a. In
accordance with applicable federal and state law, the city is authorized
to grant one or more nonexclusive franchises to construct, reconstruct,
operate, and maintain cable television systems within the city limits.
b. The
City Council finds that the development of cable television and related
telecommunications services may provide significant benefits for,
and have substantial impacts upon, the residents and the business
community of the city. Because of the complex and rapidly changing
technology associated with cable services, the City Council further
finds that the public convenience, safety, and general welfare can
best be served by the city's exercise of its regulatory powers. This
Part 2 is intended to specify the means for providing to the public
the best possible cable television and related telecommunications
services; and every franchise issued in accordance with this Part
2 is intended to achieve this primary objective. It is the further
intent of this Part 2 to adopt regulatory provisions that will enable
the city to regulate cable television and related telecommunications
services to the maximum extent authorized by federal and state law.
(Prior code § 61010; Ord. 98-519 § 1, 1998)
a. Franchise Purposes. A franchise granted by the city under
the provisions of this part may authorize the grantee to do the following:
1. To
engage in the business of providing cable service and such other telecommunications
services as may be authorized by law and which grantee elects to provide
to its subscribers within the designated franchise service area;
2. To
maintain and operate the franchise properties for the origination,
reception, transmission, amplification, and distribution of television
and radio signals, and for the delivery of cable services and such
other services as may be authorized by law;
3. To
erect, install, construct, repair, rebuild, reconstruct, replace,
maintain, and retain, cable lines, related electronic equipment, supporting
structures, appurtenances, and other property in connection with the
operation of the cable system in, on, over, under, upon, along and
across streets or other public places within the designated franchise
service area.
b. Franchise Required. It is unlawful for any person to construct,
install, or operate a cable television system within any street or
public way in the city without first obtaining a franchise under the
provisions of this part.
c. Term of the Franchise.
1. A
franchise granted under this part will be for the term specified in
the franchise agreement, commencing upon the effective date of the
ordinance or resolution adopted by the City Council that authorizes
the franchise.
2. A
franchise granted under this part may be renewed upon application
by the grantee in accordance with the then-applicable provisions of
state and federal law and of this part.
d. Franchise Territory. A franchise is effective within the
territorial limits of the city, and within any area added to the city
during the term of the franchise, unless otherwise specified in the
ordinance or resolution granting the franchise or in the franchise
agreement.
e. Federal or State Jurisdiction. This part will be construed
in a manner consistent with all applicable federal and state laws,
and it applies to all franchises granted or renewed after the effective
date of this chapter, to the extent authorized by applicable law.
f. Franchise Non-Transferable.
1. Grantee
shall not sell, transfer, lease, assign, sublet, or dispose of, in
whole or in part, either by forced or involuntary sale, or by ordinary
sale, contract, consolidation, or otherwise, the franchise or any
of the rights or privileges therein granted, without the prior consent
of the City Council and then only upon such terms and conditions as
may be prescribed by the City Council, which consent may not be unreasonably
denied or delayed. Any attempt to sell, transfer, lease, assign, or
otherwise dispose of the franchise without the consent of the City
Council is null and void. The granting of a security interest in any
assets of the grantee, or any mortgage or other hypothecation, will
not be deemed a transfer for the purposes of this subsection.
2. The requirements of subsection
1 apply to any change in control of grantee. The word "control" as used herein is not limited to the ownership of major stockholder or partnership interests, but includes actual working control in whatever manner exercised. If grantee is a corporation, prior authorization of the City Council is required where ownership or control of more than ten percent of the voting stock of grantee is acquired by a person or a group of persons acting in concert, none of whom, singularly or collectively, owns or controls the voting stock of the grantee as of the effective date of the franchise.
3. Grantee
must notify the city in writing of any foreclosure or judicial sale
of all or a substantial part of the grantee's franchise property,
or upon the termination of any lease or other interest covering all
or a substantial part of that franchise property. That notification
will be considered by the city as notice that a change in control
of ownership of the franchise has taken place, and the provisions
of this subsection that require the prior consent of the City Council
to that change in control of ownership will apply.
4. For
the purpose of determining whether it will consent to an acquisition,
transfer, or change in control, the city may inquire as to the qualifications
of the prospective transferee or controlling party, and grantee must
assist the city in that inquiry. In seeking the city's consent to
any change of ownership or control, grantee or the proposed transferee,
or both, must complete Federal Communications Commission Form 394
or its equivalent. This application must be submitted to the city
not less than one hundred twenty days prior to the proposed date of
transfer. The transferee must establish that it possesses the legal,
financial and technical capability to operate and maintain the cable
system and to comply with all franchise requirements during the remaining
term of the franchise. If the legal, financial, and technical qualifications
of the applicant are satisfactory, the city will consent to the transfer
of the franchise. The consent of the city to that transfer will not
be unreasonably denied or delayed.
5. Any
financial institution holding a pledge of the grantee's assets to
secure the advance of money for the construction or operation of the
franchise property has the right to notify the city that it, or a
designee satisfactory to the city, will take control of and operate
the cable television system upon grantee's default in its financial
obligations. Further, that financial institution must also submit
a plan for such operation within ninety days after assuming control.
The plan must insure continued service and compliance with all franchise
requirements during the period that the financial institution will
exercise control over the system. The financial institution may not
exercise control over the system for a period exceeding one year unless
authorized by the city, in its sole discretion, and during that period
of time it will have the right to petition the city to transfer the
franchise to another grantee.
6. Grantee
must reimburse the city for the city's reasonable review and processing
expenses incurred in connection with any transfer or change in control
of the franchise. These expenses include, without limitation, costs
of administrative review, financial, legal, and technical evaluation
of the proposed transferee, consultants (including technical and legal
experts and all costs incurred by these experts), notice and publication
costs, and document preparation expenses. No reimbursement may be
offset against any franchise fee payable to the city during the term
of the franchise.
g. Geographical Coverage.
1. Grantee
must design, construct, and maintain the cable television system so
as to have the capability to pass every dwelling unit in the city,
subject to any service-area line extension requirements of the franchise
agreement.
2. After
service has been established by activating trunk or distribution cables
for any service area, grantee must provide service to any requesting
subscriber in that service area within thirty days from the date of
request, provided that the grantee is able to secure on reasonable
terms and conditions all rights-of-way necessary to extend service
to that subscriber within that thirty-day period.
h. Nonexclusive Franchise. Every franchise granted is nonexclusive.
The city specifically reserves the right to grant, at any time, such
additional franchises for a cable television system, or any component
thereof, as it deems appropriate, subject to applicable state and
federal law. Whenever any new franchise is proposed to be granted,
a noticed public hearing must first be held in accordance with the
provisions of
Government Code § 53066.3.
i. Multiple Franchises.
1. The
city may grant any number of franchises, subject to applicable state
and federal law. The city may limit the number of franchises granted,
based upon, but not necessarily limited to, the requirements of applicable
law and specific local considerations, such as:
A. The capacity of the public rights-of-way to accommodate multiple
cables in addition to the cables, conduits, and pipes of the existing
utility systems, such as electrical power, telephone, gas, and sewerage.
B. The benefits that may accrue to subscribers as a result of cable
system competition, such as lower rates and improved service.
C. The disadvantages that may result from cable system competition,
such as the requirement for multiple pedestals on residents' property,
and the disruption arising from numerous excavations within the public
rights-of-way.
2. The
city may require that any new grantee be responsible for its own underground
trenching and the associated costs if, in the city's opinion, the
rights-of-way in any particular area cannot reasonably accommodate
additional cables.
(Prior code § 61011; Ord. 98-519 § 1, 1998)
a. Filing of Applications. Any person desiring an initial franchise
for a cable television system must file an application with the city.
A reasonable nonrefundable application fee in an amount established
by resolution of the city Council must accompany the application.
That application fee will cover all costs associated with reviewing
and processing the application, including without limitation costs
of administrative review, financial, legal, and technical evaluation
of the applicant, consultants (including technical and legal experts
and all costs incurred by those experts), notice and publication requirements,
and document preparation expenses. If those costs exceed the application
fee, the applicant must pay the difference to the city within thirty
days following receipt of an itemized statement of those costs.
b. Applications – Contents. An application for an initial
franchise for a cable television system must contain, as applicable:
1. A
statement as to the proposed franchise service area.
2. A
resume of the applicant's prior history, including the experience
and expertise of the applicant in the cable television and telecommunications
industry.
3. A
list of the partners, general and limited, of the applicant, if a
partnership, or the percentage of stock owned or controlled by each
stockholder, if a closely held corporation. If the applicant is a
publicly owned corporation, each owner of ten percent or more of the
issued and outstanding capital stock must be identified.
4. A
list of officers, directors, and managing employees of the applicant,
together with a description of the background of each such person.
5. The
names and addresses of any parent or subsidiary of the applicant,
or any other business entity owning or controlling applicant in whole
or in part, or that is owned or controlled in whole or in part by
the applicant.
6. A
current financial statement of the applicant verified by a certified
public accountant or otherwise certified to be true, complete, and
correct to the reasonable satisfaction of the city.
7. The
proposed construction and service schedule.
8. Any
additional information that the city deems to be reasonably necessary.
c. Consideration of Initial Applications.
1. Upon
receipt of an application for an initial franchise, the City Manager
or the City Manager's designee must prepare a report and make recommendations
to the City Council concerning that application, including without
limitation the applicant's legal, financial, and technical qualifications.
2. A
public hearing will be noticed prior to any initial franchise grant,
at a time and date approved by the City Council. Within thirty days
after the close of the hearing, the City Council will make a decision
based upon the evidence received at the hearing as to whether the
franchise should be granted, and, if granted, subject to what conditions.
The City Council may grant one or more franchises, or may decline
to grant any franchise.
d. Franchise Renewal. Franchise renewals will be processed
in accordance with then-applicable law. The city and grantee, by mutual
consent, may enter into renewal negotiations at any time during the
term of the franchise.
(Prior code § 61012; Ord. 98-519 § 1, 1998)
a. The
terms and provisions of a franchise agreement for the operation of
a cable television or related telecommunications services may relate
to or include, without limitation, the following subject matters:
1. The
nature, scope, geographical area, and duration of the franchise.
2. The
applicable franchise fee to be paid to the city, including the amount,
the method of computation, and the time for payment.
3. Requirements
relating to compliance with and implementation of state and federal
laws and regulations pertaining to the operation of the cable television
system.
4. Requirements
relating to the construction, upgrade, or rebuild of the cable television
system, as well as the provision of special services, such as outlets
for public buildings, emergency alert capability, and parental control
devices.
5. Requirements
relating to the maintenance of a performance bond, a security fund,
a letter of credit, or similar assurances to secure the performance
of the grantee's obligations under the franchise agreement.
6. Requirements
relating to comprehensive liability insurance, workers' compensation
insurance, and indemnification.
7. Requirements
relating to consumer protection and customer service standards, including
the resolution of subscriber complaints and disputes and the protection
of subscribers' privacy rights.
8. Requirements
relating to the grantee's support of local cable usage, including
the provision of public, educational, and governmental access channels,
the coverage of public meetings and special events, and financial
support for governmental access channels.
9. Requirements
relating to construction, operation, and maintenance of the cable
television system within the public rights-of-way, including compliance
with all applicable building codes and permit requirements of the
city, the abandonment, removal or relocation of facilities, and compliance
with FCC technical standards.
10. Requirements relating to recordkeeping, accounting procedures, reporting,
periodic audits, and performance reviews, and the inspection of grantee's
books and records.
11. Acts or omissions constituting material breaches of or defaults under
the franchise agreement, and the applicable penalties or remedies
for such breaches or defaults, including fines, penalties, liquidated
damages, suspension, revocation, and termination.
12. Requirements relating to the sale, assignment, or other transfer
or change in control of the franchise.
13. The grantee's obligation to maintain continuity of service and to
authorize, under certain specified circumstances, the city's operation
and management of the cable system.
14. Such additional requirements, conditions, policies, and procedures
as may be mutually agreed upon by the parties to the franchise agreement
and that will, in the judgment of city staff and the City Council,
best serve the public interest and protect the public health, welfare,
and safety.
b. If
there is any conflict or inconsistency between the provisions of a
franchise agreement authorized by the City Council and provisions
of this Part 2, the provisions of the franchise agreement will control.
(Prior code § 61013; Ord. 98-519 § 1, 1998)