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.
"Affiliated person"
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.
"Agency subscriber"
means a subscriber who receives a service in a government or public agency, school, or non profit corporation facility.
"Administrative officer"
means the City Manager or designee.
"Attachment point"
means the point at which Grantee's drop attaches to subscriber owned equipment.
"Basic service"
means the service tier which includes the retransmission of local television broadcast signals.
"Broadcast signal"
means the signal of a broadcast television station licensed by the FCC.
"1984 Cable act or "cable act"
means the Cable Communications Policy Act of 1984.
"1992 Cable act"
means the Cable Television Consumer Protection and Corporation Act of 1992.
"Cable act"
means the 1984 Cable Act and the 1992 Cable Act, as amended.
"Cable communications system" or "system," or "cable television system," "CATV system," or "broadband communications network" or "network"
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.
"Cable service"
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.
"Cable usage corporation" or "CUC"
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.
"Cablecast signal"
means a non-broadcast signal of the Cable Communications System, whether from a live or recorded source.
"Closed circuit" or "institutional service"
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.
"Channel"
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.
"Commercial subscriber"
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.
"Complaint"
means a billing dispute or service call in which a subscriber is notifying Grantee of an outage and/or degradation in picture quality.
"Control" or "controlling interest"
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.
"Converter" or "terminal"
means a device which converts signals from one frequency to another.
"Downstream channel"
means a channel transmitted from the headend to a subscriber.
"Drop"
means the cable and related equipment connecting the system's plant to equipment at the subscriber's premises.
"Education channel"
means any non commercial channel where educational institutions are the primary designated programmers.
"FCC"
means the Federal Communications Commission or its designated representative(s)
"Franchise"
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.
"Government channel"
means any non commercial channel where local government agencies are the primary designated programmers.
"Grantee"
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.
"Grantor"
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.
"Gross annual receipts" or "gross receipts"
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.
"Headend"
means that central portion(s) of the system where signals are introduced into and received from the balance of the system.
"Institutional network" or "institutional system"
means a system or portion of a system intended primarily to service non-residential subscribers.
"Leased channel"
means any channel leased pursuant to Section 612 of the Cable Act.
"Local origination channel"
means any channel where the Grantee is the primary designated programmer.
"Monitoring" or "tapping"
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.
"Non-broadcast signal"
means a signal that is not involved in over the air broadcast for general public reception.
"Non-commercial channel" or "non-commercial"
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.
"Open 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.
"Pay cable" or "pay service," "premium service" or "pay television"
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.
"PEG channel"
means a Public, Education or Government Channel.
"Person"
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.
"Plant"
means the transmitting medium and related equipment which transmits signals between the headend and subscribers, excluding drops.
"Private channel"
means any channel carrying material available in intelligible form only to subscribers provided with special equipment to receive such signals and render them intelligible.
"Program" or "programming"
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.
"Programmer"
means any person or entity who or which provides program material or information for transmission by means of a system.
"Property of grantee"
means all property owned "or leased within the franchise area by Grantee in the conduct of its system business under a franchise granted hereunder.
"Public channel," "community service channel" or "community channel"
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.
"Resident"
means any person residing in the franchised area or as otherwise defined by applicable law.
"Residential dwelling unit"
means a home, mobile home, condominium, apartment, cooperative unit and any other individual dwelling unit.
"Residential network"
means that portion of the Cable Communications System connected to residential dwelling units within the City.
"Residential service"
means cable service delivered to subscriber on the residential network.
"Residential subscriber"
means a subscriber who receives a service in a dwelling unit, and whose service is not utilized in a business, trade or profession.
"School"
means any elementary, secondary or post secondary educational institution, public or private.
"Section"
means any section, subsection, or provision of this Chapter, or of a franchise hereunder.
"Service outage"
means a complete disruption in cable service or a complete disruption in any channel thereof.
"Service related activity"
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.
"Service tier"
shall mean as defined in the Cable Act.
"Streets and public ways"
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.
"Subscriber"
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.
"Unit"
means a discrete place where system services are used, such as a residence, apartment, office, store, etc.
"Upstream channel"
is a channel transmitted from a subscriber or user's location to the headend.
"User(s)"
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.
"Year"
means a specific year or part of a year referred to, or a full calendar year.
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.
(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:
"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."
(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:
(1) 
Payment delinquency in excess of 45 days.
(2) 
Willful or negligent damage to or misappropriation of Grantee property.
(3) 
Monitoring, tapping, or tampering with Grantee's system, signals, or service, including unauthorized reception of signals or service.
(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.
(e) 
System Construction Schedule.
(1) 
Upon request, the Grantee shall begin to offer cable television service no later than the schedule contained in the franchise.
(2) 
Upon request, the Grantee shall provide a monthly construction plan indicating progress schedule and areas of construction.
(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.
(6) 
Refunds. Refund checks will be issued promptly, but no later than either:
(i) 
The Subscriber's next billing cycle following resolution of the request or 30 days, whichever is earlier, or
(ii) 
The return of the equipment supplied by the Grantee if service is terminated.
(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:
(1) 
The Grantee willfully and/or negligently violates any material provision of its franchise.
(2) 
The Grantee's construction schedule is materially delayed as set forth in the franchise and such delays were within the control of Grantee.
(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:
(i) 
A revenue report for all system activity during the previous fiscal year including gross receipts from all sources, and gross subscriber revenues from each service.
(ii) 
A summary of the previous year's activities, including, but not limited to, subscriber totals and new services.
(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)