A.
The
city council finds that the development of cable television and communications
systems has the potential of having great benefit and positive impact
upon the people of the city. Because of the complex and rapidly changing
technology associated with cable television, the city council further
finds that the public convenience, safety and general welfare can
best be served by establishing regulatory powers which should be vested
in the city or such persons as the city shall designate.
B.
The
cable ordinance codified in this chapter shall apply to all franchises
granted, renewed or otherwise extended after the adoption of said
ordinance. Nothing herein is intended to preempt, modify or supersede
Ordinance No. 585 of the city. Ordinance No. 585 shall continue in
full force and effect, controlling all franchises granted before the
adoption of the ordinance codified in this chapter, until such time
as the city council shall repeal it.
(Ord. 993 § 1, 1994)
For the purpose of this chapter, the following terms, phrases,
words and their derivations shall have the meaning given in this section.
Words used in the present tense include the future, words in the plural
number include the singular number, and words in the singular number
include the plural number. Words not defined shall be given their
common and ordinary meaning.
mean, unless otherwise expressly provided in this chapter
or the grantee's franchise, the prior approval, consent or agreement
of the person holding the right to approve, consent or agree with
respect to the matter in question, and "require" or "judgment" or
"satisfy" or derivations of said words or words of similar import
mean the requirement, judgment or satisfaction of the person who may
make a requirement or exercise judgment or who must be satisfied,
which approval, consent, agreement, requirement, judgment or satisfaction
shall, unless otherwise expressly provided in this chapter or the
grantee's franchise, not be unreasonably withheld by the person holding
the right to approve, consent or agree or make a requirement or judgment
or who must be satisfied.
means the lowest priced level of service which includes the
retransmission of local television broadcast signals (as authorized)
and public, educational and governmental access channels.
means the one-way transmission to subscribers of video programming
or other programming services and subscriber interaction, if any,
which is required for the selection of such video programming or other
programming service.
means a system of antennas, cables, wires, lines, fiber optic
cables, towers, waveguides or other conductors, converters, pedestals,
equipment or facilities, used for distributing video programming to
home subscribers, and/or producing, receiving, amplifying, storing,
processing, or distributing audio, video, digital or other forms of
signals.
means a portion of the electromagnetic frequency spectrum
which is used in a cable system and which is capable of delivering
either one National Television Standards Committee ("NTSC") video
signal, a number of audio, digital or other nonvideo signals, or some
combination of such signals.
means the city of Manteca.
means the city council of Manteca.
means an initial authorization, or renewal thereof issued
hereunder which authorizes the construction or operation of a cable
system.
means any person receiving a franchise pursuant to this chapter
and under the granting franchise ordinance or agreement, and its successors,
transferees or assignees.
means the city as represented by the city council or any
delegate acting within the scope of its jurisdiction and authority.
means all cash, credits, property of any kind or nature,
or other consideration received directly or indirectly by the grantee,
its affiliates, subsidiaries, parent and any person in which grantee
has a financial interest, or from any source whatsoever, arising from
or attributable to the sale or exchange of cable services by grantee
within the city. Gross revenues shall include basic service monthly
fees, pay tiers, premium channels, pay-per-view, leased channel fees,
converter rental or sales, advertising revenue and any other payments
by subscribers or users of the grantee's cable system made directly
or indirectly to any person who has contracted to provide cable services
on the cable system. These gross revenues shall not include: (1) the
amount of any refunds, credits, or other payments made to subscribers
or users; (2) any taxes on services furnished by the grantee imposed
directly or indirectly on any subscribers or users by any municipal
corporation, political subdivision, state or other governmental unit
and collected by the grantee for the governmental unit; (3) the sale
or transfer of tangible property; (4) the sale or transfer of the
franchise; (5) the issuance, sale, or transfer of corporate stocks,
bonds, or other securities; (6) equipment deposits; and (7) uncollected
bad debt. These gross revenues shall not be reduced for any purposes
other than provided herein, and shall be the basis for computing the
franchise fee.
means the connection of the system from feeder cable to subscribers'
terminals.
means information that a cable operator makes available to
all subscribers generally.
means an individual, partnership, association, joint stock
company, trust, corporation or governmental entity.
means any real property owned by the city other than a street.
means the entire geographic area within the city designated
in a franchise agreement to receive cable service.
means the state of California.
means the surface of and the space above and below any public
street, road, highway, freeway, lane, path, public way, alley, court,
sidewalk, boulevard, parkway, drive or any easement or right-of-way
now or hereafter held by the city, or dedicated for use by the city,
use by the general public, or use compatible with cable system operations.
means programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
(Ord. 993 § 1, 1994)
A.
A franchise
granted by the city under the provisions of this chapter shall permit
constructing, operating and maintaining a system in the service area,
including the right to erect, install, construct, repair, replace,
reconstruct and retain in, on, over, under, upon, across and along
the streets and public property such lines, cables, fiber optics,
conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,
pedestals, attachments and other property and equipment as are necessary
and appropriate to the operation of the system.
B.
It is
unlawful for any person to construct, install or operate a cable television
system in the city within any street or within any other right-of-way
within the city without a properly granted franchise awarded pursuant
to the provisions of this chapter, which franchise is in full force
and effect.
(Ord. 993 § 1, 1994)
A.
Term.
An initial franchise granted hereunder shall be for a term established
in the franchise agreement. A renewal shall be granted for a minimum
term of fifteen years or a maximum of twenty years.
B.
Renewal.
1.
A
franchise granted hereunder may be renewed if:
a.
The grantee has substantially complied with the material terms of
the existing franchise and with applicable law,
b.
The quality of the grantee's service, including a signal quality,
response to consumer complaints, and billing practices, but without
regard to the mix, level or quality of cable services or other services
provided over the system been reasonable in light of community needs,
c.
The grantee has the financial, legal and technical ability to provide
the services, facilities, and equipment set forth in the grantee's
proposal, and
d.
The grantee's proposal is reasonable to meet the future cable-related
community needs and interests, taking into account the cost of meeting
such needs and interests. The city may not declare grantee's proposal
unreasonable and deny renewal, nor may community needs be established,
on the basis of facilities, equipment, or services which another party
has indicated it is willing to provide;
2.
In
any renewal proceeding, the grantee shall be afforded adequate notice
and the grantee and the city, or its designee, shall be afforded fair
opportunity for full participation, including the right to introduce
evidence, to require the production of evidence, and to question witnesses.
A transcript shall be made of any such proceeding;
3.
A
proceeding under this subsection shall be completed within twelve
months of its commencement, within which time the city shall issue
a written decision granting or denying the proposal for renewal based
upon the record of such proceeding, and transmit a copy of such decision
to the grantee. Such decision shall state the reasons therefor;
4.
Any
denial of a proposal for renewal shall be based on one or more adverse
findings made with respect to the factors described in paragraph (1)
of this subsection pursuant to the record of the proceeding under
paragraphs (2) and (3). Grantor may not base a denial of renewal on
a failure to substantially comply with the material terms of the franchise
under paragraph (l)(a) or on events considered under paragraph (l)(b)
unless the grantor has provided grantee notice and the opportunity
to cure as provided in this chapter, or in any case in which grantor
has waived its right to object, or the grantee has given grantor written
notice of a failure to cure and the grantor fails to object within
a reasonable time after receipt of such notice;
5.
Grantee
is expressly reserved its rights of appeal under federal and state
law. In addition to such rights, the franchise shall remain in effect
at all times during which a renewal proceeding or appeal remains pending;
6.
Notwithstanding
the provisions of paragraphs (1) through (5) of this subsection, grantee
may submit a proposal for the renewal of a franchise, and grantor
may, after affording the public adequate notice and opportunity for
comment, grant or deny such proposal at any time (including after
proceedings pursuant to this section have commenced.) The denial of
a renewal pursuant to this subsection shall not affect action on a
renewal proposal that is submitted in accordance with paragraphs (l)
through (5) of this subsection.
C.
City
may not, upon the expiration of this franchise, or otherwise, acquire
an ownership interest in the system, or require a sale of the system
to any other person, unless city or such other person acquires the
ownership interest at not less than fair market value for the system
as a going concern.
(Ord. 993 § 1, 1994)
Any franchise shall be within all of the territorial limits
of the city, and within any area henceforth added to the territorial
limits of the city during the term of the franchise.
(Ord. 993 § 1, 1994)
This chapter shall be construed in a manner consistent with
all applicable federal and state laws. Whenever the Federal Communications
Commission ("FCC") or Public Utilities Commission ("PUC") of the state
of California or any other federal or state agency shall now or hereafter
exercise any paramount jurisdiction over any specific provisions of
this chapter, such paramount jurisdiction shall preempt or preclude
the exercise of like jurisdiction by the city.
(Ord. 993 § 1, 1994)
A.
Grantee
shall not assign, or transfer control of, the franchise without the
prior consent of the council, which consent will not be unreasonably
denied. The council shall render its decision within seventy-five
days from the date on which consent is requested. Any attempt to assign
the franchise without the consent of the council shall be null and
void. No such consent shall be required for an assignment (1) to any
affiliate of and entirely owned or controlled by the grantee or any
person controlling, controlled by or under common control with the
grantee, in each case as of the effective date of the grantee's franchise,
or (2) in trust, mortgage or other hypothecation, in whole or in part,
to secure an indebtedness.
B.
The requirements of subsection A shall apply only to a transfer in the control of grantee. The word "control" as used herein is limited to actual working control in whatever manner exercised. Thus, in the event that grantee is a corporation, prior approval of the council shall be required where ownership or control of more than fifty-one percent of the voting stock is acquired by a person or group of persons acting in concert, none of whom own or control the voting stock of the grantee as of the effective date of the franchise, singularly or collectively.
C.
The
transferee shall be required to establish that it possesses the legal,
financial and technical qualifications to operate and maintain the
system and comply with all franchise requirements for the remainder
of the term of the franchise. If the transferee, by a preponderance
of the evidence, demonstrates that it possesses such qualifications,
the grantor shall transfer and assign the rights and obligations of
such franchise as in the public interest. The consent of the grantor
to such transfer shall not be unreasonably denied or delayed.
D.
Any
financial institution having a pledge of the franchisee or its assets
for the advancement of money for the construction and/or operation
of the franchise shall have the right to notify the grantor that it
or its designee satisfactory to the grantor shall take control of
and operate the cable communications system, in the event of a grantee
default in its financial obligations. Further, said financial institution
shall also submit a plan for such operation within thirty days of
assuming such control that will insure continued service and compliance
with all franchise requirements during the term the financial institution
exercises control over the system. The financial institution shall
not exercise control over the system for a period exceeding one year
unless extended by the grantor in its discretion and during said period
of time it shall have the right to petition the grantor to transfer
the franchise to another grantee.
(Ord. 993 § 1, 1994)
All residential areas within the franchise area will be provided
with access to service from the system where in the company's judgment
it is both technically and economically feasible and provided that
all such permission as may be required from the owner of the property
is reasonably available, and that service to multiple dwelling units
need be provided only on terms acceptable to grantee. In new housing
districts, areas with occupancy densities of more than twenty-five
homes per mile which are contiguous to the system will be provided
with access to service to the extent service is economically feasible
and technically possible. In areas with less than twenty-five homes
per mile, service shall be offered in conformance with grantee's service
extension policies.
(Ord. 993 § 1, 1994)
A.
Any
franchise granted shall be nonexclusive.
B.
If the
city elects to grant an additional cable television franchise in an
area where a franchise has already been granted to a cable television
operator to any applicant that was not authorized to provide cable
television service within the city prior to the effective date of
the ordinance codified in this chapter, it shall do so only after
a public hearing noticed pursuant to Section 6066 of the Government
Code, in a newspaper of general circulation as defined in Section
6000 of the Government Code, where all of the following have been
considered:
1.
Whether
there will be significant positive or negative impacts on the community
being served;
2.
Whether
there will be an unreasonable adverse economic or aesthetic impact
upon public or private property within the area;
3.
Whether
there will be an unreasonable disruption or inconvenience to existing
users, or any adverse effect on future use, of utility poles, public
easements, and the public rights-of-way contrary to the intent of
Section 767.5 of the Public Utilities Code;
4.
Whether
the franchise applicant has the technical and financial ability to
perform;
5.
Whether
there is any impact on the franchising authority's interest in having
universal cable service;
6.
Whether
other societal interests generally considered by franchising authorities
will be met;
7.
Whether
the operation of an additional cable television system in the community
is economically feasible;
8.
Such
other additional matters, both procedural and substantive, as the
franchising authority may determine to be relevant.
C.
Nothing in this section prevents the city from considering the approval or denial of an additional cable service franchise in any area of the city subject to compliance with subsection E of this section, or the imposing of additional terms and conditions upon the granting of the franchise, as the city determines is necessary or appropriate.
D.
The
city shall make a final determination as to whether to grant the additional
franchise within six months of the application date unless the city
can establish that the applicant has unreasonably delayed proceedings
designed to consider the matters set forth in paragraphs (B)(1) to
(8), inclusive, of this section.
E.
Any
additional franchise granted to provide cable television service in
an area in which a franchise has already been granted and where an
existing cable operator is providing service or certifies to the franchising
authority that it is ready, willing, and able to provide service,
shall require the franchisee to wire and serve the same geographical
area within a reasonable time and in a sequence which does not discriminate
against lower income or minority residents, and shall contain the
same public, educational, and governmental access requirements that
are set forth in the existing franchise. This paragraph does not apply
where all existing cable operators certify to the franchising authority
that they do not intend to provide service within a reasonable time
to the area to be initially served by the additional franchise.
(Ord. 993 § 1, 1994)
