No person may construct, operate or repair a cable communications system in the city without first obtaining a city franchise therefor from the city pursuant to the terms and provisions of this chapter.
(Ord. 2064 § 1, 2001)
Any franchise shall be issued in the form of an ordinance and must be accepted by the franchisee pursuant to the terms of this chapter and the franchise ordinance to become effective.
(Ord. 2064 § 1, 2001)
A franchise granted pursuant to this chapter shall authorize and permit a franchisee to construct, operate and repair a cable system or an OVS (as applicable) pursuant to the terms of its franchise ordinance and this chapter to provide cable service in the city, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain facilities appurtenant to such system in, on, over, under, upon, across, and along those public rights-of-way that the city may authorize a franchise to use.
(a)
A franchise shall not convey rights other than as expressly specified in this chapter, or in a franchise ordinance; no rights shall pass by implication.
(b)
A franchise shall not include, or be a substitute for:
(1)
Complying with requirements for the privilege of transacting and carrying on a business within the city, including, but not limited to, complying with the conditions the city may establish before constructing facilities for, or providing, non-cable services;
(2)
Any permit, agreement or authorization required in connecting with construction, operation or repair on or in public right-of-way or public property, including by way of example and not limitation, street cut permits;
(3)
Any permits, easements or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the franchise.
(c)
A franchise does not relieve a franchisee of its duty to comply with all city ordinances, resolutions, written policies, and regulations, and every franchisee must comply with the same. The rights granted under a franchise ordinance are subject to the exercise of police and other powers the city now has or may later obtain, including, but not limited to, the power of eminent domain.
(d)
A franchise does not convey title, equitable or legal, in the public rights-of-way or public property. Nor does a franchise grant authority to occupy any property other than the public right-of-way. Any right granted to franchisee by a franchise ordinance shall not be subdivided or subleased to any other person or affiliate. Any attempt to subdivided or sublease any right granted by a franchise ordinance will void the franchise.
(Ord. 2064 § 1, 2001)
No franchise shall be exclusive, or prevent the city from issuing other franchises or authorizations, or prevent the city from itself constructing, operating, or repairing its own cable communications system, with or without a franchise.
(Ord. 2064 § 1, 2001)
Every franchise shall be for a term of years set forth in the franchise ordinance, which term shall be a maximum of ten years. The city council may approve a longer term if necessary to provide special benefit to the community such as increased competition or improved service.
(Ord. 2064 § 1, 2001)
Unless otherwise specifically stated in a franchise ordinance or required by law, all acts which a franchisee is required to perform under the franchise ordinance or applicable law shall be performed at the franchisee's expense.
(Ord. 2064 § 1, 2001)
If a cable communications system operator fails to perform work that it is required to perform within the time provided for performance, the city may perform the work or cause the work to be performed and bill the operator therefor. The operator shall pay the amounts billed within thirty days.
(Ord. 2064 § 1, 2001)
(a)
The city may from time to time adopt regulations to implement the provisions of this chapter. This chapter, and any regulations adopted pursuant to this chapter, are not contracts with any franchisee, and may be amended at any time by the city.
(b)
The city manager is hereby authorized to administer and enforce the provisions of this chapter and any franchise issued pursuant hereto, to provide any notices (including noncompliance notices), and to take any action on the city's behalf that may be required hereunder or under applicable law.
(c)
The failure of the city, upon one or more occasions, to exercise a right or to require compliance or performance under a franchise ordinance or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing.
(d)
The city may designate one or more persons, including itself, to control and manage the use of public, educational or government access channels, facilities and equipment.
(Ord. 2064 § 1, 2001)
The city may establish a citizen's cable advisory board or user's group to provide advice and assistance to the city on cable communications matters. The city may delegate to the cable advisory board or user's group certain duties such as: (a) hearing and resolving complaints and disagreements between grantees and subscribers or users; (b) determining the operation and use of access and leased access channels (if any), with a view to maximizing the diversity and usefulness of programs and services to subscribers; and (c) assisting the council in its needs assessment and its consideration of applications for new, transfer, and renewal franchises. Board or group members shall be broadly representative of the city's population with diverse backgrounds and a reasonable knowledge of cable communications.
(Ord. 2064 § 1, 2001)
(a)
No transfer of a franchise, franchisee, or cable communications system, or of control over the same (including, but not limited to, transfer by forced or voluntary sale, merger, consolidation, receivership, or any other means) shall occur unless: (1) prior application is made by the franchisee to the city; (2) the franchisee pays any applicable fee; (3) the city council holds a public hearing; and (4) the city's prior written consent is obtained, pursuant to this chapter and the franchise ordinance, and only then upon such terms and conditions as the city deems necessary and proper to protect the public interest. Every franchise shall be deemed to be held in trust, and to be personal to the franchisee. Any transfer that is made without the prior approval of the city shall be deemed to impair that trust. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer.
(b)
A change of control of a franchise, franchisee, or cable communications system shall be deemed to have occurred whenever there is a change, acquisition or transfer of control of more than a ten percent ownership in the franchisee or its direct or indirect parents by any person, or a group of persons acting in concert. However, a transfer also occurs whenever there is a change in actual working control, in whatever manner exercised, over the affairs of a franchisee or its direct or indirect parents. Without limiting the above, any change in the general partners of a franchisee shall be presumed a change in control.
(Ord. 2064 § 1, 2001)
Notwithstanding any other provision of this provision of this chapter, pledges in trust or mortgages of the assets of a cable communications system to secure the construction, operation, or repair of the system may be made without application and without the city's prior consent. However, no such arrangement shall be made if it would in any respect under any condition: (a) prevent the cable communications system operator or any successor from complying with this chapter, the franchise ordinance or other applicable law or regulation; or (b) permit a third party to succeed to the interest of the operator, or to own or control the system, without the prior consent of the city. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the city under any franchise, this chapter, or other applicable law.
(Ord. 2064 § 1, 2001)
(a)
The construction, operation, and repair of cable communications systems shall be performed in compliance with all laws, ordinances, resolutions, departmental rules, regulations, written policies, and practices affecting such system. By way of example, and not limitation, this includes the City of Davis standards and specifications; Chapter 35 of the Davis Municipal Code (i.e., regulation of streets); Chapter 40 of the Davis Municipal Code (i.e., the city's zoning ordinance); ordinances, regulations and policies to preserve or protect the public safety; construction standards; regulations for providing notice to persons that may be affected by system construction; and directives governing the time, place and manner in which facilities may be installed in the public rights-of-way.
Persons engaged in the construction, operation, or repair of cable communications systems shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property. Before beginning construction, operation or repair of a cable communications system, an operator shall obtain a copy of the specifications from the department of public works.
(b)
A franchise is required before a permit may be issued for work associated with the construction, operation or repair of a cable communications system. Any permit issued for such work to a person that does not hold a franchise shall vest no rights in the permittee; the permit may be revoked at will, and the permittee shall remove all facilities installed under the permit upon and in full compliance with the city's demand.
(c)
Construction, operation, or repair of a cable communications system shall not commence until all required permits have been paid. All work performed shall be performed in strict accordance with the condition of the permit. Upon order of the city, any work and/or construction undertaken that is not completed in compliance with the city's requirements, or which is installed without obtaining necessary permits and approvals shall be removed in accordance with reasonable timeline set forth by the city. A franchisee shall reimburse the city for costs incurred in inspecting construction undertaken in the course of major upgrades and/or installation of fiber optics.
(d)
Interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems, must be minimized, and any interference shall only be the result of implementing permit conditions. The city may require a person using the public rights-of-way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the public rights-of-way. In particular, if residents of the city wish to install facilities in the public rights-of-way for their own use during any period in which a franchisee has opened trenches in the public rights-of-way, and such residents have obtained all necessary permits and other approval required under federal, state and local law, a franchisee shall cooperate with the efforts of such residents to install facilities.
(e)
To the extent possible, operators of cable communications systems shall use existing poles and conduit. Additional poles may not be installed in the right-of-way, nor may pole capacity be increased by vertical or horizontal extenders, without the permission of the city engineer.
(f)
A cable communications system operator shall, by a time specified by the city, protect, support, temporarily disconnect, relocate, or remove any of its property when requested by the city by reason of traffic conditions; public safety; public right-of-way construction and repair (including regrading, resurfacing or widening); public right-of-way vacation; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned system or utility, public work, public facility, or improvement; or for any other purpose where the work involved would be aided by the removal or relocation of the cable communications system. Collectively, such matters are referred to below as the "public work." The city shall provide written notice describing where the public work is to be performed at least two weeks prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities; provided that, in an emergency, or where a cable communications system creates or is protect, support, temporarily disconnect, remove, or relocate any or all parts of the cable communications system without prior notice, and charge the cable communications system operator for costs incurred. The city shall not be liable for any resulting damage to the cable communications system, or for any damage caused by the cable communications system.
(g)
To accommodate the construction, operation, or repair of the facilities of another person authorized to use the public rights-of-way or public property, a franchisee shall, by a time specified by such person, protect, support, temporarily disconnect, relocate or remove its facilities. The franchisee shall be given written notice describing where the construction, operation or repair is to be performed at least fifteen days prior to the time by which its work must be completed. The city may, by order, resolve disputes as to responsibility for costs associated with removal, relaying, or relocation of facilities among persons authorized to install facilities in the public rights-of-way or on public property if such persons are unable to do so themselves.
(h)
A cable communications system operator shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires by a time specified to permit the moving of buildings or other objects. A cable communications system operator shall be given not less than seven days advance notice to arrange for such temporary wire changes. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same.
(i)
A cable communications system operator may abandon any property in place in the public rights-of-way or upon public property only with the written consent of the city. An operator may request permission to leave facilities in the public right-of-way or on public property. If the city fails to consent, however, within ninety days of the receipt of a written request for consent, the city shall be deemed to have determined that the safety, appearance, functioning or use of the public right-of-way or public property and facilities in the public right-of-way or on public property will be adversely affected. In that case, the operator shall remove the property within one hundred eighty days of its abandonment. If the city consents to the abandonment, the city may request that the cable communications system operator transfer ownership of the property to the city at no cost, and execute necessary quitclaim deeds. Whether or not ownership is transferred, the operator must indemnify the city against future costs associated with mitigating or eliminating any hazard associated with the abandoned property.
(j)
Every cable communications system shall be subject to inspection and testing by the city. Each operator shall respond fully and in a timely manner to requests for information regarding its system and plans for the system as the city may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired.
(k)
Each operator of a cable communications system that places facilities underground shall be a member of the regional notification center for subsurface installations (underground services alert) and shall field mark the locations of its underground communications facilities upon request. The operator shall locate its facilities for the city at no charge.
(l)
At least ninety days prior to commencing construction, each cable communications system operator shall provide the city a plan for any initial cable communications system construction, operation or repair or for any substantial rebuild, upgrade or extension of its cable communications system, which shall shows its timetable for construction of each phase of projects, and the areas of the city that will be affected. This plan shall not take the place of any permits, zoning approval or other requirements of this chapter, the specifications, or the Davis Municipal Code.
(m)
Within one hundred eighty days from and after the effective date of any ordinance awarding a franchise or franchise renewal, or within such extended period of time as the city council in its discretion may authorize, the franchisee shall file with the city clerk copies of all contracts which it may have with all public utility companies, whereby franchisee is granted any right to use of the property, equipment or facilities of such utility or utilities in the conduct of any operations pursuant to the franchise or franchise renewal awarded to said franchisee.
(n)
The city shall have the right to install and maintain, free of charge upon any poles or in any conduit owned by a franchisee any wire and pole fixtures that do not unreasonably interfere with the cable service operations of the franchisee.
(Ord. 2064 § 1, 2001)
Whenever all existing utilities are located underground in an area in the city, every cable communications system operator installing its system in the same area must locate its cable communications system underground. Whenever the owner of a pole locates or relocates underground within an area of the city, every cable communications system operator in the same area shall concurrently relocate its facilities underground. Nothing in this section prevents the city from ordering cable communications system facilities to be located or relocated underground under other provisions of the Davis Municipal Code.
(Ord. 2064 § 1, 2001)
Any and all public rights-of-way, other public property, or private property that is disturbed or damaged during the construction, operation or repair of a cable communications system shall be promptly repaired by the operator. Public property and public rights-of-way must be restored to the satisfaction of the city to a condition as good or better than before the disturbance or damage occurred.
(Ord. 2064 § 1, 2001)
(a)
An operator's system shall be designed and constructed, insofar as technically and economically feasible, so as to be capable of interconnection with any systems existing in areas contiguous to the city and with any such systems anticipated for future construction.
(b)
Upon request of the city, every cable communications system shall be required to interconnect with every other cable communications system within the city, or adjacent to the city, on fair and reasonable terms for purposes of providing public, educational, and governmental and institutional network services. In the event of a dispute, the city manager may issue an order establishing the terms and conditions under which interconnection shall occur, and any franchisee shall comply with the order.
(c)
An operator shall cooperate with any interconnection corporation, regional interconnection authority, or county or state regulatory agency which may be hereafter established for the purpose of regulating, facilitating, financing, or otherwise providing for interconnection of cable communications systems beyond the boundaries of individual political jurisdictions.
(Ord. 2064 § 1, 2001)
No franchise shall be valid or effective until and unless the city obtains an adequate indemnity from the franchisee. The indemnity shall, to the extent permitted by law:
(a)
Release the city from and against any and all liability and responsibility in or arising out of the construction, operation, repair or maintenance of the cable communications system. Each cable communications system operator shall further agree not to sue or seek any money or damages from the city in connection with the above mentioned matters; and
(b)
Indemnify and hold harmless the city, its trustees, elected and appointed officers, agents, and employees, from and against any and all claims, demands, or causes of action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders, judgments, or decrees sustained by the city or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the cable communications system operator, or its agents, independent contractors or employees related to or in any way arising out of the construction, operation or repair of the system.
(Ord. 2064 § 1, 2001)
(a)
A franchisee (or those acting on its behalf) shall not commence construction or operation of the cable communications system without first obtaining insurance in amounts and of a type satisfactory to the city, from an insurer acceptable to the city. The required insurance shall be obtained and maintained for the entire period the franchisee has facilities in the public rights-of-way or on public property. If the franchisee, its contractors, or subcontractors do not have the required insurance, the city may order such persons to stop operations until the insurance is obtained and approved.
(b)
Certificates of insurance, reflecting evidence of the required insurance and naming the city as an additional insured, waiver of subrogation, and other proofs as the city may find necessary, shall be filed with the city. For persons issued franchises after the effective date of the ordinance codified in this chapter, certificates and other required proofs shall be filed within thirty days of the issuance of a franchise, once a year thereafter, and whenever there is any change in coverage. For persons that have facilities in the public rights-of-way as of the effective date of the ordinance codified in this chapter, the certificates shall be filed within sixty days of said effective date, annually thereafter, and whenever there is any change in coverage, unless a pre-existing franchise ordinance expressly provides for filing of certificates in a different manner. Each franchisee's insurance coverage shall be primary insurance as respects the city. Any insurance or self-insurance maintained by the city shall be in excess of the franchisee's insurance and shall not contribute with it.
(c)
Certificates shall contain a provision that coverage afforded under these policies will not be canceled until at least thirty days' prior written notice has been given to the city. Policies shall be issued by companies authorized to do business under the laws of the State of California. Financial ratings must be no less than "A.VII" in the latest edition of Bests Key Rating Guide published by A.M. Best Guide.
(d)
A cable communications system operator (and those acting on its behalf to construct, operate or repair the system) shall maintain the following minimum insurance. The city shall be named as an additional insured on the general liability and automotive policies; those insurance policies shall be primary and contain a cross-liability clause.
(1)
Commercial General Liability Insurance to Cover Liability from Bodily Injury and Property Damage. Exposures to be covered shall include premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability:
Bodily Injury | |
Each Occurrence | $1,000,000 |
Annual Aggregate | $5,000,000 |
Property Damage | |
Each Occurrence | $1,000,000 |
Annual Aggregate | $5,000,000 |
Personal Injury | |
Annual Aggregate | $5,000,000 |
Completed operations and products liability shall be maintained for two years after the termination of the franchise or license (in the case of the cable communications system owner or operator) or completion of the work for the cable communications system owner or operator (in the case of a contractor or subcontractor).
Property damage liability insurance shall include coverage for the following hazards: X-explosion, C-collapse, U-underground.
Prior to approval by the city, all insurance and indemnification shall be received and approved by the Yolo County Public Agency Risk Management and Insurance Agency.
(2)
Workers' compensation insurance shall be maintained during the life of the franchise to comply with statutory limits for all employees, and in the case any work is sublet, each cable communications system operator shall require the subcontractors similarly to provide workers' compensation insurance for all the latter's employees unless such employees are covered by the protection afforded by each cable communications system operator. Each cable communications system operator and its contractors and subcontractors shall maintain during the life of this policy employers liability insurance. The following minimum limits must be maintained:
Workers' Compensation | Statutory |
Employers' Liability | $1,000,000 per occurrence |
(3)
Comprehensive Auto Liability Insurance.
Bodily Injury | |
Each Occurrence | $1,000,000 |
Annual Aggregate | $3,000,000 |
Property Damage | |
Each Occurrence | $1,000,000 |
Annual Aggregate | $3,000,000 |
Coverage shall include owned, hired, and non-owned vehicles.
(Ord. 2064 § 1, 2001)
Every operator of a cable communications system shall obtain and maintain a performance bond to ensure the faithful performance of its responsibilities under this chapter and any franchise ordinance. In the case of any franchise ordinance that requires the cable communications system operator to initially build, or to upgrade a system, the amount of the bond shall be in an amount sufficient to ensure that the required construction is satisfactorily completed. The amount of the bond may be reduced upon successful completion of the required construction. The amount of the performance bonds shall be set by the city manager or may be set in a franchise ordinance in light of the nature of the work to be performed pursuant to or under the franchise, but initially shall not be less than ten percent of the estimated cost of constructing or (in the case of existing systems) upgrading the cable communications system. The bond is not in lieu of any additional bonds that may be required through any permitting process. The bond shall be in a form acceptable to the city attorney. Bonds must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise ordinance specifically provides otherwise.
(Ord. 2064 § 1, 2001)
Every cable communications system operator shall establish and maintain a cash security fund or provide the city an irrevocable letter of credit or a cash deposit in an amount specified in the franchise ordinance but no less than fifty thousand dollars to secure the payment of fees owed, to secure any other performance promised in a franchise ordinance, including, but not limited to, compliance with this chapter and applicable customer service standards, and to pay any taxes, fees or liens owed to the city. The letter of credit shall be in a form and with an institution acceptable to the city manager and in a form acceptable to the city attorney. Drawing on the cash security fund or letter of credit shall not be the city's exclusive remedy. Should the city draw upon the cash security fund or letter of credit, the cable communications system operator shall, within fourteen days, restore the fund or the letter of credit to the full required amount. This security fund/letter of credit may be waived or reduced by the city for a franchisee where the city determines in its discretion that a particular franchisee's operations are sufficiently limited that a security fund/letter of credit is not necessary to secure the required performance. The city may from time to time require a franchisee to change the amount of the required security fund/letter of credit to reflect changed risks to the city and to the public, including delinquencies in taxes or other payments to the city. The cash security fund or letter of credit must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise ordinance specifically provides otherwise.
(Ord. 2064 § 1, 2001)
The city council may revoke a franchise or reduce the term of a franchise if it finds, after a publicly-noticed hearing, that a cable communications system operator has violated any provision of this chapter or its franchise ordinance, committed a material breach of its franchise ordinance or repeatedly failed to comply with its franchise ordinance; has defrauded or attempted to defraud the city or subscribers; or has attempted to evade the requirements of this chapter or its franchise ordinance. Before conducting a hearing to revoke the franchise: (a) the city manager must have given notice of a claimed violation, breach, default or failure; and (b) the franchisee must have been given thirty days to cure the claimed default, except as provided herein. An opportunity to cure is not required where the city finds that the defect in performance is due to willful misconduct, is an adjudicated violation of criminal law, or is part of a pattern of violations where the franchisee has already had notice and opportunity to cure. The franchisee will be given at least twenty days' notice of the hearing date, and will be provided an opportunity to be heard at the hearing.
(Ord. 2064 § 1, 2001)
The city may declare a franchise forfeited without opportunity to cure where: (a) a franchisee voluntarily stops providing cable services it is required to provide; or (b) a transfer described under Section 8B.02.100 occurs without the prior consent of the city.
(Ord. 2064 § 1, 2001)
A franchise will terminate automatically by force of law one hundred twenty calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the franchise may be reinstated within that one hundred twenty day period, if: (a) such assignment, receivership or trusteeship has been vacated; (b) such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the franchise ordinance, and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise ordinance. In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the city may revoke the franchise following a public hearing before the city council, by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges thereunder will be revoked and will terminate thirty calendar days after serving such notice, unless: (a) the city has approved the transfer of the franchise to the successful bidder; and (b) the successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the franchise ordinance and this chapter.
(Ord. 2064 § 1, 2001)
(a)
Upon termination or forfeiture of a franchise, whether by action of the city as provided above, or by passage of time, the city may do one or a combination of the following.
(1)
Direct the franchisee to stop using the cable communications system for the purposes authorized by the franchise.
(2)
Require the former franchisee to remove all or a portion of its facilities and equipment at the former franchisee's expense. If the former franchisee fails to do so within a reasonable period of time, the city may have the removal done at the former franchisee's and/or surety's expense.
(3)
By resolution of the city council, acquire ownership or effect a transfer of all or a portion of the cable communications system at an equitable price if termination or forfeiture is for cause, or if termination or forfeiture is not for cause, at fair market value, not including the value of the franchise.
(b)
Subsection (a)(3) of this does not apply to an abandonment. If a cable communications system or any part thereof is abandoned by franchisee, the city may require the franchisee to transfer title to or some of the abandoned portions to it at no charge, free and clear of encumbrances, and the same will become the city's property and the city may keep, sell, assign, or transfer all or part of the assets of the cable communications system, or otherwise dispose of those assets as it sees fit.
(c)
Notwithstanding the foregoing, the city may not, pursuant to this section, issue an order that violates 47 U.S.C Section 541(b)(3)(c).
(Ord. 2064 § 1, 2001)
Remedies provided for under this chapter, or under a franchise ordinance, shall be cumulative and are in addition to all other remedies which may be available at law or equity. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, does not limit a franchisee's duty to indemnify the city; or relieve a franchisee of its franchise obligations or limit the amounts owed to the city.
(Ord. 2064 § 1, 2001)
Each franchise may contain a provision specifying liquidated damages payable to the city in the event of a breach of a franchise obligation where damages would otherwise be difficult to ascertain.
(Ord. 2064 § 1, 2001)
(a)
The city shall have the right to inspect and copy books and records: related in whole or in part of the construction, operation or repair of the cable communications system; that the city deems relevant to monitoring compliance with the terms of this chapter, a franchise or applicable law; or that the city deems relevant to the exercise of any right or duty of the city under the same. Each cable communications system operator is responsible for maintaining control over such books and records whether created by grantee, or by those acting on its behalf. It is responsible for producing these records upon the city's request, for the city's inspection and copying. The records that franchisee must produce shall include, but are not limited to revenue records, and other records related to compliance with any provision of this chapter or a franchise ordinance. Books and records must be maintained for a period of five years, except that a franchise ordinance may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials. The phrase "books and records" shall be read expansively to include information in whatever format stored.
(b)
Books and records requested shall be produced to the city by a time and at a location in the city designated by the city manager. However, if the requested and books and records are too voluminous, or for security reasons cannot be copied and moved, then the franchisee may request that the inspection take place at some other locations mutually agreed to by the city and the franchisee; provided, that: (1) the franchisee must make necessary arrangements for copying documents selected by the city after its review; and (2) the franchisee must pay all travel and additional copying expenses incurred by the city (above those that would have been incurred had the documents been produced in the city) in inspecting those documents or having those documents inspected by its designee.
(Ord. 2064 § 1, 2001)
(a)
The city manager may from time to time direct a franchisee to prepare reports and to submit those reports by a date certain, in a format prescribed by the manager, in addition to those required by this chapter.
(b)
Unless an exemption is granted by the city manager, within forty-five days of the end of each calendar quarter, a franchisee shall submit a report to the city containing the following information:
(1)
The number of service calls (calls requiring a truck roll) received during the prior quarter and the percentage of service calls compared to the subscriber base; and
(2)
The total estimated hours of known outages as a percentage of total hours of operation. An outage is a loss of sound or video on any signal, or a subscribers.
(c)
Unless an exemption is granted by the city manager, no later than ninety days after the end of its fiscal year, a franchisee shall submit the following information, except that the information required by Section 8B.02.260(c)(3) need only be provided where there has been a change from the preceding year:
(1)
A fully audited or certified revenue report from the previous calendar year for the cable communications system, and a certified statement setting forth the computation of gross revenues used to calculate the franchise fee for the preceding year and a detailed explanation of the method of computation showing: (A) gross revenues by category (e.g., basic, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); and (B) what, if any, deductions were made from gross revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction.
(2)
A report showing, for each applicable customer service standard, the franchisee's performance with respect to that standard for each quarter of the preceding year. In each case where franchisee concludes it did not comply fully, the franchisee will describe the corrective actions it is taking to assure future compliance. In addition, the report should identify the number and nature of the customer service complaints received and an explanation of their dispositions.
(3)
An ownership report, indicating all persons who at the time of filing control or own an interest in the franchisee of ten percent or more.
(d)
Within ten days of their receipt or (in the case of documents created by the cable communications system operator or a person acting on its behalf) filing, a franchise shall provide the city:
(1)
Notices of deficiency or forfeiture related to the operation of the cable communications system; and
(2)
Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly.
(Ord. 2064 § 1, 2001)
Each franchisee shall maintain accurate maps and improvement plans that show the location, size, and a general description of all facilities installed in the public rights-of-way or on public property and any power supply sources (including voltages and connections). Each franchisee shall provide a map to the city showing the location of its facilities, in such detail, format and scale as may be directed by the city manager and update the map at least annually, and whenever the facility expands or is located. Copies of maps shall be provided on disk, in a commercially available electronic format specified by the city manager.
(Ord. 2064 § 1, 2001)
Unless the city manager specifically waives the requirement in writing, a franchisee shall at all times maintain:
(a)
Records of all complaints received, their nature and resolution. The term "complaints" refers to complaints about any aspect of the franchisee's services, construction, operations or repairs activities;
(b)
Records of outages known to the franchisee, their cause and duration;
(c)
Records of service calls for repair and maintenance indicating the nature of the call for service, the date and time service was requested, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved;
(d)
Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended;
(e)
Records sufficient to show whether the franchisee has complied with each customer service standard that applies to it.
(Ord. 2064 § 1, 2001)
The city manager may temporarily exempt any franchisee from its obligations under Sections 8B.02.260 through 8B.02.280 if the city manager determines that the requirement would be unduly burden-some or unnecessary, and that the city subscriber interests may be adequately protected in some other manner.
(Ord. 2064 § 1, 2001)
A franchisee and its officers, agents, employees, contractors and subcontractors, shall respect, refrain from invading, and take affirmative action to prevent violation of the privacy of subscribers served by its cable communications system. A franchisee shall comply with all of the requirements of 27 U.S.C. Section 551, as amended, in addition to the following:
(a)
Neither a franchise nor any other person, agency, or entity shall tap, or arrange for the tapping or monitoring of any cable, line, signal, input device, or subscriber outlet or receiver for any purpose whatsoever, except that the franchisee may conduct tests for the functioning of the cable communications system where necessary in order to ensure proper maintenance of the system and to collect performance data for agencies regulating the quality of signals, and the franchisee may conduct cable communications system-wide or individually addressed "sweeps" for the sole purpose of verifying cable communications system integrity (including individual security system integrity), controlling return path transmissions, billing for pay services, or collecting aggregate data on viewing patterns by channel. "Tapping" shall mean observing or attempting to intercept a communications signal exchange where at least one of the communicating parties is unaware of the observation or interception, whether the exchange is observed by visual, aural or electronic means, for any purpose whatsoever. The mere provision of cable modem services by a franchisee shall not construed to be "tapping" or "monitoring" under this subsection.
(b)
The franchisee shall not place in any private residence or in any institution any equipment capable of two-way communications without the written consent of the subscriber, and shall not utilize the two-way communications capability of the system for subscriber surveillance of any kind without the written consent of the subscriber specifying the data to be collected, with definitions in lay persons' terms, and how the data collected will be used and by whom, except as permitted by 47 U.S.C. Section 551(b)(2) , or other applicable federal law. The written consents shall be, and shall show on their face that they are, revocable by the subscriber at any time by written communication mailed by the subscriber to the franchisee. No penalty shall be invoked for subscriber's failure to provide a written consent or for his or her revocation thereof, and all written consents shall so state on their face. The franchisee shall not make such written consent a condition precedent to receipt by a subscriber of any service. The provisions of this subparagraph shall not be deemed to require consent as a condition precedent to system-wide or individually addressed "sweeps" for the sole purpose of verifying system integrity, controlling return-path transmissions, billing for pay services, or collecting aggregate data on viewing patterns by channel.
(c)
No cable, line, wire, amplifier, converter, or other piece of equipment associated with cable communications system services shall be attached to any residence or other property of a citizen (except within public rights-of-way) without first securing the written permission of the owner or tenant of the property. If such permission is later lawfully revoked, whether by the original or subsequent owner or tenant, the franchisee shall remove forthwith all of the equipment and promptly restore the property to its original condition. The franchisee shall perform all installations in a workmanlike manner and shall be responsible for any damage to residences or other property caused by the installation.
(d)
Except as permitted by 47 U.S.C. Section 551(c), or other applicable federal law, no franchisee or officer, agent or employee thereof shall sell, or otherwise make available, lists of the names and addresses of its subscribers, or any list which identifies, by name or otherwise individual subscriber viewing habits, to any person, agency, or entity for any purpose whatsoever except that the franchisee shall, upon request, provide lists of names and addresses of its subscribers to authorized representatives of the city when the city council deems such information necessary for performance of the regulatory functions of the city. Names and addresses of subscribers within the possession of the city shall not be subject to public inspection or review, except as required by the California Public Records Act.
(e)
A franchisee may release the number of subscribers but only as total number and as a percentage of the potential subscribers within the license area. When indicating the number of subscribers viewing a particular channel, a franchisee shall indicate only the total number of subscribers viewing during the relevant time and the percentage of all subscribers which they represent, but not the identity of any subscriber.
(f)
No polls or other two-way responses of subscribers shall be conducted by a franchisee whether for commercial purposes or otherwise unless the program of which the poll is a part contains an explicit disclosure of the nature, purpose, and prospective use of the results of the poll. A franchisee shall adopt and enforce measures which ensure that personally identifiable information concerning a subscriber, including his or her viewing habits and response or responses to the inquiry of inquiries, is not received by any third party, including the party sponsoring the poll, except as permitted by 47 U.S.C. Section 551(c), or other applicable federal law.
(g)
A franchisee shall not tabulate any test results that would reveal the commercial product preferences or opinions of individual subscribers, members of their families or their invitees, licenses or employees, without advance written authorization by the subscriber, except as may be permitted by 47 U.S.C. Section 551(b)(2), or other applicable law. Tenants who occupy premises connected by the system shall be deemed to be subscribers within the meaning of this section regardless of who actually pays for the service.
(h)
A franchisee shall provide to a governmental entity personally identifiable information concerning a cable subscriber only pursuant to a court order:
(1)
Such entity offers clear and convincing evidence that the subject of the information is reasonably suspected of engaging in criminal activity and that the information sought would be material evidence in the case; and
(2)
The subject of the information is afforded the opportunity to appear and contest such entity's claim.
If a court enters an order requiring the disclosure of any information, the franchisee shall notify the subscriber immediately. |
(i)
A franchisee shall take all reasonable steps so that it is able to provide reports, books and records to the city, including by providing appropriate subscriber privacy notices. Each franchisee shall be responsible for redacting data that applicable law prevents it from providing to the city. Nothing in this section shall be read to require a franchisee to violate city, state or federal subscriber privacy laws, or any provision of this chapter or a franchise ordinance related to privacy.
(Ord. 2064 § 1, 2001)
(a)
The franchise fee paid pursuant to Article 8B.03, and the fee in lieu of franchise fee paid pursuant to Article 8B.04, shall be paid monthly unless otherwise specified in a franchise. Payment for each month shall be made to the city by electronic transfer not later than forty-five days after the end of each calendar month.
(b)
Unless a franchise ordinance expressly provides otherwise, a franchise or other person subject to a fee under Article 8B.03 or 8B.04 shall file with the city within thirty days of the end of each calendar month a statement showing gross revenues during the preceding month and the number of subscribers served.
(Ord. 2064 § 1, 2001)
No acceptance by the city of any payment shall be construed as an accord that the amount paid is in fact the correct amount nor shall such acceptance of such payment be construed as a release of any claim the city may have for additional sums payable or otherwise related to that payment.
(Ord. 2064 § 1, 2001)
Neither the franchise fee under Article 8B.03, nor the fee paid in lieu of the franchise fee under Article 8B.04, is a payment in lieu of any tax, fee or other assessment. Every franchise ordinance shall state that such fees constitute rent, as compensation for the use of public rights-of-way by a franchisee, and shall provide that the franchisee shall not denominate any such fees in any bills or other communications with subscribers in any manner that misstates the amount, notice, basis, incidence, or method of calculation of such fees, or that might mislead a subscriber regarding such matters.
(Ord. 2064 § 1, 2001)
In the event that a fee payment is not received by the city on or before the due date set forth in this section or in a franchise ordinance, or the fee owed is not fully paid, the person subject to the fee will be charged interest on the outstanding amount owed from the due date at an interest rate equal to three percent above the rate for three-month federal treasury bills at the most recent United States Treasury Department sale of such treasury bills occurring prior to the due date of the franchise fee payment.
(Ord. 2064 § 1, 2001)
Within ninety days of the date a franchisee ceases operations under a franchise (whether because of franchise termination, transfer, bankruptcy or for any other reason), the franchisee (or its successor in interest) shall: (a) make a final franchise fee payment, covering the period from the end of the prior calendar month to the date the franchisee ceased operations; and (b) file a final statement of gross revenues covering the period from the beginning of the calendar year in which the operations ceased to the date operations ceased. The statement shall contain the information and be certified as required by Section 8B.02.260(c)(1).
(Ord. 2064 § 1, 2001)
Beginning on the effective date of the ordinance codified in this chapter, neither a franchisee nor the owner of any apartment building in the city shall enter into any agreement granting a franchisee the exclusive right to provide cable service to residents of such a building. Franchisees and owners of apartment buildings shall comply with all requirements of state and federal law regarding access to such buildings by operators of cable communications systems.
(Ord. 2064 § 1, 2001)