any
other collection procedures be initiated for said amount. Any such
activity may be interpreted as an attempt to avoid the provisions
of these rules and shall constitute violation of the regulations.
(5)
Referral of Accounts to Collection Agencies.
(i)
Uncollected accounts may be referred to private collection agencies
for appropriate action if the bill has not been paid by the earlier
of (a) 30 days following date of involuntary termination or (b) the
sixty-first (61st) day following the date of issuance of the original
uncollected amount, provided no notification of billing dispute has
been made, or if procedures for resolution of billing disputes have
not been followed as required above.
(ii)
If the account was voluntarily terminated, for any reason, the
account may not be referred to a private collection agency until at
least 30 days following rendering of the final bill. If notification
of a billing dispute is made, all collection procedures shall be delayed
as required in paragraph (c) of subsection (B)(3), "Disputed
Bills." Referral to collection agent shall then occur no sooner
than the sixty first (61st) day following issuance of the original
uncollected amount.
(6)
Termination for Non-Payment. Bills shall not be delinquent earlier
than 30 days from the date of the bill, which must be mailed to subscribers
at least five working days prior to its dated date. Subscribers must
be notified in writing of a proposed disconnection for non-payment
at least 15 days prior to disconnection. Grantee may not assess late
charges of any amount earlier than the thirtieth (30th) day from the
date of the bill.
(i)
Refunds.
When a subscriber voluntarily discontinues service, Grantee shall
refund the unused portion of any advance payments after deducting
any charges currently due through the end of the present billing period
within 30 days of discontinuance of service and upon return of any
Grantee-owned equipment. Unused payment portions shall be the percentage
of time for which subscriber has paid for service and will not receive
it because of his discontinuation of service.
(j)
Annual
Service Quality Review. The Grantor may annually, within 60 days of
the anniversary date of the effective date of the Franchise Agreement,
hold a service quality review, which shall contain one or more hearings
where subscribers are provided the opportunity to express their input,
regarding, among other topics to be selected by the Grantor, compliance
with this Chapter and any Franchise Agreement, service quality, customer
service practices, customer satisfaction, and the general State of
cable television technology. The Grantor shall provide to the Grantee
a written report of said proceeding including its determinations and
recommendations.
(k)
Miscellaneous
Consumer Protection Standards.
(1)
Photo Identification. All field service personnel and contractors
must carry or wear photo identification tags. All service vehicles,
including contract vehicles, must be identifiable as cable operator
vehicles.
(2)
Deposits on Equipment. To the extent consistent with applicable law,
if customers are charged deposits for equipment, these deposits should
be reasonable in relation to the actual cost of the equipment and
interest thereon shall be credited to consumers.
(3)
Service Call Credits. Subscribers shall be informed that they can
request a four hour window during which a technician will respond.
Scheduled appointments may not be canceled or rescheduled by Grantee
after the close of business the day before. A credit or refund of
25% of total monthly fees shall be given to customer unless Grantee
can substantiate that a service person appeared when scheduled; provided
that a credit or refund shall not be required if Grantee cancels or
reschedules the appointment because of unforeseen or emergency circumstances
or a force majeure.
(4)
Communication Between Grantee and Grantor. The Grantee and Grantor
should adopt procedures to insure that each is informed in writing
on a regular schedule or as needed of complaints and resolution of
complaints, time of response to telephone calls and other matters.
The Grantee shall file at such times as specified by Grantor, but
no more than quarterly, summary service reports including information
about such matters as service calls response time, telephone response
data and other appropriate items.
(5)
Consumer Education. The Grantee should engage in a continuous customer
education program regarding scheduling service calls, trouble shooting
and video recorder and converter operation when viewing cable and
regarding other issues that frequent complaints draw to their attention
or the attention of the Grantor.
(6)
Employee Courtesy and Promptness in Response to Requests and Questions.
Grantee shall use its best efforts to hold its employees to a high
standard of courtesy and promptness in their dealings with citizens,
customers and Grantor's representatives both in person and on
the telephone.
(Ord. 341 Exhibit "A,"
1994)
(a)
Use
of Public Streets. From and after the effective date of this ordinance,
it shall be unlawful and punishable as an infraction for any person
to construct, install, or maintain in any public place within Grantor's
territory, or upon any easement owned or controlled by a public utility,
or within any other public property of Grantor, or within any privately
owned area within Grantor's jurisdiction which is not yet, but
is designated as, a proposed public place on a tentative subdivision
map approved by Grantor, any equipment, facilities, or system for
distributing signals or services through a cable television system,
unless a franchise has first been obtained hereunder, and is in full
force and effect.
(b)
Unauthorized
Connections. It shall be unlawful and punishable as an infraction
for any person to make or use any unauthorized connection to, or to
monitor, tap, receive or send any signal or service via a franchised
system, or to enable anyone to receive or use any service, television
or radio signal, picture, program, or sound, or any other signal without
payment to the owner of said system.
(c)
Tampering
with Facilities. It shall be unlawful and punishable as an infraction,
without the consent of the owner, to willfully attach to, tamper with,
modify, remove or injure any physical part of a franchised cable television
system.
(Ord. 341 Exhibit "A,"
1994)
(a)
Revocation.
Consistent with applicable law, in addition to any rights set out
elsewhere in this document, the Grantor reserves the right to revoke
a franchise, subject to notice to Grantee, an opportunity to cure
and the provision of a hearing consistent with due process requirements,
in the event that:
(b)
Forfeiture.
Consistent with applicable law, upon failure of the Grantee to comply
with the material terms of its franchise, the Grantor may by resolution
after an opportunity to cure, and a full hearing affording Grantee
due process, declare a forfeiture, and the Grantee may be required
to forthwith remove its structures or property from the streets and
restore the streets to their prior condition within a reasonable period
of time and upon failure to do so the Grantor may perform the work
and collect all actual costs, including all direct and indirect costs,
thereof from the Grantee. The cost thereof shall be a lien upon all
plant, property, or other assets of the Grantee, within the City limits.
(Ord. 341 Exhibit "A,"
1994)
Subject to applicable law, applicants for a franchise, renewal,
or transfer thereof may submit to the Grantor, or to a designated
agency, written application in a format provided by the Grantor, if
any, at the time and place designated by the Grantor for accepting
applications, and including the designated application fee which may
be an amount which will reimburse the Grantor for all costs incurred
by it in processing said application, said amount shall be set from
time to time by resolution of the City Council. This provision is
deemed procedural and shall not constitute the grant of any right
to the Grantee.
(Ord. 341 Exhibit "A,"
1994)
(a)
General
Requirements. The Grantee shall provide all relevant information and
records in such form as may be required by the Grantor for said records,
as well as copies of any records of Grantee upon request for good
cause, so long as the provision of said documents does not unreasonably
interfere with Grantee's operations and said information is
reasonably necessary for Grantor to carry out its regulatory functions.
(b)
Reports
of Financial and Operating Activity.
(1)
Audited Written Report. No later than 90 days after the close of
Grantee's fiscal year, Grantee shall present an audited written
report to the Grantor which shall include:
(2)
Performance Tests and Compliance Reports. The Grantee shall provide
a written report of any FCC or other performance tests required or
conducted within 30 days of completion thereof. In addition, the Grantee
shall provide reports of the periodic testing procedures established
by the Franchise Agreement, or herein, no later than 30 days after
the completion of tests.
(3)
Additional Reports. The Grantee shall prepare and furnish to the
Grantor in writing at the times and in the form prescribed by Grantor,
such additional reports with respect to its operation, affairs, transactions,
or property, as may be reasonably necessary and appropriate to the
performance of any of the rights, functions or duties of the Grantor,
as specified by Grantor, and for good cause so long as the provision
of said reports does not unreasonably interfere with Grantee's
operations and said information is reasonably necessary for Grantor
to carry out its regulatory functions.
(c)
Communications
and Regulatory Agencies. Upon Grantor's request copies of all
communications between the Grantee and the Federal Communications
Commission or any other agency having jurisdiction in respect to any
matters affecting cable communications operations authorized pursuant
to a franchise, shall be submitted promptly to the Grantor upon receipt
or mailing by Grantee.
(d)
Right
to Audit. The Grantor shall have the right to inspect, examine, or
audit, during normal business hours and upon reasonable notice to
the Grantee, all documents which pertain to the Grantee or any Affiliated
Person with respect to the system, each Service distributed over the
System and each Service Related Activity and which are necessary to
the Grantor's performance of its obligations and/or the Grantor's
enforcement of its rights under the terms of the Franchise; provided,
however, that the City may not exercise said right more frequently
than once in any 12 month period. All such documents shall be made
available at the local office of the Grantee, in order to facilitate
said inspection, examination or audit. All such documents which pertain
to financial matters which may be the subject of an audit by the Grantor
shall be retained by the Grantee for a minimum of five years following
termination of any Franchise Agreement. Access by the Grantor to any
of the documents covered by this Section shall not be denied by the
Grantee on grounds that such documents are alleged by the Grantee
to contain proprietary information. Provided that such proprietary
information shall be kept confidential by Grantor, subject to applicable
law.
Grantor may require written certification by the Grantee's
appropriate directors, officers or other employees with respect to
all documents referred to in this Section.
Any audit conducted by the Grantor pursuant to this Section
shall be conducted at the sole expense of the Grantor and the Grantor
shall prepare a written report containing its findings, a copy of
which shall be mailed to the Grantee; provided, however, that the
Grantee shall reimburse the Grantor for the expense of any such audit
if, as the result of said audit, it is determined that there is a
shortfall of more than 10% in the amount of franchise fees or other
payments which have been made or will be made, by the Grantee to the
Grantor pursuant to the terms of any Franchise.
(Ord. 341 Exhibit "A,"
1994)
(a)
Notice
of Franchise Default. Except as provided in the Franchise Agreement,
prior to formal consideration by Grantor of termination of Grantee's
franchise because of willful or negligent failure to correct a default
attributed to Grantee, Grantor shall make written demand on Grantee
to correct the default alleged. Grantor and Grantee shall expeditiously
meet to discuss the alleged problem, at which time Grantee shall indicate,
in writing, the amount of time necessary to resolve the alleged problem.
During this time period, but in no event fewer than 10 days before
the final date for correction, Grantee may request additional time
to correct the problem and Grantor shall grant said request if it
determines, in the exercise of its discretion, that such time is necessary
due to delays beyond Grantee's control. If the default continues
for a period of 30 days following such deadline for corrections, plus
any extension thereof, franchise termination may be placed on the
next available regular Grantor's meeting agenda. The Grantee
shall be served a written notice of such termination at least 10 days
in advance giving the time and place of the Grantor's meeting.
At its meeting Grantor shall hear Grantee and any person interested
in the matter and shall determine, at that or subsequent meetings,
an appropriate course of action for enforcement or termination of
Grantee's franchise.
(b)
Delegation
of Enforcement Mechanisms. Such liquidated damages as Grantor may
assess against Grantee which do not include loss of franchise may,
at Grantor's option, be determined by an officer or agency of
the Grantor to which it may delegate such administrative considerations
and decisions subject to the criteria contained in this Chapter and
the Franchise Agreement subject to appeal to the City Council.
(Ord. 341 Exhibit "A,"
1994)
(a)
Interconnection
with Systems Under Grantor's Jurisdiction. Upon direction of
Grantor, Grantee shall interconnect the Government Access Channels
of its cable television system with those of other cable television
systems under Grantor's jurisdiction within no more than six
months from the date of order. If Grantee has not negotiated a mutually
agreeable cost allocation formula with those systems with which it
is ordered to interconnect within three months of Grantor's
interconnection order, Grantor may establish said cost allocation
formula and require all Grantees under its jurisdiction to so comply.
(b)
Interconnection
with Systems Outside of Grantor's Jurisdiction. Grantor may
direct Grantee to interconnect some of or all of these same channels
to any or all CATV systems in contiguous areas based on technical
and financial feasibility and agreed to by the other cable television
systems and applicable jurisdiction(s). Interconnection of systems
may be done by direct cable connection, microwave link, satellite
or other appropriate method pursuant to generally accepted industry
standards.
(Ord. 341 Exhibit "A,"
1994)
(a)
Captions.
The section and subsection numbers and captions throughout this Chapter
are intended to facilitate reading and reference. Such numbers and
captions shall not affect the meaning or interpretation of any part
of this ordinance.
(b)
Franchise
References. A franchise which cites, refers to, or otherwise incorporates
this entire Chapter or portions thereof shall be deemed to be a franchise
issued under, subordinate to, and subject to this ordinance. Such
a franchise may employ, as sufficient for citation, reference, or
incorporation the section or subsection number and caption hereof,
followed by a Statement of the detail specification, or requirement
of the franchise pursuant to such reference.
(c)
Filing.
When not otherwise prescribed herein, all matters herein required
to be filed with Grantor shall be filed with the Grantor's official
or agency as designated by Grantor.
(d)
Non-Enforcement
by the Grantor. A Grantee shall not be relieved of its obligation
to comply with any of the provisions of this ordinance, or of its
franchise or any law or regulation, by reason of any failure of the
Grantor to force prompt compliance.
(e)
Continuity of Service. It shall be the right of all Subscribers to receive all available services within the obligations of the Franchise insofar as their financial and other obligations to the Grantee are honored. Except as provided in Section 5.16.080(f) hereof or as reasonably necessary for system maintenance, construction, rebuild, or upgrade activity, Grantee shall not intentionally terminate the ongoing operation of the cable system so as to deny Cable Service to its Subscribers. Because the provision of Cable Service to Subscribers is a unique service, money damages would not be a sufficient remedy for violation of this Section 5.16.170(e). Grantor shall be entitled to equitable relief, including injunctive relief and specific performance, as a remedy for violation of this Section 5.16.170(e). Such remedy shall not be deemed to be the exclusive remedy, but shall be in addition to any other remedy provision for in this Ordinance or the Franchise Agreement or at law or in equity. In addition, violations of this Section 5.16.170(e) shall be considered cause for revocation of the Franchise under Section 5.16.120 of the Chapter; and for violation of this Section 5.16.170(e), Grantor may impose liquidated damages of $6,000 per day pursuant to the procedure for the imposition of liquidated damages set forth in Section 5.16.060(a)(3) of the Franchise Agreement.
(f)
Notices.
All notices and other communications to Grantee shall be addressed
to it at the address at which Grantee conducts its business. All notices
and other communications to Grantor shall be addressed to it at its
published address for receipt of public communications.
(g)
Force
Majeure; Grantee's Inability to Perform. In the event Grantee's
performance of any of the terms, conditions, obligations, or requirements
of this ordinance or any franchise granted hereunder, is prevented
or impaired due to any cause beyond its reasonable control and not
reasonably foreseeable, such inability to perform shall be deemed
to be excused, and no penalties or sanctions shall be imposed as a
result thereof. Such causes beyond Grantee's reasonable control
and not reasonably foreseeable shall include, but not necessarily
be limited to, any acts of God, civil emergencies, labor unrest, strikes,
inability to obtain gratis access to an individual's property,
inability to obtain timely delivery of materials that are not readily
available from industry equipment suppliers that were timely ordered,
and any inability of the Grantee to secure all necessary permissions
or permits to utilize necessary poles or conduits so long as Grantee
utilizes due diligence to timely obtain said permissions or permits.
(h)
Application. All of the provisions of this Chapter shall be applicable only to those franchises, as defined in Section 5.16.030(b) herein, granted or renewed pursuant to this Ordinance or subsequent to the enactment of this Ordinance.
(i)
Severability.
If any provision of this Chapter is determined to be void or invalid
by any administrative or judicial tribunal, said provision shall be
deemed severable and such invalidation shall not invalidate the entirety
of this Ordinance or any other provision thereof.
(Ord. 341 Exhibit "A,"
1994)
Notwithstanding any provision of this Chapter to the contrary,
nothing in this Chapter shall be deemed to require any person or entity
to obtain a franchise issued by the City, to the extent that such
person or entity is authorized to provide cable service or video services
under a cable franchise or video services franchise issued by another
government entity under applicable law, including but not limited
to Section 5800 et seq., of the California Public Utilities Code.
The requirements and provisions of this Chapter shall not apply or
be enforced to the extent that they actually conflict with applicable
State or Federal law.
(Ord. 617 § 1, 2008)
Sections 5.16.200 through 5.16.250 of this Chapter are intended to regulate video service providers holding State video franchises and operating within the City. As of January 1, 2007, the State of California has the sole authority to grant State video franchises pursuant to the Digital Infrastructure and Video Competition Act of 2006 ("Act"). Pursuant to the Act, the City of Indian Wells shall receive a franchise fee from all State video franchise holders operating within the City. Additionally, the City has the responsibility to establish and enforce penalties, consistent with State law, against all State video franchise holders operating within the City for violations of customer service standards, but the Act grants all authority to adopt customer service standards to the State. The Act leaves unchanged the City's authority to regulate the City's current cable franchise in accordance with this Chapter 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.
(Ord. 617 § 1, 2008)
For any State video franchise holder operating within the boundaries
of the City of Indian Wells, there shall be a fee paid to the City
equal to 5% of the gross revenue of that State video franchise holder.
Gross revenue, for the purposes of this Section, shall have the definition
set forth in California Public Utilities Code 5860.
(Ord. 617 § 1, 2008)
Not more than once annually, the City Manager or his or her designee may examine and perform an audit of the business records of all holders of a State video franchise operating within the boundaries of the City of Indian Wells to ensure compliance with Section 5.16.200 of this Code.
(Ord. 617 § 1, 2008)
(a)
Any
holder of a State video franchise operating within the boundaries
of the City of Indian Wells shall comply with all applicable State
and Federal customer service and protection standards pertaining to
the provision of video service. The City Manager, or his or her designee,
shall provide any required notice in advance of enforcing such standards,
including but not limited to the 90 day notice required by 47 CFR
76.309(a), 76.1602(a), 76.1603(a), and 76.1619(c).
(b)
The
City Manager shall monitor the compliance of holders of a State video
franchise operating within the boundaries of the City of Indian Wells
with respect to State and Federal customer service and protection
standards. The City Manager, or his or her designee, shall provide
the State video franchise holder written notice of any material breaches
of applicable customer service standards, and shall allow the State
video franchise holder 30 days from the receipt of the notice to remedy
the specified material breach. Material breaches not remedied within
the 30 day time period will be subject to the following penalties
to be imposed by the City:
(1)
For the first occurrence of a 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 a second 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)
A
holder of a State video franchise operating within the boundaries
of the City of Indian Wells may appeal a penalty assessed by the City
Manager to the City Council within 60 days of the initial assessment.
The City Council shall hear all evidence and relevant testimony and
may uphold, modify or vacate the penalty. The City Council's
decision on the imposition of a penalty shall be final.
(d)
The
City of Indian Wells shall comply with any statutory requirement to
remit all or a portion of collected fine revenue to the State of California,
including but not limited to the requirement in Public Utilities Code
Section 5900(g).
(Ord. 617 § 1, 2008)
(a)
Applicants
for State video franchises, or amendments to existing franchises,
that will authorize the applicant to operate within the boundaries
of the City of Indian Wells must concurrently provide complete copies
to the City of any application or amendments to applications filed
with the Public Utilities Commission. At a minimum, one complete copy
must be provided to the City Manager.
(b)
Within
30 days of receipt of notice of an application for a State video franchise
that will authorize the applicant to operate within Indian Wells,
the City Manager shall provide any appropriate comments to the Public
Utilities Commission regarding an application or an amendment to an
application for a State video franchise.
(Ord. 617 § 1, 2008)
(a)
Any
holder of a State video franchise, or City-issued cable franchise,
operating within the boundaries of the City of Indian Wells, that
proposes to install above-ground facilities in the public right-of-way
shall, no less than 20 days prior to installing such facilities, provide
written notice to the owner of the private or public property (excluding
the public right-of-way) nearest to the proposed facility. For purposes
of this subsection, "above-ground facilities" shall include
only those facilities that are located on the ground or on a base
or pedestal that is on the ground, and shall exclude aerial or pole-mounted
facilities.
(b)
Any franchisee to which this section applies shall provide the City with a copy of the proposed form of notice to be used in compliance with subsection (a), no less than 10 days prior to mailing or delivering the notice. The City may require the franchisee to amend the form of the notice. Once the City has approved the form of notice, the franchisee shall not be required to obtain additional approvals of notice from the City, so long as the franchisee does not materially deviate from the form of notice approved by the City.
(Ord. 617 § 1, 2008)
(a)
At
any time subsequent to the effective date of the ordinance codified
in this chapter, the City Council may, by resolution, establish an
additional fee payable to the City by any State video franchise holder
operating within the boundaries of the City of Indian Wells, equal
to 1% of the gross revenue of that State video franchise holder, which
fee shall be used by the City for public, educational and government
access purposes consistent with State and Federal law. This fee obligation
shall take effect upon the earlier of: (1) the fulfillment of all
obligations to remit cash payments to the City for support of public,
educational, and government access facilities which are contained
within a City-issued cable franchise that was in effect on January
1, 2007, and which remained unsatisfied as of the effective date of
the ordinance codified in this chapter; or (2) the termination by
the holder of a City-issued cable franchise of its franchise as provided
under State law. The intent of this subsection is to comply with the
requirements of subsections (l), (m), and (n) of Section 5870 of the
California Public Utilities Code, and the fee the establishment of
which is authorized in this subsection is intended to be a fee authorized
by subsection (n) of Section 5870.
(b)
Gross revenue, for the purposes of subsection (a) of this Section, shall have the definition set forth in California Public Utilities Code 5860.
(Ord. 617 § 1, 2008)
