A.
Purpose.
1.
Establish
a local policy concerning cable systems, open video systems, and private
communication systems that use the public rights-of-way;
2.
Promote
the availability of diverse, multimedia information resources to the
community; enhance educational opportunities throughout the community
and build a stronger community;
3.
Encourage
the provision of advanced and competitive cable or open video system
services on the widest possible basis to the businesses, institutions
and residents of the city;
4.
Encourage
economic development while preserving aesthetic and other community
values and prevent proliferation of above ground facilities; and
5.
Encourage
universal access to video programming services for all residents and
businesses.
B.
Findings.
1.
The
City of Napa has the authority to regulate the use of streets, public
rights-of way, and other city property, and to grant access thereto
upon certain terms and conditions; and
2.
The
City of Napa has reviewed its authority under state and federal law
and reviewed and considered how it may exercise its authority to best
protect the public health, safety, and welfare; effect responsible
management of the public rights-of-way; meet the obligations of the
city to manage and maintain the public rights-of-way; minimize disruption
and inconvenience to the use of the public rights-of-way for transportation
purposes; and ensure reasonable nondiscriminatory access to the public
rights-of-way by secondary users; and
3.
The
public rights-of-way within the City of Napa are a valuable and scarce
community resource physically limited in dimension requiring the city
to manage them for the most efficient and best use and to minimize
the costs to the taxpayers of the foregoing uses, to protect against
foreclosure of future economic expansion because of premature exhaustion
of the public rights-of-way as an economic resource, and to minimize
the inconvenience to and negative effects upon the public from such
facilities' construction, emplacement, relocation, and maintenance
in the public rights-of-way; and
4.
The
privilege to place privately owned facilities and fixtures in such
rights of way for the business of providing cable and related services
for hire is a valuable economic privilege to use a unique public resource
that has been acquired and is maintained at great expense to the city
and its tax-payers, the economic benefit of which should be shared
with the taxpayers of the city; and
5.
The
City of Napa wishes to promote the availability of high-quality and
diverse cable services to city residents, businesses, the City of
Napa, and other public institutions; and to promote the availability
of diverse information resources to the community, including through
the development of advanced systems that can support public, educational,
and governmental programming and high-speed access to the Internet;
and
6.
The
City of Napa wishes to provide opportunities to the public to obtain
access to communications facilities for the purpose of disseminating
and receiving information; to promote competitive cable rates and
services; to take advantage of opportunities presented by cable and
open video systems to provide for more open government; to enhance
educational opportunities throughout the community and provide opportunities
for building a stronger community; and to allow flexibility to respond
to changes in technology, subscriber interests, and competitive factors
that will affect the health, welfare, and well-being of the community;
and
7.
In
light of federal and state law, and the changes to local procedures
required by them, the City of Napa finds that it is necessary to enact
the following requirements and further finds it appropriate to apply
the provisions hereof to existing franchisees, permittees, and licensees
to the degree permitted by applicable law; and
8.
The
City of Napa finds that it is in the interest of the public to franchise
and to establish standards for franchising such operators in a manner
that promotes these objectives and otherwise protects the public interest.
(O4228; O94-026; O2005 5)
For the purposes of this chapter, the following terms, phrases,
words, and abbreviations shall have the meanings given herein. When
not inconsistent with the context, words used in the present tense
include the future tense; words in the plural number include the singular
number; and words in the singular number include the plural number;
and the masculine gender includes the feminine gender. The words "shall"
and "will" are mandatory, and "may" is permissive. Words not defined
in this chapter shall have the same meaning as in Title VI of the
Communications Act of 1934, as amended, 47 USC Section 521 et seq.,
and, if not defined therein, their common and ordinary meaning. References
to governmental entities (whether persons or entities) refer to those
entities or their successors in authority. If specific provisions
of law referred to herein are renumbered, then the reference shall
be read to refer to the renumbered provision. References to laws,
ordinances or regulations shall be interpreted broadly to cover government
actions, however nominated, and include laws, ordinances and regulations
now in force or hereinafter enacted or amended.
refers to the availability of a cable system or open video
system for public, education or government use (including Institutional
Network use) by various agencies, institutions, organizations, groups,
and individuals, including the City of Napa and its designated access
providers, to acquire, create, and distribute programming not under
a franchisee's editorial control, including, but not limited to:
"Public access" or "public use"
means access where organizations, groups, or individual members
of the general public, on a nondiscriminatory basis, are the primary
or designated programmers or users having editorial control over their
communications;
"Education access" or "education use"
means access where accredited educational institutions are
the primary or designated programmers or users having editorial control
over their communications;
"Government access" or "government use"
means access where government institutions or designees are
the primary or designated programmers or users having editorial control
over their communications.
means a person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control
with, another person.
means any service tier regularly provided to all subscribers
which includes the retransmission of local television broadcast signals.
means the Cable Communications Policy Act of 1984, 47 U.S.C.
Sections 521 et seq., as amended by the Cable Television Consumer
Protection and Competition Act of 1992, as further amended by the
Telecommunications Act of 1996, as further amended from time to time.
refers to open video systems (OVS) and cable systems.
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 which includes video programming
and which is provided to multiple subscribers within a community,
but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using, or connecting
to a facility that uses, any public right-of-way within the City of
Napa;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II (Common Carriers) of the Communications
Act of 1934, as amended, except that such facility shall be considered
a cable system 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;
Any facilities of any electric utility used solely for operating
its electric utility systems; or
An OVS that is certified by the FCC. Any reference to a cable
system includes the cable system as a whole, or any part thereof,
including all facilities, pedestals, equipment cabinets, electronic
equipment and devices appurtenant to the system.
means:
means a portion of the electromagnetic frequency spectrum
which is used in a cable system or OVS and which is capable of delivering
a television signal whether in an analog or digital format. The definition
does not restrict the use of any channel to the transmission of analog
television signals or one-way transmission.
means the City of Napa in its present incorporated form and
all departments, divisions, and agencies thereof, or any later reorganized,
consolidated, enlarged, or reincorporated form.
means the City Manager or the City Manager's designee.
and similar formulations of that term means the named actions
interpreted broadly, encompassing, among other things, installation,
extension, maintenance, replacement of components, relocation, under
grounding, grading, site preparation, adjusting, testing, make-ready,
and excavation.
means a channel designed and activated to carry a transmission
from the head end to other points on a cable communications system,
including interconnections.
means the Federal Communications Commission.
refers to an authorization granted by the city to the operator
of a cable communications system giving the operator the nonexclusive
right to occupy the space, or use facilities upon, across, beneath,
or over public rights-of-way in the city, to provide specified services
within a franchise area.
means the area of the city that a franchisee is authorized
to serve by the terms of its franchise or by operation of law.
refers to a person holding a cable communications system
franchise granted by the city.
In consideration of the grant and exercise of a franchise to
construct, install, operate, or provide services using facilities
in the public rights-of-way, a grantee shall pay to the city a franchise
fee expressed as a percentage of gross revenues. The franchise shall
specify the fee to be paid, and the gross revenues to be included
in the fee calculation. If a franchise granted pursuant to this chapter
specifies a franchise fee established as the result of limiting applicable
law, the city shall have the option to renegotiate the amount of the
franchise fee upon a change in applicable law. Nothing herein requires
a person to pay amounts in excess of any limits that may be established
by state or federal law.
UVPP Fees. A UVPP that provides services using a cable system
for which charges are assessed to subscribers, but are not received
by the franchisee, shall pay a fee in lieu of a franchise fee on such
service pursuant to the franchise fee calculation contained in the
cable system franchise.
means all cash, credits, property, or other consideration
of any kind or nature received directly or indirectly by a grantee
or its affiliates, from any source whatsoever arising from, attributable
to, or in any way derived from a grantee's operation of a cable system
within the franchise area. Gross revenues include, but are not limited
to, fees charged to subscribers for basic service; fees charged to
subscribers for any optional, premium, per-channel, or per-program
service; monthly fees charged to subscribers for any tier of service
other than basic service; installation, disconnection, reconnection,
and change-in-service fees; leased channel fees; fees, payments, or
other payment received as consideration from programmers for carriage
of programming on the cable system; converter rentals or sales; studio
rental, production equipment, and personnel fees; advertising revenues,
including a per capita share of advertising revenues for advertising
carried on more than one cable system; revenues from home shopping
channel; sales of programming guides; and such other revenue sources
as may now exist or hereafter develop. The definition shall be interpreted
in a manner which manner that permits the city to collect the maximum
franchise fee permitted by law, irrespective of the source of revenue.
Gross revenues, however, shall not include any bad debt (defined as
unpaid subscriber or advertiser accounts), any taxes on services furnished
to a grantee and imposed directly upon any subscriber or user by the
state, city, or other governmental unit and collected by a grantee
on behalf of said governmental unit. The amount paid as a franchise
fee shall not be deducted from gross revenues unless required to be
deducted under federal law.
when used with reference to a system, refers to a person
who:
Directly or through one or more affiliates, provides service
over a cable communications system and directly or through one or
more affiliates owns a significant interest in such facility; or
Otherwise controls or is responsible for, through any arrangement,
the management and operation of such a facility.
means an open video system. A reference to an OVS includes
pedestals, equipment enclosures (such as equipment cabinets), amplifiers,
power guards, nodes, cables, fiber optics and other equipment necessary
to operate the OVS, or installed in conjunction with the OVS.
means a contract entered into in accordance with the provisions
of this chapter between the city and an OVS franchisee setting forth
the terms and conditions under which the franchise will be exercised.
includes any individual, corporation, partnership, association,
joint stock company, trust, or any other legal entity, but not the
city.
means the surface of and the space above and below any street,
road, highway, freeway, bridge, lane, path, alley, court, sidewalk,
parkway, drive, or right-of-way or easement primarily dedicated to
travel, now or hereafter existing within the city which may be properly
used for the purpose of installing, maintaining, and operating a cable
communications system; and any other property that a franchisee is
entitled by state or federal law to use by virtue of the grant of
a franchise.
means any property that is owned or under the control of
the city that is not a public right-of-way, including, for purposes
of this chapter, but not limited to, buildings, parks, poles, structures
in the public rights-of-way such as utility poles and light poles,
or similar facilities or property owned by or leased to the city.
means the city's affirmative act of terminating a franchise.
means any accredited primary school, secondary school, college,
and university.
means the city or any person who is lawfully receiving, for
any purpose or reason, any cable service via a cable communications
system with franchisee's express permission, whether or not a fee
is paid for such service.
means the conclusion of a franchise by any means, including,
but not limited to, by expiration of its term, abandonment, or revocation.
means any transaction in which:
All or a portion of any facilities or any rights to use or operate facilities located in the public rights-of-way are sold, conveyed, transferred, assigned, encumbered (except as provided in Section 5.70.120(B)) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise; or
There is any change, acquisition, or transfer in the identity
of the person in control of the grantee, or any person that controls
grantee, including, without limitation, forced or voluntary sale,
merger, consolidation, or receivership; or
The rights or obligations under the franchise are sold, conveyed,
transferred, assigned, encumbered (except as set forth herein) or
leased, in whole or in part, directly or indirectly, by one or more
transactions to another person, whether voluntarily or by operation
of law or otherwise. It will be presumed, for purposes of subsection
2 herein, that any transfer or cumulative transfer of a voting interest
by a person or group of persons acting in concert of 10% or more of
grantee, or person that controls grantee, or any change in the managing
general partners of a grantee is a change of control. "Transfer" does
not include:
A lease to a UVPP pursuant to 47 U.S.C. Sections 532 or 573;
The transmission of a commodity or electronic signal using facilities
on a common carrier basis; or
A lease or other right to use facilities mandated pursuant to
47 U.S.C. Section 224. "Transferring" and "transferee" shall have
correlative meanings.
means a channel designed and activated to carry transmissions
from a point on the cable communications system, other than the headend,
to the headend or another point on the cable communications system.
means a person or the city utilizing a channel, capacity
or equipment and facilities for purposes of producing or transmitting
material, as contrasted with the receipt thereof in the capacity of
a subscriber.
(O4228; O94-026; O2005 5)
No person may construct or operate a cable communications system
in the city without first obtaining a grant of a franchise from the
city.
(O4228; O94-026; O2005 5)
The following persons or entities shall not be required to obtain
a franchise under this title:
A UVPP (unaffiliated video program provider) that is only delivering
cable service or other communications service (as that term is used
in 47 U.S.C. Section 542(h)) to subscribers.
(O2005 5)
A person's failure to obtain a franchise as required by this
chapter may, in the city's discretion, result in:
A.
Forfeiture,
by operation of law, of the person's cable communication system located
in the public rights-of-way that are not authorized by an existing
franchise; and/or
B.
A requirement
that the cable communication system be removed, and that penalties
and damages be paid.
(O2005 5)
Franchises existing as of the effective date of the ordinance codified in this chapter shall, in addition to all the obligations and duties prescribed by the terms of their existing franchises, be subject to the substantive and procedural requirements herein, except as prohibited by applicable law and to the extent such requirements conflict with specific provision of the pre-existing franchise. Nothing herein is intended to invalidate a lawful, existing franchise or to waive any obligations imposed by such a franchise. Chapter 5.70 of the Napa Municipal Code entitled Cable Television Systems as it read on September 1, 2004 shall continue to apply to any such preexisting franchise.
(O4228; O94-026; O2005 5)
A franchise shall be issued in the form of written agreement,
approved by resolution of the City Council, and must be accepted by
the franchisee to become effective.
(O4228; O94-026; O2005 5)
A person seeking to obtain a franchise, transfer a franchise,
extend the term of an existing franchise, renew a franchise, or modify
an existing franchise shall submit a signed original of its application
and six copies to the City Clerk. The City Clerk shall make an application
available for public inspection. The application must conform to all
of the requirements of this chapter. Requests for other types of franchise
modifications may be processed by the city without an application,
and submitted for approval. However, nothing herein shall prevent
the city from requiring an application in the event the city determines,
based on the nature of the requested modification, that the public
interest would best be served by the submission of an application
pursuant to this chapter.
(O4228 1; O94-026; O2005 5)
A.
Reasonable
Costs. An applicant shall pay all reasonable costs incurred by the
city related to the processing of any application. Processing costs
shall include, but not be limited to, the costs of services rendered
by any city employee, agent or representative, including consultants
and attorneys.
B.
The
initial deposit of the application fee for the consideration of an
application for issuance, renewal, transfer, or modification of a
franchise shall be in the amount of $5,000.00, which deposit shall
be submitted with the application. The City of Napa may, as costs
are incurred, draw upon the deposit to recover its processing costs,
including, but not limited to, the reasonable cost of outside consultants
retained by the city related to the city's consideration and processing
of a franchise. The City Manager, at any time, may require the applicant
to deposit additional sums if it appears that the initial deposit
or subsequent deposits will be exhausted prior to the final action
by the city relating to the consideration by the city of an application
for issuance, renewal, transfer, or modification of a franchise. The
applicant will not be entitled to further consideration by the City
of Napa of its requested action until such time as the additional
deposit required by the City Manager has been deposited with the city.
In the event the amount of the deposit of an applicant is in excess
of the amount of the processing costs of the city related to the action
requested, then the applicant shall be entitled to a return of any
such excess amount. In addition, an applicant that is awarded a franchise
shall pay the city a sum of money sufficient to reimburse it for all
publication expenses incurred by it in connection with the granting
of a franchise. Such payment shall be made to the (insert e.g., Controller)
of the city within 30 days after the city furnishes the franchisee
with a statement of such expenses.
(O4228; O94-026; O2005 5)
A.
Scope.
A franchise granted pursuant to this chapter shall authorize and permit
a franchisee to construct, operate, maintain and repair a cable system,
or an OVS (as applicable) to provide cable service in the city, and
for that purpose to erect, install, construct, repair, replace, reconstruct,
maintain facilities appurtenant to such system in, on, over, under,
upon, across, and along the public rights-of-way, and along such other
public property that the city may authorize a franchisee to use.
B.
Nothing
Passes by Implication. A franchise shall not convey rights other than
as specified in this chapter, or in a franchise agreement; no rights
shall pass by implication.
C.
Franchise
Not In Lieu of Other Authorizations. A franchise shall not include,
or be a substitute for:
1.
Compliance
with requirements for the privilege of transacting and carrying on
a business within the city, including, but not limited to, complying
with the conditions the city may establish before constructing facilities
for, or providing, non-cable services;
2.
Any
permit, agreement or authorization of general applicability required
in connection with operations on or in public rights-of-way or public
property, including by way of example and not limitation, encroachment
permits for street construction;
3.
Any
permits or agreements for occupying any other property of the city
or private entities to which access is not specifically granted by
the franchise.
D.
Franchisee
Must Comply With Other Laws. A franchise does not relieve a franchisee
of its duty to comply with all the city ordinances and regulations
of general applicability, as well as federal and state law, and every
franchisee must comply with the same. Likewise, the rights granted
under a franchise are subject to the exercise of police and other
powers the city now has or may later obtain, including, but not limited
to, the power of eminent domain.
E.
Franchise
Not a Grant of Property Rights. A franchise does not convey title,
equitable or legal, in the public rights-of-way. Rights granted may
not be subdivided or subleased.
F.
Possessory
Interest of Public Property. A franchise granted pursuant to this
chapter shall notify the franchisee of potential tax liability for
property taxes pursuant to California Revenue and Tax Code Section
107.6.
G.
Franchise
Nonexclusive. No franchise shall be exclusive, or prevent the city
from issuing other franchises or authorizations, or prevent the city
from itself constructing, operating, or repairing its own cable communications
system with or without a franchise.
H.
Franchise
Term. Every franchise shall be for a term of years, which term shall
be specified in the franchise.
I.
Costs
Borne by Franchisee. Unless otherwise specifically stated in a franchise,
or required by law, all acts which a franchisee is required to perform
under the franchise or applicable law must be performed at the franchisee's
expense.
J.
Failures
to Perform. If a cable communications system operator fails to perform
work that it is required to perform within the time provided for performance,
the city may perform the work and bill the operator therefor. The
operator shall pay the amounts billed within 30 days. Nothing in this
section shall preclude the city from exercising any other remedies
available at law or in equity if the cable communications system operator
fails to perform work that it is required to perform within the time
provided for performance.
(O4228; O94-026; O2005 5)
A.
Adoption
of Regulations. The City of Napa may from time to time adopt regulations
to implement the provisions of this chapter. This chapter, and any
regulations adopted pursuant to this chapter, are not contracts with
any franchisee, and may be amended at any time. In the event of any
conflict between the terms and provisions of a franchise or franchisee
and this chapter, the terms and provisions of this chapter shall prevail.
B.
Delegation.
The City Manager or designees are hereby authorized to administer
the provisions of this chapter and any franchise issued pursuant thereto,
and to provide any notices (including noncompliance notices) and to
take any action on the city's behalf that may be required hereunder
or under applicable law.
C.
No Waiver.
The failure of the city, upon one or more occasions, to exercise a
right or to require compliance or performance under a franchise or
any other applicable law shall not be deemed to constitute a waiver
of such right or a waiver of compliance or performance, unless such
right has been specifically waived in writing.
D.
Administration
of Public, Educational and Government Access. The city may designate
one or more entities, including itself, to control and manage the
use of public, educational and governmental access channels, facilities
and equipment.
E.
Conflict.
Except as to a franchise in existence as of the effective date of
the ordinance codified in this chapter, in the event of a conflict
between the provisions of this chapter and the terms of the franchise,
the terms of the franchise shall prevail.
(O4228; O94-026; O2005 5)
A.
Prior Approval Required. Every franchise shall be deemed to be held in trust, and to be personal to the franchisee. Any transfer that is made without the prior approval of the city shall be deemed invalid. A transfer is defined in Section 5.70.020.
B.
Exception
for Mortgages. Notwithstanding any other provision of this chapter,
pledges in trust, mortgages, or encumbrances against the facilities
or any portion thereof of a cable communications system operator given
to a bona fide institutional lender in connection with a loan or other
financing required to secure the construction, operation, or repair
of the facilities ("loan") may be made without application and without
the city's prior. However, a loan shall require the city's prior consent
unless it does each of the following:
1.
Requires
the cable communications system operator or any successor to comply
with the franchise or applicable law;
2.
Requires
the bona fide institutional lender to require the entity operating
the cable system on its behalf to comply with each of the terms of
the franchise; and
3.
Prohibits
a third party to succeed to the interest of the operator, or to own
or control the system, without the prior consent of the city. Any
mortgage, pledge or lease shall be subject to and subordinate to the
rights of the city under any franchise, this chapter, or other applicable
law.
(O4228; O94-026; O2005 5)
A.
Franchisee
Must Follow Local Rules. The construction, operation, and repair of
cable communications systems shall be performed in compliance with
all laws, ordinances, departmental rules, regulations, and practices
of general applicability affecting such system. By way of example,
and not limitation, this includes zoning and safety codes, construction
standards, regulations for providing notice to persons that may be
affected by system construction, and directives governing the time,
place and manner in which facilities may be installed in the public
rights-of-way. Persons engaged in the construction, operation, or
repair of communications facilities shall exercise reasonable care
in the performance of all their activities and shall use commonly
accepted methods and devices for preventing failures and accidents
that are likely to cause damage, injury, or nuisance to the public
or to property.
B.
No Permit
Without Franchise. A franchise is required before a permit may be
issued for work associated with the construction of a cable communications
system. Any permit issued for such work to a person that does not
hold a franchise shall vest no rights in the permittee; the permit
may be revoked at will, and the permittee shall remove all facilities
installed under the permit upon the city's demand.
C.
Permits
Must Be Obtained. Construction, operation, or repair of a cable communications
system shall not commence until all required permits have been obtained
from the proper city officials and all required fees have been paid.
All work performed will be performed in strict accordance with the
conditions of the permit. Upon order of the city, any work and/or
construction undertaken that is not completed in compliance with the
city's requirements, or which is installed without obtaining necessary
permits and approvals shall be removed or worked halted until such
permits are obtained.
D.
No Interference.
Interference with the use of the public rights-of-way by others, including
others that may be installing cable communications systems, must be
minimized. The City may require a person using the public rights-of-way
to cooperate with others through joint trenching and other arrangements
to minimize adverse impacts on the public rights-of-way.
E.
Plans
for and Publicizing Work. Work shall be publicized as the city may
direct from time to time. The publication of work may be used to notify
the public and operators of other communications systems, of the impending
work, in order to minimize inconvenience and disruption to the public.
The city may approve, modify or disapprove any work or work plan submitted.
1.
Each
cable communications system operator shall provide the city a plan
for any initial system construction, or for any substantial rebuild,
upgrade or extension of its facility, which shall show its timetable
for construction of each phase of the project, and the areas of the
city that will be affected.
2.
The
city may from time to time, when the city receives an application
for a permit to use a particular route, or upon the city's own initiative,
designate by published order a route or proposed route for installation
of communications facilities and may: (a) require all persons who
wish to emplace underground facilities along that route or any part
thereof to install them during a specified period; and (b) otherwise
prohibit emplacement of such facilities along the route or any part
thereof for 24 months or after such other, longer period as is necessary
to protect the public interest.
F.
Existing
Poles to be Used. To the extent possible, operators of cable communications
systems shall use existing poles and conduit. Additional poles may
not be installed in the right-of-way without the permission of the
city, nor may pole capacity be increased by vertical or horizontal
extenders. To minimize disruption of public passage or infrastructure,
to forestall or relieve exhaustion of public rights-of-way capacity,
or to protect environmentally sensitive areas, the city may require,
as a condition of issuing any public rights-of-way permit for erection
of new poles or construction of underground conduit, the installation
of which requires excavation of or along any traveled way, that the
franchisee, licensee, or holder of the rights of way permit provide
pole space or empty conduits in excess of its own present and reasonably
foreseeable requirements for the purpose of accommodating the city
and/or other franchisees.
G.
Undergrounding.
1.
Whenever
all existing utilities are located underground in an area in the city,
every cable communications system operator in the same area must locate
its cable communications system underground except where the city
agrees to permit the cable communication system operator to do otherwise.
2.
Whenever
the owner of a pole locates or relocates underground within an area
of the city, every cable communications system operator in the same
area shall concurrently relocate its facilities underground.
3.
The
City Manager may, for good cause shown, exempt a particular system
or facility or group of facilities from the obligation to locate or
relocate facilities underground, where relocation is impracticable,
where ordinary engineering practices make undergrounding impractical,
or where the city and the subscriber's interest can be protected in
another manner. Nothing in this section shall prevent the city from
ordering communications facilities to be located or relocated underground
under other provisions of the city code.
H.
Prompt
Repairs. Any and all public rights-of-way, other public property,
or private property that is disturbed or damaged during the construction,
operation, maintenance or repair of a cable communications system
shall be promptly repaired by the operator. Public property and public
rights-of-way must be restored to the satisfaction of the city and
to a condition as good or better than before the disturbance or damage
occurred. No tree trimming shall be performed without the permission
of the city and other affected authorities, and any tree trimming
must be performed in strict accordance with the city code.
I.
Movement
of Facilities for Government.
1.
A
cable communications system operator shall, by a time specified by
the city, protect, support, temporarily disconnect, relocate, or remove
any of its property when required by the city by reason of traffic
conditions; public safety; public rights-of-way construction and repair
(including regrading, resurfacing or widening); public right-of-way
vacation; construction, installation or repair of sewers, drains,
water pipes, power lines, signal lines, tracks, or any other type
of government-owned system or utility, public work, public facility,
or improvement; or for any other purpose where the work involved would
be aided by the removal or relocation of the cable communications
system. Collectively, such matters are referred to below as the "public
work."
2.
Except
in the case of emergency, the city shall provide written notice describing
where the public work is to be performed at least one week prior to
the deadline by which a cable communications system operator must
protect, support, temporarily disconnect, relocate or remove its facilities.
Such action on the part of the franchisee shall be undertaken at no
cost to the city. Provided that, in an emergency, or where a cable
communications system creates or is contributing to an imminent danger
to health, safety, or property, the city may protect, support, temporarily
disconnect, remove, or relocate any or all parts of the cable communications
system without further notice, and charge the cable communications
system operator for costs reasonably incurred.
J.
Movement
for Others.
1.
To
accommodate the construction, operation, or repair of the facilities
of another person authorized to use the public rights-of-way or public
property, a franchisee shall, by a time specified by such person,
protect, support, temporarily disconnect, temporarily relocate or
remove its facilities. The franchisee must be given written notice
describing where the construction, operation or repair is to be performed
at least 15 days prior to the time by which its work must be completed.
The costs to accommodate the construction, operation, or repair of
the facilities of another person as provided herein shall be the responsibility
of the person requesting such accommodation.
2.
A
cable communications system operator shall, on the request of any
person holding a valid permit issued by a governmental authority,
temporarily raise or lower its wires by a time specified to permit
the moving of buildings or other objects. A cable communications system
operator shall be given not less than seven days advance notice to
arrange for such temporary wire changes. The expense of such temporary
removal, relaying, relocation, or raising or lowering of wires shall
be paid by the person requesting the same.
K.
Abandonment
in Place.
1.
A
cable communications system operator may abandon any property in place
in the public rights-of-way upon written notice to the city. However,
if, within 90 days of the receipt of written notice of abandonment,
the city determines, that the safety, appearance, functioning or use
of the public rights-of-way and facilities in the public rights-of-way
will be adversely affected, the property must be removed by a date
specified by the city.
2.
A
cable communications system operator that abandons its property must,
upon request, transfer ownership of the properties to the city at
no cost, and execute necessary quitclaim deeds and indemnify the city
against future costs associated with mitigating or eliminating any
environmental hazards associated with the abandoned property.
L.
Systems
Subject to Inspection. Every cable communications system shall be
subject to inspection and testing by the city. Each operator must
respond to requests for information regarding its system and plans
for the system as the city may from time to time issue, including
requests for information regarding its plans for construction, operation
and repair and the purposes for which the plant is being constructed,
operated, or repaired.
M.
Underground
Services Alert. Each operator of a cable communications system that
places facilities underground shall be a member of the regional notification
center for subsurface installations (under-ground services alert)
and shall field mark the locations of its underground communications
facilities upon request. The operator shall identify the location
of its cable communication system for the city at no charge.
N.
Plan
for Construction. Every franchise shall specify for the city a construction
schedule that will apply to any required construction, upgrade, or
rebuild of the cable communications system. The schedule shall provide
for the prompt completion of the project, and shall show its timetable
for construction of each phase of the project, with benchmarks for
deliverables and the areas of the city that will be affected. The
city shall have the right to impose penalties on the operator for
a failure to meet the accepted timetable and benchmarks.
O.
Use
of Facilities by the City. The city shall have the right to install
and maintain, free of charge, upon any poles or in any conduit owned
by a franchisee, any wire and pole fixtures that do not unreasonably
interfere with the cable service operations of the franchisee. The
city shall pay costs associated with attaching or affixing the city's
wire or fixture to the franchisee's infrastructure.
(O4228; O94-026; O2005 5)
A.
Indemnity
Required. No franchise shall be valid or effective until and unless
the city obtains an adequate indemnity from the franchisee. The indemnity
must:
1.
Release
the city from and against any and all loss, damage, expense, cost
(without limitation the cost of litigation) liability and responsibility
in or arising out of the construction, operation or maintenance of
the cable communications system. Each cable communications system
operator must further agree not to sue or seek any money or damages
from the city in connection with the above mentioned matters.
2.
Indemnify,
hold harmless, and defend the city, its elected and appointed officers,
agents, and employees, from and against any and all liability, loss,
damage, cost, claims, demands, or causes of action of any kind or
nature, and the resulting losses, costs, expenses, reasonable attorneys'
fees, liabilities, damages, orders, judgments, or decrees sustained
by the city or any third party arising out of, or by reason of, or
resulting from or of the acts, errors, or omissions of the cable communications
system operator, or its agents, independent contractors or employees
related to or in any way arising out of the construction, operation
or repair of the system.
3.
Provide
that the covenants and representations relating to the release, indemnification,
and hold harmless provision shall survive the term of the franchise
or other authorization and continue in full force and effect as to
the party's responsibility to indemnify.
B.
Insurance
Required. A franchisee (Or those acting on its behalf) shall not commence
construction or operation of the system without obtaining insurance
in amounts and of a type satisfactory to the city. The required insurance
must be obtained and maintained for the entire period the franchisee
has facilities in the public rights-of-way. If the franchisee, its
contractors, or subcontractors do not have the required insurance,
the city may order such entities to stop operations until the insurance
is obtained and approved.
C.
Proof.
Certificates of insurance, reflecting evidence of the required insurance
and naming the city as an additional insured, and other proofs as
the city may find necessary, shall be filed with the city. For persons
issued franchises after the effective date of date of the ordinance
codified in this chapter, certificates and other required proofs shall
be filed within 30 days of the issuance of a franchise, prior to the
commencement of construction, once a year thereafter, and whenever
there is any change in coverage. For entities that have facilities
in the public rights-of-way as of the effective date of this chapter,
the certificate shall be filed within 60 days of the effective date
of the ordinance codified in this chapter, annually thereafter, and
whenever there is any change in coverage, unless a pre-existing franchise
provides for filing of certificates in a different manner. In the
event that the insurance certificate provided indicates that the insurance
shall terminate or lapse during the term of the franchise, then in
that event, the cable communications system operator shall furnish,
at least 30 days prior to the expiration of the date of such insurance,
a renewed certificate of insurance as proof that equal and like coverage
has been obtained.
D.
Certificate
Contents. All certificates shall contain a provision that coverages
afforded under these policies will not be canceled until at least
30 days' prior written notice has been given to the city. Policies
shall be issued by companies authorized to do business under the laws
of the state of California. Financial ratings of the insurer shall
be no less than "A" VII or better in the latest edition of "Bests
Key Rating Guide," published by A.M. Best Guide.
E.
Insurance
Amounts. A cable communications system operator (and those acting
on its behalf to construct or operate the system) shall maintain the
following minimum insurance. The city shall be named as an additional
insured by endorsement on the general liability and automotive policies;
those insurance policies shall be primary and contain a cross-liability
clause.
1.
Comprehensive
general liability insurance to cover liability, bodily injury, and
property damage. Exposures to be covered are: premises, operations,
products/completed operations, and certain contracts. Coverage must
be written on an occurrence basis, with the following limits of liability:
|
|
Each Occurrence
|
Annual Aggregate
|
|---|---|---|
|
Bodily Injury
|
$1,000,000.00
|
$3,000,000.00
|
|
Property Damage
|
$1,000,000.00
|
$3,000,000.00
|
|
Personal Injury
|
|
$3,000,000.00
|
Completed operations and products liability shall be
maintained for two years after the termination of the franchise (in
the case of the cable communications system owner or operator) or
completion of the work for the cable communications system owner or
operator (in the case of a contractor or subcontractor).
Property damage liability insurance shall include coverage for
the following hazards: X - explosion, C - collapse, U - underground.
2.
Workers'
compensation insurance shall be maintained during the life of this
contract to comply with statutory limits for all employees, and in
the case any work is sublet, each cable communications system operator
shall require the subcontractors similarly to provide workers' compensation
insurance for all the latter's employees unless such employees are
covered by the protection afforded by each cable communications system
operator. Each cable communications system operator and its contractors
and subcontractors shall maintain during the life of this policy employers
liability insurance. Workers' compensation insurance shall include
a waiver of subrogation clause in favor of the city. The following
minimum limits must be maintained:
|
Workers' Compensation
|
Statutory
|
|---|---|
|
Employer's Liability
|
$500,000.00 per Occurrence
|
3.
Comprehensive
Auto Liability.
|
|
Each Occurrence
|
Annual Aggregate
|
|---|---|---|
|
Bodily Injury
|
$1,000,000.00
|
$3,000,000.00
|
|
Property Damage
|
$1,000,000.00
|
$3,000,000.00
|
Coverage shall include owned, hired, and non-owned vehicles.
In every franchise agreement the city shall reserve the right to require
any other insurance coverage it deems necessary depending upon exposures.
F.
Construction
Bond. Every operator of a cable communications system shall obtain
and maintain a construction bond to ensure the faithful performance
of its responsibilities under this chapter and any franchise. The
amount of the bond shall be set in the city franchise, but shall not
be less than 10% of the estimated cost of constructing or (in the
case of existing systems) upgrading the system, and shall include
a sufficient amount to cover the removal of facilities and/or restoration
of city facilities within the right-of-way. The bond is not in lieu
of any additional bonds that may be required through the permitting
process. The bond shall be in a form acceptable to the City Attorney.
Bonds must be obtained prior to the effective date of any franchise,
transfer or franchise renewal, unless a franchise specifically provides
otherwise.
G.
Security
Fund. Every cable communications system operator shall establish and
maintain a cash security fund or provide the city an irrevocable letter
of credit in the amount of $100,000.00 to secure the payment of fees
owed, to secure any other performance promised in a franchise, and
to pay any taxes, fees, penalties or liens owed to the city. The letter
of credit shall be in a form and with an institution acceptable to
the city. Should the city draw upon the cash security fund or letter
of credit, the cable communications system operator shall, within
14 days, restore the fund or the letter of credit to the full required
amount. This security fund/letter of credit may be waived or reduced
by the city for a franchisee where the city determines in its discretion
that a particular franchisee's operations are sufficiently limited
that a security fund/letter of credit is not necessary to secure the
required performance. The city may from time to time require a franchisee
to change the amount of the required security fund/letter of credit
to reflect changed risks to the city and to the public, including
delinquencies in taxes or other payments to the city. The cash security
fund or letter of credit must be obtained prior to the effective date
of any franchise, transfer or franchise renewal, unless a franchise
specifically provides otherwise.
(O4228; O94-026; O2005 5)
A.
Franchise
Violation—Notice and Procedures. Before revoking a franchise
or issuing an order to assess liquidated damages, the city shall follow
the procedures set forth below:
1.
The
city shall notify a cable communications system operator in writing
of any alleged violation ("violation notice") of a franchise or this
chapter. The violation notice shall:
a.
Identify the violation;
b.
Direct the cable communications system operator to cure the violation
or show cause why the violation cannot or should not be cured; and
c.
State the time for the cable communications system operator's response,
which shall be at minimum 30 days from the date of issuance of the
violation notice, except for violations that present a danger to public
health, safety or welfare, in which case the time for response may
be shortened.
2.
Within the time period designated for response in the violation notice issue pursuant to subsection (A)(1), the cable communications system operator shall respond in writing to the city indicating that:
a.
The cable communications system operator intends to contest the violation
notice and describing all facts relevant to its claim; or
b.
The cable communications system operator has completely cured the
violation, in which case the cable communications system operator
shall provide documentation demonstrating that the violation has been
completely cured; or
c.
The cable communications system operator has begun to correct the
violation, however, the violation cannot be corrected immediately
despite the cable communications system operator's continued due diligence,
in which case the operator shall describe in detail the steps already
taken and operator's proposed plan and time schedule for completely
curing the violation. The city may accept, modify, or reject the cable
communications system operator's proposed plan and time schedule for
curing the violation. Correction of the violation is not complete
until all damages and penalties owed are paid in full.
3.
If
the cable communications system operator contests the violation notice
or the city determines that the cable communications system operator
has failed to completely cure the violation, to submit an acceptable
plan to cure the violation, or to work diligently to cure the violation,
the city shall schedule a hearing before the City Manager or designee
("violation hearing"). The city shall provide cable communications
system operator written notice of the violation hearing at least 20
days prior to the hearing ("hearing notice").
5.
At
the violation hearing, the City Manager or designee shall hear and
consider evidence from the cable communications system operator, city
staff and members of the public regarding the alleged violation. The
cable communications system operator shall be given an opportunity
to present any and all evidence relating to the alleged violation.
6.
If, based upon the evidence presented at the violation hearing, the City Manager or designee finds that cable communications system operator has violated its franchise, this chapter or any applicable state or federal law, the City Manager or designee may issue an order assessing liquidated damages if provided for by the cable communications system operator's franchise, or, subject to subsection B, and the terms of the cable communications system operator's franchise, revoke or shorten the franchise. The cable communication system operator may appeal the decision to the City Council.
7.
If the cable communications system operator files a written appeal to the City Council pursuant to subsection (A)(6), the City Council shall hold a public hearing to consider the appeal. Notice of the hearing shall be given to the cable communications system operator at least 20 days prior to the hearing. Such notice shall include the information described in subsection (A)(4). If based upon the evidence presented at the public hearing the City Council finds that the cable communications system operator has violated its franchise, the chapter, or any applicable state or federal laws, the City Council may issue an order assessing liquidated damages if provided for by the cable communications system operator's franchise, or subject to subsection B, and the terms of the cable communications system operators' franchise, revoke or shorten the term of the franchise.
B.
Revocation and Termination. The City Council may revoke a franchise or reduce the term of a franchise if it finds, after complying with procedures set forth above, that a cable communications system operator has violated this chapter or its franchise or license; has defrauded or attempted to defraud the city or subscribers; or has attempted to evade the requirements of this chapter or its franchise or license. Except as to violations that are impossible to cure, and as provided in subsections C and D, the franchise may only be revoked if the franchisee:
1.
Was
given notice of the default; and
2.
30
days to cure the default; and
3.
The
franchisee failed to cure the default, or to propose a schedule for
curing the default acceptable to the city where it is impossible to
cure the default in 30 days. Any revocation proceeding must be conducted
in accordance with applicable federal and state law.
C.
Exception for Certain Acts. No opportunity to cure is required for repeated violations (provided that notice was provided pursuant to subsection A, and fraud and attempted fraud shall be deemed incurable). Further, the city may declare a franchise forfeited without opportunity to cure where a franchisee:
D.
Effect
of Termination or Forfeiture. Upon termination or forfeiture of a
franchise, whether by action of the city as provided above, or by
passage of time, the franchisee must stop using the cable communications
system for the purposes authorized by the franchise. The city may
take possession of some or all of franchisee's facilities, consistent
with provisions of applicable law, or require the franchisee or its
bonding company to remove some or all of the franchisee's facilities
from the city, and restore affected property to its same or better
condition. This provision does not permit the city to remove facilities
that are used to provide another service for which the franchisee
holds a valid franchise issued by the city.
E.
Remedies
Cumulative. Remedies provided for under this chapter or under a franchise
shall be cumulative. Recovery by the city of any amounts under insurance,
the performance bond, the security fund or letter of credit, does
not limit a franchisee's duty to indemnify the city; or relieve a
franchisee of its franchise obligations or limit the amounts owed
to the city.
F.
Liquidated
Damages Required in Franchise. A franchise granted pursuant to this
chapter shall require liquidated damages, in an amount to be specified
in the franchise, for specified breaches of the franchise including,
but not limited to, failure to commence construction, failure to meet
construction plan benchmarks, failure to comply with rebuild plan
benchmarks, failure to commence service, and material breach of franchise
obligation(s). The franchise shall also provide that the city may
withdraw liquidated damages owed from the grantee's security deposit,
after complying with the procedures set forth in Section 1.14.1. Liquidated
damages shall commence on that date that performance was due and/or
failed, and continue until the grantee demonstrates to the satisfaction
of the city that the grantee has fully performed its obligations giving
rise to the payment of liquidated damages. Any obligation to pay liquidated
damages does not in any way affect the grantee's obligation to pay
franchise fees or perform other franchise obligations and such liquidated
damages do not constitute franchise fees and are not subject to any
limitations on franchise fees contained in 47 U.S.C. Section 542(b).
Any obligation to pay liquidated damages are not costs of satisfying
franchise requirements as provided in 47 C.F.R Section 76.925. A grantee
may not pass the cost of any liquidated damages to subscribers through
subscriber rates or itemize or otherwise identify on subscriber bills
any obligation grantee may have to pay liquidated damages.
G.
Penalties,
Penalties and Other Monetary Sanctions.
1.
Penalties.
In addition to any other remedies provided for in this chapter or
otherwise available by law, the city shall have the power to impose
monetary penalties in the event a grantee violates any provision of
this chapter, a franchise, or any regulation lawfully adopted thereunder.
The amounts of such penalties shall be based on the following principles.
a.
Penalties shall exceed the financial benefits to a grantee delaying
or failing to comply with the applicable requirement;
b.
Even where such benefits are not easily discernible, the penalties
shall be high enough to have a significant deterrent effect on a grantee;
and
c.
Penalties shall be sufficient to protect the city and other affected
parties against loss of revenues resulting from violations.
3.
Private
Suit Against Grantee.
a.
Any person or organization adversely affected by a violation, or
by a pattern and practice of violations, shall have the right to sue
a grantee in a court of competent jurisdiction for damages and for
injunctive and other relief to require enforcement of the franchise.
Organizations shall be entitled to sue on behalf of themselves or
their members.
b.
The remedy herein provided shall be in addition to any remedies provided
by law.
c.
Except in emergency situations in which immediate relief is required,
private litigants shall notify the City Attorney not fewer than 10
days prior to filing suit. However, suit by the city shall not preempt
the private litigant's right to proceed.
4.
In addition to any other remedies provided for in this chapter or otherwise available by law, the city shall have the power to impose monetary penalties in the event any person who violates any provisions of this chapter shall be subject to a monetary penalty in an amount determined pursuant to the principles in subsection (G)(1).
(O4228; O94-026; O2005 5)
A.
Generally.
Each cable communications system operator shall provide the city access
to books and records related in whole or in part to the construction,
operation, or repair of the cable communications system, or a group
of systems of which the system is a part, so that the city may inspect
and copy these books and records. The records shall include, but are
not limited to, revenue records and other records related to compliance
with any provision of this chapter or a franchise. A franchisee is
responsible for obtaining or maintaining the necessary possession
or control of all such books and records, so that it can produce the
documents upon request. Books and records must be maintained for a
period of five years, except that a franchise may specify a shorter
period for certain categories of voluminous books and records where
the information contained therein can be derived simply from other
materials. The phrase "books and records" shall be read expansively
to include information in whatever format stored.
B.
Production.
Books and records requested shall be produced to the city by a time
and at a location in the city designated by the City Manager. However,
if the requested books and records are too voluminous, or for security
reasons cannot be copied and moved, then the franchisee may request
that the inspection take place at some other location mutually agreed
to by the city and the franchisee, provided that: (1) the franchisee
must make necessary arrangements for copying documents selected by
the city after its review; and (2) the franchisee must pay all travel
and additional copying expenses incurred by the city (above those
that would have been incurred had the documents been produced in the
city) in inspecting those documents or having those documents inspected
by its designee.
(O4228; O94-026; O2005 5)
A.
Obligation
to Submit. The City Manager may from time to time direct a franchisee
to prepare reports and to submit those reports by a date certain,
in a format prescribed by the City Manager, in addition to those required
by this chapter.
B.
Quarterly
Reports. Unless an exemption is granted by the City Manager, within
45 days of the end of each calendar quarter, a franchisee shall submit
a report to the city containing the following information:
1.
The
number of service calls (calls requiring a truck roll) received during
the prior quarter and the percentage of service calls compared to
the subscriber base; and
2.
The
total estimated hours of known outages as a percentage of total hours
of operation. An outage is a loss of sound or video on any signal,
or a significant deterioration of any signal affecting two or more
subscribers.
C.
Annual
Reports. Unless an exemption is granted by the City Manager, no later
than 90 days after the end of the operator's fiscal year, a franchisee
shall submit the following information:
1.
A
fully audited or self-certified revenue report signed by an officer
of the cable communications system operator from the previous calendar
year for the cable communications system, and a certified statement
setting forth the computation of gross revenues used to calculate
the franchise fee for the preceding year and a detailed explanation
of the method of computation showing: (a) gross revenues by category
(e.g., basic service, pay, pay-per-view, advertising, installation,
equipment, late charges, miscellaneous, other); and (b) what, if any,
deductions were made from gross revenues in calculating the franchise
fee (e.g., bad debt, credits and refunds), and the amount of each
deduction.
2.
A
report showing, for each applicable customer service standard, the
franchisee's performance with respect to that standard for each quarter
of the preceding year. In each case where the franchisee concludes
it did not comply fully, the franchisee will describe the corrective
actions it is taking to assure future compliance. In addition, the
report should identify the number and nature of all the customer service
complaints received and an explanation of their dispositions.
3.
An
ownership report indicating all persons who, at the time of filing,
control or own an interest in the franchisee of 10% or more.
D.
Contemporaneous
Reports. Within 10 days of their receipt or (in the case of documents
created by the operator or its affiliate) filing, a franchisee shall
provide the city:
1.
Notices
of deficiency or forfeiture related to the operation of the system;
and
2.
Any
request for protection under bankruptcy laws, or any judgment related
to a declaration of bankruptcy by the franchisee or by any partnership
or corporation that owns or controls the franchisee directly or indirectly.
(O4228; O94-026; O2005 5)
Each franchisee shall maintain accurate maps and improvement
plans which show the location, size, and a general description of
all facilities installed in the public rights-of-way and any power
supply sources (including voltages and connections). Maps shall be
based upon post-construction inspection to verify location. Each franchisee
shall provide a map to the city showing the location of its facilities,
in such detail and scale as may be directed by the city Public Works
Director and update the map at least annually, and whenever the facility
expands or is relocated. Copies of maps shall be provided in hard
copy and on disk, in a commercially available electronic format specified
by the city Public Works Director.
(O4228; O94-026; O2005 5)
Unless the City Manager waives the requirement, a franchisee
shall at all times maintain:
A.
Complaint
Records. Records of all complaints received, their nature and resolution.
The term "complaints" refers to complaints about any aspect of the
franchisee's operations or customer service.
B.
Outage
Records. Records of outages known to the franchisee, their cause and
duration.
C.
Complaint
Response. Records of service calls for repair and maintenance indicating
the date and time service was requested, the date of acknowledgment
and date and time service was scheduled (if it was scheduled), and
the date and time service was provided, and (if different) the date
and time the problem was solved.
D.
Installation
Records. Records of installation/reconnection and requests for service
extension, indicating date of request, date of acknowledgment, and
the date and time service was extended.
E.
Customer
Service. Records sufficient to show whether the franchisee has complied
with each customer service standard that applies to it.
(O4228; O94-026; O2005 5)
The City Manager may temporarily exempt any franchisee from
its obligations under Sections 1.15 through 1.18 if the City Manager
determines that the requirement would be unduly burdensome or unnecessary,
and that the city and subscriber interests may be adequately protected
in some other manner.
(O4228; O94-026; O2005 5)
A franchisee shall take all reasonable steps required so that
it is able to provide reports, books and records to the city, including
by providing appropriate subscriber privacy notices. Each franchisee
shall be responsible for redacting data that applicable law prevents
it from providing to the city. Nothing in this section shall be read
to require a franchisee to violate state or federal subscriber privacy
laws.
(O4228; O94-026; O2005 5)
A.
Fees
Paid Quarterly. The franchise fee paid pursuant to Chapter 2, or fee
in lieu of franchise fee paid pursuant to Chapter 3 shall be paid
quarterly unless otherwise specified in a franchise. Payment for each
quarter shall be made to the city not later than 45 days after the
end of each calendar quarter.
B.
Quarterly
Statement. Unless a franchise provides otherwise, a franchisee or
other entity subject to a fee under Chapter 2 or 3 shall file with
the city within 45 days of the end of each calendar quarter a statement
showing gross revenues during the preceding quarter and the number
of subscribers served.
C.
Acceptance
of Payment Not a Release. No acceptance by the city of any payment
shall be construed as an accord that the amount paid is in fact the
correct amount, nor shall such acceptance of such payment be construed
as a release of any claim the city may have for additional sums payable.
D.
Fee
Not In Lieu of Taxes. Neither the franchise fee under Chapter 2, nor
the fee paid in lieu of the franchise fee under Chapter 3, is a payment
in lieu of any tax, fee or other assessment of general applicability
(including any such tax, fee or assessment imposed on both utilities
and operators or their services, but not including a tax, fee, or
assessment which is unduly discriminatory against operators or cable
subscriber(s)).
E.
Failure
to Pay Franchise Fee. In the event that a fee payment is not received
by the city on or before the due date set forth in this section or
in a franchise, or the fee owed is not fully paid, the person subject
to the fee will be charged interest from the due date at an interest
rate equal to three percent above the rate for three-month federal
treasury bills at the most recent United States Treasury Department
sale of such treasury bills occurring prior to the due date of the
franchise fee payment.
F.
Final
Statement of Gross Revenues. Within 90 days of the date a franchisee
ceases operations under a franchise (whether because of franchise
termination, transfer, bankruptcy or for any other reason), the franchisee
shall file a final statement of gross revenues covering the period
from the beginning of the calendar year in which the operations ceased
to the date operations ceased. The statement shall contain the information
and be certified as required by Section 1.16.3(A.).
(O4228; O94-026; O2005 5)
A.
Application
Required. An application must be filed for an initial and renewal
cable system franchise, or for approval of a transfer. A request for
renewal filed under 47 U.S.C. Section 546(h) need not contain the
information required by Section 2.1.2(A).
B.
Application
Contents.
1.
The
City Manager may specify the information that must be provided in
connection with an application, and the form in which the information
is to be provided. At a minimum each application must identify the
applicant including any affiliates, show that the applicant is financially,
technically and legally qualified to construct, maintain and operate
the cable system, contain a pro forma showing capital expenditures
and expected income and expenses for the first five years the applicant
is to hold the franchise, and show that the applicant is willing to
comply unconditionally with its franchise obligations. In addition,
any application for an initial or renewal franchise or rebuild of
the operators system and/or facilities, must describe in detail the
cable system that the applicant proposes to build, show where it will
be located, set out the system construction schedule, and show that
the applicant will provide adequate channels, facilities and other
support for public, educational and government use (including institutional
network use) of the cable system. The detailed description of the
physical facilities proposed shall include at least the following:
a.
A description of the channel capacity, technical design, performance
characteristics, headend, access (and institutional network, if required)
facilities and equipment;
b.
The location of proposed facility and facility design, including
a description of the miles of plant to be installed, and a description
of the size of equipment cabinets, shielding and electronics that
will be installed along the plant route, the power sources that will
be used and a description of the noise, exhaust and pollutants, if
any, that will be generated by the operation of the same; provided,
however, that, if some of the descriptive data is not available at
the time of application, the franchise may issue subject to conditions
that the data be filed and approved by the city before construction
begins and that the franchise will be deemed to be forfeited if the
data is not supplied and approved; provided, further, that the foregoing
proviso does not authorize the grant of a franchise where there is
not sufficient information to appraise the impact of the applicant's
proposal;
c.
A map of the general route the facility will follow; a designation
of the portions of the system that will be placed above ground and
the portions that will be placed underground, and the construction
techniques that the operator proposes to use in installing the system
above ground and underground; a schedule for construction of the facility,
describing when and where construction will begin, how it will proceed,
benchmarks indicating the schedule completion of portions of the system
and when construction will be completed; and the expected effect on
right-of-way usage, including information on the ability of the public
rights-of-way to accommodate the proposed system, including, as appropriate
given the system proposed, an estimate of the availability of space
in conduits and an estimate of the cost of any necessary rearrangement
of existing facilities;
d.
A description, where appropriate, of how services will be converted
from existing facilities to new facilities, and what will be done
with existing facilities;
e.
A demonstration of how the applicant will reasonably meet the future
cable-related needs and interests of the community, including descriptions
of the capacity, facilities and support for public, educational, and
governmental use of the system (including institutional networks)
applicant proposes to provide and why applicant believes that the
proposal is adequate to meet the future cable-related needs and interests
of the community;
f.
A demonstration of the financial qualifications of the applicant,
including at least the following:
(1)
The proposed rate structure, including projected charges for each
service tier, installation, converters, and all other proposed equipment
or services,
(2)
A statement regarding the applicant's financial ability to complete
the construction to meet the time frame proposed and to operate the
cable system proposed certified by the applicant's chief financial
officer;
g.
A demonstration of the applicant's technical ability to construct
and/or operate the proposed cable system;
h.
A demonstration that the applicant is legally qualified, which proof
must include a demonstration that the applicant:
(1)
Has received, or is in a position to receive, necessary authorizations
from state and federal authorities,
(2)
Has not engaged in conduct (fraud, racketeering, violation of antitrust
laws, consumer protection laws, or similar laws) that allows the city
to conclude the applicant cannot be relied upon to comply with requirements
of franchise, or provisions of this title,
(3)
Is willing to enter into a franchise, to pay required compensation
and to abide by the provisions of applicable law, including those
relating to the construction, operation or repair of its facilities;
and has not entered into any agreement that would prevent it from
doing so, and
(4)
The applicant must not have submitted an application for an initial
or renewal franchise to the city, which was denied, or as to which
any challenges to such franchising decision were finally resolved
(including any appeals) adversely to the applicant, within three years
preceding the submission of the application;
i.
An applicant may show that it would be inappropriate to deny it a
franchise by virtue of: (1) the particular circumstances surrounding
the acts or omissions at issue, (2) the steps taken by the applicant
to cure all harms flowing therefrom and to prevent their recurrence;
and the lack of involvement of the applicant's principals, or (3)
the remoteness of the acts or omissions from the operation of communications
systems;
j.
The extent that the applicant is in any respect relying on the financial
or technical resources of another person, including another affiliate,
proofs should be provided for that person;
k.
A description of the applicant's prior experience in cable system
ownership, construction, and operation, and identification of cities
and counties in California in which the applicant or any of its principals
have a cable franchise or any interest therein, provided that an applicant
that holds a franchise for the city and is seeking renewal of that
franchise need only provide this information for other cities and
counties in California where its franchise is scheduled to expire
during the 12-month period prior to the date its application is submitted
to the city and for other cities and counties in California where
its franchise had been scheduled to expire during the 12-month period
after the date its application is submitted to the city. If an applicant
has no other franchise in California, it shall provide the information
for its operations in other states;
l.
An affidavit or declaration of the applicant or authorized officer
thereof certifying the truth and accuracy of the information in the
application, and certifying that the application meets all requirements
of applicable law.
2.
To
be accepted for filing, an original and six copies of a complete application
must be submitted. All applications shall include the names and addresses
of persons authorized to act on behalf of the applicant with respect
to the application.
3.
An
applicant (and the transferor and transferee, in the case of a transfer)
shall respond to any request for information from the city, by the
time specified by the city.
C.
Incomplete
Applications. An application may be rejected if it is incomplete,
or if the response to requests for information is not timely and complete.
(O4228; O94-026; O2005 5)
A.
Scope.
This section establishes additional provisions that apply to an application
for an initial franchise, or a renewal franchise application that
is not governed by 47 U.S.C. Section 546(a)—(h).
B.
Process.
Any person may apply for an initial or renewal franchise by submitting
an application therefor on that person's own initiative, or in response
to a request for proposals issued by the city. If the city receives
an unsolicited application, it may choose to issue a request for additional
proposals, and require the applicant to amend its proposal to respond
thereto. The city shall promptly conduct such investigations as are
necessary to act on an application.
C.
Consideration
of Application. In determining whether to grant a franchise, the city
may consider:
1.
The
extent to which an applicant for renewal has substantially complied
with the applicable law and the material terms of any existing cable
franchise;
2.
Whether
an applicant's quality of service under its existing franchise, including
signal quality, response to customer complaints, billing practices,
and the like has been reasonable in light of the needs of the community;
3.
Where
the applicant has not previously held a cable system franchise in
the city, whether the applicant's record in other communities indicates
that it can be relied upon to provide high-quality service throughout
any franchise term;
4.
Whether
the applicant has the financial, legal, and technical ability to provide
the services, facilities, and equipment set forth in an application,
and to satisfy any minimum requirements established by the city;
5.
Whether
the applicant's application is reasonable to meet the future cable-related
needs and interests of the city, taking into account the cost of meeting
such needs and interests;
6.
Whether
issuance of a franchise is in the public interest considering the
immediate and future effect on streets, public property, and private
property that will be used by the applicant's cable system;
7.
Whether
issuance of the franchise would reduce competition in the provision
of cable service in the city;
8.
Such
other matters as the city is authorized or required to consider.
D.
Issuance
of Franchise. If the city determines that issuance of a franchise
would be in the public interest considering the factors described
above, it may offer a franchise agreement to the applicant. No franchise
shall become effective until the franchise is unconditionally accepted
by the applicant, approved by the City Council, and the franchise
agreement is signed by both parties.
(O4228; O94-026; O2005 5)
A.
Scope.
This section establishes additional provisions that apply to applications
for renewal governed by 47 U.S.C. Section 546(a)—(g).
B.
Process.
A franchisee that intends to exercise rights under 47 U.S.C. Section
546(a)—(g) shall submit a notice in writing to the city in a
timely manner clearly stating that it is activating the procedures
set forth in those sections. The city shall thereafter commence any
proceedings that may be required under federal law, and upon completion
of those proceedings, the city may issue a request for proposals and
an application may be submitted for renewal. The city may preliminarily
deny the application by resolution, and if the application is preliminarily
denied, the city may conduct such proceedings and by resolution establish
such procedures and appoint such individuals as may be necessary to
conduct any proceedings to review the application.
(O4228; O94-026; O2005 5)
A.
Scope.
This section establishes additional provisions that apply to applications
for transfer approval.
B.
Information. An application for transfer must contain all the information required by the City Manager, by Section 5.70.230, and all information required by any FCC transfer form.
C.
Consideration
of Application. In determining whether a transfer application should
be granted, denied, or granted subject to conditions, the city may
consider the legal, financial, and technical qualifications of the
transferee to operate the cable system; any potential impact of the
transfer on subscriber rates or services; whether the incumbent operator
is in compliance with its franchise; whether the transferee owns or
controls any other cable system in the city, whether operation by
the transferee may eliminate or reduce competition in the delivery
of cable service in the city; and whether operation by the transferee
or approval of the transfer would otherwise adversely affect subscribers,
the public, or the city's interest under this chapter, the franchise,
or other applicable law. The proposed transferee shall pay all reasonable
costs incurred by the city in reviewing and evaluating the applications.
The city may consider a resolution either approving or denying a transfer
application within a reasonable period of time, or within the timeframes
provided by federal law, whichever is longer. The city and the parties
to the transfer may agree in writing to extend any federal timeframe.
D.
Minimum
Conditions. In order to obtain approval of a transfer, an applicant
must show, at a minimum, that: the transferee is financially, legally,
and technically qualified; the transfer will not adversely affect
the interests of subscribers, the public, or the city; and that non-compliance
issues have been resolved to the satisfaction of the city. No application
shall be granted unless the transferee agrees in writing that it will
abide by and accept all terms of this chapter and the franchise, and
that it will assume the obligations, liabilities, and responsibility
for all acts and omissions, known and unknown, of the previous franchisee
for all purposes.
(O4228; O94-026; O2005 5)
A.
Standards.
1.
The
applicant must be willing to comply with the provisions of this chapter
and applicable laws; and to comply with such requirements of a franchise
as the city may lawfully require.
2.
The
applicant must not have had any cable system or OVS franchise validly
revoked, (including any appeals) by the city within three years preceding
the submission of the application.
3.
The
applicant must not have had an application to the city for an initial
or renewal cable system franchise denied within three years preceding
the submission of the application; and must not have had an application
for an initial or renewal OVS franchise denied on any ground within
three years of the application.
4.
The
applicant or its principals shall not be issued a franchise if, at
any time during the 10 years preceding the submission of the application,
applicant was convicted or found to have committed fraud, racketeering,
securities fraud, anticompetitive actions, unfair trade practices
or other conduct of such character that the applicant cannot be relied
upon to deal truthfully with the city and the subscribers, or to substantially
comply with its obligations.
5.
Applicant
must have the necessary authority under California and federal law
to operate a cable system, or show that it is in a position to obtain
that authority.
6.
The
applicant shall not be issued a franchise if it files materially misleading
information in its application or intentionally withholds information
that the applicant lawfully is required to provide. For purposes of
Section 2.5.1(B) through (D), the term applicant includes any affiliate
of applicant.
B.
Exception. Notwithstanding subsection A, an applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of subsections (A)(3) and (A)(4), are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing there from and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system.
(O4228; O94-026; O2005 5)
A cable communications system operator shall pay to the city
a franchise fee in an amount equal to five percent of gross revenues,
or such other amount as may be specified in the franchise; provided,
however, that if the franchise specifies an amount, that amount shall
be subject to increase should federal limits on fee payments be eliminated
or changed and other operators are subject to a higher fee.
A.
Bundled
Services. In the event that the franchisee shall, during the term
of the franchise, offer bundled, tied, or combined cable services
(which are subject to the franchise fee) with non-cable services (which
may not be subject to the franchise fee) to individual subscribers,
the combined revenues from such bundled services shall be allocated
consistent with the rates or prices advertised by the franchisee through
its marketing materials or on its published rate card. In the event
the franchisee does not advertise or publish separate prices for the
combined services, the percentage that the price for the combined
services is discounted from the regular retail rates of the individual
services shall be pro-rated across all the services in the bundled
package; provided, however, that the net revenues derived from services
subject to mandatory tariff rates imposed by the California Public
Utilities Commission (Or other governmental entity having such authority)
shall be deducted from the combined revenue to determine the revenue
subject to the franchise fee. As an example, franchisee may offer
a "bundle" of video, voice and data services for a flat fee of $75.00
where the retail rate for the services purchased on an individual
basis would equal $100.00. Assuming that there is no service subject
to the mandated tariff rate, grantee would apply a 25% discount to
each service. Thus, if the retail rate for the cable service in the
bundle were $50.00, grantee would recognize cable service revenue
in the amount of $37.50 and pay a franchise fee on that revenue.
B.
The
definition of gross revenue is to be as inclusive as possible consistent
with existing applicable law. If a change in federal law occurs subsequent
to the effective date of date of the ordinance codified in this chapter,
such change shall not impact the gross revenues definition in such
a way to reduce gross revenues—unless the change specifically
preempts the affected portion of the definition above.
(O4228; O94-026; O2005 5)
A franchisee may not require a subscriber or a building owner
or manager to enter into an exclusive contract as a condition of providing
or continuing service. However, nothing herein prevents a franchisee
from entering into an otherwise lawful, mutually desired exclusive
arrangement with a building owner or manager of a multiple dwelling
unit or commercial subscriber.
(O4228; O94-026; O2005 5)
In addition to satisfying such additional or stricter conditions
as the city finds necessary based on its investigations, the following
elements shall be required in every franchise:
A.
System
Design. Each franchisee shall provide a cable system that uses at
least 750MHz equipment of high quality and reliability. Each franchisee
shall install and activate the return portion of the cable system.
B.
Public,
Educational and Government Use of the System.
1.
A
franchisee shall provide that number of channels for PEG access to
each subscriber that reflects future cable related needs and interests
as determined through an assessment of future use of PEG access by
community groups, educational institutions, local governmental agencies,
and the general public.
2.
Each
franchisee shall install, maintain, and replace as necessary, a dedicated,
bi-directional fiber optic link (Or link with equivalent or superior
functionality, capacity and reliability) between its headend and a
location designated by the city as the primary access center.
3.
Each
franchisee shall install, maintain, and replace activated two-way
cable plant and all headend, cable plant, and node equipment required
to make it operable so that the city, schools, and all designated
PEG access centers and access facilities located within the franchise
area will be able to send and receive signals (video, audio, and data)
using the activated two-way cable plant.
4.
Each
franchisee shall ensure that technically adequate signal quality,
routing systems, and switching and/or processing equipment are initially
and continuously provided for all access interconnections both within
franchisee's cable system and with other cable systems throughout
the duration of its franchise.
5.
In
the event a franchisee makes any change in the cable system and related
equipment and facilities or in the franchisee's signal delivery technology
which directly or indirectly substantially affects the signal quality
or transmission of access programming, the franchisee shall at its
expense take necessary steps or provide necessary technical assistance,
including the acquisition of all necessary equipment, to ensure that
the capabilities of access programmers are not diminished or adversely
affected by such change.
6.
A
franchisee shall maintain all access channels (both upstream channels
and downstream channels) and all interconnections of access channels
at the same level of technical quality and reliability as the best
commercial channels carried on the grantee's system.
C.
Service
to Franchise Area. It is the policy of the city to ensure that every
cable system provide service in its franchise area upon request to
any person or any government building. Each franchisee shall extend
service upon request within its franchise area. Service must be provided
within time limits specified.
(O4228; O94-026; O2005 5)
A.
All
Rates Subject to Regulation. The city may regulate any of the operator's
rates and charges, except to the extent it is prohibited from doing
so by law. The city will regulate rates in accordance with FCC rules
and regulations, where applicable. Except to the extent FCC rules
provide otherwise, all rates and charges that are subject to regulation,
and changes in those rates or charges must be approved in advance.
The City Manager may take any required steps to file complaints, toll
rates, issue accounting orders or take any other steps required to
comply with FCC regulations. The City Council shall be responsible
for issuing rate orders that establish rates or order refunds.
B.
No Rate
Discrimination. Except to the extent the city may not enforce such
a requirement, an operator is prohibited from discriminating in its
rates or charges or from granting undue preferences to any subscriber,
potential subscriber, or group of subscribers or potential subscribers;
provided, however, that a franchisee may offer temporary, bona fide
promotional discounts in order to attract or maintain subscribers,
so long as such discounts are offered on a nondiscriminatory basis
to similar classes of subscribers throughout the franchise area; and
a franchisee may offer discounts for the elderly, the disabled, or
the economically disadvantaged; and such other discounts as it is
expressly entitled to provide under federal law, if such discounts
are applied in a uniform and consistent manner.
C.
Redlining
Prohibited. An operator shall not deny access or charge different
rates to any group of subscribers or potential subscribers because
of the income of the residents of the local area in which such group
resides.
D.
Customer
Service.
1.
Each
operator must satisfy FCC, state and the city cable customer service
standards and consumer protection standards. The city cable customer
service standards may be adopted by resolution. In the case of a conflict
among standards, the stricter standard shall apply.
2.
For
violation of cable customer service standards, penalties will be imposed
as follows:
(a)
$200.00 for each day of each material breach, not to exceed $600.00
for each occurrence of material breach.
(b)
If there is a subsequent material breach of the same provision within
12 months, $400.00 for each day of each material breach, not to exceed
$1,200.00 for each occurrence of the material breach.
(c)
If there is a third or additional material breach of the same provision
within 12 months of the first, $1,000.00 for each day of each material
breach, not to exceed $3,000.00 for each occurrence of the material
breach.
3.
Any
penalty assessed under this section will be reduced dollar for dollar
to the extent any liquidated damage provision of a franchise imposes
a monetary obligation on a franchisee for the same customer service
failures, and no other monetary damages may be assessed. The city
will provide notice, and impose penalties, under this section pursuant
to the procedures established by California Government Code Section
53088.2(r).
(O4228; O94-026; O2005 5)
A.
Initial
and Renewal Franchise: Application.
1.
A
written application shall be filed with the city for grant of an initial
or renewal franchise.
2.
To be acceptable for filing, a signed original of the application shall be submitted together with six copies. The application must conform to any applicable request for proposals, and contain all information required under subsection B. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
B.
Contents
of Applications. The City Manager may specify the information that
must be provided in connection with a request for proposals or an
application for an initial or renewal franchise. The form of the application
is Attachment 1 to the ordinance adopting this chapter. At a minimum,
each application must: identify the applicant, where it plans to construct
its system, and the system construction schedule; show that the applicant
will provide adequate channels, facilities and other support for public,
educational and government use (including institutional network use)
of the OVS; and show that the applicant is financially, technically
and legally qualified to construct and operate the OVS. The application
must contain the following information:
1.
Identity
of the applicant; the persons who exercise working control over the
applicant; and the persons who control those persons, to the ultimate
parent.
2.
A
proposal for construction of the open video system that includes at
least the following:
a.
A description of the services that are to be provided over the facility.
b.
Identification of the area of the city to be served by the proposed
system, including a description of the proposed franchise area's boundaries.
c.
The location of proposed facility and facility design, including
a description of the miles of plant to be installed, and a description
of the size of equipment cabinets, shielding and electronics that
will be installed along the plant route, the power sources that will
be used and a description of the noise, exhaust and pollutants, if
any, that will be generated by the operation of the same.
d.
A map of the route the facility will follow a designation of the
portions of the system that will be placed aboveground and the portions
that will be placed underground, and the construction techniques that
the operator proposes to use in installing the system aboveground
and underground; a schedule for construction of the facility, describing
when and where construction will begin, how it will proceed, benchmarks
for completion of phases, and when it will be completed; expected
effect on rights-of-way usage, including information on the ability
of the public rights-of-way to accommodate the proposed system, including,
as appropriate given the system proposed, an estimate of the availability
of space in conduits and an estimate of the cost of any necessary
rearrangement of existing facilities.
e.
A description, where appropriate, of how services will be converted
from existing facilities to new facilities, and what will be done
with existing facilities.
3.
Evidence
satisfactory to the city that the applicant has the financial resources
to complete the proposed project, and to construct, operate and repair
the proposed facility over the franchise term. It is not the intent
of the city to require an applicant to prove that the services it
proposes to offer will succeed in the marketplace.
4.
Evidence
satisfactory to the city that applicant is technically qualified to
construct, operate and repair the proposed facility. At a minimum,
the applicant must show that it has experience or resources to ensure
that work is to be performed adequately, and can respond to emergencies
during and after construction is complete.
5.
Evidence
satisfactory to the city that the applicant is legally qualified,
which proof must include a demonstration that the applicant:
a.
Has received, or is in a position to receive, necessary authorizations
from state and federal authorities;
b.
Has not engaged in conduct (fraud, racketeering, violation of antitrust
laws, consumer protection laws, or similar laws) that allows city
to conclude the applicant cannot be relied upon to comply with requirements
of franchise, or provisions of this chapter;
c.
Is willing to enter into a franchise, to pay required compensation
and to abide by the provisions of applicable law, including those
relating to the construction, operation or maintenance of its facilities,
and has not entered into any agreement that would prevent it from
doing so.
6.
An
affidavit or declaration of the applicant or authorized officer thereof
certifying the truth and accuracy of the information in the application,
and certifying that the application meets all requirements of applicable
law.
7.
An
applicant may show that it would be inappropriate to deny it a franchise
by virtue of: the particular circumstances surrounding the acts or
omissions at issue; the steps taken by the applicant to cure all harms
flowing therefrom and to prevent their recurrence; and the lack of
involvement of the applicant's principals, or the remoteness of the
acts or omissions from the operation of open video system facilities.
8.
To
the extent that the applicant is in any respect relying on the financial
or technical resources of another person, including another affiliate,
the proofs should be provided for that person. An applicant will be
presumed to have the requisite financial, or technical or legal qualifications
to the extent such qualifications have been reviewed and approved
by a state agency of competent jurisdiction; or if applicant is a
holder of a franchise in the city for a cable system or open video
system, and conduct under such other franchise provides no basis for
additional investigation.
C.
Procedure
for Applying for Grant of a Franchise.
1.
A
person may apply for an initial or renewal franchise on its own initiative
or in response to a request for proposals. Upon receipt of an application,
the city shall promptly proffer the applicant a proposed OVS agreement,
which shall be mailed to the person requesting its issuance and made
available to any other interested party. The city may request such
additional information, as it deems appropriate.
2.
An
applicant shall respond to requests for information completely, and
within the time directed by the city, and must strictly comply with
procedures, instructions, and requirements the city may establish.
3.
An
application may be rejected if it is incomplete or the applicant fails
to follow procedures or respond fully to information requests.
D.
Evaluation.
In evaluating a franchise application, the city may consider the following:
1.
The
extent to which the applicant has substantially complied with the
applicable law and the material terms of any existing city OVS franchise;
2.
Whether
the applicant has the financial, technical, and legal qualifications
to hold an OVS franchise;
3.
Whether
the application satisfies any minimum requirements established by
the city for, or will otherwise provide adequate public, educational,
and governmental use capacity, facilities, or financial support (including
with respect to institutional networks);
4.
Whether
issuance of a franchise would require replacement of property or involve
disruption of property, public services, or use of the public rights-of-way;
5.
Whether
the approval of the application may eliminate or reduce competition
in the delivery of cable service in the city.
E.
Issuance.
If the city finds that it is in the public interest to issue a franchise
considering the factors above, and such other matters as it is required
or entitled to consider, and subject to the applicant's entry into
an appropriate OVS agreement, it shall issue a franchise. Prior to
deciding whether or not to issue a franchise, the city may hold one
or more public hearings or implement other procedures under which
comments from the public on an application may be received.
F.
Legal
Qualifications. In order to be legally qualified:
1.
The
applicant must be willing to comply with the provisions of this chapter
and applicable laws, and to comply with such requirements of an OVS
agreement as the city may lawfully require.
2.
The
applicant must not hold a cable system franchise, or have pending
an application for a cable system franchise with the city.
3.
The
applicant must not have had any cable system or OVS franchise validly
revoked, (including any appeals) by the city within three years preceding
the submission of the application.
4.
The
applicant may not have had an application for an initial or renewal
cable system franchise to the city denied within three years preceding
the submission of the application.
5.
The
applicant may not have had an application for an initial or renewal
OVS franchise denied on any grounds within three years of the applications.
6.
The
applicant or its principals shall not be issued a franchise if, at
any time during the 10 years preceding the submission of the application,
applicant was convicted or found to have committed fraud, racketeering,
securities fraud, anticompetitive actions, unfair trade practices
or other conduct of such character that the applicant cannot be relied
upon to deal truthfully with the city and the subscribers or to substantially
comply with its obligations.
7.
Applicant
must have the necessary authority under California and federal law
to operate an OVS, and must be certified by the FCC under Section
653 of the Cable Act.
8.
The
applicant shall not be issued a franchise if it files materially misleading
information in its application or intentionally withholds information
that the applicant lawfully is required to provide.
G.
Exception. Notwithstanding subsection F, an applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of subsections (F)(4) and (5) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system.
(O4228; O94-026; O2005 5)
A.
City
Approval Required. No transfer shall occur without prior written notice
to and approval of the city.
B.
Application.
1.
A
franchisee shall notify the city within 10 days of any proposed transfer,
and submit an application for its approval.
2.
The
City Manager may specify information that must be provided in connection
with a transfer application. At a minimum, an application must: describe
the entities involved in the transaction and the entity that will
hold the franchise; describe the chain of ownership before and after
the proposed transaction; show that the entity that will hold the
franchise will be legally, financially, and technically qualified
to do so; attach complete information on the proposed transaction,
including the contracts or other documents that relate to the proposed
transaction, and all documents, schedules, exhibits, or the like referred
to therein; and attach any shareholder reports or filings with the
Securities and Exchange Commission ("SEC") that discuss the transaction.
3.
For
the purposes of determining whether it shall consent to a transfer,
the city or its agents may inquire into all qualifications of the
prospective transferee and such other matters as the city may deem
necessary to determine whether the transfer is in the public interest
and should be approved, denied, or conditioned. If the transferee
or franchisee refuses to provide information, or provide incomplete
information, the request for transfer may be denied.
C.
Determination
by the City.
1.
In
deciding whether a transfer application should be granted, denied
or granted subject to conditions, the City Council may consider the
legal, financial, and technical qualifications of the transferee to
operate the OVS; whether the incumbent OVS operator is in compliance
with its OVS agreement and this chapter and, if not, the proposed
transferee's commitment to cure such noncompliance; whether the transferee
owns or controls any other OVS or cable system in the city, and whether
operation by the transferee may eliminate or reduce competition in
the delivery of cable service in the city; and whether operation by
the transferee or approval of the transfer would adversely affect
subscribers, the public, or the city's interest under this title,
the OVS agreement, or other applicable law.
2.
In
order to obtain approval of a transfer, an applicant must show, at
a minimum, that: the transferee is qualified; the transfer will not
adversely affect the interests of subscribers, the public, or the
city; and that noncompliance issue have been resolved. No application
shall be granted unless the transferee agrees in writing that it will
abide by and accept all terms of this chapter and the franchise, and
that it will assume the obligations, liabilities, and responsibility
for all acts and omissions, known and unknown, of the previous franchisee
for all purposes. The proposed transferee shall pay all reasonable
costs incurred by the city in reviewing and evaluating the applications.
(O4228; O94-026; O2005 5)
B.
Institutional
Network. Any OVS operator that constructs an I-Net must match in all
respects the highest I-Net obligations borne by any operator in the
city, unless it agrees to alternative I-Net obligations acceptable
to the city.
C.
Construction
Provisions. Every OVS agreement shall specify the construction schedule
that will apply to any required construction, upgrade, or rebuild
of the OVS. The schedule shall provide for prompt completion of the
project, considering the amount and type of construction required.
D.
Testing.
Each OVS operator shall perform at its expense such tests as may be
necessary to show whether or not the franchisee is in compliance with
its obligations under this chapter or a franchise.
E.
Consumer
Protection Provisions. Every franchisee must satisfy customer service
consumer protection requirements established from time to time under
state or local law and applicable to OVS.
(O4228; O94-026; O2005 5)
If a franchisee's FCC certification is revoked or otherwise
terminates as a result of the passage of time or as a matter of law,
the city may revoke the OVS franchise after a hearing. The OVS franchise
may also be revoked if federal regulations or statutory provisions
governing OVS are declared invalid or unenforceable, or are repealed.
(O4228; O94-026; O2005 5)
The city may regulate a franchisee's rates and charges except
as prohibited by law, and may do so by amendment to this chapter,
separate ordinance, by amendment to an OVS agreement, or in any other
lawful manner.
(O4228; O94-026; O2005 5)
A.
OVS Operators. In lieu of the franchise fee required by Section 5.70.280, an OVS franchisee shall pay a fee of five percent of the gross revenues of the franchisee, its affiliates or any OVS operator of the OVS.
B.
Persons
Leasing OVS Capacity.
2.
Notwithstanding the foregoing, where franchisee charges a person, other than an affiliate, to use its OVS (the "use payments"); and that person recovers those use payments through charges to its subscribers that are included in that person's gross revenues; and that person fully recovers the use payments through the charges to its subscribers and pays a fee on those charges pursuant to subsection A, then franchisee may deduct from its gross revenues the use payments it receives from that person.
(O4228; O94-026; O2005 5)
Franchisee may not require a subscriber or a building owner
or manager to enter into an exclusive contract as a condition of providing
or continuing service, nor may a franchisee enter into any arrangement
that would effectively prevent other persons from using the OVS to
compete in the delivery of cable services with a franchisee or its
affiliates.
(O4228; O94-026; O2005 5)
The captions to sections throughout this chapter are intended
solely to facilitate reading and reference to the sections and provisions
of this chapter. Such captions shall not affect the meaning or interpretation
of this chapter.
(O2005 5)
Unless otherwise indicated, when the performance or doing of
any act, duty, matter, or payment is required under this chapter or
any franchise, and a period of time or duration for the fulfillment
of doing thereof is prescribed and is fixed herein, the time shall
be computed so as to exclude the first and include the last day of
the prescribed or fixed period of time.
(O42281; O94-026; O2005 5)
A.
Subscriber
Right to Attach. To the extent consistent with federal law, subscribers
shall have the right to attach VCRs, receivers, and other terminal
equipment to a franchisee's cable system. Subscribers also shall have
the right to use their own remote control devices and converters,
and other similar equipment.
B.
Removal
of Existing Antennae. A franchisee shall not, as a condition of providing
service, require a subscriber or potential subscriber to remove any
existing antenna, or disconnect an antenna except at the express direction
of the subscriber or potential subscriber, or prohibit installation
of a new antenna, provided that such antenna is connected with an
appropriate device and complies with applicable law.
(O4228; O94-026; O2005 5)
A.
No Retaliatory
Actions. A cable communications system operator shall not discriminate
among persons or the city or take any retaliatory action against a
person or the city because of that entity's exercise of any right
it may have under federal, state, or local law, nor may the operator
require a person or the city to waive such rights as a condition of
taking service.
B.
Employment
and Hiring Practices. A cable communications system operator shall
not refuse to employ, discharge from employment, or discriminate against
any person in compensation or in terms, conditions, or privileges
of employment because of race, color, creed, national origin, sex,
sexual orientation, age, disability, religion, ethnic background,
or marital status. A cable communications system operator shall comply
with all federal, state, and local laws and regulations governing
equal employment opportunities, and hiring practices, as the same
may be amended from time to time.
(O4228; O94-026; O2005 5)
A.
Persons
Operating Without a Franchise. The operator of any facility installed
as of the effective date of this chapter, for which a franchise is
required under this chapter, shall have three months from the effective
date of the ordinance codified in this chapter to file one or more
applications for a franchise. Any operator timely filing such an application
under this section shall not be subject to a penalty for failure to
have such a franchise so long as said application remains pending;
provided, however, nothing herein shall relieve any cable communications
system operator of any liability for its failure to obtain any permit
or other authorization required under other provisions of the city
code, and nothing herein shall prevent the city from requiring removal
of any facilities installed in violation of the city code.
B.
Persons
Holding Franchises. Any person holding an existing franchise for a
cable communications system may continue to operate under the existing
ordinance to the conclusion of its present term (but not any renewal
or extension thereof) with respect to those activities expressly authorized
by the franchise; and provided further that, such person shall be
subject to the other provisions of this chapter to the extent permitted
by law.
C.
Persons
with Pending Applications. Pending applications shall be subject to
this chapter. A person with a pending application shall have 30 days
from the effective date of this chapter to submit additional information
to comply with the requirements of this chapter governing applications.
(O4228; O94-026; O2005 5)
The franchisee shall comply with the customer service and reporting
requirements in this section, or as amended. These requirements include
but are not limited to the requirements set forth in FCC regulations,
including 47 C.F.R. Section 76.309 and other applicable law. To the
extent the provisions of this section differ from applicable FCC regulations
or any applicable law, the provision or provisions that impose the
highest standard or greatest legal duties or obligations upon the
franchisee shall take precedence, unless a different order of precedence
is expressly set herein.
A.
Office
Availability.
1.
Each
franchisee will maintain at least one office at one or more convenient
locations in the city open for walk-in traffic at least 10 hours per
day (except legal holidays) Monday through Friday, with some evening
hours, and at least five hours on Saturday to allow subscribers to
pay bills. The franchisee shall provide to subscribers convenient
means to drop off equipment and to pick up equipment by providing
a location within the city for pick-up and drop off of equipment or
by providing for pick-up and delivery of equipment in a convenient
manner at no cost to the customer (i.e., truck roll, postage paid
mailer).
2.
Each
franchisee will perform service calls, installations, and disconnects
at least 10 hours per day Monday through Saturday, except legal holidays,
provided that a franchisee will respond to out-ages 24 hours a day,
seven days a week.
B.
Telephones.
All call response statistics shall be measured on the basis of call
response statistics in all call centers that serve subscribers. If
the call centers serve subscribers located in other communities, the
franchisee shall ensure that call center representatives do not give
priority or preferential treatment to subscribers located in other
communities.
1.
Definition
of Call Response Terms:
a.
Answer time is the interval between when the franchisee receives
a call and when an interactive voice response (IVR) or agent answers.
b.
Speed of answer is the amount of time between when the customer is
transferred into the agent queue from either an IVR or an agent and
the time an agent answers.
c.
Calls abandoned is the percentage of calls in any agent queue that
are abandoned.
d.
Trunks busy represents the percentage of time customers receive a
busy signal when they call customer service during normal business
hours.
2.
Each
franchisee will establish a publicly listed local toll-free telephone
number. Customer service representatives must answer the phone at
least 10 hours per day, Monday through Saturday, except legal holidays,
for the purpose of receiving requests for service, inquiries, and
complaints from subscribers. After such business hours the phone will
be answered so that customers can register complaints and report service
problems on a 24-hour-per-day, seven-day-per-week basis, and so that
the franchisee can respond to service outages as required herein.
C.
Standards
for Call Response.
1.
Answer
time will not exceed 30 seconds or four rings. Under normal operating
conditions the franchisee shall meet this requirement at least 90%
of the time.
2.
The
average speed of answer shall not exceed 30 seconds. Under normal
operating conditions the franchisee shall meet this requirement at
least 90% of the time.
3.
The
percentage of calls abandoned shall not exceed three percent under
normal operating conditions.
4.
Subscribers
shall receive a trunks busy signal less than three percent of the
time under normal operating conditions.
D.
Call
Response Reports.
1.
Franchisee
shall submit reports on call response statistics every calendar quarter,
except as otherwise provided in this section.
2.
If
any of a franchisee's quarterly call response statistics fail to demonstrate
compliance with any applicable requirement, the franchisee must thereafter
submit monthly reports on all call response times until the franchisee
requests and the city approves resuming quarterly reporting.
3.
Information
in the reports about call response times shall be determined on the
basis of the simple average of results during business hours under
normal operating conditions for the entire reporting period, and any
report submitted at the end of a calendar quarter shall report the
total number of calls during the proceeding quarter and the average
call response times during that quarter.
E.
Other
Reports.
1.
A
franchisee shall submit reports on all customer service standards
identified in this section during each successive calendar quarter
for the term of the franchise except as otherwise might be provided
herein. If a franchisee's reports for two quarters within a calendar
year fail to demonstrate that the franchisee has complied with any
customer service standard in this section, the franchisee shall thereafter
submit monthly reports about performance of each such requirement
until it reports three consecutive months with less than five percent
deviation from any minimum required standard unless the franchisee
demonstrates to the city's satisfaction that the deviation occurred
when it was not operating under normal operating conditions as defined
in 47 C.F.R. Section 76.309 and reports on the nature and duration
of such non-normal operating conditions.
2.
Timing.
A franchisee shall submit reports within 30 days after the close of
the applicable reporting period. Each report shall include data from
the applicable reporting period.
3.
Each
of the reporting requirements in this section is self-executing and
the franchisee agrees that the city does not need to provide additional
notice or an opportunity to cure in order to establish that the franchisee
has committed a breach of these requirements for the purposes of the
franchisee's obligation to pay liquidated damages as described in
this section.
4.
Compliance.
If a monthly or quarterly report indicated that a franchisee has failed
to meet any of the minimum required standards, the franchisee shall
provide a written explanation of the deviation within 10 business
days of the report, including steps being taken to cure the deviation,
and the time expected to implement the cure. A franchisee must cure
within 30 days unless a longer period is agreed to in writing by the
city, which agreement shall not be unreasonably withheld.
F.
Scheduling
Work.
1.
All
appointments for service, installation, or disconnection will be specified
by date. Each franchisee will set a specific time at which the work
will be done, or offer a choice of time blocks, which will not exceed
four hours in length. A franchisee may also, upon request, schedule
service installation calls outside normal business hours, for the
express convenience of the customer.
2.
If
at any time an installer or technician is late for an appointment
and/or believes a scheduled appointment time will be missed, an attempt
to contact the customer will be made before the time of appointment
and the appointment rescheduled at a time convenient to the customer.
If rescheduling is necessary, it is the franchisee's burden to prove
it met the appointment.
3.
The
franchisee will offer and fully describe to subscribers who have experienced
a missed appointment (where the missed appointment was not the subscriber's
fault) that the subscriber may choose between the following options:
a.
Installation or service call free of charge, if the appointment was
for an installation or service call for which a fee was to be charged;
b.
One month of the most widely subscribed to service tier free of charge
for other appointments; and
c.
An opportunity to elect remedies under California Civil Code Section
1722, if applicable.
4.
If
the franchisee makes reasonable and no less than three attempts to
confirm an appointment during the scheduled appointment time or appointment
window and is unsuccessful in obtaining such confirmation, the franchisee
may assume that the customer has cancelled the appointment.
G.
Service
Standards.
1.
Under
normal operating conditions, requests for service, repair, and maintenance
must be acknowledged by a trained customer service representative
within 24 hours, or before the end of the next business day, whichever
is earlier.
2.
A
franchisee will respond to all other inquiries (including billing
inquiries) within five business days of the inquiry or complaint.
3.
Under
normal operating conditions, repairs and maintenance for outages or
service interruptions must be completed within 24 hours after the
outage or interruption becomes known to franchisee where the franchisee
has adequate access to facilities to which it must have access in
order to remedy the problem.
4.
Under
normal operating conditions, work to correct all other service problems
must be begun by the next business day after notification of the service
problem, and must be completed within five business days from the
date of the initial request.
5.
When
normal operating conditions do not exist, a franchisee will complete
the work in the shortest time possible.
6.
A
franchisee will not cancel a service or installation appointment with
a customer within 24 hours of the appointment or after the close of
business on the business day preceding the scheduled appointment,
whichever is earlier.
7.
Requests
for additional outlets, service upgrades or other connections (e.g.,
DMX, VCR, A/B switch) separate from the initial installation will
be performed within seven business days after an order has been placed.
9.
The
failure of the franchisee to hire sufficient staff or to properly
train its staff will not justify a franchisee's failure to comply
with this provision.
H.
Disabled
Services. With regard to subscribers with disabilities, upon subscriber
request, each franchisee will arrange for pickup and/or replacement
of converters or other franchisee equipment at the subscriber's address
or by a satisfactory equivalent (such as the provision of a postage-prepaid
mailer).
I.
Notice
to Subscribers Regarding Service. A franchisee will provide each subscriber
at the time service is installed, and annually thereafter, clear and
accurate written information:
1.
On
placing a service call, filing a complaint, or requesting an adjustment
(including when a subscriber is entitled to refunds for outages and
how to obtain them);
2.
Showing
the telephone number of the city office responsible for administering
the cable television franchise;
3.
Detailing
current rates and charges (which must include any senior, disabled
or other discounts offered and the least expensive tier of service
available), channel positions, services provided, delinquent subscriber
disconnect and reconnect procedures; information regarding the availability
of parental control devices, the conditions under which they will
be provided and the cost (if any) charged;
4.
Describing
conditions that must be met to qualify for discounts;
5.
Describing
any other of the franchisee's policies in connection with its subscribers;
and
6.
Describing
any discounts, services, or specialized equipment available to subscribers
who are seniors or with disabilities; explaining how to obtain them;
and explaining how to use any accessibility features.
J.
Notices
to the City. Franchisee will provide the city with copies of all notices
provided to its subscribers pursuant to this chapter.
K.
Changes
in Noticed Information. Franchisee will provide the City Manager (Or
designee) at least 60 days, and all subscribers at least 30 days,
written notice of any material changes in the information required
to be provided under this chapter, except that, if federal law establishes
a shorter notice period and preempts this requirement, the federal
requirement will apply.
L.
Truth
in Advertising.
1.
Each
franchisee will take appropriate steps to ensure that all written
franchisee promotional materials, announcements, and advertising of
residential cable service to subscribers and the general public, where
price information is listed in any manner, clearly and accurately
discloses price terms. In the case of telephone orders, a franchisee
will take appropriate steps to ensure that price terms are clearly
and accurately disclosed to potential customers in advance of taking
the order.
2.
Each
franchisee will maintain a file open for public inspection containing
all notices provided to subscribers under these customer service standards,
as well as all promotional offers made to subscribers. The notices
and offers will be kept in the file for at least one year from the
date of such notice or promotional offer.
M.
Interruptions
of Service. A franchisee shall inform subscribers and the city, three
days prior to any scheduled or planned interruption of service for
planned maintenance or construction; provided, however, that planned
maintenance that does not require more than one hour interruption
of service and/or that occurs between the hours of 12:00 a.m. and
6:00 a.m. will not require such notice to subscribers. Notice to the
city must be given no less than 24 hours before the anticipated service
interruption.
N.
Prorated
Billing. A franchisee's first billing statement after a new installation
or service change will be prorated as appropriate and will reflect
any security deposit.
O.
Billing
Statement.
1.
A
franchisee's billing statement must be clear, concise, and understandable;
must itemize each category of service and equipment provided to the
subscriber; and must state clearly the charges therefor.
3.
A
late fee or administrative fee (collectively referred to below as
a "late fee") may not be imposed for payments earlier than 27 days
after the due date specified in the bill.
4.
A
late fee may not be imposed unless the subscriber is provided written
notice at least 10 days prior to the date the fee is imposed that
a fee will be imposed, the date the fee will be imposed and the amount
of the fee that will be imposed if the delinquency is not paid. A
late fee may not be imposed unless the outstanding balance exceeds
$10.00 and may not exceed five dollars.
5.
Subscribers
will not be charged a late fee or otherwise penalized for any failure
by a franchisee, including failure to timely or correctly bill the
subscriber, or failure to properly credit the subscriber for a payment
timely made. Payments will be considered timely if postmarked on the
due date.
6.
A
franchisee's bill must permit a subscriber to remit payment by mail
or in person at the franchisee's local office or payment facility.
P.
Credit
for Service Impairment.
1.
A
subscriber's account will be credited a prorated share of the monthly
charge for the service upon subscriber request if a subscriber is
without service or if service is substantially impaired for any reason
for a period exceeding four hours during any 24-hour period; or automatically
if the loss of service or impairment is for 24 hours or longer.
2.
A
franchisee need not credit subscriber where it establishes that a
subscriber will obtain a refund for a loss of service or impairment
caused by the subscriber or by subscriber-owned equipment (not including,
for purposes of this section, in-home wiring installed by the franchisee).
Q.
Billing
Complaints. Franchisee will respond to all written billing complaints
from subscribers within 30 days.
S.
Credits
for Cable Service. Credits for cable service will be issued no later
than the subscriber's next billing cycle after the determination that
the credit is warranted.
T.
Disconnection/Downgrades.
1.
A
subscriber may terminate service at any time.
2.
A
franchisee will promptly disconnect from the franchisee's cable system
or downgrade any subscriber who so requests. No charges for service
may be made after the subscriber requests disconnection. No period
of notice before voluntary termination or downgrade of cable service
may be required of subscribers by any franchisee. There will be no
charge for disconnection, except for the collection fee authorized
by state law, and any downgrade charges will conform to applicable
law.
U.
Security
Deposit. Any security deposit and/or other funds due a subscriber
that disconnects or downgrades service will be returned to the subscriber
within 30 days or in the next billing cycle, whichever is later, from
the date disconnection or downgrade was requested except in cases
where the subscriber does not permit the franchisee to recover its
equipment, in which case the amounts owed will be paid to subscribers
within 30 days of the date the equipment was recovered, or in the
next billing cycle, whichever is later.
V.
Disconnection
Due to Nonpayment.
1.
A
franchisee may not disconnect a subscriber's cable service for nonpayment
unless:
a.
The subscriber is delinquent in payment for cable service;
b.
A separate, written notice of impending disconnection, postage prepaid,
has been sent to the subscriber at least 20 days before the date on
which service may be disconnected, at the premises where the subscriber
requests billing, which notice must identify the names and address
of the subscriber whose account is delinquent, state the date by which
disconnection may occur if payment is not made, and the amount the
subscriber must pay to avoid disconnection, and a telephone number
of a representative of the franchisee who can provide additional information
concerning and handle complaints or initiate an investigation concerning
the services and charges in question;
c.
The subscriber fails to pay the amounts owed to avoid disconnection
by the date of disconnection; and
d.
No pending inquiry exists regarding the bill to which franchisee
has not responded in writing.
2.
If
the subscriber pays all amounts due, including late charges, before
the date scheduled for disconnection, the franchisee will not disconnect
service. Service may only be terminated on days in which the customer
can reach a representative of the franchisee either in person or by
telephone.
3.
After
disconnection (except as noted below), upon payment by the subscriber
in full of all proper fees or charges, including the payment of the
reconnection charge, if any, the franchisee will promptly reinstate
service.
W.
Immediate
Disconnection. A franchisee may immediately disconnect a subscriber
if:
1.
The
subscriber is damaging, destroying, or unlawfully tampering with or
has damaged or destroyed or unlawfully tampered with the franchisee's
cable system;
2.
The
subscriber is not authorized to receive a service, and is facilitating,
aiding or abetting the unauthorized receipt of service by others;
or
3.
Subscriber-installed
or attached equipment is resulting in signal leakage that is in violation
of FCC rules.
4.
After
disconnection, the franchisee will restore service after the subscriber
provides adequate assurance that it has ceased the practices that
led to disconnection, and paid all proper fees and charges, including
any reconnect fees and all amounts owed the franchisee for damage
to its cable system or equipment. Provided that, no reconnection fee
may be imposed on a subscriber disconnected pursuant to this chapter
if the leakage was the result of the franchisee's acts or omissions;
or in any case unless the franchisee notifies the subscriber of the
leakage at least three business days in advance of disconnection,
and the subscriber has failed to correct the leakage within that time.
X.
Franchisee's
Property. Except as applicable law may otherwise provide, a franchisee
may remove its property from a subscriber's premises within 30 days
of the termination of service. If a franchisee fails to remove its
property in that period, the property will be deemed abandoned unless
the franchisee has been denied access to the subscriber's premises,
or the franchisee has a continuing right to occupy the premises under
applicable law.
Y.
Deposits.
A franchisee may require a reasonable, non-discriminatory deposit
on equipment provided to subscribers. Deposits will be placed in an
interest-bearing account, and the franchisee will return the deposit,
plus interest earned to the date the deposit is returned to the subscriber,
less any amount the franchisee can demonstrate should be deducted
for damage to such equipment.
Z.
Parental
Control Option. Without limiting a franchisee's obligations under
federal law, a franchisee must provide parental control devices at
no charge to all subscribers who request them that enable the subscriber
to block the video and audio portion of any channel or channels of
programming.
AA.
Penalties. Pursuant to California Government Code Section 53088.2, and any successor statute or regulation, penalties will be assessed against a franchisee for any breach of subsections A through Z of these customers service standards.
Notwithstanding the requirements of this chapter, the City Manager
is authorized to relieve a franchisee of its obligations under this
chapter if:
1.
Franchisee
shows that there is an alternative standard that is substantially
similar to that established by this chapter;
2.
In
light of the number of customers served by a franchisee, the requirements
of this chapter are, in the City Manager's sole discretion, unduly
burdensome and there is an alternative way to serve the same interest.
(O4228; O94-026; O2005 5)
