For the purposes of this chapter, the following terms, phrases,
words, abbreviations and their derivations shall have the meaning
given in this section. 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.
means any and all income, compensation, fees and other consideration
received directly or indirectly by grantee derived from any form of
advertising, relating directly or indirectly to grantee's franchise
activities and operations.
means the simultaneous delivery by grantee to television
receivers (or any other suitable type of audio-video communication
receivers) of: (1) all signals of over-the-air television broadcasters
authorized by the FCC to be carried by a cable television system as
defined by the FCC; (2) local government access channels; (3) education
access channels; (4) public access channels; (5) lease channels; and
(6) additional service at the option of the grantee; however, pay
or subscription television as defined by the FCC shall not be considered
part of the basic service.
means any and all income, compensation, fees and other consideration
received directly or indirectly by the grantee from subscribers in
payment for the basic service of the cable television system.
means cable television system.
means a system of antennas, cables, wires, lines, towers,
waveguides, microwave, laser beam, fiber optics, master antenna system,
multiple distribution system, satellite or any other conductors, converters,
equipment or facilities, designed and constructed for the purpose
of producing, receiving, amplifying and distributing audio, video
and other forms of electronic or electrical signals, located in the
city and constructed or used for one or more of the following purposes:
Collecting and amplifying local and distant broadcast television
or radio signals and distributing and transmitting them;
Transmitting original cablecast programming not received through
television broadcast signals;
Transmitting television pictures, film and videotape programs
not received through broadcast television signals, whether or not
encoded or processed to permit reception by only selected receivers;
Transmitting and receiving all other signals: digital, voice
and audio-visual. "Cable television system" also named "community
antenna television system" as that term is used in Section 53066 of
the Government Code of the state of California. An exception to this
definition is a state or interstate common carrier over which the
city has no jurisdiction.
means any authorization granted hereunder in terms of a franchise,
privilege, permit, license or otherwise to construct, operate and
maintain a CATV system in the city. Any such authorization, in whatever
term granted, shall not mean and include any license or permit required
for the privilege of transacting and carrying on a business within
the city as required by other laws of the city.
means the first year after the effective date of the ordinance
granting the franchise, or, at the option of grantee, any shorter
period of time immediately following the effective date of such ordinance,
and each year thereafter, during the life of the franchise.
means any and all property of the grantee, including, but
not limited to, service connections with the grantee's facilities,
whether installed by the grantee or not, erected, constructed, installed,
laid, operated or maintained in the city pursuant to any right or
privilege granted by the franchise.
means the first year after the effective date of the ordinance
granting the franchise, or, at the option of the grantee, any shorter
period of time immediately following the date of such ordinance, and
each year thereafter, during the life of the franchise.
means the person, firm or corporation to whom or which a
franchise is granted by the council under this chapter, and the lawful
successor, transferee or assignee of said person, firm or corporation.
means any and all income, compensation, fees and other consideration
received directly or indirectly by grantee for the lease or rental
of franchise property, and compensation for any service in connection
therewith, including but not limited to studio and equipment rental
and production costs of any channel permitted or designated by the
FCC to be so leased or rented.
means any communications service other than basic service
provided over its system by grantee directly or as a carrier for its
subsidiaries, affiliates or any other person engaged in communications
services including, by way of example but not limited to, pay or subscription
television, burglar alarm, data or other electronic intelligence transmission,
facsimile reproduction, meter reading and home shopping.
means any and all income, compensation, fees and other consideration
received directly or indirectly by the grantee in payment for nonbasic
service provided over its system.
includes, but is not limited to, any easement created by
dedication to the public, the city, or any public entity, for public
utility purposes or any other purpose whatsoever.
means that area of the city in which the grantee is authorized
to construct and operate, and provide service connections for, a cable
television system pursuant to the terms and conditions of the franchise.
means the surface of and the space above and below any public
street, road, highway, freeway, lane, path, alley, court, sidewalk,
parkway, drive or public easement now or hereafter existing as such
within the city.
means any person or entity receiving for any purpose any
service of the grantee's CATV system, including the ultimate recipient
of any distribution of grantee's service.
means the gross amount of any and all income, compensation,
fees and other consideration received directly or indirectly by grantee
from the following:
Basic subscriber receipts;
Nonbasic service receipts;
Advertising receipts;
Lease receipts;
Income derived from per-program or per- channel charges;
Any and all other sources related to grantees cable television
franchise, excluding, however, property taxes, sales or use taxes,
excise taxes, or other payments collected by grantee on behalf of
any local, state or federal governmental entity.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979; Ord. 1649 §§ 1, 2, 1985)
(a)
A
nonexclusive franchise to install, construct, operate, and maintain
a cable television system on streets within all or a specific portion
of the city may be granted by the council to any person, whether operating
under an existing franchise, who or which offers to furnish and provide
such system under and pursuant to the terms and provisions of this
chapter.
(b)
No
provision of this chapter may be deemed or construed as to require
the granting of a franchise when in the opinion of the council it
is in the public interest to restrict the number of grantees to one
or more.
(c)
When
and in the event that the grantee of any franchise granted under this
chapter uses in his or her cable television system distribution channels
furnished to the grantee by a telephone company pursuant to tariff
or contract on file with a regulatory body having jurisdiction and
such grantee makes no use of the streets independent of such telephone
company furnished facilities, such grantee shall be required to comply
with all of the provisions thereof as a "licensee" and in such event
whenever the term "grantee" is used herein it shall be deemed to mean
and include "licensee."
(Prior code § 6415; Ord. 1235 §, 1969; Ord. 1504 § 1, 1979)
Any franchise granted pursuant to the provisions of this chapter
shall authorize and permit the grantee to engage in the business of
operating and providing a CATV system in the city, and for that purpose
to erect, install, construct, repair, replace, reconstruct, maintain
and retain in, on, over, under, upon, across and along any public
street, such poles, wires, cable, conductors, ducts, conduit, vaults,
manholes, amplifiers, appliances, attachments and other property as
may be necessary and appurtenant to the CATV system; and in addition,
so to use, operate, and provide similar facilities or properties rented
or leased from other persons, firms or corporations, including but
not limited to any public utility or other grantee franchised or permitted
to do business in the city.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
The franchise granted by the council under this chapter shall be for a term of no more than fifteen years from the date of its acceptance by the grantee. During the last year of the franchise, the grantee may apply to the council for a renewal of the franchise. Permission to renew for an additional term of no more than fifteen years shall not be unreasonably withheld if the grantee has substantially complied with the terms and conditions of the existing franchise. The council may waive compliance with any or all of the requirements of Sections 5.40.050, 5.40.060 and 5.40.070 in considering an application for renewal.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
(a)
Each
application for a franchise to construct, operate, or maintain any
cable television systems in this city shall be filed with the city
clerk and shall contain or be accompanied by the following:
(1)
The name, address, and telephone number of the applicant;
(2)
A detailed statement of the corporate or other business entity organization
of the applicant, including but not limited to, the following and
to whatever extent required by the city:
(A)
The names, residence and business addresses of all officers, directors
and associates of the applicant,
(B)
The names, residence and business addresses of all officers, persons
and entities having, controlling, or being entitled to have or control
of five percent or more of the ownership of the applicant and the
respective ownership share of each such person or entity,
(C)
The names and addresses of any parent or subsidiary of the applicant,
namely, any other business entity owning or controlling applicant
in whole or in part by the applicant, and a statement describing the
nature of any such parent or subsidiary business entity, including
but not limited to cable television systems owned or controlled by
the applicant, its parent and subsidiary and areas served thereby,
(D)
A detailed description of all previous experience of the applicant
in providing cable television system service and in related or similar
fields,
(E)
A detailed and complete financial statement of the applicant, prepared
by a certified public accountant, for the fiscal year next preceding
the date of the application hereunder, or a letter or other acceptable
evidence in writing from a recognized lending institution or funding
source, addressed to both the applicant and the council, setting forth
the basis for a study performed by such lending institution or funding
source, and a clear statement of its intent as a lending institution
or funding source to provide whatever capital shall be required by
the applicant to construct and operate the proposed system in the
city, or a statement from a certified public accountant, certifying
that the applicant has available sufficient free, net and uncommitted
cash resources to construct and operate the proposed system in this
city,
(F)
A statement identifying, by place and date, any other cable television
franchise(s) awarded to the applicant, its parent or subsidiary; the
status of such franchise(s) with respect to completion thereof; the
total cost of completion of such system(s); and the amount of applicant's
and its parent's or subsidiary's resources committed to the completion
thereof;
(3)
A detailed description of the proposed plan of operation of the applicant
which shall include, but not be limited to, the following:
(A)
A detailed map indicating all areas proposed to be served, and a
proposed time schedule for the installation of all equipment necessary
to become operational throughout the entire area to be served,
(B)
A statement or schedule setting forth all proposed classifications
of rates and all rates and charges as to each of such classifications,
including installation charges and service charges,
(C)
A detailed, and referenced statement describing the actual equipment
and operational standards proposed by the applicant and that such
standards of operations are in compliance with those contained in
Title 47, Subpart K (Section 76.601 et seq.), of the Rules and Regulations
of the FCC,
(D)
A copy of the form of any agreement, undertaking, or other instrument
proposed to be entered into between the applicant and any subscriber,
(E)
A detailed statement setting forth in its entirety any and all agreements
and undertakings, whether formal or informal, written, oral or implied,
existing or proposed to exist between the applicant and any person,
firm or corporation which materially relate or pertain to or depend
upon application and the granting of the franchise;
(4)
A copy of any agreement covering the franchise area, if existing
between the applicant and any public utility subject to regulation
by the California Public Utilities Commission providing for the use
of any facilities of the public utility, including but not limited
to poles, lines or conduits;
(5)
Any other details, statements, information or references pertinent
to the subject matter of such application which shall be required
or requested by the city manager.
(b)
After
an application is received, the city manager shall estimate the cost
of publication and posting of notice of public hearing as provided
herein and shall notify the applicant of the amount. No further action
shall be taken unless that amount is deposited with the city. If the
cost of publication and posting of notice of hearing exceeds the amount
deposited by the applicant, the city shall bill applicant for the
deficiency. The applicant shall pay the whole of such bill within
thirty days after receipt thereof. If the amount of the deposit exceeds
the cost of the publication and posting, the city shall refund the
difference to the applicant.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
Upon receipt of the required deposit, the council shall set the application for a public hearing. Notwithstanding the foregoing, no application shall be set for hearing unless it contains the information required by Section 5.40.050.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
(a)
Not
less than ten days before the hearing, the city clerk shall give notice
in writing of the time, date and place of hearing to the applicant
by first class mail, postage prepaid.
(b)
In
five places within the area to be served which the city manager finds
will most adequately notify the inhabitants thereof, he shall cause
notice of the hearing to be posted. The posted notice of hearing shall
state the applicant's statement of rates and charges to be charged
and shall also state:
"Any person having objections to the granting of the franchise
for which application is made, to the rates and charges applicant
intends to charge, or wishing to suggest any other terms and conditions
which should be included in such franchise, may, at any time prior
to the date above named, file with city clerk in writing, objections
or suggestions, or both, giving the reasons therefor, and may appear
at the time and place of the hearing to be heard relative thereto."
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
After conducting a public hearing on the application the council
shall either: (1) deny the application; (2) grant the application;
or (3) grant the application upon certain terms and conditions. If
the council determines that a franchise be denied, such determination
shall be final and conclusive. If the council determines that a franchise
be granted, such determination shall be expressed by ordinance, which
shall include the terms and conditions of the grant, if any.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
(a)
No
franchise granted pursuant to the provisions of this chapter shall
become effective unless and until the ordinance granting same has
become effective and, in addition, unless and until all things required
in this chapter are done and completed, all of such things being declared
to be conditions precedent to the effectiveness of any such franchise
granted under this chapter. In the event any of such things are not
done and completed in the time and manner required, the council may
declare the franchise null and void.
(b)
Within
thirty days after the effective date of the ordinance granting a franchise,
or within such extended period of time as the council in its discretion
may authorize, the grantee shall file with the city clerk its written
acceptance, in form satisfactory to the city attorney, of the franchise,
together with the bond and insurance policies required by this chapter,
and its agreement to be bound by and to comply with and to do all
things required by the provisions of this chapter and the franchise.
Such acceptance and agreement shall be acknowledged by the grantee
before a notary public.
(Prior code § 5415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
The grantee shall, concurrently with the filing of and acceptance
of award of any franchise granted under this chapter, file with the
city clerk, and at all times thereafter maintain in full force and
effect for the term of such franchise or any renewal thereof, at grantee's
sole expense, a corporate surety bond running to the city and in a
form approved by the city attorney, in the amount of twenty-five thousand
dollars, renewable annually, and conditioned upon the faithful performance
of grantee, and upon the further condition that in the event grantee
shall fail to comply with any one or more of the provisions of this
chapter, or of any franchise issued to the grantee under this chapter,
there shall be recoverable jointly and severally from the principal
and surety of such bond any damages or loss suffered by the city as
a result thereof, including the full amount of any compensation, indemnification
or cost of removal or abandonment of any property of the grantee as
prescribed hereby which may be in default, plus a reasonable allowance
for attorney's fees and costs, up to the full amount of the bond,
such condition to be a continuing obligation for the duration of such
franchise and any renewal thereof and thereafter until the grantee
has liquidated all of its obligations with the city that may have
arisen from the acceptance of such franchise or renewal by the grantee
or from its exercise of any privilege therein granted. The bond shall
provide that thirty days' prior written notice of intention not to
renew, cancellation, or material change, be given to the city.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
(a)
Grantee
shall indemnify and hold harmless the city, its officers, boards,
commissions, agents and employees, against and from any and all claims,
demands, causes of actions, action suits, proceedings, damages including
but not limited to damages to city property and damages arising out
of copyright infringements, and damages arising out of any failure
by grantee to secure consents from the owners, authorized distributors
or licensees of program to be delivered by grantee's CATV, costs or
liabilities (including costs or liabilities of the city with respect
to its employee), of every kind and nature whatsoever, including but
not limited to damages for injury or death or damage to person or
property, and regardless of the merit of any of the same, and against
all liability to others, and against any loss, cost, and expense resulting
or arising out of any of the same, including any attorney fees, accountant
fees, expert witness or consultant fees, court costs, per diem expense,
traveling and transportation expense, or other costs or expenses arising
out of or pertaining to the exercise or the enjoyment of any franchise
hereunder by grantee, or the granting thereof by the city.
(b)
Grantee
shall at the sole risk and expense of grantee, upon demand of the
city, made by and through the city attorney, appear in and defend
any and all suits, actions, or other legal proceedings, whether judicial,
quasi-judicial, administrative, legislative, or otherwise, brought
or instituted or had by third persons or duly constituted authorities,
against or affecting the city, its officers, boards, commissions,
agents or employees, and arising out of or pertaining to the exercise
or the enjoyment of such franchise or the granting thereof by the
city.
(c)
Grantee
shall pay and satisfy and shall cause to be paid and satisfied any
final judgment, decree, or order made or issued against grantee, the
city, its officers, boards, commissions, agents, or employees in any
of these premises; and such indemnity shall exist and continue without
reference to or limitation by the amount of any bond, policy of insurance,
deposit, undertaking or other assurance required hereunder, or otherwise;
provided, that neither grantee nor city shall make or enter into any
compromise or settlement of any claim, demand, cause of action, action
suit or other proceeding, without first obtaining the written consent
of the other.
(d)
Upon
being granted a franchise, and upon the filing of the acceptance required
herein, the grantee shall file with the city clerk and shall thereafter
during the entire term of such franchise maintain in full force and
effect at its own cost and expense, a policy or policies of insurance
with a minimum one million dollars combined single limit with coverage
that consists of comprehensive general liability, contractual liability,
products, completed operations, and comprehensive automobile liability
(including the owned, nonowned, and hired automobile hazards), in
a company approved by the city manager and in a form approved by the
city attorney, in which the city, and its officers and employees shall
be named as additional insured. The policy or policies shall contain
a provision that a written notice of cancellation or reduction in
coverage shall be delivered to the city at least thirty days in advance
of the effective date thereof. If such insurance is provided by a
policy that also covers grantee or any entity or person other than
those named above, then such policy shall contain the standard cross-liability
endorsement.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
As consideration for the franchise granted, the grantee shall
pay to the city, during the life of the franchise, for each and every
year, including the year of granting the franchise, according to the
franchise payment period, five percent of its gross subscriber revenues.
In the event grantee fails to make payments due within ten days after
the end of the franchise payment period, grantee shall pay as additional
consideration a sum of money equal to ten percent of the amount due.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979; Ord. 1643 § 1, 1985)
(a)
Within
sixty days after acceptance of any franchise, the grantee shall proceed
with due diligence to obtain all necessary permits and authorizations
which are required in the conduct of its business including, but not
limited to, any utility joint use attachment agreements, microwave
carrier licenses and any other permits, licenses and authorization
to be granted by duly constituted regulatory agencies having jurisdiction
over the operation of the cable television systems, or associated
microwave transmission facilities for the service area described in
the application. In connection therewith, copies of all petitions,
applications and communications submitted by the grantee to the FCC,
Securities and Exchange Commission, or any other federal or state
regulatory commission or agency having jurisdiction in respect to
any matters affecting grantee's cable television operations, shall
also be submitted simultaneously to the city manager.
(b)
Within
ninety days after obtaining all necessary permits, licenses and authorizations,
including right of access to poles and conduits, grantee shall commence
construction and installation of the cable television system.
(c)
Within
one hundred eighty days after the commencement of construction and
installation of the system, grantee shall proceed to render service
to subscribers, and the completion of the installation and construction
shall be pursued with reasonable diligence thereafter, so that service
to all of the areas designated and scheduled on the map and plan of
construction made part of the franchise shall be provided as set forth
therein.
(d)
Grantee
shall utilize existing poles, conduits and other facilities whenever
possible and shall not construct or install any new, different, or
additional poles, conduits, or other facilities whether on public
property or on privately owned property unless and until first obtaining
the written approval of the city manager. When any portion of the
CATV system is to be installed on public utility poles and facilities,
copies of the agreements for such joint and use of poles and facilities
shall be filed with the city clerk.
(e)
Whenever
grantee shall not utilize existing poles, conduits and other facilities
or whenever existing conduits and other facilities shall be located
beneath the surface of the streets, or whenever the city shall undertake
a program designed to cause all conduits and other facilities to be
located beneath the surface of the streets in any area or throughout
the city, in the exercise of its police power or pursuant to the terms
hereof upon reasonable notice to grantee, any such conduits or other
facilities of grantee shall be constructed, installed, placed or replaced
beneath the surface of the streets. Any construction, installation,
placement, replacement, or changes which may be so required shall
be made at the expense of grantee, whose costs shall be determined
as in the case of public utilities.
(f)
The
city shall have the right, free of charge, to make additional use,
for any public or municipal purpose, whether governmental or proprietary;
of any poles, conduits or other similar facilities erected, controlled
or maintained exclusively by or for grantee in any street, provided
such use by city does not interfere with or in any way compete with
any service offered by grantee prior to the exercise of the city's
use.
(g)
In
those areas of the city where the transmission or distribution facilities
of the respective public utilities providing telephone, communication
and electric services are underground or hereafter are placed underground,
the grantee likewise shall construct, operate and maintain all of
its transmission and distribution facilities underground. The term
"underground" shall include a partial underground system; provided,
that upon obtaining the written approval of the city manager, amplifiers
in the grantee's transmission and distribution lines may be placed
in appropriate housing upon the surface of the ground.
(h)
Upon
the failure, refusal or neglect of grantee to cause any work or other
act required by law or hereunder to be properly completed in, on,
over or under any street within any time prescribed therefor, or upon
notice given, where no time is prescribed, the city manager may cause
such work or other act to be completed in whole or in part, and upon
so doing shall submit to grantee an itemized statement of the costs
thereof. The grantee shall, within thirty days after receipt of such
statement, pay to the city the entire amount thereof.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
(a)
Every
franchise granted under this chapter shall be nonexclusive.
(b)
No
privilege or exemption shall be granted or conferred by any franchise
granted under this chapter except those specifically prescribed herein.
(c)
Any
privilege claimed under any such franchise by the grantee in any street
or other public property shall be subordinate to any prior lawful
occupancy to the streets or other public property.
(d)
Any such franchise shall be a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by force or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without prior consent of the council expressed by resolution, and then only under such conditions as may therein be prescribed. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale, or similar document, a duly executed copy of which shall be filed in the office of the city clerk within thirty days after any such transfer or assignment. Such consent of the council may not be unreasonably refused; provided, however, the proposed assignee must show financial responsibility as determined by the council and must agree to comply with all provisions of this chapter; and provided, further, that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation, in whole or in part, to secure an indebtedness, except that when such hypothecation shall exceed fifty percent of the market value of the property used by the franchisee in the conduct of the cable television system, prior consent of the council shall be required for such a transfer. Such consent shall not be withheld unreasonably. In the event that grantee is a corporation, prior approval of the council, expressed by ordinance, shall be required where there is an actual change in control or where ownership of more than fifty percent of the voting stock of grantee is acquired by a person or group of persons acting in concert, none of whom already own fifty percent or more of the voting stock, singly or collectively. Any such acquisition occurring without prior approval of the council shall constitute a failure to comply with a provision of this chapter within the meaning of Section 5.40.270. The council, in consenting to such transfer, assignment or sale, may impose such additional terms or conditions upon the franchise and grantee or assignee as it deems to be in the public interest.
(e)
Time
shall be of the essence of any such franchise granted under this chapter.
The grantee shall not be relieved of its obligation to comply promptly
with any of the provisions of this chapter by any failure of the city
to enforce prompt compliance.
(f)
Any
right or power in, or duty impressed upon, any officer, employee,
department or board of the city shall be subject to transfer by the
city to any other officer, employee, department or board of the city.
(g)
The
grantee shall have no recourse whatsoever against the city for any
loss, cost, expense, or damage arising out of any provision or requirement
of this chapter or of any franchise issued hereunder or because of
its enforcement.
(h)
The
grantee shall be subject to all requirements of city laws, rules,
regulations and specification heretofore or hereafter enacted or established.
(i)
Any
such franchise granted shall not relieve the grantee of any obligations
involved in obtaining pole or conduit space from any department of
the city, utility company, or from others maintaining utilities in
streets.
(j)
Any
franchise granted under this chapter, shall be in lieu of any and
all other rights, privileges, powers, immunities, and authorities
owned, possessed, controlled or exercisable by grantee, or any successor
to any interest of grantee, of or pertaining to the construction,
operation, or maintenance of any cable television system in the city;
and the acceptance of any franchise under this chapter shall operate,
as between grantee and the city, as an abandonment of any and all
of such rights, privileges, powers, immunities, and authorities within
the city, to the effect that, as between grantee and the city, any
and all construction, operation and maintenance by any grantee of
any cable television system in the city shall be, and shall be deemed
and construed in all instances and respects to be, under and pursuant
to such franchise, and not hereunder or pursuant to any other right,
privilege, power, immunity or authority whatsoever.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
Grantees shall:
(1)
Construct
a CATV with a capability of delivering not less than twenty audio/visual
channels to residential subscribers. If applicable, the cable system
shall have the technical capacity for nonvoice return in accordance
with FCC rules;
(2)
Deliver
to subscriber terminals those television broadcasts and cablecast
signals which are now or hereafter authorized for carriage by the
FCC;
(3)
Distribute
in color those television signals which it receives in color;
(4)
Render
such service to subscribers as will meet FCC technical and performance
requirements;
(5)
As
an aid to the city in monitoring signal strength and quality, provide
the city manager with copies of all FCC Signal Performance Reports.
The city manager shall require grantee to rebate to affected subscribers
service fees for periods of time in which the signal does not meet
FCC standards for at least six hours per day for at least five consecutive
days in any calendar month; provided, however, that no rebate shall
be made for a failure of service due to acts of God and circumstances
that the city manager finds are beyond the control of grantee. Any
rebates shall be reasonably related to the actual length of time and
extent to which there is a failure of service. The requirement for
rebates may be waived by the city manager for good cause shown;
(6)
Provide
program origination if so required by the FCC;
(7)
Render
efficient service, making repairs promptly and interrupting service
only for good cause and for the shortest possible time; such interruptions,
insofar as possible, shall be preceded by notice given to subscribers
twenty-four hours in advance and shall occur during periods of minimum
use of the system;
(8)
Provide
at least one channel without charge for exclusive use of the city
and at least one channel for all public schools in the franchise area,
when requested by the city. Until such time as there is demand for
each channel full-time for its designated use, educational and government
programming may be combined on one or more cable channels. To the
extent time is available therefor, access channels may also be used
for other broadcast and nonbroadcast services. If such channels are
then being used by grantee, such use by the city or by any public
schools shall be preceded by thirty days' written notice to the grantee;
(9)
With
respect to the local government channel, at the request of the city
manager or the school district superintendent, and upon reimbursement
by the requesting agency of grantee's actual cost directly incurred
by the production of programs, provide use of grantee's studio, equipment
and technical services for production of live and video tape municipal
programs, subject to scheduling requirements of the grantee; with
respect to the basic television services, provide all:
(10)
Maintain and upgrade the system and services to reflect those technical
and economic developments occurring during the term of the franchise
which will benefit the public in terms of new and more effective and
efficient service. In connection therewith, the council may, after
consultation with the grantee, order the grantee to make changes in
its facilities so as to accommodate an increased capability or capacity
in (A) channel capacity, (B) two-way capability, (C) availability
of access channels, (D) access to programming facilities, (E) interconnection
with other CATV systems, and (F) any other system or service that
would benefit the public; provided, however, that the council shall
allow an increase in rates or charges that would permit the grantee
to recover its additional equity investment plus a reasonable rate
of return thereon based on the life expectancy of the equipment and
the then remaining term of the franchise;
(11)
Provide and maintain continuous service to subscribers unless allowed
otherwise by the FCC. Grantee may petition the FCC to authorize the
suspension or abandonment of service upon such reasonable terms and
conditions as may be prescribed by the FCC. A copy of any such petition
shall be filed with city manager concurrently with the filing of the
petition with FCC.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
(a)
Investigation
and resolution of subscriber complaints shall be effected by the grantee
not later than three business days after receipt of the complaint.
(b)
Upon
complaint by any subscriber, grantee shall have the burden to satisfy
city that a signal is being delivered which is of sufficient strength
and quality to meet standards contained in the FCC rules and regulations.
(c)
Grantee
shall maintain a written complaint record containing the following
information:
(1)
Date and time of subscriber complaint;
(2)
Identification of the complaint by name and address;
(3)
Description of the nature of the complaint;
(4)
A record of when and what action was taken by grantee to resolve
the complaint. The complaint record shall be kept at grantee's local
office for a period of two years after receipt of any such complaint.
A copy of such complaint record shall be submitted by grantee to the
city manager within ten days following receipt of a written request
therefor from the city manager.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
Grantee shall provide each new subscriber in the authorized
franchise area with a notice indicating the local business headquarters
office of grantee to handle subscriber complaints, and identifying
the city manager as referral person if any problem regarding CATV
service or rates is not resolved by the grantee to the reasonable
satisfaction of the subscriber. Grantee shall also notify each subscriber
of a change of the local business headquarters office.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
Grantee shall maintain a local business headquarters office
within the city or such other location as is approved by the council
and provide the city manager with the name, address and phone number
of a person who will act as the company's agent to receive complaints
regarding quality of service, equipment malfunctions and similar matters.
The local office shall be open to receive inquiries or complaints
from subscribers during normal business hours. A toll-free phone number
shall be available to all subscribers located within the franchised
area for the reporting of service problems on a twenty-four hours
per day, seven days per week, three hundred sixty-five days per year.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
(a)
For
the first year of operational service offered to subscribers, grantee
shall charge a subscriber no more for each service than the rates
and charges initially approved by the council when granting the franchise.
Grantee shall not change rates or charges unless such changes are
approved or authorized in the manner provided herein.
(b)
After
the first year of operative service to subscribers, grantee shall
provide the city manager, at least thirty days prior to the effective
date thereof, with proof of service of notice to all subscribers affected
of any proposed increases in rates and/or charges for services. The
notification to subscribers shall include a written list showing the
rates and charges currently being charged and the proposed changes
in rates and/or charges and shall indicate that the proposed changes
will become effective thirty days after delivery of such notice unless
written protest is received by the city clerk no later than the next
regular city council meeting at least ten days after submission to
the city of the proof of service of the notification. The notice shall
also specify the last day that written protest will be received.
(c)
Unless
before the time specified in the notice there is received by the city
clerk written protests by at least fifteen percent of current nondelinquent
subscribers, the city council shall by resolution adopt the proposed
changes which shall thereupon become and shall be a part of any franchise
granted under this chapter and affected thereby. In the event of the
failure of the city council to act as provided herein by this subsection,
the proposed changes shall be automatically deemed approved and effective
as specified in the notice.
(d)
If
written protests by at least fifteen percent of current nondelinquent
subscribers are received by the city clerk, the city council shall
direct the city clerk to immediately give notice of grantee's proposed
changes of rates or charges and indicate the city council's intent
at its next regular meeting to conduct a public hearing on the proposal
prior to making a determination. Any such determination shall be supported
by substantial evidence in the record and shall be adopted by a resolution
which shall thereupon become and shall be a part of any franchise
granted under this chapter and affected thereby. Such determination
shall be made no later than forty days after receipt by the city manager
or proof of service of notice to the subscribers affected by the proposed
changes, unless a later date is fixed with the mutual consent of the
city council and the grantee.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
Grantee shall not grant any preference or advantage to any person
or group, nor subject any person or group to prejudice or disadvantage
as to rates, charges, services, service facilities, rules and regulations
or in any other respect relative to the rights granted under the franchise.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
(a)
The
city reserves the power to adopt and enforce requirements and regulations
on any or all of the following matters, if and when deemed necessary
and proper in the public interest in the discretion of the council
and if consistent with rules and regulations of the FCC:
(1)
Operational standards pertaining to the quality of audio visual reception
by subscribers;
(2)
Channel capacity requirements;
(3)
Requirements for carriage of specified television signals, radio
signals and supplementary signal carriage services;
(4)
Requirements pertaining to proper transmission of local programming
and television signals;
(5)
Requirements and regulations pertaining to minimum service requirements
and fair business practices by the grantee;
(6)
Public safety requirements pertaining to the installation and use
of all CATV equipment;
(7)
Procedures for the investigation and resolution of all complaints
by subscribers regarding grantee's CATV operations, including implementation
thereof by designated city officers, employees, or agents.
(b)
There
is reserved to the city every right and power which is required to
be herein reserved or provided by any law and the grantee, by its
acceptance of the franchise, agrees to be bound thereby and comply
with any action or requirements of the city in its exercise of such
rights or power, heretofore or hereafter enacted or established.
(c)
Nothing
herein shall be deemed or construed to impair or affect, in any way,
to any extent, the right of the city to acquire the property of the
grantee, either by purchase or through the exercise of the right of
eminent domain, at a fair and just value, which shall not include
any amount for the franchise itself or for any of the rights or privileges
granted, and nothing herein contained shall be construed to contract
away or to modify or abridge, whether for a term or in perpetuity,
the city's right of eminent domain.
(d)
Neither
the granting of any franchise nor any provision hereof shall constitute
a waiver or bar to the exercise of any governmental right or power
of the city.
(e)
The
council may do all things which are necessary and convenient in the
exercise of its jurisdiction under this chapter and may determine
any question of fact which may arise during the existence of any franchise
granted under this chapter. The city manager, with the approval of
the city attorney, is authorized and empowered to adjust, settle or
compromise any controversy or charge arising from the operations of
any grantee under this chapter, either on behalf of the city, the
grantee, or any subscriber, in the best interest of the public. Either
the grantee or any member of the public who may be dissatisfied with
the decision of the city manager may appeal the matter to the council
for hearing and determination. The council may accept, reject or modify
the decision of the city manager, and the council may adjust, settle
or compromise any controversy or cancel any charge arising from the
operations of the grantee or from any provision of this chapter.
(f)
The
city reserves the authority to require the grantee to reimburse the
city for its costs in connection with the investigation and award
of any franchise.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
(a)
The
city reserves the right to change the grade, to change the width or
to alter or change the location of any street over which the franchise
is granted. If any of the franchise property or appurtenances heretofore
or hereafter constructed, installed or maintained by the grantee pursuant
to the franchise on, along, under, over, in, upon or across any street
are located in a manner which prevents or interferes with the change
of grade, traffic needs, operation, maintenance, improvement, repair,
construction, reconstruction, widening, alteration or relocation of
the highway, or any work or improvement upon the street, the grantee
shall relocate permanently or temporarily any such franchise property
or appurtenances at no expense to the city upon receipt of a written
request from the city manager to do so, and shall commence such work
on or before the date specified in such written request, which date
shall be not less than thirty days from receipt of such written request.
Grantee shall thereafter diligently prosecute such work to completion;
provided, however, if such highway be subsequently constituted as
a state highway, thereafter and so long as such highway remains a
state highway, no such change of location shall be required for a
temporary purpose.
(b)
The
city reserves the right for itself and any other public entity, to
lay, construct, repair, alter, relocate and maintain subsurface or
other facilities or improvements of any type or description in a governmental
but not proprietary capacity within the roads over which the franchise
is granted. If the city or other public entity finds that the location
or relocation of such facilities or improvements conflicts with the
franchise property or appurtenances laid, constructed or maintained
under the franchise, whether such franchise property was laid, constructed
or maintained before or after the facilities of the city or such public
entity were laid, the grantee of such franchise shall at no expense
to the city or public entity, on or before the date specified in a
written request from the city manager, which date shall not be less
than thirty days after the receipt of such notice, and request to
do so, commence work to change the location either permanently or
temporarily of all franchise property and appurtenances so conflicting
with such improvements to a permanent or temporary location in such
highways to be approved by the city manager and thereafter diligently
prosecute such work to completion.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
(a)
The
grantee during the life of the franchise, within sixty days after
the expiration of each franchise payment period, shall file with the
city manager a report verified by the oath of the grantee setting
forth in detail the computation of the amount of the franchise payment
due for the immediately preceding franchise payment period. It shall
include a detailed profit and loss statement showing all gross receipts
and expenses derived from the grantee's franchise operations during
the reporting period.
(b)
Grantee
shall keep and preserve, for a period of five years after the date
of each franchise payment period, all records necessary to determine
the amount of such franchise fees. At all reasonable times, the grantee
shall make such records available for inspection by any authorized
representative of the city.
(c)
Grantee
shall provide the city manager with complete technical documentation
of the community antenna television system as installed. Such documentation
shall include, but is not limited to, the backbone cable routing,
but need not include each subscriber drop. Such documentation shall
be sent to the city manager within sixty days of initiation of subscriber
service and shall be updated as necessary.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
At all reasonable times, the grantee shall permit any duly authorized
representative of the city to examine all property of the grantee
erected, constructed, laid, operated or maintained pursuant to the
franchise, together with any appurtenant property of the grantee,
and to examine and transcribe any and all books, accounts, papers,
maps, and other records kept or maintained by the grantee or under
its control which relate to the operations, affairs, transactions,
property or financial condition of the grantee with respect to the
franchise. The grantee shall at all times make and keep in the city
full and complete plans and records showing the exact location of
all CATV system equipment installed or in streets or other public
places in the city.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
In the event that:
(1)
The
use of any part of the system of grantee is discontinued for any reason
for a continuous period of thirty days, without prior written notice
to and approval by the city; or
(2)
Any
part of such system has been installed in any street or other area
without complying with the requirements hereof; or
(3)
Any
franchise has been terminated, cancelled, or expires; then the grantee
shall, at the option of the city, and at the expense of grantee and
at no expense to the city, and upon demand of the city, promptly remove
from any streets or other area all property of grantee, and grantee
shall promptly restore the street or other area from which such property
has been removed to such condition as the city manager shall approve.
The council may, upon written application therefor by grantee, approve
the abandonment of any of such property in place by grantee and under
such terms and conditions as the council may prescribe. Upon abandonment
of any such property in place, grantee shall cause to be executed,
acknowledged and delivered to the city such instruments as the city
attorney shall prescribe and approve, transferring and conveying ownership
of such property to the city.
(Prior code § 6415; Ord. 1235 §, 1969; Ord. 1504 § 1, 1979)
(a)
The
city may terminate any franchise granted under this chapter in the
event of the wilful failure, refusal or neglect by grantee to do or
comply with any material requirement or limitation contained in this
chapter, or any term or condition of any franchise or permit issued
under this chapter.
(b)
The
city manager may make written demand that the grantee do or comply
with any such requirement, limitation, term, condition, rule or regulation.
If the failure, refusal or neglect of the grantee continues for a
period of ten days or more following such written demand, the city
manager may place his or her recommendation for termination of the
franchise upon a regular council meeting agenda and shall cause to
be served upon such grantee, at least fifteen days prior to the date
of such council meeting, a written notice of his or her intent to
recommend such termination, and the time and place of the meeting.
(c)
The
council shall consider the recommendation of the city manager and
shall hear any persons interested therein, and shall determine, in
its discretion, whether any failure, refusal or neglect by the grantee
was with just cause. If such failure, refusal or neglect by the grantee
was with just cause, the council shall direct the grantee to comply
within such time and manner and upon such terms and conditions as
are reasonable. If the council shall determine such failure, refusal
or neglect by the grantee was without just cause, then the council
may, by resolution, declare that the franchise of such grantee shall
be terminated and forfeited unless there be compliance by the grantee
within such period as the council may fix.
(d)
The
termination and forfeiture of any franchise shall in no way effect
any of the rights of the city under the franchise or any provision
of law.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § 1, 1979)
(a)
It
is unlawful for any person to establish, operate or carry on the business
of distributing to any persons in this city any television signals
or radio signals by means of a CATV system unless a franchise therefor
has first been obtained pursuant to the provision of this chapter,
and unless such franchise is in full force and effect.
(b)
It
is unlawful for any person to construct, install or maintain within
any public street in the city, or within any other public property
of the city, or within any privately owned area within the city which
has not yet become a public street but is designated or delineated
as a proposed public street on any tentative subdivision map approved
by the city, any equipment or facilities for distributing any television
signals or radio signals through a CATV system, unless a franchise
authorizing such use of such street or property or area has first
been obtained pursuant to the provisions of this chapter and unless
a franchise is in full force and effect.
(c)
It
is unlawful for any person, firm or corporation to make any unauthorized
connection, whether physically, electrically, acoustically, inductively
or otherwise, with any part of a franchised CATV system within this
city for the purpose of taking or receiving television signals, radio
signals, pictures, programs or sound.
(d)
It
is unlawful for any person, firm or corporation to make or use any
unauthorized connection, whether physically, electrically, acoustically,
inductively or otherwise, with any part of a franchised CATV system
within the city for the purpose of enabling himself or others to receive
or use any television signal, radio signal, picture program or sound,
without payment to the owner of such system.
(e)
It
is unlawful for any person, without the consent of the owner, to wilfully
tamper with, remove or injure any cables, wires or equipment used
for distribution of television signals, radio signals, pictures, programs
or sound.
(f)
It
is unlawful for a landlord, manager or owner of a multiple dwelling
unit or a condominium unit to prevent authorized personnel of a grantee
from entering premises to install, service or disconnect cable TV
service during normal business hours.
(Prior code § 6415; Ord. 1235 § 1, 1969; Ord. 1504 § I, 1979)
