The City may grant one (1) or more cable television cable system franchises, and each such franchise shall be awarded in accordance with and subject to the provisions of this Chapter. This Chapter shall be amended from time to time, and in no event shall this Chapter be considered a contract between the City and a franchisee such that the City would be prohibited from amending any provision hereof.
A franchise shall, by its terms, authorize the construction, operation and maintenance of a cable system to provide cable services. A franchisee may at any time (as part of an application for a franchise under this Chapter, or separately) apply to expand the scope of its franchise, subject to appropriate conditions, or may apply for a separate authorization to provide services other than cable services, pursuant to such procedures as the City may lawfully establish from time to time.
Except as federal law may otherwise provide, no person may construct or operate a cable system without a franchise granted by the City. No person may be granted a franchise without having entered into a franchise agreement with the City pursuant to this Chapter, having received the City’s approval of the franchise agreement and having filed an unconditional acceptance of the franchise in a form acceptable to the City Attorney.
No franchise shall be granted for a period of more than ten (10) years, except that a franchisee may apply for renewal or extension pursuant to Article 4 of this Chapter.
A franchise is nonexclusive and will not explicitly or implicitly preclude the issuance of other franchises to operate cable systems within the City; affect the City’s right to authorize use of public rights-of-way by other persons to operate cable systems or for other purposes as it determines appropriate; or affect the City’s right to itself construct, operate, or maintain a cable system, with or without a franchise.
(A)
Once a franchise agreement has been accepted and executed by the City and a franchisee, such franchise agreement shall constitute a contract between the franchisee and the City, and the terms, conditions, and provisions of such franchise agreement, subject to this Chapter and all other duly enacted and applicable law, shall define the rights and obligations of the franchisee and the City relating to the franchise. In addition to other matters that may or must be addressed therein consistent with the Cable Act, the franchise agreement shall specify:
(1)
The franchise area for which the franchise is awarded, and the terms and conditions under which the franchisee must extend service to persons within that franchise area;
(2)
The term of the franchise;
(3)
Requirements for cable system design and performance;
(4)
Equipment and facilities requirements; and
(5)
Requirements related to channels, facilities, and equipment for PEG access and community use (including institutional uses).
(B)
The franchise area may be larger, smaller, or the same as the franchise area identified by the applicant.
All privileges prescribed by a franchise shall be subordinate to any prior lawful occupancy of the public rights-of-way, and the City reserves the right to reasonably designate where a franchisee’s facilities are to be placed within the public rights-of-way.
A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service. However, nothing herein prevents a franchisee from entering into an otherwise lawful exclusive arrangement with a building owner or manager of a multiple dwelling unit or commercial subscriber.
A franchisee shall at all times be subject to and shall comply with all applicable federal, state, and local laws. Without limiting the foregoing, a franchisee shall at all times be subject to all lawful exercise of the police power of the City, including all rights the City may have under 47 U.S.C. § 552 and laws governing permitting, zoning and control of streets and public rights-of-way.
No course of dealing between a franchisee and the City, or any delay on the part of the City in exercising any rights under this Chapter, shall operate as a waiver of any such rights or powers of the City, including the right of the City to acquire the property of the franchisee through the exercise of the right of eminent domain. Nor shall the City’s acquiescence in the actions of a franchisee in contravention of rights or powers operate as a waiver except to the extent expressly waived by the City or expressly provided for in a franchise agreement. Nothing herein contained shall be construed to contract away or to waive, modify or abridge, either for a term or in perpetuity, the City’s right of eminent domain with respect to any entity, including but not limited to any public utility.
The City shall have the maximum plenary authority to regulate cable systems, franchisees, and franchises as may now or hereafter be lawfully permissible. Except where rights are expressly waived by the City in a franchise agreement, this Chapter or by any ordinance or resolution of the City, the rights are reserved, whether expressly enumerated or not, and a franchisee, by its acceptance of a franchise, agrees to be bound thereby and to comply with any action or requirements of the City in its exercise of any of its rights or powers.
(A)
Conflict. In the event of a conflict between this Chapter and a franchise agreement, the provision that the City determines is to its greatest benefit shall control, except where it is otherwise expressly provided to the contrary in a franchise agreement.
(B)
Controlling Law. Except as to matters that are governed solely by federal law or regulation, a franchise agreement will be governed by and construed in accordance with the laws of the State of California.
Any person who occupies public rights-of-way for the purpose of operating or constructing a cable system and who does not hold a valid franchise from the City shall be, to the extent permitted by applicable law, subject to all provisions of this Chapter including, without limitation, Article 5 regarding construction standards; Article 6 regarding access requirements, except that to the extent that the most recent franchise granted by the City contains access requirements that are different than those contained herein, such person will be required to match the provisions contained in such recent franchise; Article 10 regarding franchise fees, which providing that the amount paid shall be in lieu of franchise fees for use of the right-of-way to provide cable service but not in lieu of any other fees, such as fees for use of the public rights-of-way to provide telecommunication services that may be imposed under state or local law; Article 11 regarding insurance and indemnification, such proof of insurance in the amounts provided therein to be submitted to the City and such indemnification being provided in accordance with terms provided in SJBMC 5-20-1135 and contained in an agreement which is executed by and enforceable against such person and submitted to the City prior to the commencement of construction of such cable system; Article 12 regarding performance guarantees to be provided in the same amounts and under the same terms as provided thereunder; and Article 13 regarding violation of this Chapter or applicable law. In its discretion, the City at any time may require such person to enter into a franchise agreement within thirty (30) days of receipt of a written notice by the City that a franchise agreement is required; require such person to remove its property and restore the area to a condition satisfactory to the City within such time period; remove the property itself and restore the area to a satisfactory condition and charge the person the costs therefor; and/or take any other action it is entitled to take under applicable law, including filing for and seeking damages for trespass. In no event shall a franchise be created unless it is issued by action of the City and is memorialized in a written franchise agreement.
Any act that a franchisee is or may be required to perform under this Chapter, a franchise agreement, or applicable law shall be performed at the franchisee’s expense, unless expressly provided to the contrary in this Chapter, the franchise agreement, or applicable law.