Editor's note—Ord. No. 99-9(R), § 1, enacted
Oct. 20, 1999, amended Ch. 8 to read as herein set out. Formerly entitled
Community Antenna Television, Ch. 8 had pertained to the same subject
matter and had been derived from Code 1957, §§ 2511—2815,
2821, 2822, 2822.5, 2823—2826, 2831—2833, 2841—2847
and 2851—2853, and Ord. No. 1531, § 1, adopted Aug.
16, 1972; Ord. No. 76-16, § 1, adopted June 2, 1976; Ord.
No. 77-32, § 1, adopted June 1, 1977; Ord. No. 78-28, §§ 1,
2, adopted June 28, 1978; Ord. No. 78-36, § 1, adopted Aug.
16, 1978; Ord. No. 78-38, § 1, adopted Sept. 13, 1978; Ord.
No. 79-40, § 1, adopted Sept. 26, 1979; Ord. No. 85-60,
§ 3, adopted Aug. 21, 1985; Ord. No. 90-33, § 1,
adopted June 20, 1990; Ord. No. 94-5, § 1, adopted Jan.
26, 1994 and Ord. No. 96-25, § 2, 3, adopted July 17, 1996.
Cross reference—City manager to see that franchises are faithfully performed and observed, § 2-52; radio and television interference, 6-253 et seq.; licenses and business regulations generally, Ch. 16; underground utilities, Ch. 30.
(a)
"Additional service"
"Administrative officer"
"Agency subscriber"
"Affiliated person" or "affiliates"
"Basic service" or "basic cable service" or "basic service tier"
"Broadcast signal"
"1984 Cable Act"
"1992 Cable Act"
"Cable Act"
"Cable operator"
"Cable service"
"Cable system" or "cable communications system" or "system"
"Cablecast signal"
"Channel"
"City"
"Closed circuit" or "institutional service"
"Commercial subscriber"
"Complaint"
"Control" or "controlling interest"
"Converter" or "terminal"
"Drop"
"Education channel"
"FCC"
"Franchise"
"Government channel"
"Grantee"
"Gross annual revenue" or "gross annual receipts" or "gross
receipts"
"Headend"
"Institutional network" or "institutional system"
"Lease channel"
"Local origination channel"
"Monitoring" or "tapping"
"Nonbroadcast signal"
"Open channel"
"Pay cable," "pay service," "premium-service" or "pay television"
"PEG channel"
"Person"
"Plant"
"Pole attachment agreement" or "attachment agreement"
"Program" or "programming"
"Programmer"
"Property of grantee"
"Public channel," "access channel," "community service channel"
or "community channel"
"Resident"
"Residential dwelling unit" or "dwelling unit"
"Residential subscriber"
"Service"
"Service area" or "franchise service area"
"Service interruption"
"Service tier" or "tier"
"Streets and public ways"
"Subscriber"
"Telecommunications act"
"Unit"
"User(s)"
For
the purposes of this chapter, the following words, terms, phrases,
and their derivations have the meanings given herein. When not inconsistent
with the context, words used in the present tense include the future
tense, and words in the singular number include the plural number
means any service not included in "basic service" or "institutional
service."
means the city manager or the city manager's designee.
means a subscriber who receives a service in a government
or public agency, school, or nonprofit corporation facility.
means each person who falls into one or more of the following
categories: (i) each person having, directly or indirectly, a controlling
interest in grantee; (ii) each person in which grantee has, directly
or indirectly, a controlling interest; (iii) each officer, director,
general partner, limited partner holding an interest of 5% or more,
joint venturer, or joint venture partner in grantee's cable system
in the city; and (iv) each person, directly or indirectly, controlling,
controlled by, or under common control with grantee; provided that
"affiliated person" excludes the city, any limited partner holding
an interest of less than 5% in the grantee, or any creditor of grantee,
solely by virtue of its status as a creditor, and which is not otherwise
an affiliated person by reason of owning a controlling interest in,
being owned by, or being under common ownership, common management,
or common control with grantee.
means the lowest service tier which includes the retransmission
of local television broadcast signals.
means a signal transmitted over the air to a geographically
dispersed public audience and received by a cable system.
means the Cable Communications Policy Act of 1984.
means the Cable Television Consumer Protection and Competition
Act of 1992.
means the 1984 Cable Act as amended by the 1992 Cable Act
and by the Telecommunications Act of 1996.
means any person or group of persons (i) who provides cable
service over a cable system and, directly or through one or more affiliates,
owns a significant interest in that cable system; or (ii) who otherwise
controls or is responsible for, through any arrangement, the management
and operation of a cable system.
means (i) the one-way transmission to subscribers of video
programming or other programming service; and (ii) subscriber interaction,
if in conjunction with subparagraph (i), which is required for the
selection of or use of such video programming.
means a facility, consisting of a set of closed transmission
paths and associated signal generation reception, and control equipment
that is designed to provide cable service, including video programming,
and which is provided to multiple subscribers within a community;
but this term does not include: (i) a facility that serves only to
retransmit the television signals of one or more television broadcast
stations; (ii) a facility that serves subscribers without using any
public right-of-way; (iii) a facility of a common carrier which is
subject, in whole or in part, to the provisions of Title II of the
Cable Act, except that such facility shall be considered a cable system
(other than for purposes of section 621(c)) to the extent such facility
is used in the transmission of video programming directly to subscribers,
unless the extent of such use is solely to provide interactive on-demand
services; (iv) an open video system that complies with section 653
of the Cable Act; or (v) any facilities of any electric utility used
solely for operating its electric utility systems.
means a non-broadcast signal that originates within the facilities
of the cable system, whether from a live or recorded source.
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 nonstandard video signal or some combination of such video
signals.
means the City of Escondido, California, acting by and through
its elected governing body, or such representative as the governing
body may designate to act on cable matters in its behalf.
means services provided to institutional users on an individual
or collective basis. The information contained in such a service may
or may not be simultaneously available to other system subscribers
or users.
means a subscriber who receives a cable service in a place
other than a residential dwelling unit.
means a billing dispute in which a subscriber notifies grantee
of an outage or degradation in picture quality which is not corrected
during the initial telephone or service call.
means actual working control in whatever manner exercised,
including, without limitation, working control through ownership,
management, debt instruments, or negative control, as the case may
be, of the cable system or the grantee. A rebuttable presumption of
the existence of control or a controlling interest shall arise from
the beneficial ownership, directly or indirectly, by any person or
group of persons acting in concert (other than underwriters during
the period in which they are offering securities to the public) of
20% or more of any person (which person or group of persons is referred
to as "controlling person"), or being a party to a management contract.
means a device which converts signals from one frequency
to another or otherwise processes signals for use by subscribers.
means the cable and related equipment connecting the cable
system's plant to equipment at the subscriber's premises.
means any channel where nonprofit educational institutions
are the primary designated programmers.
means the Federal Communications Commission or its designated
representatives.
means a written legal undertaking or action of the city which
authorizes a specific person to use the city's streets and public
ways for the purpose of installing, operating and maintaining a cable
communications system to provide cable service.
means any channel where local government agencies are the
primary designated programmers, and programming is informational programming
regarding government activities and programs.
means the person to which a franchise is granted for the
construction, operation, maintenance, and reconstruction of a cable
system and the lawful successors, transferees, or assignees of that
person.
means all revenue, as determined in accordance with generally
accepted accounting principles, which is received, directly or indirectly,
by grantee and by each affiliated person from or in connection with
the distribution of any cable service, and any other service which
may, under now or then applicable federal law, be included in the
Cable Act definition for the purpose of calculating and collecting
the maximum allowable franchise fee for operation of the system, whether
or not authorized by any franchise, including, without limitation,
leased or access channel revenues received, directly or indirectly,
from or in connection with the distribution of any cable service.
It is intended that all revenue collected by the grantee, and by each
affiliated person, from the provision of cable service over the system,
whether or not authorized by the franchise, be included in this definition.
Gross annual revenue also specifically includes: (i) the fair market
value of any nonmonetary (i.e., barter) transactions between grantee
and any person, other than an affiliated person, but not less than
the customary prices paid in connection with equivalent transactions;
(ii) the fair market value of any nonmonetary (i.e., barter) transaction
between grantee and any affiliated persons, but not less than the
customary prices paid in connection with equivalent transactions conducted
with persons who are not affiliated persons; and (iii) any revenue
received, as reasonably determined from time to time by the city,
through any means which is intended to have the effect of avoiding
the payment of compensation that would otherwise be paid to the city
for the franchise granted. Gross annual revenue also includes any
bad debts recovered. Gross annual revenue also includes all advertising
revenue which is received directly or indirectly by grantee, any affiliated
person, or any other person from or in connection with the distribution
of any service over the system or the provision of any service-related
activity in connection with the system. Gross annual revenue does
not include: (i) the revenue of any person to the extent that said
revenue is also included in the gross annual revenue of grantee; (ii)
taxes imposed by law on subscribers which grantee is obligated to
collect; and (iii) amounts which must be excluded pursuant to applicable
law.
means that central portion of the system where signals are
introduced into and received from the balance of the system.
means a system or portion of a system intended primarily
to service nonresidential subscribers.
means any channel where someone other than city or grantee
is sold the rights to air programming.
means any channel where the grantee is the primary designated
programmer.
means observing or receiving a signal, where the observer
is neither the sending nor receiving party and is not authorized by
the sending or receiving party to observe said signal, whether the
signal is observed or received by visual, electronic, or any other
means whatsoever.
means a signal that is not involved in over-the-air broadcast
for general public reception.
means any channel that can be received by all subscribers
without the use of special equipment not normally possessed by, or
available to, anyone who may become a subscriber.
means signals for which there is a fee or charge to users
over and above the charge for basic service, including any tiers of
service; provided, however, the sale or lease of studio facilities,
equipment, or tapes to local users shall not be deemed pay or premium
services.
means a public, education or government channel.
means any corporation, partnership, proprietorship, individual,
or organization authorized to do business in the State of California.
means the transmitting medium and related equipment which
transmits signals between the headend and subscribers, including drops.
means any agreement with the city, any other governmental
entity, or any public utility relating to the grantee's use of any
utility poles, ducts, or conduits.
means the information content of a signal and the act or
process of creating such content, whether that content is intended
to be pictures and sound, sound only, or any other form of information
whatsoever.
means any person who provides program material or information
for transmission by means of a system.
means all property owned or leased within the franchise service
area by grantee in the conduct of its system business under a franchise.
means any channel for which members of the public, or any
community organization, may provide non-advertiser supported programming;
provided, however, sponsorship identification fees may be paid and
accepted to further community programming.
means any person residing in the franchise service area,
or as otherwise defined by applicable law.
means a home, mobilehome, condominium, apartment, cooperative
unit, and any other individual dwelling unit.
means a subscriber who receives a service in a dwelling unit.
means any kind of service or type of benefit provided by
grantee, or any group of related benefits obtained or made available
to any person, involving the use of a signal transmitted via a cable
communications system, whether the signal and its content constitute
the entire service or comprise only a part of a service which involves
other elements of any number or kind.
means the entirety of the City of Escondido.
means the loss of picture or sound on one or more cable channels,
as it now or may hereafter exist.
means a category of cable service or other services provided
by a cable operator and for which a separate rate is charged by the
cable operator, other than per channel or per event programming or
legitimate packages of per channel or per event programming.
means the surface of, and the space above and below, any
public street, sidewalk, alley, or other public way or right-of-way
of any type whatsoever.
means any person electing to subscribe to, for any purpose,
a service provided by grantee by means of or in connection with its
cable system.
means the Telecommunications Act of 1996.
means a discrete place where system services are used, such
as a residence, apartment, office, store, etc.
means any person 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.
(b)
Terms
not defined. Words, terms, or phrases not defined herein shall first
have the meaning as defined in the Cable Act, and then the special
meanings or connotations used in any industry, business, trade, or
profession where they commonly carry such special meanings. If those
special meanings are not common, they will have the standard definitions
as set forth in commonly used and accepted dictionaries of the English
language.
(Ord. No. 99-9(R), § 1, 10-20-99)
(a)
Authority
to grant franchises. The city may grant a franchise to provide cable
service to any person who offers to provide a system pursuant to this
chapter. Upon adoption of the ordinance codified in this chapter,
this chapter shall apply to all existing and future franchises for
the provision of cable television services.
(b)
Form.
The actual form of a franchise shall be at the discretion of the city.
(c)
Grants
not required. Consistent with applicable state and federal law, no
provision of this chapter requires the granting of a franchise when,
in the opinion of the city, it is in the public interest not to do
so.
(d)
Purpose.
The purpose of a franchise is to identify and authorize the operation
of a cable communications system by a specific grantee, and to identify
and specify those terms, conditions, definitions, itemizations, specifications
and other particulars of the agreement between the city and a grantee.
In so doing, a franchise may clarify, extend, and interpret the provisions
of this chapter. Where a franchise and this chapter 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. Unless otherwise specifically stated, no provision
of this chapter shall be deemed to be contractually incorporated into
any franchise granted hereunder.
(e)
Compliance
with law. Neither this chapter nor a franchise granted under it relieves
grantee of any requirement of city, or of any ordinance, rule, regulation,
or specification of city now or hereafter in effect pursuant to city's
police power; including, but not limited to, the obtaining of a business
license, and the payment of all permit and inspection fees required
from time to time by the city.
(f)
Franchise
nonexclusive. City may, at its option, grant one or more franchises
to construct, operate, maintain, and reconstruct a system. Said franchises
shall constitute both a privilege and an obligation to provide the
system and services required by this chapter and a franchise.
(g)
Duration.
The term and effective date of any franchise, and all rights, privileges,
obligations and restrictions pertaining thereto, shall be specified
in the franchise.
(h)
Use
of public streets and rights-of-way. For the purposes of operating
and maintaining a system in the franchised service 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 the plant in public rights-of-way, the grantee shall apply for,
pay all applicable fees, and receive all necessary permits.
(i)
Use
of other utilities. Any person who provides a system or services shall
be deemed a grantee and must obtain a franchise. If such grantee uses
distribution channels furnished by any telephone company, other public
utility, or any other entity which are functionally equivalent to
those used by a cable operator, said grantee shall be required to
comply with all of the provisions of this chapter.
(j)
Assignment,
transfer or sale of franchise.
(1)
There
shall be no assignment of a franchise, in whole or in part, or any
change in control of the grantee, without the prior express written
approval of the city. Such assignment or transfer, or any change in
control, without the city's prior written consent shall constitute
a default which will cause a franchise to terminate.
(2)
At
least 120 days before a proposed assignment or change in control of
the franchise is scheduled to become effective, the grantee shall
request in writing the city's written consent. The grantee shall submit
to the city (concurrently with the submission of its written request)
an FCC 394 Form (or successor form) together with: (i) any other information
or documentation required by the state or federal government (including
the FCC); (ii) the information referenced in subsection (j)(7) of
this section; (iii) unedited and unredacted copies of the sale or
transfer documents with all schedules and exhibits thereto, except
with the prior consent of the city; and (iv) information regarding
the financial ability and stability of the proposed assignee with
respect to being able to perform all obligations of the existing franchise.
(3)
The
city shall not unreasonably withhold its consent to such an assignment
or change in control. However, in evaluating the request for assignment,
transfer, sale, or change in control, the city may, in its sole discretion
and among other things, undertake a technical inspection and audit
of the system to determine whether the system complies with all applicable
technical and safety codes, this chapter, and the franchise.
(4)
If
the city determines (as a result of the technical inspection and audit)
that the system does not comply with federal, state, or local standards,
then the grantee shall be provided with an opportunity to correct
or cure the noncompliance. In the alternative, the city may work with
both the current and proposed grantee to cure the noncompliance. The
city shall be under no obligation to approve any transfer or assignment
if the franchise is not in compliance with all applicable technical
and safety codes, this chapter, and the franchise.
(5)
If
the grantee has not previously supplied the city with certain operational
reports and data, then the grantee shall submit to the city the following
reports at the time it submits its FCC Form 394:
(6)
Before
an assignment or change in control is approved by the city, the proposed
assignee, transferee, or buyer shall execute an affidavit acknowledging
that it has read, understood, and will abide by both this chapter
and the applicable franchise.
(7)
In
the event of any approved assignment or change in control, the assignee
or transferee shall assume all obligations and liabilities of the
former grantee relating to the franchise unless specifically relieved
by the city at the time the assignment or change in control is approved.
(8)
If
the city disapproves a request for consent, then the grantee may submit
another request or an amended request for consent. In such a situation,
the 120 day time frame begins to run anew.
(k)
Reimbursement
of processing and review costs. Grantee shall, if requested, reimburse
city for city's reasonable processing and review expenses in connection
with a transfer of the franchise or a change in control of the franchise,
including without limitation, costs of administrative review, financial,
legal, and technical evaluation of the proposed transferee, costs
of consultants (including technical and legal experts), notice and
publication costs, and document preparation expenses. In addition,
prior to any transfer or change in control, grantee shall reimburse
city for all of city's expenses in connection with evaluating or negotiating
a renewal of grantee's franchise, whether or not said renewal was
ever finalized or granted. City may send grantee an itemized description
of all such charges, and grantee shall pay such amount within 20 days
after the receipt of such description.
(l)
Violation. If the grantee violates any provision of subsection j of section 8-2, the franchise shall automatically terminate. The procedures contained in section 8-13 of this chapter shall not apply to an unlawful transfer or change in control, and the franchise shall automatically terminate upon the occurrence of that violation.
(Ord. No. 99-9(R), § 1, 10-20-99)
(a)
Governmental
authority. City reserves every right it may have in relation to its
power of eminent domain over grantee's franchise and property. Neither
the granting of any franchise, nor any provisions of this chapter,
shall constitute or be construed as a waiver or bar to the exercise
of any governmental right or power by city.
(b)
Right
of inspection of construction. The city shall have the right to inspect
all construction, installation, or other physical work performed by
grantee in connection with the franchise, and to make such tests as
may be necessary to ensure compliance with the terms of this chapter
and the franchise, so long as said inspection and testing does not
unreasonably interfere with grantee's operations.
(c)
Right
to require removal of property. Consistent with applicable law, at
the expiration of the term or any renewal term or extension for which
the franchise is granted, or upon its lawful revocation, expiration,
or termination, the city 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 rights-of-way within the
franchise service area within a reasonable period of time.
(d)
Right
of intervention. The city shall have the right of intervention in
any suit, proceeding or other judicial or administrative proceeding
in which the city has any material interest, and to which any grantee
is party.
(e)
Place
of inspection. The city shall have the right to inspect any of grantee's
local premises, and to request copies of all relevant information
that is reasonably necessary for the exercise of city's regulatory
authority, upon reasonable notice at any time during normal business
hours. Any grantee records kept at another place shall, within 10
days of city's request, be made available at grantee's local premises
within the County of San Diego for city's inspection and copying.
All reports and records required pursuant to this chapter shall be
furnished at the sole expense of any grantee, except as otherwise
provided in this chapter or the franchise.
(Ord. No. 99-9(R), § 1, 10-20-99)
(a)
Discriminatory
practices prohibited. No grantee shall deny cable service or otherwise
discriminate against subscribers or others on the basis of race, color,
religion, national origin, sex, age, handicap, or other protected
classes. All grantees 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)
Tapping
and monitoring. No grantee shall 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 a grantee may monitor
customer service calls for quality control purposes and may 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,
service levels, or billing-for-pay services.
(c)
Data
collection.
(1)
Except
for its own use, or in connection with the provision of cable services
or for release of data to the city, a 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 an individual subscriber, members of their families,
or their guests, licensees or employees, unless the grantee shall
have received the prior written consent of such subscriber.
(2)
A
grantee shall not disclose or permit the release or sale of data on
individual subscribers or groups thereof, but may disclose or permit
the release or sale of aggregate data only.
(d)
Disclosure
of subscriber preferences.
(1)
A
grantee shall not disclose individual subscriber preferences, viewing
habits, beliefs, philosophy, creeds, or religious beliefs to any third
person, firm, agency, governmental unit, or investigating agency without
court authority or the prior written consent of the subscriber. A
grantee shall not condition the delivery or receipt of cable services
to any subscriber on any such consent.
(2)
A
subscriber may revoke, without penalty or cost, any consent previously
given by delivering to the grantee in writing a statement of the subscriber's
intent to so revoke.
(e)
Disclosure
of subscriber lists. A grantee shall not disclose, or sell, or permit
the disclosure or sale of its subscriber list without the prior written
consent of each subscriber on such list; provided that grantees may
use subscriber lists as necessary for the construction, marketing,
and maintenance of the grantee's services and facilities authorized
by a franchise, and the billing of subscribers for cable services;
and provided further, that consistent with applicable law, city may
use a grantee's subscriber list for the purpose of communication with
subscribers in connection with matters directly relating to the operation,
management, and maintenance of the cable system.
(f)
Other persons affected. The prohibitions contained in subsections (a) through (e), inclusive, of this section apply all grantees, as well as to all of the following:
(1)
Officers,
directors, employees, agents, and general and limited partners of
the grantee;
(2)
Any
person or combination of persons owning, holding, or controlling 20%
or more of any corporate stock or other ownership interests in a grantee;
(3)
Any
affiliated or subsidiary entity owned or controlled by a 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
20% or more of any corporate stock or other ownership interests; and
(4)
Any
person, firm, or corporation acting or serving in the capacity of
a holding or controlling company of a Grantee.
(g)
Subscriber
bill of rights. A grantee shall provide to all subscribers, at the
time of initial connection and annually thereafter, a notice in a
form previously approved by city (which approval shall not be unreasonably
withheld) describing, in understandable language, the subscriber's
rights and obligations that are generally provided under the franchise
and federal law, including a description of how to contact the grantee
and, if necessary, the city, in the event of an unresolved subscriber
complaint.
(h)
Notice
to new subscribers. Before providing cable service to any subscriber,
grantees shall provide a written notice to the subscriber containing
substantially the following information:
Subscriber understands that Company uses public rights-of-way
and other facilities of the City of Escondido in providing service
and that this continued use cannot be guaranteed. Subscriber agrees
not to make any claims against the City of Escondido or its officers
or employees in the event that such use is denied for any reason,
and Company is unable, in its discretion, to provide service over
alternate routes.
(i)
Complaint
advice. City may require all grantees to advise its subscribers that
complaints of poor service should be made to city's representative
if such complaints are not resolved by grantee to the satisfaction
of a subscriber.
(Ord. No. 99-9(R), § 1, 10-20-99)
(a)
Payments
to the city.
(1)
As
compensation for any franchise to be granted, and in consideration
of permission to use the city's streets and public rights-of-way for
the construction, operation, maintenance, and reconstruction of a
system, all grantees shall pay to the city the amounts specified in
the franchise.
(2)
Payments
due the city shall be computed quarterly, and shall be paid within
45 days after the close of each calendar quarter. The payment shall
be accompanied by a report showing the basis for the computation and
such other relevant facts as may be required by the city to determine
the accuracy of the payment. A final annual reconciliation and payment,
if any, shall be delivered to city by each grantee within 90 days
after the end of each calendar year.
(3)
If
any franchise payment or recomputed amount is not made on or before
the dates specified above in subsection (a)(2) of this section, grantee
shall pay as additional compensation the greater of the following:
(a)
An interest charge, computed from the applicable due date, at an
annual rate equal to the prevailing commercial prime interest rate
in effect upon the due date, plus 1%.
(b)
A sum of money equal to $4,000 for each month, or part thereof, of
delay, 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, plus 1%.
(4)
In
addition to any late payment made pursuant to subsection (a)(3) of
this section, if a payment is late by 60 days or more, each such grantee
shall pay a sum of money equal to 5% of the amount due in order to
defray additional expenses and costs incurred by city as a result
of such delinquent payment.
(5)
No
acceptance of any payment shall be construed as a release of, or an
accord, or satisfaction of, any claim that the city might have for
further or additional sums payable under the terms of this chapter,
or for any other performance by grantee of an obligation hereunder.
(6)
Payments
of compensation made by a grantee to the city pursuant to the provisions
of this chapter are in addition to, and exclusive of, any and all
authorized taxes, business license fees, and other fees, levies, or
assessments now in effect, or subsequently adopted.
(b)
Security
fund.
(1)
Within
30 days after the effective date of a franchise, each grantee shall
deposit into a bank account established by the grantee, for the benefit
of city, and shall maintain on deposit through the term of the franchise,
a sum specified in the franchise as security for the faithful performance
by grantee of all of the provisions of the franchise, and compliance
with this chapter and with all orders, permits and directions of the
city, or any designated representative of the city having jurisdiction
over grantee's acts or defaults under the franchise or this chapter,
and as security for the payment by the grantee of any claims, fees,
liens, or taxes due the city which arise by reason of the construction,
operation or maintenance of the system pursuant to the franchise or
this chapter, and to satisfy any actual or liquidated damages arising
out of a franchise breach.
(2)
Except
as otherwise provided in the franchise, if the grantee fails, after
20 days written notice, to pay to the city any fees that are due and
unpaid, or fails to repay within such 20 days, any damages, costs
or expenses which the city is compelled to pay by reason of any act
or default of the grantee in connection with its franchise; or if
grantee fails to comply with any provision of the franchise or this
chapter and the city determines that such failure was without just
cause and city reasonably determines it can be remedied by a withdrawal
from the security fund or is nevertheless subject to liquidated damages,
then, in any such event, the city may immediately withdraw the amount
thereof from the security fund, with interest and any liquidated damages.
Upon such withdrawal, the city shall notify the grantee of the amount
and the date of withdrawal.
(3)
Within
30 days after notice to grantee that any amount has been withdrawn
by city 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 the security fund, or portion thereof,
with interest, that remains on deposit at the expiration or termination
of the franchise, once all amounts due to the city have been paid.
Grantee shall also retain its right to challenge any withdrawal from
such security fund.
(5)
The
rights reserved to the city with respect to the security fund are
in addition to all other rights of the city, and no action, proceeding
or exercise of a right with respect to such security fund shall affect
any other right the city may have.
(c)
Faithful
performance bond. Within 30 days after the effective date of any franchise,
each grantee shall furnish proof of the posting of a faithful performance
bond in favor of the city, with corporate surety approved by the city
(which approval shall not be unreasonably withheld) in the sum specified
in the franchise and 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 after certification
by city of the completion of construction of grantee's cable system.
The corporate surety must be authorized to issue such bonds in the
State of California, and the bond must be obtained and secured through
an authorized agent in the County of San Diego. 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 with the city on an annual basis.
(d)
Letter
of credit.
(1)
At
the option of the city, the grantee may be authorized, in lieu of
creating a security fund or obtaining a faithful performance bond,
to post an irrevocable letter of credit, issued by a bank approved
by the city, in the amount specified in the franchise. Said letter
of credit shall incorporate wording approved by the city enabling
it to draw from time to time such funds as the city may determine
to be necessary to satisfy any material defaults of grantee or to
make any payments due city under or in connection with this chapter
or grantee's franchise, upon 10 days written notice to the issuer
of the letter of credit. Said letter of credit shall further provide
for 60 days written notice by certified mail from its issuer to city
of any pending expiration or cancellation, and said notice shall without
further cause constitute reason for the city to draw the full sum
to be held in its own accounts until such letter of credit is reestablished
in a form satisfactory to city.
(2)
If
city requires 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 city, restore its face value to the original amount.
(3)
All
provisions herein applicable to bonds or security funds shall also
apply to letters of credit.
(Ord. No. 99-9(R), § 1, 10-20-99)
(a)
Services
to be provided. A cable system shall provide, as a minimum, the broad
programming categories specified in the franchise.
(b)
Changes
in services. Grantee shall inform city and its subscribers at least
30 days in advance of making any change in a cable service, or in
the rates charged therefor, unless city agrees to waive this requirement
in writing.
(c)
Nondiscrimination.
Grantee shall not discriminate between or among subscribers within
one type or class in the availability of services, at either standard
or differential rates according to published rate schedules, except
as otherwise authorized by law. No charges may be made for services
except as listed in published schedules which are available for inspection
by anyone at grantee's office, quoted by grantee on the telephone,
or displayed or communicated to all potential subscribers.
(d)
Prepayment.
No grantee shall charge subscribers for services 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:
(i) 22 days from postmark; or (ii) 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 payment or assessment.
(e)
Disconnect
for cause. A grantee may disconnect a subscriber only for cause, which
shall include, without limitation, the following:
(f)
Reconnection.
Each grantee shall, upon subscriber's written request, reconnect service
which has been disconnected for payment delinquency when payment has
removed the delinquency. If authorized by applicable law, a published
standard charge may be made for reconnection. 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 any previous 24 month period.
(g)
Installations.
(1)
All
grantees shall promptly provide and maintain service as specified
in the franchise to the residential, commercial, and industrial structures
in the franchise service area, as defined in the franchise, upon request
of the lawful occupant or owner.
(2)
In
the case of a new drop, grantee shall advise each subscriber that
the subscriber has the right to require that installation be done
over any route on the subscriber's property, and in any manner the
subscriber may elect which is technically feasible and consistent
with proper construction practices. If the subscriber requests installation
other than a standard installation, then the subscriber may be required
to pay a reasonable fee for the time and materials occasioned by that
installation.
(3)
For
purposes of this paragraph, a standard installation shall include
installation of drop cable with fittings up to one hundred fifty feet
(150) feet 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 subscriber's option, through the floor from
a house vent or crawl space directly to the subscriber's television
set with five feet 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 by the
grantee of the appropriate literature and information.
(4)
After
cable service has been established by activating trunk or distribution
cables for any area, grantee shall provide service to any person requesting
service in that area within seven days from the date of request, provided
that the grantee is able to secure all rights-of-way necessary to
extend service to that potential subscriber within that seven day
period on reasonable terms and conditions.
(h)
Nonstandard
installations. For each nonstandard drop installed, the grantee may
charge the subscriber for the cost of material and labor in excess
of that for a standard drop. Grantee shall provide to each subscriber
a written estimate of all charges prior to installation and obtain
subscriber's written authorization in advance for all nonstandard
drop charges.
(i)
Converters/terminals.
At such time as a converter or terminal is required for subscribers
to have access to all services on its system, a grantee shall make
them available to subscribers. Grantee may require each subscriber
who elects to install a converter or terminal to furnish a security
deposit therefor.
(1)
Each
converter or terminal device shall be and remain the property of the
grantee. Grantee shall be responsible for maintenance and repair of
all equipment owned by grantee and may replace it as grantee may from
time-to-time elect, except that subscriber shall be responsible for
loss of or damage to any such device while in the subscriber's possession.
(2)
Upon
termination or cancellation of subscriber's service, subscriber shall
promptly return grantee's property to grantee in the same condition
as received, reasonable wear and tear excepted.
(3)
Grantee
may apply any security deposit against any sum due from subscriber
for loss of or damage to such converter or terminal 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 subscriber's security deposit, grantee
shall return it, or the balance, to the subscriber within 20 days
of return of the converter or terminal.
(Ord. No. 99-9(R), § 1, 10-20-99)
(a)
System
construction. Each system constructed pursuant to this chapter shall
be constructed in accordance with the provisions of the franchise,
or if there are no such provisions, the as-built system shall be subject
to the provisions of this chapter.
(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. Grantee shall construct, install, operate
and maintain its system in a manner consistent with all applicable
federal and state laws, and all applicable local ordinances, construction
standards, construction specifications, governmental requirements,
FCC technical standards, and any standards set forth in the franchise.
(d)
Construction
codes. The grantee shall strictly adhere to all building and zoning
codes currently or hereafter in force and shall 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 city may require the
removal of the grantee's lines, cables, and appurtenances from the
property in question. Grantee shall give at least 48 hours advance
notice to all property owners and to the city prior to installing
any aboveground or underground structures upon easements located on
private property. Grantee shall be a member of Underground Service
Alert. City 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)
All
grantees shall begin to offer cable service and any other service
authorized by the franchise no later than the date specified in the
franchise.
(2)
All
grantees shall provide a detailed construction plan indicating progress
schedule, area construction or reconstruction maps, test plan, and
projected dates for offering service.
(f)
Geographical
coverage. The grantee shall construct the cable system to service
every residential dwelling unit and other structures specified in
the franchise within the franchise service area and any future annexations
thereto (as defined and provided by the franchise), with any exceptions
requiring specific city approval. Service shall be provided to subscribers
in accordance with the schedules specified in the franchise. The route
of separate cables serving institutional subscribers shall be as approved
by city and specified in the franchise.
(g)
Construction
default. Upon the failure, refusal or neglect of grantee to cause
any construction, repair, or the terms of any building permit, or
other necessary work to comply with the terms of the franchise, thereby
creating an adverse impact upon public safety, city 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 an itemized statement
of costs. Grantee shall be given reasonable advance notice of city's
intent to exercise this power, and 15 days to cure the default. Grantee
shall, within 30 days of billing, pay to city the actual costs incurred.
(h)
Vacation
or abandonment. In the event any street, alley, public highway, or
portion thereof used by a grantee shall be vacated by the city, or
the use thereof discontinued by a grantee, upon reasonable notice
the grantee shall forthwith remove its facilities therefrom unless
specifically permitted to continue the same. On the removal thereof,
grantee shall restore, repair or reconstruct the area where such removal
has occurred, to such condition as may be required by the city, but
not in excess of the original condition. In the event of any failure,
neglect or refusal of the grantee, after 30 days' notice by the city,
to do such work, city may cause it to be done, and grantee shall,
within 30 days of billing, pay to city the actual costs incurred.
(i)
Abandonment
in place. City may, upon written application by a grantee, approve
the abandonment of any property in place by grantee, under such terms
and conditions as city may approve. Upon city-approved abandonment
of any property in place, grantee shall cause to be executed, acknowledged,
and delivered to city such instruments as city shall prescribe and
approve, transferring and conveying the ownership of such property
to city.
(j)
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 city, then
grantee shall, at city's option and demand, and at the sole expense
of grantee, promptly remove from any streets or other areas all property
of grantee. Grantee shall promptly restore the streets or other areas
from which such property has been removed to its condition existing
prior to grantee's use thereof; provided that grantee shall not be
required to remove conduit from underground, where city has determined
that no damage to the surface of any structures will result from such
nonremoval.
(k)
Movement
of facilities. In the event it is necessary, at city's discretion,
to temporarily move or remove any of the grantee's property for a
public purpose, grantee, upon reasonable notice, shall move, at the
expense of grantee, its property as may be required to facilitate
such public purpose. No such movement shall be deemed a taking of
grantee's property. Nothing herein shall limit the right of grantee
to seek reimbursement from any party other than city.
(l)
Undergrounding
of cable. Cables shall be installed underground at grantee's cost
where substantially all existing utilities are already underground
pursuant to the city's adopted undergrounding policy. Previously installed
aerial cable shall be installed underground at grantee's pro rata
cost in concert with other utilities, those other utilities convert
from aerial to underground construction.
(m)
Facility
agreements. No franchise shall relieve grantee of any obligations
involved in obtaining pole or conduit space from any department of
city, any utility company, or from others maintaining utilities in
city's streets.
(n)
Extension
of franchise service area. If city elects to grant one or more franchises,
and if one or more of the franchises expires or is otherwise terminated,
city may, if it so elects, require a remaining grantee, or more than
one, to extend its system to provide service to the franchise service
area previously served under the terminated franchise, unless grantee
demonstrates to city's reasonable satisfaction that it is not commercially
practicable to do so; provided, however, that grantee shall not be
required to overbuild any existing system. The terms and requirements
of such extension shall not exceed those contained in this chapter
or in grantee's franchise.
(o)
Repair
of streets and public ways. Any and all streets and public ways, and
improvements located within such 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 at grantee's expense, and within the time frame and limits
specified by city, to their original condition unless otherwise authorized
in writing by city. All grantees conducting work in rights of way
adjacent to residential areas shall display identification at all
times reflecting that they work for or on behalf of grantee. All employees
of a grantee or its contractors shall promptly identify themselves
to citizens requesting information as to the identity of those conducting
the work or the work being conducted, and shall provide the name of
both a representative of grantee and city. All grantees shall advise
residents at least 24 hours in advance when landscaping or other infrastructure
related to those residents may be affected.
(p)
Erection
of poles prohibited. The grantee shall not erect any pole on or along
any street or public way where there is an existing aerial utility
system. If additional poles in an existing aerial route are required,
grantee shall arrange with the public utility for their installation.
Any such installation shall require the advance written approval of
the city. 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.
(q)
Reservation
of street rights. Nothing in a franchise shall prevent the city from
constructing, repairing, 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 property of grantee shall interfere with
the construction, maintenance, or repair of any public improvement,
that property shall be removed or replaced in such manner as directed
by city so that the same shall not interfere with the public work,
and such removal or replacement shall be at the sole expense of the
grantee.
(Ord. No. 99-9(R), § 1, 10-20-99)
(a)
Minimum
customer service standards.
(1)
Each
grantee shall maintain an office in the franchise service area, or
at such other location as is approved by the city in writing, or as
described in the franchise. That office must be open during all usual
business hours, but in no case less than 48 hours per week, including
at least one weekend day per week. City shall have a publicly listed,
non-toll-charge telephone number that is in operation to receive subscriber
complaints and requests on a 24 hour basis. Current information shall
be maintained of all complaints and their disposition, and a summary
thereof shall be submitted to city upon request, but no more often
than monthly.
(2)
The
grantee shall respond to requests as follows: (i) within four hours
after receipt of a request for repairs relating to a service interruption
affecting at least 10% of the subscribers of the system; (ii) within
12 hours after receipt of requests for service related to all other
service interruptions; (iii) and within 24 hours for all other complaints
and requests for repair. All cable system related problems shall be
resolved within three business days unless technically infeasible.
No charge shall be made to a subscriber for such service or repairs,
except that grantee may charge for service calls not related to its
cable system, or that are caused by the subscriber or members of its
household, or the subscriber's agents or guests.
(3)
The
grantee shall provide a telephone service system to receive all construction
and service complaints. A sufficient number of customer service representatives
shall be provided so that callers are not required to wait more than
30 seconds before being connected to a customer service representative
90% of the time, measured quarterly, or to receive busy signals more
than 3% of the time, measured quarterly. The telephone number of the
local office shall be listed in the telephone directory serving the
City of Escondido. The telephone service system shall accept complaints
24 hours a day, seven days a week. The telephone service system shall
be capable of generating reports relating to answer times, response
times, hold times, and abandoned calls.
(4)
Customer
service personnel shall identify themselves by first names immediately.
Customers shall have the right to speak with a supervisor, and if
none is available, a supervisor shall return the customer's call within
one working day.
(5)
All
officers, agents, or employees of the grantee, including its contractors
or subcontractors, who come into contact with members of the public
shall wear on their outer clothing a photo-identification card in
a form reasonably acceptable to city. Grantee shall account for all
identification cards at all times. Every vehicle of grantee, or its
major subcontractors, shall be clearly identifiable as working for
grantee.
(6)
Grantee
shall provide subscribers with the option of scheduling a four hour
period, either in the morning or afternoon, in which a service call
will be made.
(7)
If
a grantee representative is running late for an appointment with a
customer, or will not be able to keep the appointment as scheduled,
the customer will be contacted and the appointment will be rescheduled,
as necessary, at a time which is convenient for the customer. The
customer shall have the option of rescheduling the appointment within
a specified two hour period.
(8)
The
customer service standards set forth in this section are minimum standards
only, and shall not prohibit greater service from any grantee or in
any franchise.
(b)
Remedies
for inadequate performance. Except for rebuild or planned service
interruptions for which a grantee receives prior approval from the
city, in the event that one-third or more of its service to any subscriber
is interrupted for six consecutive hours, or for a total of 12 nonconsecutive
hours within any 30 day period, and subscriber notifies grantee of
said service interruption within 24 hours of subscriber discovery
thereof, grantee shall provide a 10% rebate of the monthly fees to
affected subscribers for each such consecutive six hour or nonconsecutive
12 hour service interruption period. Grantees shall provide a 50%
rebate of the monthly fees to all affected subscribers for failure
to make a service call within the specified four hour period. In no
case shall such rebate exceed the monthly fee charged to the subscriber.
(c)
Biennial
audit of performance.
(1)
City
may require, at its option, that performance audits of the system
be conducted every two years by an independent technical consultant
selected and employed by city to verify that the system complies with
all technical standards and other specifications of the franchise.
(2)
Upon
completion of a performance audit, the city and grantee shall meet
to review the performance of the cable system. The reports required
by this chapter regarding subscriber complaints, the records of performance
audits and tests, and the opinion survey report shall be utilized
as the basis for review. In addition, any subscriber may submit complaints
prior to or during the review meetings, either orally or in writing,
and these shall also be considered.
(3)
Within
30 days after the conclusion of the system performance review meetings,
city shall issue findings with respect to the adequacy of system performance
and quality of service. If inadequacies are found, city may direct
grantee to correct the inadequacies within such period of time as
city determines is reasonable.
(4)
Participation
by the city and the grantee in this process shall not waive any rights
they may possess under applicable federal or state law.
(5)
In
addition to the biennial audit described above, city may conduct an
annual audit of the same or lesser magnitude, at its sole expense,
when and if determined necessary or appropriate by city.
(d)
System
technical data. Grantee shall provide city with a computer disk or
other data storage device requested by city, in format approved by
city, which details and documents all of grantee's equipment and facilities
and their geographic location in the city. Such computer disk or other
device shall be updated annually and whenever there have been significant
changes in the location of grantee's equipment and facilities. In
addition, grantee shall maintain in its local office, 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 piece of electronic
equipment in the system. As-built drawings shall 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 local office shall also
include approved pole applications, details and documentation of satellite
and microwave equipment, mobile radio units, heavy construction vehicles
and equipment, and video and audio equipment normally used in the
operation of the system. If city requires use of technical data in
its own offices, it may make copies of any items at city's expense.
(e)
Availability
of technical data. All technical data shall be available for city's
inspection during normal business hours and upon reasonable notice.
In the event of system failure or other operating emergency, the technical
data will be made available at any time, so long as the provision
of said data does not unreasonably interfere with grantee's operations.
(f)
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 the need to maintain or restore continuous service
to the system.
(g)
New
customer service standards and procedures.
(1)
Information
to customers. The grantee shall, at the time service is initiated,
provide each new subscriber with written information covering:
(A)
The time allowed to pay outstanding bills.
(B)
Grounds for termination of service.
(C)
The steps the grantee must take before terminating service.
(D)
How the customer can resolve billing disputes.
(E)
The steps necessary to have service reconnected after involuntary
termination.
(F)
The fact that customer service personnel must identify themselves
by first names immediately.
(G)
The fact that subscribers have the right to speak with a supervisor,
and if none is available, a supervisor shall return the subscriber's
call within one working day.
(H)
The appropriate regulatory authority with which to register a complaint
and how to contact that authority.
|
In addition, at least once each calendar year, grantee shall
notify each subscriber that information is available upon request
concerning items in subsections (g)(1)(A) through (g)(1)(H) of this
section.
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(2)
Written
notices. Written notice of all terms of the customer agreement, the
name, address and telephone number of the cable operator, all equipment
and fee options, the availability of A/B switches, the availability
of parental control devices, any reduced rates for seniors or other
subscribers, company billing and credit practices, company practices
with respect to privacy of subscribers, the telephone numbers for
customer complaints, the telephone number of the city, and other relevant
information, shall be made by grantee to subscribers before service
is commenced, at least once each calendar year, at any time upon the
request of the subscriber, and whenever changes to such policies are
made.
(3)
Advance
notice of changes. Except as otherwise provided by applicable law,
advance notice of increases in fees or charges, and changes in channel
lineup of stations or services, shall be sent to city and to subscribers
at least 30 days before the changes are made, except for changes not
known sufficiently in advance by grantee and not under grantee's control,
or where city's waiver is obtained. Notices must be clearly identified
and in print large enough to be easily readable.
(4)
Billing.
(A)
Billing frequency and format. Bills for service shall be rendered
monthly, unless otherwise authorized by the subscriber 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 changes and
the basis for those changes.
(B)
Disputed bills.
(i)
In the event of a dispute between a subscriber 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 subscriber.
If the dispute is not resolved to the satisfaction of both parties,
the grantee shall inform the subscriber of the grantee's complaint
procedures. If the subscriber wishes to obtain the benefits of this
subparagraph (B), notification of the disputed bill must be given
by the subscriber to the grantee in writing within 30 days after the
bill date.
(ii)
The subscriber shall not be required to pay the disputed portion
of the bill until the earlier of the following:
(5)
Suspension
of collection efforts. Pending resolution of the bill dispute, grantee
shall exercise reasonable care to ensure that no termination notices
are issued for the disputed portions of the bill, and that no other
collection procedures are initiated for the disputed amount. Any such
activity may be interpreted as an attempt to avoid the provisions
of these rules and may constitute a violation of these rules.
(6)
Referral
of accounts to collection agencies.
(A)
Uncollected accounts may be referred to private collection agencies
for appropriate action if the bill has not been paid by the earlier
of (i) 30 days following date of involuntary termination; or (ii)
the sixty-first day following the billing date of the original uncollected
amount, provided that no notification of a billing dispute has been
made.
(B)
If the account was voluntarily terminated by subscriber, for any
reason, the account may not be referred to a private collection agency
until at least 30 days following submission of the final bill. If
notification of a billing dispute is made, all collection procedures
shall be delayed as required in subsection (g)(4)(B) entitled Disputed
Bills. Referral to a collection agent shall then occur no sooner than
the ninety-first day following the billing date of the original uncollected
amount.
(7)
Termination
for nonpayment. Bills shall not be delinquent earlier than 22 days
from the date of the bill, which must be mailed to subscribers within
five working days prior to the stated due date. Subscribers must be
notified in writing of a proposed disconnection for nonpayment at
least 15 days prior to disconnection. Grantee may not assess late
charges of any amount earlier than the thirtieth day from the date
of the bill.
(h)
Refund.
When a subscriber voluntarily discontinues service, grantee shall
refund, within 20 days of the discontinuance of service, the unused
portion of any advance payments after deducting any charges currently
due through the date of such discontinuance. Unused payment portions
shall be the percentage of time for which subscriber has paid for
service and will not receive it because of the subscriber's discontinuation
of service.
(Ord. No. 99-9(R), § 1, 10-20-99)
(a)
Use
of public streets. From and after the effective date of the ordinance
codified in this chapter, it shall be unlawful for any person to construct,
install, or maintain in any public place within city's territory,
or upon any easement owned or controlled by a public utility, or within
any other public property of city, or within any privately owned area
within city's jurisdiction which is not yet, but is designated as,
a proposed public place on a tentative subdivision map approved by
city, 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 is unlawful 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 is unlawful, without the consent of the owner,
to wilfully attach to, tamper with, modify, remove or injure any physical
part of or signals on a franchised cable television system.
(Ord. No. 99-9(R), § 1, 10-20-99)
(a)
Revocation.
Consistent with applicable law, and in addition to any rights set
out elsewhere in this chapter, the city reserves the right to revoke
a franchise, subject to the procedural guidelines set forth in section
8-14 of this chapter, in the event that:
(b)
Forfeiture.
Upon failure of the grantee to comply with any material term of its
franchise or this chapter, the city may, subject to the procedural
guidelines set forth in section 8-14 of this chapter, declare a forfeiture.
The grantee may be required to remove its structures or property from
the city's streets and to restore those streets to their prior condition
within a reasonable period of time. Upon failure to do so, the city
may perform the work and collect all costs, including direct and indirect
costs, from the grantee. At city's discretion, the cost thereof may
be placed as a lien upon all plant, property, or other assets of the
grantee.
(Ord. No. 99-9(R), § 1, 10-20-99)
Applicants for a franchise may submit to the city, or to its
designated representative, written application in a format provided
by the city, at the time and place specified by the city for accepting
applications, and accompanied by the designated application fee. A
nonrefundable application fee, established by the city, shall accompany
the application to cover all costs associated with processing the
application, including, without limitation, costs of administrative
review, financial, legal and technical evaluation of the applicant,
the costs of consultants (including technical and legal experts),
notice and publication requirements, and document preparation expenses.
In the event such costs exceed the application fee, the applicant
shall pay the difference to city within 20 days following receipt
of an itemized statement of such costs. This provision is procedural
and shall not constitute the grant of any right to the grantee.
(Ord. No. 99-9(R), § 1, 10-20-99)
(a)
Grantee
to provide records. All reports and records required under this section
shall be furnished at the sole expense of the grantee.
(b)
Records.
City must maintain in its local offices, and make available for inspection
during normal business hours, a separate and complete set of business
records for the franchise. The grantee shall provide that information
in such form as may be required by the city, as well as copies of
any records of grantee upon city's request, so long as said information
is reasonably related to the scope of city's rights under this chapter,
the franchise, or city's regulatory functions.
(c)
Maintenance
and inspection of records. Grantee shall keep true and accurate books
and records in conformity with generally accepted accounting principles,
consistently applied, showing all income, expenses, borrowing, payments,
investments of capital, and all other transactions relating to the
system. City shall, upon reasonable notice, have the right to inspect
said records and receive copies thereof to the extent said information
is reasonably related to the scope of the city's rights under this
chapter, the franchise, or the city's regulatory functions. Any grantee
records kept at another place shall, within 10 days of city's request,
be made available at grantee's local premises within the County of
San Diego.
(d)
Reports
of financial and operating activity.
(1)
No later than 90 days after the close of each grantee's fiscal year,
the grantee shall submit an audited written report to the city which
shall include:
(A)
A financial report, audited and certified by a financial officer
of grantee, for all cable system activity during the previous fiscal
year, including gross receipts from all sources and gross subscriber
revenues from each service. The report must set out separately all
gross receipts from all sources in the city and gross subscriber revenues
from each service in the city, and all payments, deductions, and computations
of franchise fees.
(B)
A summary of the previous year's activities, including, but not limited
to, subscriber totals and new services.
(C)
A current list of grantee's officers, directors, and other principals
if there has been any change in the previous year.
(D)
A list of stockholders or other equity investors holding 20% or more
of the voting interests in grantee if there has been any change in
the previous year.
(E)
A summary of complaints received and remedial actions taken.
(2)
Performance tests and compliance reports. No later than April 15th
of each year, the grantee shall provide a written report of any FCC
or other performance tests required or conducted. In addition, the
grantee shall provide reports of the test and compliance procedures
required by its franchise, or by this chapter, no later than 30 days
after the completion of those tests and compliance procedures.
(3)
Additional reports. The grantee shall prepare and furnish to the
city in writing, at the times and in the form reasonably prescribed
by city, such additional reports as may reasonably be required with
respect to grantee's compliance with the provisions of its franchise
and this chapter.
(e)
Communications
with regulatory agencies. Copies of all nonroutine or material 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 the franchise,
shall be submitted promptly to the city upon receipt or mailing by
grantee.
(f)
Examination
of facilities. Upon reasonable notice, and during normal business
hours, each grantee shall permit examination, by any duly authorized
representative of city, of all franchise property and facilities,
together with any appurtenant property and facilities of grantee situated
within the city.
(g)
Right
to audit.
(1)
In addition to any other inspection rights under this chapter or
the franchise, upon 10 days prior written notice, city shall have
the right to inspect, examine, or audit, during normal business hours,
all documents pertaining to the grantee or any affiliated person which
are reasonably necessary to the city's enforcement of its rights under
the terms of this chapter or 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. All such documents pertaining to
financial matters which may be the subject of an audit by the city
as set forth herein shall be retained by the grantee for a minimum
of five years following the termination of the franchise. Access by
the city 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. However, the provision
of such information by grantee to city shall not be construed as an
admission that such information is a matter of public record, and
grantee and city may enter into an agreement regarding the confidentiality
of financial information.
(2)
City may require written certification by the grantee's directors,
officers, or other employees with respect to all documents referred
to in this paragraph g.
(3)
Any audit conducted by the city pursuant to this section shall be
conducted at the sole expense of the city, and the city 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 city 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 2%
in the amount of franchise fees or other payments which have been
made or will be made by the grantee to the city pursuant to the terms
of the franchise.
(h)
Retention
of experts. In the exercise of its obligations under this chapter,
the city shall have the further right to retain technical experts
and other consultants on a periodic basis for the purpose of monitoring,
testing, and inspecting any construction, operation, or maintenance
of the system, and all parts thereof, or to ensure compliance with
and enforcement of the provisions of this chapter and the franchise.
The city shall bear the cost of retaining such experts, provided that
the grantee shall reimburse the city for all expenses related to the
retention of said experts where this chapter or the franchise so provide,
or under either of the following circumstances:
(1)
The grantee has initiated proceedings which would normally require
the city to retain such experts, such as the filing of a request for
approval of a transfer or change in control, renewal to the extent
allowed by law, expansion of the franchise service area, or the modification
or amendment of the franchise; or
(2)
The reports of such experts submitted to the city reveal that the
grantee has failed to substantially comply with the terms and conditions
of this chapter or of the franchise.
|
If grantee is required to reimburse city pursuant to this subsection,
city shall send grantee an itemized description of such charges, and
grantee shall pay such amount within 20 days after the receipt of
such description.
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(Ord. No. 99-9(R), § 1, 10-20-99)
(a)
Notice
and hearing for franchise default.
(1)
Unless otherwise provided in this chapter or in the franchise, prior
to formal consideration by city of termination, revocation, or forfeiture
of grantee's franchise, or any other penalty or administrative remedy
available to the city, including liquidated damages, attributable
to grantee's failure, wilful, negligent, or otherwise, to adhere to
the terms and conditions of the franchise or this chapter, city shall
make written demand on grantee to correct the alleged default. City
and grantee shall expeditiously meet to discuss the alleged default,
at which time grantee shall indicate, in writing, the amount of time
necessary to resolve the alleged problem. Giving due consideration
to grantee's request, city shall, in writing, state the amount of
time city will allow grantee to resolve the problem. During this time
period, but in no event less than 10 days before the final date for
correction, grantee may request additional time to correct the problem,
and city shall grant said request if city 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 10 days
following the deadline for corrections, plus any extension thereof,
a hearing shall be scheduled by city on such franchise termination,
revocation, forfeiture, or any other penalty or administrative remedy.
(2)
For purposes of the hearing described in the above paragraph, the
city will select an administrative hearing officer pursuant to current
California law and consistent with constitutional standards of due
process.
(3)
The administrative officer shall provide written notice of such hearing,
including the grounds for the proposed action, to the grantee no less
than 30 days before the hearing on the matter. In addition, the administrative
officer, as part of said written notification, shall state the procedures
to be followed by the city to determine whether cause for termination,
revocation, forfeiture, or other penalty exists. At a minimum, said
procedures shall afford the grantee adequate notice and a fair opportunity
for full participation, including the right to introduce evidence,
to require the production of evidence, to question witnesses, and
to obtain a transcript of the proceeding at grantee's expense. Within
10 days after the receipt of said notice, grantee shall file any written
objections to said procedures. The administrative officer shall notify
grantee of any modification to the procedures and provide another
10 day objection period. Any objections not raised within said 10
day periods shall be deemed waived. At the hearing, the administrative
officer shall hear city, 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.
The decision of the administrative officer shall be final and not
subject to further appeal.
(b)
Delegation
of enforcement mechanisms. Such liquidated damages as city may assess
against grantee which do not include loss of the franchise may, at
city's option, be determined by an officer or agency of the city to
which it may delegate such administrative decisions, subject to due
process and the criteria contained in this chapter and the franchise,
and subject to appeal to the city council.
(Ord. No. 99-9(R), § 1, 10-20-99)
(a)
Captions.
The section, subsection, paragraph, and subparagraph numbers and letters,
and the captions throughout this chapter, are intended to facilitate
reading and reference. Such numbers, letters, and captions shall not
affect the meaning or interpretation of any part of this chapter.
(b)
Franchise
references. A Franchise which cites, refers to, or otherwise incorporates
this chapter, or portions thereof, shall be deemed to be a franchise
issued under and subject to this chapter.
(c)
Filing.
When not otherwise specified in this chapter, all documents required
to be filed with city shall be filed with the city's representative
as designated by city.
(d)
Nonenforcement
by the city. A grantee shall not be relieved of its obligation to
comply with all provisions of this chapter, and of its franchise,
and all laws and regulations, by reason of any failure of the city
to demand prompt compliance.
(e)
Continuity
of service. It is the right of all subscribers to receive all available
services authorized by the franchise so long as their financial and
other obligations to the grantee are honored. In the event that the
grantee elects to rebuild, modify, or sell the system, the grantee
shall use due diligence and reasonable care to ensure that all subscribers
receive continuous, uninterrupted service. In the event of purchase
by the city, or a change of grantee, the current grantee shall cooperate
with the city or new grantee to operate the system for a temporary
period, in order to maintain continuity of service to all subscribers.
In the event that grantee, through its own fault, discontinues system-wide
service for 72 continuous hours, and grantee is in material default
of its franchise, or if the franchise is revoked by city (but not
if city fails to renew the franchise), city may, by resolution, when
it deems reasonable cause to exist, assume operation of the system
for the purpose of maintaining continuity of service. City's operation
of the system may continue until the circumstances which, in the judgment
of the city, threaten the continuity of service are resolved to city's
satisfaction. City shall be entitled to the revenues for any period
during which it operates the system.
(f)
Operation
by city. During any period when the system is being operated by city
pursuant to this section, city shall attempt to cause as little disruption
of operations as is consistent with the maintenance of continuing
service to subscribers. Notwithstanding the foregoing, city shall,
as it may deem necessary, make any changes in any aspect of operations
that, in city's sole judgment, are required for the preservation of
quality of service and its continuity. During any such period, city
will also maintain to the best of its ability the system's records,
physical plant, financial integrity, funds, and other elements normally
involved in operations.
(g)
Management
by city. City may, upon assuming operation of a system franchised
hereunder, appoint a manager to act for it in conducting the system's
affairs. Such manager shall have such authority as may be delegated
by city and shall be solely responsible to city for management of
the system. Grantee shall reimburse city for all its reasonable costs,
in excess of system revenues, incurred during city's operation if
the franchise is in full force and effect during the period of city's
operation.
(h)
Notices.
All notices and other communications to grantee shall be addressed
to it at the local address at which grantee conducts its business.
All notices and other communications to city shall be addressed to
such address as may be designated by city.
(i)
Force
majeure; grantee's inability to perform. In the event grantee's performance
of any of the terms, conditions, obligations, or requirements of this
chapter, 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 be limited to, any acts of God,
civil emergencies, labor unrest, strikes, utility interruptions, inability
to obtain gratis access to an individual's property, and any inability
of the grantee to secure all required authorizations or permits to
utilize necessary poles or conduits, so long as grantee uses due diligence
to timely obtain said authorization or permits.
(j)
Application.
All of the provisions of this chapter shall be applicable to all cable
operators and cable systems to the greatest extent permissible under
applicable law.
(Ord. No. 99-9(R), § 1, 10-20-99)
This article shall be known as the codified version of the "Statewide
Video Franchise Ordinance."
(Ord. No. 2009-12, § 3, 6-24-09)
This chapter is applicable to all video service providers who
are eligible for, and have received, a statewide video franchise ("state
franchise") under DIVCA, to provide video services in any portion
of the City of Escondido ("City").
(Ord. No. 2009-12, § 3, 6-24-09)
Pursuant to California Public Utilities Code Section 5840, effective
January 1, 2007, the California Public Utilities Commission ("CPUC")
has sole authority to grant state franchises. In addition, DIVCA now
expressly permits the City of Escondido to retain certain rights and
responsibilities with respect to state video franchise holders ("state
franchisees"). These include the right to receive a franchise fee
and a fee for public, educational and government ("PEG") programming,
both based on a percentage of the gross revenues of state franchisees;
the establishment and enforcement of penalties for violations of customer
service rules; the right to conduct an audit of a video franchisee's
gross revenue statements; and the right to impose reasonable restrictions
on the use of the city's public rights-of-way under California Public
Utilities Code Section 7901.1. DIVCA leaves unchanged the city's authority
to regulate the city's current cable franchises in accordance with
Chapter 8, Article 1 of the Escondido Municipal Code ("EMC") 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. No. 2009-12, § 3, 6-24-09)
(a)
Any
state franchisee operating within the public rights-of-way within
the boundaries of the city shall pay a fee to the city equal to 5%
of the gross revenue of that state franchisee.
(b)
Any
state franchisee operating within the boundaries of the city shall
pay an additional fee to the city equal to 1% of the gross revenue
of that state franchisee. The city must use funds derived from this
fee for PEG purposes, consistent with state and federal law.
(c)
Gross revenue, for the purposes of subsections (a) and (b) of this section, shall have the definition set forth in California Public Utilities Code Section 5860.
(Ord. No. 2009-12, § 3, 6-24-09)
Not more than once annually, the city may examine and perform
an audit of the business records of a state franchisee to ensure compliance
with EMC section 8-23. The expense of the audit shall be funded pursuant
to California Public Utilities Code Section 5860(i).
(Ord. No. 2009-12, § 3, 6-24-09)
(a)
The
holder of a state franchise shall comply with all applicable state
and federal customer service and protection standards pertaining to
the provision of video service.
(b)
The
city manager, or designee, shall monitor complaints from customers
of state franchisees doing business in the city, to ensure their compliance
with respect to state and federal customer service and protection
standards. The city manager, or designee, shall provide the state
franchisee(s) written notice of any material breaches of applicable
customer service standards, and shall allow the state franchisee(s)
30 days from the receipt of the notice to remedy the specified material
breach. Material breaches not remedied within the 30 day time period
shall be subject to the following penalties by the city manager, or
designee under California Public Utilities Code Section 5900(d):
(1)
For the first occurrence of a violation, a fine of $500 shall be
imposed for each day the violation occurs, 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 occurs, not
to exceed $3,000 for each violation.
(3)
For a third violation of the same nature within 12 months, a fine
of $2,500 shall be imposed for each day the violation occurs, not
to exceed $7,500 for each violation.
(c)
A state
franchisee may appeal any penalty assessed within 60 days by providing
written notice to the city manager. Upon receiving the written notice
from the state franchisee, the city council shall schedule a public
hearing to be noticed in a public agenda. In addition, such public
notice shall be mailed, not fewer than 14 days prior to the hearing,
to any resident that is directly affected by the actions of the state
franchisee which formed the basis for the assessment of penalties
by the city manager. After relevant speakers are heard, and any necessary
staff reports are submitted, the city council will vote to either
uphold or vacate the penalty. The city council's decision on the imposition
of a penalty shall be final.
(Ord. No. 2009-12, § 3, 6-24-09)
(a)
Applicants
for state franchises within the boundaries of the city must concurrently
provide complete copies to the city of any application or amendments
to applications filed with the PUC pursuant to California Public Utilities
Code Section 5840. One complete copy must be provided to the city
clerk, and one complete copy to the city manager.
(b)
The
city manager shall provide any appropriate comments to the PUC regarding
an application or an amendment to an application for a state franchise.
(Ord. No. 2009-12, § 3, 6-24-09)
