For the purpose of this article, the following definitions shall
apply unless the context clearly indicates or requires a different
meaning.
means a system of antenna, coaxial cables, wires, wave guides
or other conductors, equipment or facilities designed, constructed
or used for the purpose of providing television or FM radio service
by cable or through its facilities as herein contemplated.
means the United States Department of Labor, Bureau of Labor
Statistics, Los Angeles/Long Beach/Anaheim Consumer Price Index (1967
= 100), All Items for Urban Wage Earners and Clerical Workers.
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 in accordance with Chapter 5.04 of this Code.
means the person to whom a franchise, as defined in this
section, is granted by the City Council under this article, and the
lawful successor, transferee or assignee of such person.
means all compensation and other consideration, in any form
whatever, and any contributing grant or subsidy received, directly
or indirectly, by a grantee from subscribers or users in payment for
television or FM radio signals or service received within the City.
means all property owned, installed or used by a grantee
in the conduct of a CATV business in the City under the authority
of a franchise granted pursuant to this article.
means the surface of and the space above and below any public
street, road, highway, freeway, lane, path, alley, court, sidewalk,
parkway or drive, now or hereafter existing as such within the City.
means any person or entity receiving for any purpose the
CATV service of a grantee.
(Prior code § 112.01)
When and in the event that the grantee of any franchise granted
under this article constructs, operates and maintains a CATV system
exclusively through telephone company facilities constructed, operated
and maintained pursuant to a state-granted telephone franchise and
offers satisfactory proof that in no event during the life of such
franchise shall the grantee make any use of the streets independently
of such telephone company facilities, such grantee shall be required
to comply with all of the provisions hereof as a “licensee,”
and in such event whenever the term grantee is used in this article,
it shall be deemed to mean and include “licensee.”
(Prior code § 112.02)
A.
A nonexclusive
franchise to construct, operate and maintain a CATV system within
all or any portion of the City may be granted by the City Council
to any person, whether operating under an existing franchise or not,
who offers to furnish and provide such system under and pursuant to
the terms and provisions of this article.
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 City Council, it is in
the public interest to restrict the number of grantees to one or more.
(Prior code § 112.03)
A.
Any
franchise granted pursuant to the provisions of this article 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, including but not limited to any public utility or
other grantee franchised or permitted to do business in the City.
B.
The
grantee may make a charge to subscribers for installation or connection
to its CATV system and a fixed monthly charge as filed and approved
as herein provided.
C.
No increase
in the basic rates or charges to subscribers may be made in excess
of the percentage increase in the Consumer Price Index since April
1, 1984, or since the most recent rate increase following that date,
without prior approval of the Council expressed by resolution.
D.
The
grantee shall notify the City at least 30 days prior to implementing
any rate increase.
(Prior code § 112.04)
No franchise granted by the City Council under this article
shall be for a term longer than 20 years following the date of acceptance
of such franchise by the grantee or the renewal thereof. Any such
franchise granted under this chapter may be terminated prior to its
date of expiration by the City Council in the event that the City
Council shall have found, after 45 days written notice to the grantee
and one published notice at least 14 days prior to a public hearing
on the matter, or following any regular review hearing, that:
A.
The
grantee has failed to comply with any provision of this article, or
has, by act or omission, violated any term or condition of any franchise
or permit issued under this article;
B.
Any
provision of this article has become invalid or unenforceable and
the City Council further finds that such provision constitutes a consideration
material to the grant of such franchise; or
C.
The
City acquires the CATV system property of the grantee.
(Prior code § 112.05)
A.
Any
grantee granted a franchise under this article shall pay to the City,
during the life of the franchise, a sum equal to five percent of the
total gross annual receipts, payable in monthly installments. Total
gross annual receipts shall include all income from all sources, including
but not limited to installation and connection charges, basic subscriber
fees, expanded service fees, pay subscription fees (for HBO, Movie
Channel, Cinemax, and the like), and equipment rental. Such payment
by the grantee to the City shall be made by delivery of the same to
the Finance Director.
B.
The
grantee shall file with the City, within 45 days after the expiration
of any calendar year or portion thereof during which such franchise
is in force, a financial statement prepared by a certified public
accountant or person otherwise satisfactory to the City Council, showing
in detail the gross annual receipts of the grantee during the preceding
calendar year or portion thereof. It shall be the duty of the grantee
to pay to the City, within 30 days after the time for filing such
statements, the sum hereinabove prescribed or any unpaid balance thereof
for the calendar year or portion thereof covered by such statements.
C.
In any
year or portion thereof following the first full year in which service
has been provided and during which payments under this section amount
to less than $1,000 per year, the grantee shall pay the City a minimum
fee of $1,000 per year.
D.
The
City shall have the right to inspect the grantee’s records showing
the gross receipts from which its franchise payments are computed
and the right of audit and recomputation of all amounts paid under
this chapter. No acceptance of any payment shall be construed as a
release or as an accord and satisfaction of any claim the City may
have for further or additional sums payable under this chapter or
for the performance of any other obligation hereunder.
E.
In the
event of any holding over after expiration or other termination of
any franchise granted under this chapter, without the consent of the
City, the grantee shall pay to the City reasonable compensation and
damages, of not less than 100 percent of its total gross profits during
such period.
(Prior code § 112.06)
A.
Any
franchise granted under this article shall be nonexclusive.
B.
No privilege
or exemption shall be granted or conferred by any franchise granted
under this chapter except those specifically prescribed in this chapter.
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 of 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 forced
or involuntary sale, or by voluntary sale, merger, consolidation or
otherwise, without the prior consent of the City 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, a duly executed copy of which shall be
filed in the office of the City Manager within 30 days after any such
transfer or assignment. Such consent of the City Council may not be
arbitrarily refused, provided that the proposed assignee shall show
financial responsibility and shall agree to comply with all provisions
of this chapter, provided, further, that no such consent shall be
required for a transfer in trust, mortgage or other hypothecation
as a whole, to secure an indebtedness.
E.
Time
shall be of the essence of any such franchise granted under this chapter.
The grantee shall not be relieved of his or her obligation to comply
promptly with any of the provisions of this chapter or 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 under this chapter or because
of its enforcement.
H.
The
grantee shall be subject to all requirements of this Code and other
City ordinances, rules, regulations and specifications heretofore
or hereafter enacted or established.
I.
Any
franchise granted under this chapter shall not relieve the grantee
of any obligation involved in obtaining pole space from any department
of the City, utility company or from others maintaining poles 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 the grantee, or any successor
to any interest of the grantee, of or pertaining to the construction,
operation or maintenance of any CATV system in the City; and the acceptance
of any franchise under this chapter shall operate, as between the
grantee and the City, as an abandonment of all such rights, privileges,
powers, immunities and authorities within the City, to the effect
that, as between the grantee and the City, all construction, operation
and maintenance by any grantee of any CATV 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 under or pursuant
to any other right, privilege, power, immunity or authority whatsoever.
(Prior code § 112.07)
A.
Nothing
in this article 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 contained in this chapter shall
be construed to contract away or to modify or abridge, either for
a term or in perpetuity, the City’s right of eminent domain.
B.
There
is reserved to the City every right and power which is required to
be herein reserved or provided by this Code or any other ordinance
of the City, and the grantee, by its acceptance of any franchise,
agrees to be bound thereby and to comply with any action or requirements
of the City in its exercise of such rights or power, heretofore or
hereafter enacted or established.
C.
Neither
the granting of any franchise under this article, nor any of the provisions
contained in this chapter shall be construed to prevent the City from
granting any identical or similar franchise to any other person, within
all or any portion of the City.
D.
There
is reserved to the City the power to amend any section or part of
this article so as to require additional or greater standards of construction,
operation, maintenance or otherwise on the part of the grantee.
E.
Neither
the granting of any franchise nor any provision of this chapter shall
constitute a waiver or bar to the exercise of any governmental right
or power of the City.
F.
The City 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 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 by filing a written appeal to the City Clerk within 15 days of the City Manager’s decision. The appeal shall be conducted in accordance with the applicable sections of Chapter 4.36 of the Desert Hot Springs Municipal Code, as may be amended. The Hearing Officer may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provision of this chapter. The decision of the Hearing Officer shall be final.
(Prior code § 112.08; Ord. 695 10-15-19)
A.
Within
30 days after acceptance of any franchise under this article, 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 authorizations
to be granted by duly constituted regulatory agencies having jurisdiction
over the operation of CATV systems or their associated microwave transmission
facilities.
B.
Within
90 days after obtaining all necessary permits, licenses and authorizations,
the grantee shall commence construction and installation of the CATV
system.
C.
Within 90 days after the commencement of construction and installation of the system, the grantee shall proceed to render service to subscribers, and the completion of the construction and installation shall be pursued with reasonable diligence thereafter, so that service to all areas designated on the map accompanying the application for a franchise, as provided in Section 5.08.240 of this article, shall be provided within 180 days from the date that service was first provided.
D.
Failure on the part of the grantee to commence and diligently pursue each of the foregoing requirements and to complete each of the matters set forth in this section shall be grounds for termination of such franchise, under and pursuant to the terms of Section 5.08.050 of this article, provided, that the City Council, in its discretion, may extend the time for the commencement and completion of construction and installation for additional periods in the event the grantee, acting in good faith, experiences delays by reason of circumstances beyond his or her control.
(Prior code § 112.09)
A.
Any
poles, wires, cable lines, conduits or other properties of the grantee
to be constructed or installed in streets shall be so constructed
or installed only at such locations and in such manner as shall be
approved by the Director of Public Works, acting in the exercise of
his or her reasonable discretion.
B.
The
grantee shall not install or erect any facilities or apparatus in
or on other public property, places or rights-of-way, 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, except those
installed or erected upon public utility facilities now existing,
without obtaining the prior written approval of the Director of Public
Works.
C.
In those
areas and portions of the City where the transmission or distribution
facilities of both the public utility providing telephone service
and those of the utility providing electric service are underground
or hereafter may be placed underground, then the grantee shall likewise
construct, operate and maintain all of its transmission and distribution
facilities underground. For the purposes of this subsection, underground
shall include a partial underground system, for example, streamlining.
Amplifiers in the grantee’s transmission and distribution lines
may be in appropriate housings upon the surface of the ground as approved
by the Director of Public Works.
(Prior code § 112.10)
A.
In the
event that the use of any part of the CATV system is discontinued
for any reason for a continuous period of 12 months, or in the event
such system or property has been installed in any street or public
place without complying with the requirements of the grantee’s
franchise or this chapter, or the franchise has been terminated, canceled
or has expired, the grantee shall promptly, upon being given 30 days
notice, remove from the streets or public places all property and
poles of such system, other than any which the Director of Public
Works may permit to be abandoned in place. In the event of such removal,
the grantee shall promptly restore the street or other area from which
such property has been removed to a condition satisfactory to the
Director of Public Works.
B.
Any
property of the grantee remaining in place 30 days after the termination
or expiration of the franchise shall be considered permanently abandoned.
The Director of Public Works may extend such time not to exceed an
additional 30 days.
C.
Any
property of the grantee to be abandoned in place shall be abandoned
in such manner as the Director of Public Works shall prescribe. Upon
permanent abandonment of the property of the grantee in place, the
property shall become that of the City, and the grantee shall submit
to the Director of Public Works an instrument in writing, to be approved
by the City Attorney, transferring to the City the ownership of such
property.
(Prior code § 112.11)
Each grantee shall, at his or her expense, protect, support, temporarily disconnect, relocate in the same street or other public place, or remove from the street or other public place, any property of the grantee when required by the Director of Public Works by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines and tracks or any other type of structures or improvements by public agencies, provided, that the grantee shall in all such cases have the privileges and be subject to the obligations to abandon any property of the grantee in place, as provided in Section 5.08.110 of this article.
(Prior code § 112.12)
Upon failure of a grantee to commence, pursue or complete any
work required by law or by the provisions of this chapter or by his
or her franchise to be done in any street or other public place, within
the time prescribed and to the satisfaction of the Director of Public
Works, the Director of Public Works may, at his or her option, cause
such work to be done, and the grantee shall pay to the City the cost
thereof in the itemized amounts reported by the Director of Public
Works to the grantee within 30 days after receipt of such itemized
report.
(Prior code § 112.13)
A.
Each
grantee shall, concurrently with the filing of and acceptance of award
of any franchise granted under this article, file with the City Manager,
and at all times thereafter maintain in full force and effect for
the term of such franchise or any renewal thereof, at the grantee’s
sole expense, a corporate surety bond in a company and in a form approved
by the City Attorney, in the amount of $10,000, renewable annually,
and conditioned upon the faithful performance of the grantee, and
upon the further condition that in the event the 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 shall be a continuing obligation for the duration
of such franchise and any renewal thereof and thereafter until the
grantee has liquidated all of his or her obligations with the City
that may have arisen from the acceptance of such franchise or renewal
by the grantee or from the exercise of any privilege therein granted.
The bond shall provide that 30 days prior written notice of intention
not to renew, cancellation or material change be given to the City.
B.
Neither
the provisions of this section, nor any bond accepted by the City
pursuant hereto, nor any damages recovered by the City thereunder,
shall be construed to excuse faithful performance by the grantee or
limit the liability of the grantee under any franchise issued under
this chapter or for damages, either to the full amount of the bond
or otherwise.
(Prior code § 112.14)
A.
A grantee
shall, concurrently with the filing of an acceptance of award of any
franchise granted under this article, furnish to the City and file
with the City Manager, and at all times during the existence of any
franchise granted under this chapter, maintain in full force and effect,
at its own cost and expense, a liability insurance policy in the amount
of $100,000 in a company approved by the City Manager and in a form
satisfactory to the City Attorney, indemnifying and saving harmless
the City, its officers and employees from and against all claims,
demands, actions, suits and proceedings by others, against all liability
to others, including but not limited to any liability for damages
by reason of or arising out of any failure by the grantee to secure
consents from the owners, authorized distributors or licensees of
programs to be delivered by the grantee’s CATV system, and against
any loss, cost, expense and damages resulting therefrom, including
reasonable attorney’s fees, arising out of the exercise or enjoyment
of its franchise, irrespective of the amount of the comprehensive
liability insurance policy required hereunder.
B.
The
grantee shall, concurrently with the filing of an acceptance of award
of any franchise granted under this chapter, furnish to the City and
file with the City Manager, and at all times during the existence
of any franchise granted under this chapter, maintain in full force
and effect, at its own cost and expense, a general comprehensive liability
insurance policy in protection of the City, its officers, boards,
commissions, agents and employees, in a company approved by the City
Manager and a form satisfactory to the City Attorney, protecting the
City and all persons against liability for loss or damage for personal
injury, death and property damage, occasioned by the operations of
grantee under such franchise, with minimum liability limits of $500,000
for personal injury or death of any one person and $1,000,000 for
personal injury or death of two or more persons in any one occurrence,
and $50,000 for damage to property resulting from any one occurrence.
C.
The policies mentioned in subsection B of this section shall name the City, its officers, boards, commissions, agents and employees, as additional insured, and shall contain a provision that a written notice of cancellation or reduction in coverage of such policy shall be delivered to the City 15 days in advance of the effective date thereof. If such insurance is provided by a policy which also covers the grantee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement.
(Prior code § 112.15)
A.
At all
reasonable times, each grantee shall permit any duly authorized representative
of the City to examine all property of the grantee, together with
any appurtenant property of the grantee situated within or without
the City, and to examine and transcribe any maps and other records
kept or maintained by the grantee or under its control which deal
with the operations, affairs, transactions or property of the grantee
with respect to its franchise. If any such maps or records are not
kept in the City, or upon reasonable request made available in the
City, and if the City Council shall determine that an examination
thereof is necessary or appropriate, then all travel and maintenance
expenses necessarily incurred in making such examination shall be
paid by the grantee.
B.
The
grantee shall prepare and furnish to the Director of Public Works
and the Treasurer, at the times and in the form prescribed by either
of such officers, such reports with respect to its operations, affairs,
transactions or property as may be reasonably necessary or appropriate
to the performance of any of the rights, functions or duties of the
City or any of its officers in connection with the franchise.
C.
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 use in streets and other public places in the City.
D.
The
grantee shall file with the Director of Public Works, on or before
the last day in December of each year, a current map or set of maps
drawn to scale, showing all CATV system equipment installed and in
place in streets and other public places of the City.
(Prior code § 112.16)
Each CATV system shall be installed and maintained in accordance
with the highest and best accepted standards of the industry, to the
effect that subscribers shall receive the highest possible service.
In determining the satisfactory extent of such standards, the following,
among others, shall be considered:
A.
That
the system be installed using all band equipment capable of passing
the entire VHF and FM spectrum; and that it have the further capability
of converting UHF for distribution to subscribers on the VHF band.
B.
That
the system, as installed, be capable of passing standard color TV
signals without the introduction of material degradation on color
fidelity and intelligence.
C.
That
the system and all equipment be designed and rated for 24-hour per
day continuous operation.
D.
That
the system provides a nominal signal level of 2,000 microvolts at
the input terminals of each television receiver.
E.
That
the system signal-to-noise ratio is not less than 40 decibels.
F.
That
hum modulation of the picture signal is less than five percent.
G.
That
the system use components having a VSWR of 1.4 or less.
(Prior code § 112.17)
A.
To ensure compliance with the obligations imposed under Section 5.08.170 and this article, including the obligation to provide quality service to subscribers and to upgrade service as technology evolves, the City Council shall, during March of even-numbered years, hold a review hearing on the efforts of the grantee to keep the system up to current industry standards and maintain high quality service to subscribers.
C.
The
session shall be open to the public. Notice of the hearing shall be
given by publication one time at least 14 days before the hearing.
In addition, the grantee shall announce the date, time and location
of the hearing on each of five successive days immediately preceding
the hearing date at six regularly scheduled intervals on at least
one channel and shall notify all subscribers by including notice with
the previous monthly billing at its sole expense.
D.
Following
the review hearing, the City Council may adopt such rules, regulations
or ordinance amendments, or take such other action as it deems necessary,
provided such rules, regulations, ordinance amendments, or such other
actions as the City Council may deem necessary, are consistent with
current industry standards in the Southern California area, the maintenance
of high quality service to subscribers and do not obligate the grantee
to modify its facilities or services in a manner which is financially
infeasible considering the size and other characteristics of franchisee’s
system.
(Prior code § 112.18)
When not otherwise prescribed in this article, all matters herein
required to be filed with the City shall be filed with the City Manager.
(Prior code § 112.19)
Each grantee shall pay to the City a sum of money sufficient
to reimburse it for all publication expenses incurred by it in connection
with the granting of a franchise pursuant to the provisions of this
article. Such payment shall be made within 30 days after the City
furnishes the grantee with a written statement of such expenses by
delivery of same to the City Treasurer.
(Prior code § 112.20)
A grantee shall maintain an office within the City or at a location
which subscribers may call without incurring added message or toll
charges, so that CATV maintenance service shall be promptly available
to subscribers.
(Prior code § 112.21)
The grantee shall offer cable television service to all areas
within the City having a housing unit density of at least 50 dwelling
units per mile at the standard installation charge.
(Prior code § 112.22)
When any portion of a CATV system is to be installed on public
utility poles and facilities, certified copies of the agreements for
such joint use of poles and facilities shall be filed with the City
Manager and City Attorney.
(Prior code § 112.23)
A.
Application
for a franchise under this chapter shall be in writing, shall be filed
with the City Manager and shall contain the following information:
1.
The
name and address of the applicant. If the applicant is a partnership,
the name and address of each partner shall also be set forth. If the
applicant is a corporation, the application shall also state the names
and addresses of its directors, main offices, major stockholders and
associates and the names and addresses of parent and subsidiary companies.
2.
A
statement and description of the CATV system proposed to be constructed,
installed, maintained or operated by the applicant; the proposed location
of such system and its various components; the manner in which the
applicant proposes to construct, install, maintain and operate the
same; and, particularly, the extent and manner in which existing or
future poles or other facilities of other public utilities will be
used for such system.
3.
A
description, in detail, of the public streets, public places and proposed
public streets within which the applicant proposes or seeks authority
to construct, install or maintain any CATV equipment or facilities;
a detailed description of the equipment or facilities proposed to
be constructed, installed or maintained therein; and the proposed
specific location thereof.
4.
A
map specifically showing and delineating the proposed service area
or areas within which the applicant proposes to provide CATV services
and for which a franchise is requested.
5.
A
statement or schedule, in a form approved by the City Manager, of
proposed rates and charges to subscribers for installation and services,
and a copy of the proposed service agreement between the grantee and
its subscribers shall accompany the application. For unusual circumstances
such as underground cable required, or more than 150 feet of distance
from cable to connection of service to subscribers, an additional
installation charge over that normally charged for installation as
specified in the applicant’s proposal may be charged, with easements
to be supplied by subscribers.
6.
A
copy of any contract, if existing, between the applicant and any public
utility providing for the use of facilities of such public utility,
such as poles, lines or conduits.
7.
A
statement setting forth all agreements and understandings, whether
written, oral or implied, existing between the applicant and any other
person with respect to the proposed franchise or the proposed CATV
operation. If a franchise is granted to a person posing as a front
or as the representative of another person, and such information is
not disclosed in the original application, such franchise shall be
deemed void and of no force and effect whatsoever.
8.
A
financial statement prepared by a certified public accountant or person
otherwise satisfactory to the City Council, showing the applicant’s
financial status and his or her financial ability to complete the
construction and installation of the proposed CATV system.
9.
The
City Council may, at any time, demand, and the applicant shall provide,
such supplementary, additional or other information as the City Council
may deem reasonably necessary to determine whether the requested franchise
should be granted.
B.
Upon
consideration of any such application, the City Council may refuse
to grant the requested franchise, or the City Council may by ordinance
grant a franchise for a CATV system to any such applicant as may appear
from such application to be, in its opinion, best qualified to render
proper and efficient CATV service to television viewers and subscribers
in the City. The City Council’s decision in the matter shall
be final. If favorably considered, the application submitted shall
constitute and form part of the franchise as granted.
C.
1.
Any
franchise granted pursuant to this chapter shall include the following
condition:
The CATV system herein franchised shall be used and operated
solely and exclusively for the purpose expressly authorized by Ordinance
of the City of Desert Hot Springs and no other purpose whatsoever.
2.
Inclusion
of the foregoing statement in any such franchise shall not be deemed
to limit the authority of the City to include any other reasonable
condition, limitation or restriction which it may deem necessary to
impose in connection with such franchise pursuant to the authority
conferred by this chapter.
(Prior code § 112.24)
Any franchise granted under this chapter is renewable at the application of the grantee, in the same manner and upon the same terms and conditions as required herein for obtaining the original franchise, except those which are by their terms expressly inapplicable, provided, that the City Council may, at its option, waive compliance with any or all of the requirements of Section 5.08.240 of this article.
(Prior code § 112.25)
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 section, Sections 5.08.140 and 5.08.150(A) and (B) are done and completed, all of such things being declared to be conditions precedent to the effectiveness of any franchise granted under this chapter. In the event any of such things are not done and completed in the time and manner required, the City Council may declare the franchise null and void.
B.
Within 30 days after the effective date of the ordinance awarding a franchise, or within such extended period of time as the City Council, in its discretion, may authorize, the grantee shall file with the City Manager his or her written acceptance, in form satisfactory to the City Attorney, of the franchise, together with the bond and insurance policies required by Sections 5.08.140 and 5.08.150(A) and (B), respectively, of this article, and his or her agreement to be bound by and to comply with and 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, and shall in form and content be satisfactory to and approved by the City Attorney.
(Prior code § 112.26)
It is unlawful for any person to establish, operate or to carry
on the business of generating or distributing to any person in this
City any television signals or radio signals by means of a CATV system,
either underground or upon telephone company or other public utility
facilities, including, but not limited to, lease services, channel
services or other forms of lease arrangements as presented by telephone
or other public utility companies, unless a franchise or license therefor,
as the case may be, has been first obtained pursuant to the provisions
of this chapter, and unless such franchise is in full force and effect.
(Prior code § 112.27)
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
such franchise is in full force and effect.
(Prior code § 112.28)
A.
It is
unlawful for any person to make any unauthorized connection, whether
physically, electrically, acoustically, inductively or otherwise,
with any part of a franchised CATV system with this City for the purpose
of taking or receiving television signals, radio signals, pictures,
programs or sound.
B.
It is
unlawful for any person 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 enabling him or herself or others to receive any television
signal, radio signal, picture, program or sound, without payment to
the owner of such system.
(Prior code § 112.29)
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.
(Prior code § 112.30)
The purpose of this article is to implement and expand upon
the powers and duties created by the state Video Customer Service
Act (California Government Code Sections 53088 et seq., or as hereafter
amended). Any provision of this article not directly authorized by
the Video Customer Service Act is based on the City’s general
police powers.
(Prior code § 112.40)
For the purpose of this article, the definitions of the Video
Customer Service Act (California Government Code Sections 53088 et
seq., or as hereafter amended) are incorporated herein by this reference.
(Prior code § 112.41)
A.
All
customer service standards and consumer protection provisions of the
state Video Customer Service Act (California Government Code Sections
53088 et seq.), as it now exists or may be amended, are incorporated
herein by this reference.
B.
As authorized
by State law, the City Council may from time to time adopt additional
customer service standards and consumer protection provisions that
exceed those of the Video Customer Service Act, as it deems necessary,
in order to ensure that residents of the City receive high quality
service from video providers.
(Prior code § 112.42)
There is established the Video Customer Dispute Board of the
City, whose purpose shall be to resolve disputes between video providers
and residents of the City regarding the provider’s compliance
with the provisions of the Video Customer Service Act and/or this
article. Members of the Board shall be appointed by the Mayor and
shall then serve at the pleasure of the City Council. Members may
be removed from office, with or without just cause, by a majority
vote of a quorum of the Council.
(Prior code § 112.43)
The City Clerk shall act as Secretary to the Video Customer
Dispute Board and in that capacity shall receive complaints from aggrieved
parties pursuant to this article, set hearings on those complaints
before the Board, provide notice to interested parties of hearing
dates and final decisions of the Board, maintain records of all Board
proceedings, and perform such other services as the Board deems necessary
to its proper functioning.
(Prior code § 112.44)
A.
Generally.
In reliance on State law and its general police powers, the City does
impose a filing fee in order to recover its costs of providing dispute
resolution services pursuant to the Video Customer Service Act and/or
this article.
B.
Filing
Fee. Parties filing complaints with the Video Customer Dispute Board
shall pay an up-front filing fee in the amount deemed necessary by
the City Council to defray and/or recover the City’s estimated
costs of providing dispute resolution services. The exact amount of
the fee shall be set by resolution of the City Council.
C.
Fee
Shifting. If the Video Customer Dispute Board concludes that a video
provider committed a nonmaterial breach of the Video Customer Service
Act and/or this article, then the Board shall order the video provider
to pay the complaining party one-half of any filing fee paid by the
complaining party. If the Video Customer Dispute Board concludes that
a video provider committed a material breach of the Video Customer
Service Act and/or this article, then the Board shall order the video
provider to pay the complaining party the full filing fee paid by
the complaining party.
D.
Fee
Waiver. Any individual may petition the City Council for a fee waiver
based on practical inability to pay or on the apparent factual merits
of a given case. If a fee waiver is granted and the complaining party
subsequently prevails, then the Board shall order the video provider
to pay the City an amount equal to the portion of the filing fee that
would have been imposed on the video provider had a waiver not been
granted.
(Prior code § 112.45)
A.
Parties
wishing to submit a dispute to the Video Customer Dispute Board shall
file a written complaint with the Board’s Secretary on a form
to be provided by the City. Complaint forms shall be available at
City Hall and shall at a minimum require the complaining party to
provide all of the following information:
1.
Identification
of the parties to the dispute, including their names, addresses and
phone numbers (if available).
2.
Brief
description of the factual background of the dispute.
3.
Identification
of the specific provisions of the state Video Customer Service Act
or this article that were allegedly violated by the video provider.
4.
Signature
of the complaining party, verifying that the information contained
therein is believed to be true and correct and stating that the complaining
party has previously made at least one reasonable attempt to notify
the video provider of the alleged violations and to resolve the dispute
amicably.
B.
The
complaining party shall also provide the Secretary with additional
copies of the complaint, one for each member of the Board and one
for each party named in the complaint. Upon receipt of a properly
completed complaint form, and sufficient number of copies, the Secretary
shall set a date and time for a hearing on the matter. The hearing
date shall be set no sooner than 30 days from the date the complaint
is filed. Complaints not in proper form or lacking the sufficient
number of additional copies may be rejected by the Secretary. The
Secretary shall notify members of the Board and parties named in the
complaint of the hearing date and shall mail or deliver copies of
the complaint to them. The Secretary shall also post public notice
of scheduled hearing dates in a conspicuous place at City Hall within
24 hours of any hearing date.
(Prior code § 112.46)
Any video provider named in a complaint may, but is not required
to, submit to the Board a written answer to the complaint, responding
to the charges therein. Such answer shall not exceed ten pages, double-spaced,
not including exhibits thereto. The answer shall be filed with the
Board’s Secretary during normal business hours, on or before
the tenth calendar date preceding the hearing date. The video provider
shall also supply the Secretary with additional copies of the answer,
one for each member of the Board and one for each party named in the
complaint. Answers not proper in form or lacking the sufficient number
of additional copies may be rejected by the Secretary. Upon receipt
of properly completed answer and sufficient number of copies thereof,
the Secretary shall mail or deliver copies of the answer to members
of the Board and to parties named in the original complaint.
(Prior code § 112.47)
Other than the complaint and answer specified above, no additional
formal documentation regarding the dispute shall be submitted to or
accepted by the Board in advance of the hearing, unless otherwise
directed by the Board.
(Prior code § 112.48)
Any party named in a complaint may attend and participate in
a hearing before the Board, however, such attendance and participation
is not mandatory nor shall a party’s failure to appear automatically
result in a default finding against that party. Members of the public
who are not named in a complaint may also attend Board hearings but
may not participate therein unless specifically requested to participate
by a party to the proceeding or by the Board itself.
(Prior code § 112.49)
A quorum of the Board members must be physically present at
a hearing in order for the Board to formally hear and evaluate a complaint.
If a quorum does not exist, then the hearing shall be continued by
the attending Board member or by the Board’s Secretary until
the next available date, to be specified by the Secretary. The quorum
of the Board in attendance at a given hearing shall select a presiding
officer from its own members for that hearing.
(Prior code § 112.50)
A.
Commencement.
When a quorum of the Board is present, the presiding officer shall
officially open the hearing by calling the subject matter and ascertaining
which parties to the dispute are present and wish to orally address
the Board during the hearing. The time guidelines provided by this
section for presentation of arguments and evidence may be modified
by the Board in its discretion so long as both sides to a given proceeding
have an equal opportunity to present their case.
B.
Oral
Argument. Having ascertained the parties in attendance and desiring
to address the Board, the presiding officer shall allow any complaining
party (if in attendance) to make an opening statement to the Board
if he or she so desires. The statement shall be limited to ten minutes
per complaining party, unless the Board directs otherwise. Upon completion
of the complaining party’s statement, the presiding officer
shall allow the representative of the video provider (if in attendance)
an equal amount of time to respond to the opening statements. The
Board shall then allow each side a rebuttal of five minutes or such
other period of time as the Board deems appropriate. After all evidence
has been presented to the Board, representatives of each side may
then make closing statements to the Board of no more than five minutes
per statement.
C.
Presentation
of Evidence. No formal rules of evidence shall apply and the Board
may consider any evidence it considers relevant to the dispute, whether
or not presented by the parties. Tangible evidence shall be presented
by the parties during their oral arguments. Each side may also present
the live testimony of two other persons in support of their position.
Such testimony shall not exceed five minutes per person called to
testify and shall not be counted against the time otherwise allotted
to that side for argument of their case.
D.
Deliberation.
Upon conclusion of the parties’ closing statements, the Board
members shall then deliberate openly among themselves and may ask
questions of any person in attendance. The Board may render a decision
at that time or may continue the hearing until another date to continue
their deliberations. All decisions shall be made by a majority vote
of the quorum present at the original hearing. If the quorum deadlocks
on any aspect of the decision, then the entire matter shall automatically
be referred to the City Council for a new hearing and final disposition.
E.
Termination.
When the Board has reached a decision or deadlock, the presiding officer
shall announce the decision or deadlock for the record and terminate
the proceedings. The Board may also terminate proceedings at any time
prior to reaching a decision or deadlock, upon the request of a complaining
party. The Secretary shall provide notice of the Board’s decision
or deadlock to all parties to the proceeding.
(Prior code § 112.51)
In any given case, the Board’s inquiry shall be limited
to determining, by a preponderance of the evidence, whether or not
a video provider has breached a provision of the Video Customer Service
Act and/or this article. If a breach is found, the Board shall also
determine whether the breach was material. Unless otherwise defined
by the Video Customer Service Act, “material breach” means
any substantial and repeated failure to comply with the consumer standards
set forth in the Video Customer Service Act and/or this article.
(Prior code § 112.52)
Upon a finding by the Board of a material breach by a video
provider, the Board shall give the video provider written notice of
the material breach and allow the video provider at least 30 days
from the receipt of the notice to remedy the specified breach. In
the case of a Board finding of non-material breach by a video provider,
the Board shall place a written record of its finding in the Board’s
and City’s files regarding that video provider. The Board shall
also provide the video provider and all parties to the proceeding
with written notice of its finding.
(Prior code § 112.53)
A.
Generally.
If the video provider does not remedy a specified material breach
within 30 days from the receipt of notice to remedy the same, then
the Board may in its discretion impose a monetary penalty on the video
provider consistent with the Video Customer Service Act and/or this
section. However, no monetary penalties shall be assessed for a material
breach where the breach is out of the reasonable control of the video
provider.
B.
First
Failure to Remedy. Upon a video provider’s first failure to
remedy a specified breach within the 30-day period provided by this
section, the Board may impose a monetary penalty of $200 for each
day of breach following the expiration of the time allotted by this
article. However, the total penalty for a first-time failure to remedy
a specified breach shall not exceed $600.
C.
Second
Failure to Remedy. Where the Board has previously imposed a monetary
penalty on a provider for failure to remedy a specified material breach,
if a video provider commits a subsequent material breach of the same
nature within 12 months of imposition of the first monetary penalty
and fails to remedy it within the 30-day period provided by this section,
then the Board may impose a monetary penalty of $400 for each day
of breach following the expiration of the time allotted by this article.
However, the total penalty for a second failure to remedy a specified
breach shall not exceed $1,200.
D.
Third
or Further Failures to Remedy. Where the Board has twice previously
imposed a monetary penalty on a provider for failure to remedy a specified
material breach, if a video provider commits a third or further material
breach of the same nature within 12 months of imposition of the second
monetary penalty and fails to remedy it within the 30-day period provided
by this section, then the Board may impose an additional monetary
penalty of $1,000 for each day of breach following the expiration
of the time allotted by this article. However, the total penalty for
such additional failures to remedy a specified breach shall not exceed
$3,000 per occurrence.
(Prior code § 112.54)
A.
Decisions
of the Video Customer Dispute Board may be appealed to the City Council
upon request by the Board, the City Manager, Mayor, or any Councilmember.
Dates for appeal hearings before the City Council shall be set by
the City Clerk. Absent such an appeal, decisions of the Video Customer
Dispute Board shall be final with respect to the administrative process
provided by this article.
B.
The
appellate hearing shall be a new hearing and shall be conducted by
the Council in substantial conformity with the procedures provided
by this article for hearings before the Board, unless otherwise directed
by the Council. After the hearing and the Council’s arrival
at a decision, the City Clerk shall provide all parties to the proceeding
with notice of the Council’s decision.
C.
In the
event that the Council finds a breach by the video provider, the City
Clerk shall give notice of the same to all parties to the proceeding,
consistent with the procedures provided herein for findings of breach
by the Board. Upon a finding of breach, the Council may also shift
all or half of the original filing fee to the video provider consistent
with this article. If a specified material breach found by the Council
has not been corrected by the video provider within 30 days of receipt
of notice thereof, then the Council may impose a monetary penalty
on the video provider consistent with this article.
(Prior code § 112.55)
Consistent with the Video Customer Service Act, nothing in this
article shall preclude a party affected by the Video Customer Service
Act and/or this article from utilizing any judicial remedy available
to that party without regard to this article. Actions taken by the
Video Customer Dispute Board or the City Council pursuant to the Video
Customer Service Act and/or this article shall not be binding upon
a court of law. For this purpose a court of law may conduct a de novo
review of any issues presented.
(Prior code § 112.56)
