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 Title 47 of the United States Code, 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.
"Access," "PEG access," or "PEG use"
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 and its designated access providers, to acquire, create, and distribute programming not under a franchisee's editorial control, including, but not limited to:
(1) 
"Public access" or "Public use"
means access where organizations, groups, or individual members of the general public are the primary or designated programmers or users having editorial control over their programming;
(2) 
"Education access" or "Education use"
means access where accredited educational institutions are the primary or designated programmers or users having editorial control over their programming;
(3) 
"Government access" or "Government use"
means access where government institutions or their designees are the primary or designated programmers or users having editorial control over their programming;
"Affiliate"
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.
"Basic service"
means any service tier regularly provided to all subscribers which includes the retransmission of local television broadcast signals.
"Cable Act"
means the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 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.
"Cable communications system"
refers to open video systems (OVS) and cable systems.
"Cable system"
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:
(1) 
A facility that serves only to retransmit the television signals of one or more television broadcast stations;
(2) 
A facility that serves subscribers without using, or connecting to a facility that uses, any public right-of-way within the City;
(3) 
A facility of a common carrier which is subject, in whole or in part, to the provisions of Title 11 (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;
(4) 
Any facilities of any electric utility used solely for operating its electric utility systems;
(5) 
An OVS that is certified by the Federal Communications Commission (FCC). Any reference to a cable system includes the cable system as a whole, or any part thereof, including all pedestals, equipment cabinets, electronic equipment and devices appurtenant to the system.
"Cable service"
means:
(1) 
The one way transmission to subscribers of;
(A) 
Video programming or;
(B) 
Other programming service, and;
(2) 
Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
"Channel"
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.
"City"
means the City of Santa Maria and all departments, divisions, and agencies thereof.
"City Manager"
means the City Manager or the City Manager designee.
"Construction, operation or repair"
and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make ready, and excavation.
"Downstream channel"
means a channel designed and activated to carry a transmission from the headend to other points on a cable communications system, including interconnections.
"FCC"
means the Federal Communications Commission.
"Franchise"
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.
"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.
"Franchisee"
refers to a person holding a cable communications system franchise granted by the City.
"Gross revenues"
means any and all revenue, of any kind, nature or form derived from the operation of the system to provide cable service. Gross revenues include, by way of example and not limitation, revenues from equipment sales and rentals, services (including cable modem services), installation, late fees and other subscriber charges, fees for carriage of programming, advertising, and shopping services. "Gross revenues" shall be construed broadly to include revenues of affiliates (other than those revenues that are already treated as the revenues of the franchisee); to prevent avoidance of fees owed on gross revenues.
"Institutional Network" or "I Net"
means a communication network which is constructed or operated by the cable operator and which is generally available only to subscribers who are not residential subscribers.
"Operator"
when used with reference to a system, refers to a person;
(1) 
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
(2) 
Who otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility.
"OVS" or "Open Video System"
means a system for dissemination of video signals as defined by the Telecommunications Act of 1996. 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.
"Person"
includes any individual, corporation, partnership, association, Joint Stock Company, trust, or any other legal entity, but not the City.
"Public rights of way"
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, 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.
"Public property"
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.
"School"
means any accredited primary school, secondary school, college, and university.
"Subscriber"
means the City or any person who is lawfully receiving, for any purpose or reason, any cable service via a cable communications system, whether or not a fee is paid for such service.
"Upstream channel"
means a channel designed and activated to carry transmissions from a point on the cable system, other than the headend, to the headend or another point on the cable system.
"User"
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.
(a) 
Scope. A franchise granted pursuant to this chapter shall authorize and permit a franchisee to construct, operate and repair a cable system, or an OVS (as applicable) to provide cable service in a designated franchise area, 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 those public rights of way 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 ordinance, 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) 
Complying 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 required in connection with operations on or in public rights of way or public property, including by way of example and not limitation, street cut permits;
(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 City ordinances and regulations, 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 that 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) 
Franchise non exclusive. 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.
(g) 
Franchise term. Every franchise shall be for a term of years, which term shall be eight years, unless a franchise specifies otherwise.
(h) 
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.
(i) 
Failures to perform. If a cable communications system operator, after receiving written notice to do so from the City Manager, fails to perform work that it is required to perform within the time provided in the notice for performance, the City may perform the work and bill the operator therefor. The operator shall pay the amounts billed within 30 days.
(a) 
Adoption of regulations. The City may from time to time adopt regulations to implement the provisions of this ordinance. This ordinance, and any regulations adopted pursuant to this ordinance are not contracts with any franchisee, and may be amended at any time. Nothing in this section shall affect a cable company's right to challenge the lawfulness of a future City exercise of the police or legislative power as it affects an existing franchise.
(b) 
Delegation. The City Manager or his or her designees are hereby authorized to administer the provisions of this ordinance 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 government access channels, facilities and equipment.
(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 to impair that trust. A transfer is any transaction pursuant to which:
(1) 
A cable communications system is sold or assigned (except the term does not include sale of portions of the cable system that are removed);
(2) 
There is any change, acquisition, or transfer of control of the franchisee or its direct or indirect parents, whether by merger, consolidation, sale of assets or ownership interests, or by any other means. A transfer will be deemed to have occurred whenever there is a change, acquisition or transfer of control of more than a ten-percent 10% ownership in the franchisee or its direct or indirect parents by any entity, or a group of entities acting in concert. However, a transfer also occurs whenever there is a change in actual working control, in whatever manner exercised, over the affairs of a franchisee or its direct or indirect parents. Without limiting the above, any change in the general partners of a franchisee will be presumed a change in control; or
(3) 
The rights and/or obligations held by the franchisee under the franchise are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party.
(b) 
Exception for mortgages. Notwithstanding any other provision of this chapter, pledges in trust or mortgages of the assets of a cable communications system to secure the construction, operation, or repair of the system may be made without application and without the City's prior consent. However, no such arrangement may be made if it would in any respect under any condition:
(1) 
Prevent the cable communications system operator or any successor from complying with the franchise or applicable law; or
(2) 
Permit 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.
(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 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 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.
(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 rights of way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the rights of way.
(e) 
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, nor may pole capacity be increased by vertical or horizontal extenders, without the permission of the City Manager.
(f) 
Undergrounding.
(1) 
Whenever existing telephone or electric utilities are located underground in an area in the City, every cable communications system operator that wishes to place its facilities in the same area must locate its cable communications system underground.
(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 impractical, or where the interest in protecting against visual blight can be protected in another manner. Nothing in this section prevents the City from ordering communications facilities to be located or relocated underground under other provisions of the City Municipal Code.
(g) 
Prompt repairs. Any and all public rights of way, other public property, or private property that is disturbed or damaged during the construction, operation or repair of a cable communications system shall be promptly repaired by the operator, within time frames required by the City Public Works Director or representative. Public property and public rights of way must be restored, to the satisfaction of the City, to a condition as good or better than before the disturbance or damage occurred.
(h) 
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 right-of-way construction and repair (including re-grading, 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) 
The City shall provide written notice describing where the public work is to be performed at least 30 days prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities. 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 prior notice, and charge the cable communications system operator for costs incurred.
(i) 
Movement for others.
(1) 
To accommodate the construction, operation, or repair of the facilities of another person authorized to use the streets or public property, a franchisee shall, by a time specified by such person or by the City, protect, support, temporarily disconnect, 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 30 days prior to the time by which its work must be completed. The City may, as it deems appropriate, resolve disputes as to responsibility for costs associated with removal, relaying, or relocation of facilities among entities authorized to install facilities in the streets or on public property if such entities are unable to do so themselves. Such resolution by the City shall have the force and effect of binding arbitration upon the entities. Alternatively, the City may designate a neutral arbiter, whose decision shall be final.
(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 or raising or lowering of wires shall be paid in advance by the person requesting the same.
(j) 
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 right-of way and facilities in the public right-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 hazard associated with the abandoned property.
(k) 
Systems subject to inspection. Every cable communications facility 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. Each operator shall cooperate and assist fully in facilitating the inspection of equipment permitted by this section, including, without limitation, any disassembly required to allow inspection of interior portions of the facility.
(l) 
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 (Underground Services Alert) and shall field mark the locations of its underground communications facilities upon request. The operator shall locate its facilities for the City at no charge.
(m) 
Plan for construction. 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.
(n) 
Use of facilities by 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.
(o) 
Provision for future expansion. Each cable communications system operator shall provide in plans for construction and refurbishment of facilities sufficient empty conduit, fiber, and cabling to meet the projected needs of the communications system operator and any anticipated co-user of the facilities constructed, in order to prevent unnecessary disturbance to public facilities and the community at a future date.
(a) 
Indemnity required. No franchise shall be valid or effective until and unless the City Risk Manager approves the indemnity and insurance to be provided by the franchisee. The indemnity, at a minimum. must:
(1) 
Release the City from and against any and all liability and responsibility in or arising out of the construction, operation or maintenance of the cable communications system. Each cable communications system must further agree not to sue or seek any money or damages from the City in connection with the above mentioned matters.
(2) 
Indemnify and hold harmless the City, its trustees, elected and appointed officers, agents, and employees, from and against any and all 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.
(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 that the franchisee has facilities in the 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 this ordinance, certificates and other required proofs shall be filed within 30 days of the issuance of a franchise, once a year thereafter, and whenever there is any change in coverage. For entities that have facilities in the rights of way as of the effective date of this chapter, the certificate shall be filed within 60 days of the effective date of 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.
(d) 
Certificate contents. Certificates shall contain a provision that coverage 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.
(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 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:
Bodily Injury
 
 
Property Damage
 
Each Occurrence
$1,000,000
Annual Aggregate
$3,000,000
Personal Injury
 
Each Occurrence
$1,000,000
Annual Aggregate
$3,000,000
Completed Operations and Products Liability shall be maintained for two years after the termination of the franchise or license (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 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. The following minimum limits must be maintained:
Worker's Compensation
 
Statutory
Employer's Liability
Per Occurrence
$ 500,000
(3) 
Comprehensive auto liability
Bodily Injury
 
Each Occurrence
$1,000,000
Annual Aggregate
$3,000,000
Property Damage
 
Each Occurrence
$1,000,000
Annual Aggregate
$3,000,000
Coverage shall include owned, hired, and non owned vehicles.
(f) 
Performance bond. Every operator of a cable communications system shall obtain and maintain a performance bond to ensure the faithful performance of its responsibilities under this chapter and any franchise. The amount of the performance and payment bonds shall be set by the City Manager or may be set in a franchise ordinance in light of the nature of the work to be performed, but shall not be less than 10% of the estimated cost of constructing or (in the case of existing systems) upgrading the system. 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 $50,000 to secure the payment of fees owed, to secure any other performance promised in a franchise, and to pay any taxes, fees or liens owed to the City. The letter of credit shall be in a form and with an institution acceptable to the City's Director of Finance and in a form acceptable to the City Attorney. 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.
(Ord. 2017-01 § 56, eff. 3/9/17)
(a) 
Revocation and termination. The City Council may, after 30 days' written notice, revoke a franchise or reduce the term of a franchise if it finds, after a hearing, that a cable communications system operator has violated this chapter or its franchise; has defrauded or attempted to defraud the City or subscribers; or has attempted to evade the requirements of this chapter or its franchise. Except as to violations that are impossible to cure, and as provided in Section 4-11.10(2) and (3), the franchise may only be revoked if the franchisee;
(1) 
Was given notice of the default;
(2) 
Thirty 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.
(b) 
Exception for certain acts. No opportunity to cure is required for repeated violations, and fraud and attempted fraud shall be deemed incurable. Further, the City may declare a franchise forfeited without opportunity to cure where a franchisee;
(1) 
Intentionally stops providing service it is required to provide; or
(2) 
Transfers the franchise without the prior consent of the City.
(c) 
Exception for bankruptcy. A franchise will terminate automatically by force of law 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the franchise may be reinstated within that 120 day period, if;
(1) 
Such assignment, receivership or trusteeship has been vacated; or
(2) 
Such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the franchise, and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise.
In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the City may revoke the franchise following a public hearing before the City Council, by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges thereunder will be revoked and will terminate 30 calendar days after serving such notice, unless:
(3) 
The City has approved the transfer of the franchise to the successful bidder; and
(4) 
The successful bidder has covenanted and agreed with the City to assume and be bound by the terms and conditions of the franchise and this chapter.
(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, 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) 
Penalties. Any person violating the provisions of this article shall be deemed guilty of a misdemeanor and upon conviction thereof shall punished as specified in California Penal Code Section 19, as amended.
(g) 
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, which are hereby acknowledged to be of a confidential and proprietary nature. The records 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.
(h) 
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.
(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 its fiscal year, a franchisee shall submit the following information, except that the information required by subsection (3) need only be provided where there has been a change from the preceding year:
(1) 
A fully audited or certified revenue report 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, 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.
Revenues and deductions shall be reported in a format and in categories approved by the City Manager.
(2) 
A report showing, for each applicable customer service standard (Appendix of this chapter), the franchisee's performance with respect to that standard for each quarter of the preceding year. In each case where 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 the customer service complaints received and an explanation of their dispositions.
(3) 
An ownership report, indicating all persons whom 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.
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, upon request, provide a map to the City showing the location of its facilities, in such detail and scale as may be directed by the City Engineer and update the map at least annually, and whenever the facility expands or is relocated. Copies of maps shall be provided on disk, in a commercially available electronic format specified by the City Engineer.
Unless the City Manager waives the requirement, a franchisee shall at all time, 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.
(b) 
Outage records. Records of outages known to the franchisee, their cause and duration.
(c) 
Service call 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.
The City Manager may temporarily exempt any franchisee from its obligations under Sections 4-11.10 through 4-11.13 if the City Manager determines that the requirement would be unduly burdensome or unnecessary, and that City and subscriber interests may be adequately protected in some other manner.
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.
(a) 
Fees paid quarterly. The franchise fee paid 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 Article 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 Article 2, nor the fee paid in lieu of the franchise fee under Article 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 cable operators or their services, but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscribers).
(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, 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 percentage points (3%) 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 4-11.11(3).
(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. § 546(h) need not contain the information required by Section 4317(2)(a) (b).
(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.
(2) 
At a minimum each application must identify the applicant, 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 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. 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.
(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. §546(a) (h).
(b) 
Process. Any person may apply for an initial or renewal franchise by submitting an application therefore 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 for renewal'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 warranted 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 proffer a franchise agreement to the applicant. No franchise shall become effective until the applicant unconditionally accepts the franchise, and the franchise agreement is signed.
(a) 
Scope. This section establishes additional provisions that apply to applications for renewal governed by 47 U.S.C. §546(a) (g).
(b) 
Process. A franchisee that intends to exercise rights under 47 U.S.C. § 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.
(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, pursuant to this chapter, 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 cable 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.
(d) 
Minimum conditions. 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 issues 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.
(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 may not have had an application to the City for an initial or renewal cable system franchise denied on the ground that the applicant failed to propose a cable system meeting the cable related needs and interests of the community, 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; and may 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 shall not be issued a franchise if, at any time during the 10 years preceding the submission of the application, applicant was convicted of fraud, racketeering, anti-competitive 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.
(7) 
For purposes of this section the term applicant includes any affiliate of applicant.
(b) 
Exception. Notwithstanding Section 4-11.21(l), an applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of Section 4-11.21 (1)(c) (d) 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.
A cable operator shall pay to the City a franchise fee in an amount equal to 5% 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 cable operators are subject to a higher fee.
(a) 
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.
(b) 
No franchisee shall enter into or cooperate with any agreement with any other utility, cable system, OVS or other entity which provides for the exclusive right to attach equipment to utility poles or use underground conduit. This provision is not intended, however, to interfere with any utility, cable system, OVS or other entity from obtaining reasonable compensation for the use of their facilities by other entities.
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 serving more than 1000 subscribers: An operator who provides service in an area which is defined as "isolated rural" may be exempted from the minimum franchise requirements for that area.
(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 in the sub low frequency spectrum of 5 MHz to 30 MHz.
(b) 
Public, educational and government use of the system.
(1) 
A franchisee shall provide channels for PEG access to each subscriber; the number of channels shall be specified in the franchise.
(2) 
Each franchisee shall install, maintain, and replace as necessary, a dedicated, bi-directional fiber optic link 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 system.
(c) 
Service to franchise area. It is the policy of the City to ensure that every cable system provides 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, provided that, a franchise may permit a franchisee to require a potential subscriber to contribute a fair share of the capital costs of installation or extension as a condition of extension or installation in cases where such extension or installation may be unduly expensive. Service must be provided within time limits specified in Section 4-11.24 (4).
(d) 
Time for extension. Except as a franchise otherwise provides, service must be extended upon request to any person or to any government building in a franchisee's franchise area (1) within seven days of the request, where service can be provided by activating or installing a drop; (2) within 90 days of the request where an extension of one half mile or less is required; or (3) within six months where an extension of one half mile or more is required.
(e) 
Technical standards. A cable system within the City shall meet or exceed the technical standards set forth in 47 C.F.R. § 76.601 and any other applicable technical standards.
(f) 
Testing. Each cable 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 applicable FCC standards, this chapter or a franchise.
(g) 
Interconnection. Upon request of the City, every cable system shall be required to interconnect with every other cable system within the City, or adjacent to the City, on fair and reasonable terms for purposes of providing PEG and I Net services.
(h) 
Continuity of service. Each franchisee shall, during the term of the franchise, ensure that subscribers are able to receive continuous service. In the event the franchise is revoked or terminated, the franchisee may be required to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity. A franchise may establish more particular requirements under which these obligations will be satisfied.
(a) 
All rates subject to regulation. The City may regulate any of the cable operator's rates and charges, except to the extent it is prohibited from doing so by law. If the City chooses to regulate rate it 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, a cable 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 non discriminatory 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. A cable operator shall not deny access or charge different rates for the same services 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 cable operator must satisfy FCC, State and City cable customer service standards or consumer protection standards. 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 (Appendix A), penalties will be imposed as follows:
(A) 
Two hundred dollars for each day of each material breach, not to exceed $600 for each occurrence of material breach.
(B) 
If there is a subsequent material breach of the same provision within 12 months, four hundred ($400) for each day of each material breach, not to exceed twelve hundred dollars ($1200) 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, $1000 for each day of each material breach, not to exceed $3000 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 § 53088.2(r).