Based upon studies of this community, a review of other communities, comments received at a public hearing, meetings, interviews, surveys, a detailed analysis of cable television systems serving the area, and the experience of other communities in the development of cable television systems as well as general developments in the cable industry, the City has determined that the following system capacity requirements are necessary to provide the most basic cable system necessary to meet the cable needs of the City. In any specific franchise grants or renewals, system channel capacity may be required to accommodate cable needs of the City.
A franchisee shall provide a cable system which uses at least five hundred fifty (550) MHz equipment of high quality and reliability. At minimum, a franchisee shall integrate optical fiber or other network facilities and equipment providing equivalent or greater functionality, performance and capacity into any cable system construction and design in a manner which permits it to take full advantage of the benefits of that technology.
A franchisee shall install, maintain, and replace as necessary activated two-way cable plant and all equipment and facilities required to make it operable so that City government buildings, buildings of accredited educational institutions, and all designated PEG access centers and access facilities located within the franchise area will be able to send and receive signals (video, audio, and data).
A franchisee shall initially include a sufficient number of downstream and upstream channels with sufficient capability and technical quality to enable the implementation and performance of all the requirements of this Chapter, including but not limited to, remote access transmissions and transmissions to and from access centers and interconnection points, as set forth in, but not limited to, this Chapter.
(A) 
Construction Schedule and Plan. Every franchise agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the cable system. The schedule shall provide for prompt completion of the project, considering the amount and type of construction required. The franchise agreement shall require the franchisee to include a plan for the rebuild, containing at least the following information: a concise description of the cable system proposed to be erected or installed, including engineering drawings, if required by the City, together with an electronic map and plans indicating the proposed location of all such facilities. The franchise agreement shall further provide that the plan shall be subject to City review and approval.
(B) 
Failure to Comply. Failure on the part of a franchisee to commence and diligently pursue each of the requirements and complete each of the matters set forth in its franchise agreement or to comply with the cable system design and construction plan approved by the City, including the failure to provide the equipment specified (or its equivalent) and the failure to follow the distribution system design plan, construction plan and installation practices manual (except insofar as those plans or practices, if carried out, would result in construction of a system which could not meet requirements of federal, state or local law; and except for such minor modifications as are typical in the industry), shall be grounds for termination of its franchise under and pursuant to the terms of SJBMC 5-20-1305; provided, however, that the City in its discretion may extend the time for the completion of construction and installation for additional periods in the event a franchisee, acting in good faith, experiences delays by reason of circumstances beyond its control. A franchisee’s failure to comply with provisions of the construction plan approved by the City shall be subject to penalties pursuant to SJBMC 5-20-1340.
(A) 
Compliance with Laws. A franchisee shall construct, operate and maintain the cable system subject to the supervision of all of the authorities of the City who have jurisdiction in such matters, and in strict compliance with all laws, ordinances, departmental rules and regulations affecting the cable system.
(B) 
Periodic Inspection. The cable system shall be subject to the right of periodic inspection by the City.
(C) 
Permits. No construction, reconstruction or relocation of the cable system within the public rights-of-way shall be commenced until written permits have been obtained from the proper City officials. In any permit so issued, such officials may impose such conditions and regulations as a condition of the granting of the permit as are necessary for the purpose of protecting any structures in the public rights-of-way, for the proper restoration of such public rights-of-way and structures, and for the protection of the public and the continuity of pedestrian and vehicular traffic, and may levy appropriate fees for the issuance of the permits.
(D) 
Regulation. The City Council may, from time to time, issue such reasonable rules and regulations concerning the construction, operation and maintenance of the cable system as are consistent with the provisions of this Chapter and the franchise issued pursuant to this Chapter.
(A) 
Compliance with Applicable Standards and Laws. The construction, operation, maintenance, and repair of a cable system shall be in accordance with all applicable sections of the Occupational Safety and Health Act of 1970, as amended, the National Electrical Safety Code, the National Electric Code, National Cable Television Association Standards of Good Engineering Practices; Obstruction Marking and Lighting, AC 70/7460, i.e., Federal Aviation Administration; Construction, Marking and Lighting of Antenna Structures, Federal Communications Commission Rules Part 17; AT&T Manual of Construction Procedures (Blue Book); California Public Utility Commission Construction Requirements applicable to cable systems; Franchising Construction Procedures Manual; other applicable federal, state, or local laws and regulations that may apply to the operation, construction, maintenance, or repair of a cable system, including, without limitation, local zoning and construction codes, and laws and accepted industry practices, all as hereafter may be amended or adopted. In the event of a conflict among codes and standards, the most stringent code or standard shall apply (except insofar as that standard, if followed, would result in a system that could not meet requirements of federal, state or local law). The City may adopt additional standards as required to ensure that work continues to be performed in an orderly and workmanlike manner, or to reflect changes in standards which may occur over the franchise term.
(B) 
Minimum Interference. All wires, cable lines, and other transmission lines, equipment, and structures shall be installed and located to cause minimum interference with the rights and convenience of property owners.
(C) 
Electronic Equipment. All installation of electronic equipment shall be of a permanent nature, using durable components.
(D) 
Antennas. Without limiting the foregoing, antennas and their supporting structures (towers) shall be designed in accordance with the Uniform Building Code as amended, and shall be painted, lighted, erected, and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other Applicable Law, all as hereafter may be amended or adopted.
(E) 
Placement of Facilities. Without limiting the foregoing, all of a franchisee’s plant and equipment including, but not limited to, the antenna sites, headend and distribution system, towers, house connections, structures, poles, wires, cable, coaxial cable, fiber optic cable, fixtures, and apparatuses shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained, and operated in accordance with good engineering practices, performed by experienced and properly trained maintenance and construction personnel so as not to endanger or interfere with improvements the City shall deem appropriate to make or to interfere in any manner with the public rights-of-way or any gas, electric, telephone, telecommunications, water, sewer, or other utility facilities, or obstruct or hinder in any manner such entities’ use of any public rights-of-way, or legal rights of any property owner or to unnecessarily hinder or obstruct pedestrian or vehicular traffic.
(F) 
Safety. All safety practices required by law shall be used during construction, maintenance, and repair of a cable system. A franchisee shall at all times employ reasonable care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public.
(G) 
Prompt Repairs. Any and all public rights-of-way, public property, or private property that is disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance, or construction of a cable system shall be promptly repaired or restored by the franchisee within ten (10) days of the date of damage, at its expense, to as good condition as before said work was commenced as is possible to the reasonable satisfaction of the City (in the case of public rights-of-way) or the owner (in the case of private property).
(H) 
Tree Trimming. A franchisee shall have the authority to trim trees that overhang a public right-of-way of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the franchisee. Notwithstanding that grant of authority, if the franchisee performs the work, it shall be fully liable for any damages caused thereby, and shall be responsible for replacing damaged trees and shrubs. At the option of the City, such trimming may be done by it or under the supervision, direction, and expense of the franchisee at franchisee’s expense.
(I) 
Placement. In any area where any electric and telephone systems are underground, a franchisee shall install its cable system underground. If, after a franchisee installs its cable system, electric or telephone systems are relocated so that any electric and telephone systems in an area are underground, the franchisee shall place its cable system in that area underground. Between a street and a subscriber’s residence, if either electric or telephone utility wiring is aerial, a franchisee may install aerial cable except where a property owner or resident requests underground installation and agrees to bear the additional cost of such installation over and above the cost of aerial installation.
(J) 
Undergrounding. Except in underground utility districts, franchisee’s cable system may be constructed overhead where poles now exist and electric and telephone lines are now overhead, but where either electric or telephone lines are underground, or are being initially placed underground, the cable system shall be constructed underground in accordance with existing City practices at the time the cable system is constructed subject to any waivers that may be granted. Whenever and wherever the owner of the poles moves its plant from overhead to underground placement in an area, all cable system facilities and plant in that area shall be similarly moved underground by the franchisee as directed by the City Manager in accordance with then-existing City practices, subject to any waivers that may be granted. The City will cooperate in good faith with a franchisee in any waiver process.
(K) 
Description of System. Prior to erection of any towers, poles, or conduits or the construction, upgrade, or rebuild of a cable system authorized under this Chapter, a franchisee shall first submit to the City and other designated parties for approval a concise description of the cable system proposed to be erected or installed, including engineering drawings, if required by the City, together with an electronic map and plans indicating the proposed location of all such facilities. No erection or installation of any tower, pole, underground conduit, or fixture or any rebuilding or upgrading of a cable system shall be commenced by any person until approval therefor has been received from the City.
A franchisee is expected to use, with the owner’s permission, existing underground conduits or overhead utility facilities whenever feasible. Copies of agreements for use of conduits or other facilities shall be filed with the City as required by a franchise agreement or upon request by the City. No poles or conduits shall be erected or installed without the prior permission of the City. If the City grants permission to place poles or conduits in the public rights-of-way, 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 system operations of the franchisee. Franchisee shall notify the City when it enters into an agreement for use of its poles and conduits. Copies of agreements for use of franchisee’s conduits or poles in the public rights-of-way or on other public property shall be available for review upon the City’s request. A franchise agreement may include a provision under which the City shall indemnify, defend and hold a franchisee harmless for all claims arising out of the City’s use of that franchisee’s poles and conduits where the franchisee and the City do not have a joint pole or conduit use agreement.
(L) 
Franchisee shall cooperate in the planning, locating and construction of its cable system in utility joint trenches or common duct banks with other telecommunications providers. The City will provide advance notice to any franchisee when it plans to open a trench and each franchisee shall provide notice to the City when it plans to open a trench. The franchisee and the City will offer to make space available to the other, and to other persons who participate in joint trenching, on reasonable terms.
(M) 
Contractors. Any contractor or subcontractor used for work or construction, installation, operation, maintenance, or repair of cable system equipment must be properly licensed under laws of the State and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as franchisee would have under this Chapter and applicable law if the work were performed by franchisee. The franchisee must ensure that contractors, subcontractors and all employees who will perform work for it are trained and experienced. The franchisee shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with its franchise agreement and applicable law, shall be fully responsible for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor, and shall implement a quality control program to ensure that the work is properly performed. This Section is not meant to alter tort liability of franchisee to third parties.
(N) 
Publicizing Proposed Construction Work. A franchisee shall publicize proposed construction work at least one (1) week prior to commencement of that work by causing written notice of such construction work to be delivered to the City and by notifying those persons most likely to be affected by the work in at least two (2) of the following ways: by telephone, in person, by mail, by distribution of flyers to residences, by publication in local newspapers, or in any other manner reasonably calculated to provide adequate notice. In addition, before entering onto any person’s property to construct or repair the cable system, a franchisee shall notify the property owner or (in the case of residential property) the resident at least one (1) day in advance. If a franchisee must enter premises, it must schedule an appointment at the convenience of the owner or resident.
(O) 
Location of Facilities. A franchisee shall perform all tasks of an “operator” under California Government Code Section 42.16 (“Underground Service Alert”) and shall be a member of Underground Service Alert of Northern California and Nevada. A franchisee shall maintain current records of the location of its cable system for both underground and aerial cables. A franchisee shall provide information regarding the location of its cable system upon request of the City or any authorized governmental body as soon as possible but in no event later than one (1) business day from date of request.
(A) 
Relocation – Governmental Bodies. A franchisee shall, by a time specified by the City, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the City or any other governmental entity by reason of traffic conditions; public safety; public right-of-way construction; public right-of-way maintenance or repair (including resurfacing or widening); change of public right-of-way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned communications system, public work or improvement or any government-owned utility; public right-of-way vacation; or for any other purpose where the convenience of the City or such entity would be served thereby; provided, however, that the franchisee shall, in all such cases, have the privilege of abandoning any property in place.
(B) 
Relocation – Other Authorized Entities. If any removal, relaying, or relocation is required to accommodate the construction, operation, or repair of the facilities of another person that is authorized to use the public rights-of-way, a franchisee shall, after thirty (30) days’ advance written notice, take action to effect the necessary changes requested by the responsible entity. The City may resolve disputes as to responsibility for costs associated with the removal, relaying, or relocation of facilities as among entities authorized to install facilities in the public rights-of-way if the parties are unable to do so themselves, and if the matter is not governed by a valid contract between the parties or a state or federal law or regulation.
(C) 
Relocation – Emergency. In the event of an emergency, or where a cable system creates or is contributing to an imminent danger to health, safety, or property, the City may remove, relay, or relocate any or all parts of that cable system without prior notice.
(D) 
Relocation – Third Persons. A franchisee shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other structures. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same, and the franchisee shall have the authority to require such payment in advance. The franchisee shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes.
In addition to satisfying such requirements as may be established through the application process franchise, every cable system shall be subject to the following conditions, except as prohibited by federal law:
(A) 
Provision of Service. Unless standards are otherwise specified in a franchise agreement, after cable service has been established by activating trunk distribution cable for an area specified in a franchise agreement, a franchisee shall provide cable service to any household or commercial establishment requesting cable service within that area, including each multiple dwelling unit in that area, except for multiple dwelling units to which it cannot legally obtain access; provided, that a franchise agreement may permit a franchisee to require a potential subscriber to contribute a fair share of the capital costs of installation or extension as a condition of extension or installation in cases where such extension or installation may be unduly expensive. Service must be provided within time limits specified in subsection (B) of this Section.
(B) 
Time for Extension. A franchisee must extend service to any person who requests it:
(1) 
Within five (5) days of the request, where service can be provided by activating or installing a drop;
(2) 
Within thirty (30) days of the request where an extension of one-half (1/2) mile or less is required; or
(3) 
Within six (6) months for areas where an extension of one-half (1/2) mile or more is required.
Provided that, in cases where a franchise agreement permits a franchisee to require a potential subscriber to bear a share of extension or installation costs, and franchisee requires the potential subscriber to bear such costs, the time for extension shall be measured from the date the subscriber agrees to bear such costs or, if a franchisee requires prepayment of all or a portion of the estimated costs, from the date the prepayment is made. A franchisee that requires a potential subscriber to bear a portion of installation or extension costs must prepare a written estimate of extension costs within seven (7) days of a request for an installation or extension that would be subject to cost-sharing.
(C) 
Technical Standards. Any cable system within the City shall meet or exceed the technical standards set forth in 47 C.F.R. 76.601 and any other applicable technical standards.
(D) 
Tests. A franchisee shall perform all tests necessary to demonstrate compliance with the requirements of the franchise and other performance standards established by applicable law. Unless a franchise agreement or applicable law provides otherwise, all tests shall be conducted in accordance with federal rules and in accordance with the most recent edition of National Cable Television Association’s “Recommended Practices for Measurements on Cable Television Systems,” or if no recent edition exists, such other appropriate manual as the parties may designate. A franchisee shall notify the City on an annual basis of its testing schedule. A written report of any test results shall be filed with the City within seven (7) days of each test a request by the City. If the location fails to meet performance specifications, within a reasonable time the franchisee, without requirement of additional notice or request from City, shall take corrective action, retest the locations and advise the City of the action taken and results achieved.
(E) 
Inspections. The City may conduct inspections of the cable system including, without limitation, the headend, construction areas and subscriber installations to assess, among other things, the franchisee’s compliance with its franchise agreement and applicable law. If the franchisee is notified of any violations found during course of inspections, the franchisee must bring violations into compliance within thirty (30) days of the date notice of violation is given, and must submit a report to the City describing the steps taken to bring itself into compliance. Inspection does not relieve the franchisee of its obligation to build a cable system in compliance with all provisions of its franchise agreement and applicable law.
(A) 
Interruptions to be Minimized. A franchisee shall schedule maintenance so that activities likely to result in an interruption of service are performed during periods of minimum subscriber use of the cable system.
(B) 
Maintenance Practices. Each franchise agreement shall provide that the franchisee will be obligated to follow maintenance practices that will ensure that its cable system is maintained in accordance with the highest industry standards.
Each franchise agreement shall provide that subscribers are able to receive continuous service and that, in the event the franchise is revoked or terminated, the franchisee shall be obligated to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity.