Title 13
FRANCHISES—-CABLE
TELEVISION
Chapters:
13.04
Purpose
13.08
Definitions
13.12
Grant of Franchise
13.16
Regulation of Franchise
13.20
General Financial and Insurance Provisions
13.24
Design and Construction Provisions
13.28
Operation and Maintenance
13.32
Rights Reserved to the City
13.36
Rights Reserved to the Grantee
13.40
Reports
Chapter 13.04
PURPOSE
Sections:
13.04.010
Purpose.
13.04.010 Purpose. The city
council finds that the development of cable communications systems has the
potential of having great benefit and impact upon the residents of Weed. The
city council further finds that the public convenience, safety and general
welfare can best be served by establishing regulatory powers governing the
installation, construction, operation and maintenance of cable communications
systems which should be vested in the city and such persons as the city shall
designate. It is the intent of this title to provide for and specify the means
to attain the best possible public interest and public purpose in these matters
and any franchise issued pursuant to this title shall be deemed to include this
finding as an integral part thereof.
Chapter 13.08
DEFINTTIONS
Sections:
13.08.010
General provisions.
13.08.010 General provisions.
Unless the contrary is stated or clearly appears from the context, the
definitions set forth in this chapter shall govern the construction of the
words and phrases used in this title.
“Basic
cable service” means any service tier which includes the retransmission of
local television broadcast signals.
“Broadcast
signal” means a television or audio signal originating from broadcast facility
licensed by the FCC that is transmitted over the air to a wide geographic
audience, is intended for reception by the general public and is received by a
cable communications system off—the—air, by satellite, or by microwave.
“Cablecast
signal” means a nonbroadcast signal that originates within the facilities of
the cable communications systern, including local origination programming and
community access programming.
“Cable
communications system,” cable system,” “system” means a facility consisting of
a set of closed transmission paths and associated signal generation, reception
and control equipment that is designed to provide cable service which includes
video programming and which is provided to multiple subscribers within the
city, but such term does not include:
A.
A facility that serves only subscribers in one or more multiple dwelling units
under common ownership, control or management, unless such facility uses any
public street or right-of-way;
B.
A facility of a common carrier which is subject, in whole or in part, to the
provisions of Title II of the Communications Act of 1934, as amended, except
that such facility shall he considered a cable system to the extent such
facility is used in the transmission of video and/or audio programming directly
to subscribers; or
C.
Any facilities of any electric utility used solely for operating its electric
utility system.
“Cable
service” means (i.) the one—way transmission to subscribers of video and/or
audio programming or other programming service and (ii) subscriber interaction,
if any, which is required for the selection of such video and/or audio
programming or other programming service.
“Channel”
means a portion of the electromagnetic frequency spectrum which is used in a
cable system and which is capable of delivering a television channel as defined
by the FCC.
“Commence
construction” means that time and date when construction of the cable
communications system is considered to have commenced, which shall be when the
first connection is physically made to a utility pole or undergrounding of
cables is initiated after preliminary engineering (strand mapping) and after
all necessary permits and authorizations have been obtained.
“Commence
operation” means that time and date when operation of the cable communications
system is considered to have commenced, which shall be when sufficient
distribution facilities have been installed so as to permit the offering of
full service to one or more subscribers.
“Commercial
subscriber” means a subscriber who receives cable service in a place of
business, where the service may be utilized in connection with a business,
trade, or profession.
“Community
access channel” means such channel capacity on the cable communications system
as from time to time may be allocated to public, education, or governmental
programming, together with such facilities and equipment as are made available
for the use of such channel capacity.
“Completion
of construction” means that point in time when all distribution facilities of
the cable communications system required by a franchise have been installed and
are in an operational state.
“Converter”
means an electronic device which converts signal carriers from one form to
another.
“FCC”
means the Federal Communications Commission and any legally appointed or
elected successor.
“Franchise”
means the nonexclusive rights granted pursuant to this title to install,
construct, operate, and maintain a cable communications system along the public
streets and rights—of—way within all or a specified area of the city. Any such
authorization, in whatever form granted, shall be in lieu of any license or
permit required for the privilege of transacting and carrying on a business
within the city as required by other chapters of this code.
“Franchise
fee” means any tax, fee, or assessment of any kind imposed by the city on the
grantee or any of its cable subscribers, or both, solely because of their
status as such. The term “franchise fee” does not include:
A.
Any tax, fee, or assessment of general applicability;
B.
Capital costs which are required by the franchise to be incurred by the grantee
for community access facilities;
C.
Requirements or charges incidental to the awarding or enforcing of the
franchise, including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated damages; or
D.
Any fee imposed under Title 17, United States code.
“Grantee”
means any person receiving a franchise pursuant to this title and such person’s
lawful successor, transferee, or assignee.
“Gross
revenues” means all compensation received by the grantee from subscribers in
the city as the result of the use of the public streets and rights-of-way in
the city for the operation of its cable communications system, provided that
there shall be deducted from gross revenues as so determined (i) refunds made
in connection with such operations and (ii) bad debts written off by the
grantee in the usual and ordinary course of business, in each case to the
extent that the, revenue with respect thereto has been included in the
determination of gross revenues.
Gross
revenues shall not include (i) amounts received in the nature of refundable
security deposits, (ii) revenue received by the grantee from the provision of
services or the sale, rental, or servicing of equipment or merchandise not
required for the delivery of the grantee’s cable service through its cable
communications system in the city, (iii) sales, excise, or other taxes
collected for direct passthrough to federal, state, or local authorities,
including copyright and franchise fees.
In
computing gross revenues for each calendar quarter from sources other than
subscribers of the grantee s cable service located within the city, including,
but not limited to, revenues derived from the sale of advertising or the lease
of channel capacity by the grantee on its cable communications system, the
aggregate of the revenues received by the grantee from such other sources
during each calendar quarter shall be multiplied by a fraction, the numerator
of which shall be the arithmetic average of the number of subscribers within
all areas to which the grantee provides its cable service by the same physical
cable system as of the first and last day of such calendar quarter. The result
obtained thereby shall be included in the determination of the grantee’s gross
revenues for purposes of computing the franchise fee due the city for such
calendar quarter.
“Initial
service area” means the area of the city which will receive cable service
initially, as set forth in the grantee’s franchise. If not stated otherwise in
the franchise, the initial service area shall consist of the entire city.
“Installation”
means the connection of the cable communications system from feeder cable to
subscribers’ terminals and the provision of service.
“Monitoring”
means observing a communication signal, or the absence of a signal, where the
observer is neither of the communicating parties, whether the signal is
observed by visual or electronic means for any purpose whatsoever. Monitoring
shall not include individually addressed sweeps of the cable communications
system solely for the purpose of detecting unauthorized connections to the
system nor system—wide, nonindividually addressed sweeps of the system for
purposes of verifying system integrity, controlling return path transmissions,
or billing for pay cable.
“Newspaper
of general circulation published within the city” means a newspaper determined
by the city administrator as being published for general news purposes, sold or
otherwise circulated within the city in sufficient quantity so as to be likely
to impart notice to the general public and which maintains a bona tide,
staffed, business office within the city limits. Any such determination by the
city administrator may be appealed to the city council by any interested party.
Such a newspaper need not, but may, be a newspaper of general circulation as
the same is defined in the California Government Code. If no such general
circulation newspaper is published within the city, any general circulation
newspaper published within the county, and distributed within the city may be
used.
“Nonbroadcast
signal” means a signal that is transmitted by a cable communications system and
that is not involved in an over—the—air broadcast transmission path intended
for reception by the general public.
“Pay
cable service” means the delivery to subscribers, over the cable communications
system, of video and/or audio signals for a fee or charge to subscribers over
and above the charge for basic cable service, or a per program, per channel, or
other subscription basis.
“Programmer”
means a person who or which produces or otherwise provides program material or
information for transmission by video, audio, digital, or other signals, either
live or from recorded tapes or other storage media, to subscribers by means of
the cable communications system.
“Resident”
means any person residing in the city as otherwise defined by applicable law.
“Residential
subscriber” means a person occupying a dwelling unit who receives cable service
and is billed directly by the grantee on an individual subscriber basis.
“School”
means any nonprofit educational institution, including primary and secondary
schools, colleges, and universities, both public and private.
“Service
area” means the entire geographic area within the city in which the grantee is
authorized to provide cable service under the terms of its franchise. Unless
otherwise specified in the franchise, a grantee s service area shall include
any new or additional territory which is annexed to the city immediately upon
completion of annexation; provided, that the city shall give the grantee prompt
written notice thereof and shall identify the area which has been so annexed.
“Subscriber”
means any person who or which elects to subscribe to, for any purpose, a cable
service provided by the grantee by means of or in connection with the cable
communications system.
Chapter 13.12
GRANT OF FRANCHISE
Sections:
13.12.010
Franchise required.
13.12.020
Franchise application.
13.12.030
Grant.
13.12.040
Franchise nonexciusive.
13.12.050
Use of public streets and rights—of—way.
13.12.060
Term.
13.12.070
Service area.
13.12.080
Franchise fee.
13.12.090
Transfer of ownership or control.
13.12.100
Franchise renewal.
13.12.110
Franchise processing costs.
13.12.010 Franchise required.
No cable communications system shall be allowed to occupy or use the public
streets or rights—of—way of the city or be allowed to operate such a system
without a franchise granted in accordance with the provisions of this title.
13.12.020 Franchise application.
A. Application. Any person seeking a franchise to operate a cable
communications system within the city shall file an application for such
franchise with the city. Such application shall be in the form and contain the
information required by the city administrator and shall be accompanied by a
nonrefundable filing fee established by the city council in an amount not to
exceed the reasonable cost of processing the application.
B.
Public Hearing. When filed, the application shall be available for public
inspection at places designated by the city administrator. No later than ninety
days after filing the application, a public hearing or hearings shall be held
by the city council on the application. Notice of the initial public hearing
shall be published in a newspaper of general circulation published within the
city at least one time per week for two consecutive weeks, not less than five
nor more than ten days immediately preceding such hearing.
C.
Decision. At the conclusion of hearing or hearings, the city council shall
determine to grant the franchise subject to any appropriate terms and
conditions as the council may prescribe or determine not to grant the
franchise.
13.12.030 Grant. A. Scope of
Grant. Any franchise granted under this chapter shall authorize and permit the
grantee to engage in the business of operating and providing a cable
communications system in the city within the service area specified in the
franchise and for that purpose to erect, install, construct, inspect, repair,
replace, reconstruct, maintain, and retain in, under, on, across, along, over,
and above any street or right—of—way such structures and equipment as are
necessary, appurtenant, or useful in the operation of the cable communications
system.
B.
Grant Both a Right and an Obligation. In the event that the city council shall
grant to the grantee a franchise to install, construct, operate, and maintain a
cable communications system within a service area, said franchise shall
constitute both a right and an obligation to provide the services of a cable
communications system as required by the provisions of this chapter and the
franchise.
13.12.040 Franchise nonexclusive.
Any franchise granted shall be nonexclusive. The city council specifically
reserves the right to grant, at any time, such additional franchises for cable
communications system as it deems appropriate.
13.12.050 Use of public streets
and rights—of—way. For the purpose of operating and maintaining a cable
communications system in the service area, and subject to the provisions of
this chapter, the grantee may erect, install, construct, inspect, repair,
replace, reconstruct, maintain and retain in, under, on, across, along, over,
and above any street or right—of—way within the service area such wires,
cables, conductors, connectors, poles, anchors, guys, pole attachments, ducts,
conduits, vaults, manholes, amplifiers, transformers, appliances, pedestals,
drops, attachments and other structures and equipment as are necessary,
appurtenant, or useful to the operation of the cable communications system.
Prior to construction or alteration of any part of the cable communications
system situated in the streets or rights—of—way for which an encroachment
permit or other approval is required by this code, the grantee shall in each
case tile plans with the appropriate city department and receive such
encroachment permit or other approval before proceeding. The city may specify
the terms and conditions upon which the grantee may perform work within city
streets and rights—of—way.
13.12.060 Term. The term of
any franchise and all rights, privileges, obligations and restrictions
pertaining thereto shall be as set forth in the grantee’s franchise, but shall
in no event be for a period of more than twenty years from the effective date
of the franchise. The effective date of the franchise shall be the date written
acceptance thereof by the grantee is filed with the city clerk or such other
date as may be specified in such franchise.
13.12.070 Service area. The
city council may grant a franchise for the construction, operation and
maintenance of a cable communications system for the entire city or any defined
portion of the city.
13.12.080 Franchise fee. A.
Amount of Franchise Fee. A grantee of a franchise granted hereunder shall pay
to the city a franchise fee in the amount specified in grantee’s franchise.
B.
Acceptance by City. The acceptance of a franchise fee payment by the city shall
not be construed as a release or as an accord and satisfaction of any claim the
city may have for further or additional sums payable as a franchise fee under
this chapter or for the performance of any other obligation of the grantee.
C.
Failure to Make Required Payment. In the event that any franchise fee payment
is not made on or before the date specified herein and the grantee fails to
make such payment within five days after receipt of written notice from the
city demanding such payment, the grantee shall pay as additional compensation:
1. An interest charge, computed from such
due date, at the legal rate of interest under California law in effect upon the
due rate;
2. A sum of money equal to five percent of
the amount due (exclusive of interest due under subsection (C) (1) above) in
order to defray those additional expenses and costs incurred by the city by
reason of delinquent payment.
D.
Quarterly Payments. Franchise fee payments due the city under this section
shall be computed quarterly, for the preceding quarter, as of March 31st, June
30th, September 30th, and December 31st. Each quarterly payment shall be due
and payable no later than forty—five days after the dates listed in the
previous sentence. Each payment shall be accompanied by a statement of gross
revenues received by the grantee for such quarterly period showing the basis
for the computation of the franchise fee then due. Such statement shall be
certified as accurate by an authorized representative of the grantee.
E.
Annual Certification. Within one hundred eighty days after the expiration of
each calendar year or portion thereof during which the franchise is in force or
within such other time as may be specified in the grantee’s franchise, the
grantee shall file with the city finance officer a statement prepared by a
certified public accountant for the grantee setting forth the gross revenues
for such calendar year or portion thereof. If the amount of the gross revenues
reported by such certified public accountant exceeds the amount thereof as
reported in the statements prepared by the grantee for all quarterly periods of
such calendar year, the grantee shall pay to city, within fifteen days after
the time for filing the statement certified by such certified public
accountant, the amount of the additional franchise fee due for such calendar
year or portion thereof; provided, that if the amount of the additional
franchise fee is in excess of five percent of the gross revenues as reported by
such certified public accountant, the grantee shall also pay the city interest
on the amount of the additional franchise fee at the legal rate of interest
under California law as in effect and computed from and after January 1st of
the year in which such certified statement is furnished to the city. If the
amount of the gross revenues reported by such certified public accountant is
less than the amount thereof as reported in the quarterly statements prepared
by the grantee, the city shall pay to the grantee, within fifteen days after
the time for filing the statement certified by certified public accountant, the
amount by which the franchise fee was overpaid or, at the option of the city,
such overpayment shall be credited against the franchise fee next becoming due
and payable to the city.
F.
Right of Inspection. At all reasonable times upon prior written notice to the
grantee, the city shall have the right to inspect and audit the grantees
records showing the gross revenues from which its franchise payments are
computed; provided, that such inspection and audit shall extend to no other
books or records of the grantee. If any independent audit of the grantee’s
records directed by the city evidences an underpayment of the franchise fee in
excess of five percent, the grantee shall assume all reasonable costs for said
audit.
13.12.090 Transfer of ownership or
control. A. Transfer of Franchise. Any franchise granted hereunder shall be
a privilege to be held for the benefit of the public. Said franchise cannot in
any event be sold, transferred, leased, assigned, or disposed of by forced or
voluntary sale, merger, consolidation, receivership, or other means without the
prior consent of the city, which consent shall not be unreasonably withheld and
then only under such conditions as the city may establish; provided, that the
franchise may be transferred to any affiliate of grantee or to any entity
controlled by or under common control of grantee or to any entity controlled by
or under common control of grantee as of the effective date of the initial
franchise without such consent.
B.
Ownership or Control. The grantee shall promptly notify the city of any
proposed change in, transfer of, or acquisition by any other party of control
of the grantee. The word “control” as used herein is not limited to major
partners or stockholders but includes actual working control in whatever manner
exercised. A rebuttable presumption that a transfer of control has occurred
shall arise upon the acquisition or transfer of control has occurred shall
arise upon the acquisition or transfer by any person or group of persons of
twenty—five percent of the aggregate partnership interests in or voting share
of the grantee. Every change, transfer, or acquisition of control of the
grantee shall make the franchise subject to cancellation unless and until the
city shall have consented thereto, except as provided in subsection (A) of this
section. For the purpose of determining whether it shall consent to such
change, transfer, or acquisition of control, the city may inquire into the
qualifications of the prospective controlling party and the grantee shall
assist the city in any such inquiry. In seeking the city’s consent to any
change in ownership or control of the grantee, the grantee shall have the
responsibility to establish to the reasonable satisfaction of the city:
1. Whether the proposed purchaser,
transferee, or assignee (the “proposed transferee”) which, in the case of a
partnership or corporation, shall include all partners, officers, directors,
and all persons having a legal or equitable interest in five percent or more of
its partnership interests or voting stock, or any of the proposed transferee s
principals:
a. Has never been convicted or held liable
for acts involving moral turpitude or is presently under an indictment,
investigation or complaint charging such acts; or
b. Has ever had a judgment in an action
for fraud, or misrepresentation entering against it, her, him, or them by any
court of competent jurisdiction; or
c. Has pending against it, her, him, or
them any legal claim, lawsuit, or administrative proceeding arising out of or
involving a cable communications system; and
2. Whether the proposed transferee has the
financial and technical capability to enable it to maintain and operate the
cable communications system for the remaining term of the franchise under the
existing franchise provisions.
C.
Right of Lender to Operate System. Notwithstanding anything to the contrary
contained in this chapter, any financial institution having a pledge of the
franchise for the advancement of money for the construction and/or operation of
the cable communications system operating under authority of such franchise
shall have the right to notify the city that it or its designee satisfactory to
the city will take control 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 that will
ensure 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 city in its discretion and during
said period of time it shall have the right to petition the city to transfer
the franchise to franchise to another grantee. If, after considering the legal,
financial, character, technical, and other public interest qualities of the
proposed transferee, the city finds that such transfer is satisfactory, the
city will approve the transfer and assign the rights and obligations of such
franchise to such proposed transferee.
D.
No Transfer Before Completion of Construction. In the absence of extraordinary
circumstances, the city will not approve any transfer or assignment of the
franchise prior to completion of construction or reconstruction of the proposed
cable communications system.
E.
Transferee to Assume Grantee’s Obligations under Franchise. In no event shall a
transfer of ownership or control be approved without the successor in interest
to the grantee assuming all of the grantee’s obligations under its franchise.
Notwithstanding the requirements of the grantee’s franchise, the city may
require, as a condition of the transfer of such franchise, that the proposed
transferee furnish either or both a security fund and a performance bond in
such amount or amounts as the city shall designate.
F.
Permitted Encumbrances. Notwithstanding the provisions of this section, the
grantee may pledge, assign, hypothecate, or create a security interest in its
franchise without the consent of the city in favor of any bank, financial
institution, or other lender with respect to any indebtedness of the grantee to
such person.
13.12.100 Franchise renewal. Renewal of any franchise
granted under this chapter shall be undertaken in accordance with applicable
federal or state law or, in the absence of any such renewal procedures, the
following provisions of this section shall apply.
A.
Application. Not later than eighteen nor earlier than twenty-four months prior
to the expiration of any franchise granted pursuant to this chapter, a grantee
may submit an application for renewal of such franchise. Such application shall
be in the form and contain the information required by the city administrator
and shall be accompanied by a nonrefundable application fee established by the
city council in an amount not to exceed the reasonable cost of processing the
application.
B.
Public Hearing. When filed, the application shall be available for public
inspection at places designated by the city administrator. No later than ninety
days after filing the application, a public hearing or hearings shall be held
by the city council on the application. Notice of the initial public hearing shall
be published in a newspaper of general circulation within the city on three
separate days not less than five nor more than ten days immediately preceding
such hearing.
C.
Decision. At the conclusion of such hearing or hearings, the city council shall
determine to renew the franchise subject to any appropriate terms and
conditions as the council may prescribe or determine not to renew the
franchise.
D.
Nonrenewal. If the decision of the city council is not to renew the franchise,
the city may initiate public solicitations for applications for a new
franchise. The original grantee shall not be precluded from submitting such an
application.
E.
Additional Services. In any renewal or public solicitation, the city council
may require additional services, system upgrade, or any other conditions it
deems feasible and appropriate in the light of the state of art of the cable
communications industry at that time, taking into consideration the cost of
such services, upgrades, or other conditions to both the grantee and its
subscribers.
F.
Renewal of Existing Franchises. The provisions of this section relating to the
time for filing a franchise renewal application and the time for holding a
hearing or hearings on such application shall not be applicable to any franchise
originally granted prior to January 1, 1990.
13.12.110 Franchise processing
costs. For either a new franchise award, a franchise transfer, or a
franchise renewal, costs to be borne by the grantee, unless otherwise specified
in the grantee’s franchise, shall include, but shall not be limited to, all
costs incurred for publication of any notice of a public hearing on the
franchise award, transfer, or renewal, all costs incurred in the development
and publication of relevant ordinances or agreements, and any cost not covered
by the application fee but reasonably incurred by the city in its study,
preparation of proposal solicitation documents, and evaluation of applications,
including, but not limited to, consultant and attorney fees and city staff
time.
Chapter 13.16
REGULATION OF FRANCHISE
Sections:
13.16.010
City regulations.
13.16.020
Federal and state regulations.
13.16.030
Joint regulatory responsibility.
13.16.040
Initial rates.
13.16.050
Rate change procedures.
13.16.060
Limitations respecting rates.
13.16.070
System and service review.
13.16.080
Tri—annual review.
13.16.090
Annual review of performance.
13.16.100
Default.
13.16.110
Remedies upon default.
13.16.120
Procedures in the event of termination or expiration.
13.16.130
Receivership and foreclosure.
13.16.010 City regulations.
Every cable communications system for which a franchise is required by this
chapter shall be constructed, operated, and maintained in accordance with the
regulations now or hereafter adopted by or pursuant to this title, as well as
the provisions of any city law or regulation of general application now or
hereafter in effect, including, but not limited to any such city law or
regulation requiring the issuance of a permit any payment of a permit fee
incident to the performance of work within a public street or right-of—way;
provided, that in the event of a conflict between a regulation adopted by or
pursuant to this chapter and the provisions of any city law or regulation of
general application, the regulations adopted by or pursuant to this title shall
prevail. However, the provisions of this chapter shall not be construed to
accord to the city any right to adopt any right of a grantee under a franchise
granted pursuant to this title.
13.16.020 Federal and state
regulations. The regulations adopted by or pursuant to this title shall be
interpreted and applied so as to be consistent with any applicable federal or
state law or regulation now or hereafter in effect to the extent such federal
or state law or regulation now or hereafter in effect to the extent such
federal or state law or regulation is preemptive of local laws and regulations,
provided that in the event of any conflict between this title or any
regulations adopted by or title to this chapter and any such federal or state
law or regulation, the federal or state law or regulation shall prevail.
13.16.030 Joint regulatory responsibility. If the area served by the
grantee’s cable communications system also serves other contiguous or
neighboring communities, the city may, at its sole option, participate in a
joint regulatory agency with the delegated responsibility in the area of cable
and related communications. The city, acting jointly with other grantors may
exercise or delegate the following regulatory responsibility:
A.
Administration. Administering and enforcing the provisions of this chapter and
the cable communications system franchise(s);
B.
Coordination. Coordination of the operation of community access channels and
public programming services;
C.
Support. Providing technical, programming and operational support to public
agency users, such as governmental agencies, schools and health care
institutions;
D.
Interconnection. Analyzing the possibility of integrating cable communications
systems with other national, state, or local telecommunications networks;
E.
Policy. Formulating and recommending long—range telecommunications policy.
13.16.040 Initial rates. As
part of its franchise application to be submitted to the city council for
approval, the grantee shall establish the initial rates for connections,
monthly service fees, disconnections, reconnections and other common services
it will offer. Rates must be fairly and uniformly applied to all subscribers
within the service area.
13.16.050 Rate change procedures.
The procedures set forth in this section shall apply only to the extent the
city is permitted, consistent with applicable federal and state law, to regulate
or control the rates, charges, and rate structures established by the grantee
for the services provided over its cable communications system.
A.
Application. A grantee seeking a rate change shall file an application for such
rate change with the city council. Such application shall be in the form and
contain the information required by the city administrator and shall be
accompanied by such records, financial data, and other information as the city
administrator may request, including, but not limited to, financial statements
of the grantee with respect to the operation of its cable communications system
within the city.
B.
Public Hearing. When filed, the application shall be available for public
inspection at places designated by the city administrator. No later than ninety
days after filing the application, a public hearing or hearings shall be held
by the city council on the application.
C.
Notice. The grantee shall notify its subscribers of its application for a rate
change by including notice of the application in a regular billing statement
mailed by the grantee to its subscribers not less than twenty nor more than
seventy—five days immediately preceding the date of the initial public hearing
on the proposed rate change. Such notice shall set forth the proposed rate
change and the time and place of the initial public hearing on the proposed
rate change.
D.
Decision. Within ninety days after said hearing or hearings, the city council
shall render a decision on the grantee’s application, either approving,
rejecting, modifying, or deferring the same and reciting the basis for its
decision. The city council may consider whatever factors or employ whatever
methods it shall consider necessary or appropriate for the purpose of
evaluating the grantee’s application for rate change. The city council shall
have the right to audit the records, financial data, and other information
submitted by the grantee in support of its application to verify the accuracy
thereof. If the results of any such audit reveal an understatement of gross
revenues or an overstatement of expenses in excess of five percent, the grantee
shall bear the reasonable cost of such audit.
E.
Rates Deemed Approved. If the city council fails to render a decision either
approving, rejecting, modifying, or deferring the grantee’s application within
one hundred eighty days of the filing of the grantee’s application and receipt
of requested records, financial data and other financial information pursuant
to this section, the grantee shall thereafter be entitled to put its proposed
new rates into effect as contained in such application.
F.
Submission Rate Increase Requests. The grantee shall not submit an application
for rate increases earlier than twelve months after approval of a prior request
for the same level of service.
13.16.060 Limitations respecting
rates. A. Schedule of Rates. The grantee shall maintain and file with the
city, upon request of the city or within thirty days after any change therein,
a complete schedule of subscriber rates, including, but not limited to, rates
for basic cable service, pay cable services, ancillary services, installation,
converter rental, and related charges.
B.
No Consideration Beyond Schedule. If subject to rate regulation by the city in
accordance with the provisions of this title, the grantee shall receive no
consideration whatsoever for or in connection with its provision of cable
service to its subscribers over or by means of its cable communications system
other than as set forth in the schedule of subscriber rates approved by the
city council for those rates which the city may regulate or as set forth above
in Section 13.16.050.
C.
Disconnections. There shall be no charge for disconnection from the cable
communications system. However, if a subscriber has failed to pay properly due
monthly fees or if subscriber disconnects for seasonal periods, the grantee may
require, in addition to full payment of any delinquent fees, a reasonable fee
for reconnection.
13.16.070 System and service
review. To evaluate technological, economic, and regulatory changes in the
state of the art of cable communications, to facilitate renewal procedures, and
to promote a continuing, advanced modern system, the city and the grantee shall
comply with the system and services review provisions set forth in the
following section.
13.16.080
Tri—annual review.
A. Review. At the city council’s sole option, the city council and the grantee
shall hold a system and services review session on or about the third
anniversary of the effective date of the franchise. Subsequent review sessions
may be scheduled by the city each three years thereafter. The grantee shall, at
its expense, notify its subscribers of each such review reasonably in advance
thereof so as to afford such subscribers the opportunity to comment with
respect to any proceedings held in connection with such review. Such notice may
be given by electronic means across one or more channels of the grantee’s cable
communications system.
B.
Issues. Topics for discussion and review at the system and services review
sessions shall include, but shall not be limited to, services provided,
application of new technologies and the economic impact with respect thereto,
system performance, programming, subscriber complaints, user complaints, rights
of privacy, undergrounding processes, developments in the law, and regulatory
constraints.
C.
Additional Topics. Either the city council or the grantee may select additional
topics for discussion at any such review session.
D.
Services Not Offered. Prior to the date scheduled for any such review, the
grantee shall furnish the city council with a report of those cable services,
if any, being provided on a full—time operational basis (excluding test
demonstrations) by similarly situated local cable communications systems which
services are not then offered by the grantee.
E.
Findings. Not later than sixty days after the conclusion of each system and services
review session, the city council may issue findings.
13.16.090 Annual review of
performance. A. Review. At the city council’s sole option, within ninety
days after any anniversary of the effective date of the grantee’s franchise,
the city council and the grantee shall meet to review the grantee’s performance
and quality of service with respect to operation of the cable communications
system. The reports required of the grantee under this chapter regarding
subscriber complaints and the records of performance tests shall be utilized as
the basis for review. In addition, any subscriber may submit comments or
complaints during the review meeting, either orally or in writing, and these
shall be considered. The grantee shall, at its expense, notify its subscribers
of any such review reasonably in advance thereof, which notice may be given by
electronic means across one or more channels of the grantee’s cable
communications system.
B.
Findings. Within thirty days after the conclusion of such meetings, the city
council may issue findings with respect to the adequacy of system performance
and quality of service. If any event of default (as defined in this title) by
the grantee is found to exist, the city may direct the grantee by written
notice to correct such default within such period of time as is specified
therefore in accordance with the provisions of this chapter.
13.16.100 Default. The grantee
shall be deemed to be in default with respect to the performance of its
obligations under its franchise upon the occurrence of any of the following
events (any occurrence, an “event of default”):
A.
The grantee is in violation of the provisions of its franchise, this chapter,
or any federal or state law or regulation applicable to the operation of the
grantee’s cable communications system in the city and such violation is not
corrected within thirty days following receipt of written notice thereof from
the city administrator specifying such violation or, if more than thirty days
are reasonably required to correct such violation, within such additional time
as the city administrator shall consider reasonably necessary to effect such
correction;
B.
The grantee has engaged in repeated violations of any of its material
obligations under its franchise or this chapter or any material federal or
state law or regulation applicable to the operation of the grantee’s cable
communications system in the city which, for purposes of this chapter, shall be
deemed to exist if the same or similar violation occurs three or more times within
any twelve month period. In any such case, th6 grantee shall not be entitled to
notice or a period to correct the third such violation; or
C.
If the grantee ceases to operate the cable communications system in all or
substantially all of its service area for a period of seven consecutive days
without the prior approval of the city or for any reason within the control of
the grantee.
13.16.110 Remedies upon default.
A. Upon the occurrence of any event of default by the grantee, the city council
may:
1. Assess against the grantee monetary
penalties as specified in any franchise for each such event of default or
series of related events of default and/or require the grantee to cure each
such event of default within such time, in such manner, and upon such terms and
conditions as the city council shall designate; or
2. Revoke and terminate the grantee’s
franchise.
B.
Public Hearing. Prior to imposing any such remedy or remedies upon the grantee
upon the occurrence of any such event of default, the city shall do the
following:
1. The city shall provide the grantee with
at least thirty days prior written notice of the time and place of a public
hearing to be held before the city council for purposes of determining whether
such event of default has occurred and, if it has occurred, whether such event
of default was for just cause. Notice as to the time and place of such hearing
shall be published at least once ten days before such hearing in a newspaper of
general circulation within the grantee’s service area;
2. The grantee shall be afforded full due
process in connection with such hearing, including, but not limited to,
adequate notice of the hearing and fair opportunity to introduce evidence, to
require the production of evidence, and to introduce evidence, to require the
production of evidence, and to introduce and/or question persons connected with
or having knowledge of the alleged default. A transcript may be made of the
hearing at the grantee’s expense;
3. The city council shall hear any person
interested therein and, based upon the evidence presented at such hearing,
shall determine whether or not an event of default by the grantee has occurred;
4. If the city council shall determine that
there occurred an event of default by the grantee and such default was with
just cause, the city council shall direct the grantee to correct or remedy the
same within such additional time, in such manner, and upon such terms and
conditions as the council determines to be necessary; or
5. If the city council shall determine that
there occurred an event of default by the grantee and such default was without
just cause, then the city council may, by resolution, impose any one or more of
the remedies set forth in subsection (A) above.
C.
Remedies Cumulative. The city council may, in its sole judgment and discretion,
impose any one or more of the foregoing remedies against the grantee, which
administrative remedies shall be in addition to any and all other legal or
equitable remedies it has under the franchise or under any applicable law.
13.16.120 Procedures in the event
of termination or expiration. A. Disposition of Facilities. In the event
the franchise expires, is revoked, or is otherwise terminated, the city council
may order the removal of the cable communications system facilities from the
franchise area or require the original grantee to maintain and operate its
cable communications system until a subsequent grantee is selected and a
subsequent or modified cable system becomes operational, but in no event shall
the original grantee be required to continue maintenance and operation of its
cable system for more than six months after such expiration, revocation, or
termination. If the city council orders removal of the system facilities of the
grantee upon any such expiration, revocation, or termination, such removal
shall be completed by the grantee within twelve months after the grantee s
receipt of notice of termination or forfeiture of its franchise; provided, that
the city council or the city administrator may extend the time for removal for
such reasonable additional period as shall be required to complete the same in
the event the grantee, acting in good faith, cannot reasonably remove its cable
system within such twelve month period or by reason of any circumstance beyond
the grantee’s control. The grantee may, at its option, abandon all or any part
of the system so abandoned does not unreasonably interfere with the use of the
public streets or rights-of—way. Upon abandonment of any such property, the
grantee shall cause to be executed, acknowledged, and delivered to the city
such instruments as the city council shall prescribe and approve transferring
and conveying the ownership of such property to the city.
B.
Restoration of Property. In removing its facilities, the grantee shall refill,
at its own expense, any excavation that shall be made by it and shall leave all
streets affected by such removal in as good condition as that prevailing prior
to the grantee’s removal of its facilities without unreasonably affecting the
electrical or telephone cable, wires, or attachments. The city shall inspect
and approve the condition of such streets after removal. Any liability
insurance and performance bond required of the grantee under its franchise
shall continue in full force and effect during the period of removal and until
full compliance by the grantee with the terms and conditions of this section.
C.
Restoration by City—-Reimbursement of Costs. In the event of a failure by the
grantee to complete any work required of it under this chapter within the
period allowed therefor to the satisfaction of the city, the city may upon five
days notice to grantee cause such work to be done and the grantee shall
reimburse the city the cost thereof within thirty days after receipt of an
itemized list of such costs or the city may recover such costs through the
security funds or bonds provided by the grantee in accordance with the terms of
its franchise.
D.
Extended Operation. In the event the city council required the grantee to
continue to operate the cable communications system subsequent to the
expiration, revocation, or termination of its franchise, the grantee shall, as
trustee for its successor in interest, continue to operate the cable system
under the terms and conditions of this title and its franchise and to provide
the cable services that may be provided at that time. The grantee shall be
entitled to collect and retail all revenues derived from the operation of the
cable communications system during this period, subject to the obligation to
pay the franchise fee with respect thereto in accordance with the provisions of
this title.
E.
City’s flights Not Affected. The termination and forfeiture of any franchise
shall in no way affect any of the rights of the city under franchise or any
provision of law.
13.16.130 Receivership and
foreclosure. A. Receivership. Any franchise granted shall, at the option of
the city, cease and terminate one hundred twenty days after the appointment of
a receiver or receivers or trustee or trustees to take over and conduct the
business of the grantee whether in a receivership, reorganization, bankruptcy,
or other action or proceeding unless such receivership or trusteeship shall
have been vacated prior to the expiration of said one hundred twenty days or
unless:
1. Such receivers or trustees shall have,
within one hundred twenty days after their election or appointment, fully
complied with all the terms and provisions of this title and the franchise
granted pursuant hereto, and the receivers or trustees within said one hundred
twenty days shall have remedied all material defaults under the franchise; and
2. Such receivers or trustees shall, within
said one hundred twenty days, execute an agreement duly approved by the court
having jurisdiction in the premises whereby such receivers or trustees assume
and agree to be bound by each and every term, provision, and limitation of the
franchise.
B.
Foreclosure. Subject to the provisions of this chapter permitting a lender to
operate a cable communication system upon the default of the grantee in its
obligations to such lender, in the case of a foreclosure or other judicial sale
of the plant, property, and equipment of the grantee and the successful bidder
at such sale, in which event the franchise and all rights and privileges of the
grantee hereunder shall cease and terminate thirty days after the services of
such notice, unless:
1.
The city council shall have approved the transfer of the franchise in the
manner provided by this title; and
2.
Such successful bidder shall have covenanted and agreed with the city to assume
and be bound by all the terms and conditions of the franchise.
GENERAL FINANCIAL AND
INSURANCE PROVISIONS
Sections:
13.20.010
Construction bond.
13.20.020
Performance bond.
13.20.030
Security fund.
13.20.040
Insurance.
13.20.050
Indemnification.
13.20.010 Construction bond.
A. Filing Bond. Within thirty days after the granting of a franchise and prior
to the commencement of any construction work by the grantee, the grantee shall,
if required by the franchise, file with the city a construction bond in the
amount specified in the franchise in favor of the city and any other person who
may claim damages as a result of the breach of any duty by the grantee assured
by such bond. Such bond shall be in a form approved by the city attorney.
B.
No Limitation of Liability. In no event shall the amount of said bond be
construed to limit the liability of the grantee for damages.
C.
Waiver. The city, at its sole option, may waive this requirement, or permit
consolidation of the construction bond with the performance bond and/or
security fund specified in this chapter.
13.20.020 Performance bond. A.
Filing of Bond. In addition to the construction bond set forth above, the
grantee shall, at least thirty days prior to the commencement of operation or,
if completion of construction of the cable communications system has occurred,
within thirty days after the effective date of the franchise, file with the
city a performance bond in the amount specified in the franchise in favor of
the city and any other person who may be entitled to damages as a result of any
act or omission of the grantee, its employees, agents, and contractors arising
in the operation or termination of the cable communications system operated
under the franchise, and including the payments required to be made to the city
hereunder. Such bond shall be in a form approved by the city attorney.
B.
No Limitation of Liability. In no event shall the amount of said bond be
construed to limit the liability of the grantee for damages.
13.20.030 Security fund. A.
Deposit and Amount. If so required under its franchise, within thirty days
after the effective date of the franchise the grantee shall deposit with the
city, and maintain on deposit through the term of the franchise the sum
specified in the franchise as security for the faithful performance by it of
all the provisions of the franchise and compliance with all orders, permits,
and directions of any department of the city having jurisdiction over its acts
or defaults under the title and the payment of the grantee of any claims,
liens, and taxes due the city which arise by reason of the installation,
construction, operation, or maintenance of the cable communications system. No
interest shall accrue or be paid to the grantee with respect to such security
fund. The fund may be assessed by the city for purposes including, but not
limited to, the following:
1. Failure of the grantee to pay the city
sums due under the terms of the franchise;
2. Reimbursement of costs borne by the city
to correct franchise violations not corrected by grantee, after due notice; and
3. Monetary remedies or damages assessed
against the grantee due to default or violation of franchise requirements.
B.
Letter of Credit in Lieu of Deposit. At the city’s sole option, all or a
portion of the security fund may be provided by way of an irrevocable letter of
credit in a form approved by the city attorney.
C.
Restoration of Fund. Within thirty days after notice that any amount has been
withdrawn by the city from the security fund or letter of credit pursuant to
the provisions of this section, the grantee shall deposit with the city a sum
of money sufficient to restore such security fund to the original amount or
shall restore the letter of credit to the original amount thereof.
D.
Withdrawal from Fund. If the grantee fails, after ten days notice to pay to the
city any franchise fee or taxes due and unpaid, or fails to pay to the city
within such ten days any damages, costs, or expenses which the city shall be
compelled to pay by reason of any event of default of the grantee in connection
of the franchise which the city reasonably determines can be remedied by an
expenditure of the security fund or draw against the letter of credit, as the
case may be, the city may immediately withdraw the amount thereof, with
interest and any penalties from the security fund or the letter of credit. Upon
such withdrawal, the city shall notify the grantee of the amount and date
thereof.
E.
Forfeiture or Return of Fund. The security fund deposited pursuant to this
section shall become the property of the city in the event that the franchise
is revoked for cause by reason for the occurrence of an event of default by the
grantee, however, shall be entitled to the return of such security fund, or portion
thereof, as remains on deposit no later than ninety days after the expiration
of the term of the franchise; provided, that there is then no outstanding
default on the part of the grantee in the performance of its obligations
required under its franchise.
F.
No Limitation of Liability. In no event shall the amount of such security fund
be construed to limit the liability of the grantee for damages.
13.20.040 Insurance. A. Scope
of Coverage. The grantee shall maintain throughout the term of the franchise
insurance in amounts at least as follows:
1. Workers Compensation Insurance. Worker’s
compensation insurance shall be maintained in accordance with the worker s
compensation insurance and safety laws of the state of California.
2. Comprehensive General Liability.
Comprehensive general liability insurance, including, but not limited to,
coverage for bodily injury and property damage shall be maintained in the
sum(s) specified in the franchise.
3. Comprehensive Automobile Liability.
Comprehensive automobile liability insurance including, but not limited to,
nonownership and hired car coverage, as well as owned vehicles with coverage
for bodily injury and property damage, shall be maintained in the sum(s)
specified in the franchise.
B.
Certificates of Insurance. The grantee shall furnish the city with copies of
such insurance policies or certificates of insurance evidencing compliance by
the grantee with the provisions of this chapter and the corresponding
provisions of the franchise.
C.
City as Additional Insured. The city, its officers, boards and commissions and
members thereof, its employees and agents shall be named as additional insured
in any of said liability insurance policies required under subsection (A) (2)
and (3) of this section. The obligation of the insurer under such policies to
provide coverages in the amounts specified in the grantee’s franchise shall be
primary up to the limits of liability as set forth in such franchise without
right of contribution from any insurance in effect for the city. Such policies
shall not be cancelled or reduced in coverage without thirty days prior written
notice to the city of the effective date thereof.
D.
No Limitation of Liability. The minimum amounts set forth in the franchise for
such insurance shall not be construed to limit the liability of the grantee to
the city under the franchise issued hereunder to the amounts of such insurance.
E.
Licensed Insurers. All insurance carriers providing coverage under this section
shall be duly licensed to operate in the state of California and shall be
subject to approval of the city, which approval shall not be unreasonably
withheld.
13.20.050 Indemnification. The grantee shall, by acceptance of any
franchise granted herein, indemnify the city, its officers, boards and
commissions and members thereof, its employees and agents from any and all
liabilities which might arise out of or relate to the exercise or enjoyment by
the grantee of such franchise, except with respect to any such liability as may
be due to the active negligence of the city, its employees, agents, or
contractors. Should the city or any of its officers, boards and commissions and
members thereof, its employees and agents be named in any suit, or should any
claim be made against it or any of them by suit or otherwise, whether the same
be groundless or not, arising out of or relating to any claim for which the
grantee may be required to indemnify the city hereunder, the grantee shall
defend the city and said officers, boards and commissions, and members thereof,
its employees and agents and shall indemnify them for any judgment rendered
against them or any sums paid out in settlement or otherwise, provided that
neither the city nor any such other person shall agree to any settlement,
compromise, or other resolution or disposition with respect to such suit or
claim without the prior written consent of the grantee.
Chapter 13.24
DESIGN AND CONSTRUCTION
PROVISIONS
Sections:
13.24.010
System design.
13.24.020
Geographical coverage.
13.24.030
System construction schedule.
13.24.040
Remedies for delay in construction.
13.24.050
Provision of service.
13.24.060
Undergrounding of cable.
13.24.070
New development undergrounding.
13.24.080
Undergrounding at multiple dwelling units.
13.24.090
Street occupancy.
13.24.100
Construction and technical standards.
13.24.010 System design. The
cable communications system shall be constructed in accordance with the design
requirements contained in the franchise.
13.24.020 Geographical coverage.
The grantee shall design and construct the cable communications system in such
a manner as to have the eventual capability to pass by every residential
dwelling unit, commercial establishment, school, and public agency within the
service area of the franchise, except as otherwise provided in the grantee’s
franchise. Cable system construction and provision of service shall be
nondiscriminatory, and the grantee shall not delay or defer service to any
section of the service area on the grounds of economic preference, but shall
extend the cable system to such sections in accordance with the construction
schedules and/or line extension policies established in grantee’s franchise.
13.24.030 System construction
schedule. A. Compliance with Schedule. The grantee shall comply with the
requirements of the system construction schedule contained in the franchise.
B.
Construction Plan. If required by the franchise, the grantee shall provide a
detailed construction plan indicating progress schedule, area construction
maps, test plan, and projected dates for offering service. In addition, the
grantee shall update this information on a monthly basis, showing specifically
whether schedules are being met and the reasons for any delay.
13.24.040 Remedies for delay in
construction. The city may, at its sole option, apply any or all of the
following remedies in connection with delays in system construction occasioned
by events within the grantee’s reasonable control:
A.
Forfeiture of Bonds and Other Monetary Assessments. Forfeiture of any
construction bond, as well as the assessment of monetary penalties in such
amounts as are specified in the grantee’s franchise;
B.
Termination (Delay in Construction). Termination of the franchise within one
(1) year after award of the franchise if the grantee has failed to commence
construction within such period;
C.
Termination (Other Delays). Termination of the franchise for other delays
exceeding eighteen months, including failure to commence operation within such
period.
Any
remedies applied for delays in construction shall be in accordance with the
procedures provided in this title, including, but not limited to, notice,
hearing, and due process.
13.24.050 Provision of service.
Following commencement of operations in any area, the grantee shall provide
service to any person requesting cable service in such area within thirty days
from the date of request; provided, that (i) such person s residence or
commercial establishment for which such service is requested is located within
one hundred fifty feet of the grantee’s activated trunk cable and (ii) that
such person has the financial capacity to pay the grantee for such services as
are to be provided to such subscriber and (iii) that grantee can secure all
rights of access to such persons residence on terms reasonably satisfactory to
grantee.
13.24.060 Undergrounding of cable.
The undergrounding of cable is encouraged. In any event, cables shall be
installed underground at the grantee’s cost where both telephone and electric
utilities are already underground. Previously installed aerial cable shall be
underqrounded and relocated in concert with other utilities when both telephone
and electric utilities convert from aerial to underground construction. Where
public funds or funds from aerial to underground construction. Where public
funds or funds from property owners are specifically available for which work
of undergrounding the cable system, whether pursuant to statute or otherwise,
the grantee shall be reimbursed for such work to the extent of the availability
of such funds.
13.24.070 New development
undergrounding. In cases of new construction or property development where
utilities are to be placed underground, the developer or property owner shall
give to grantee at least thirty days advance notice of the particular date on
which utilities are to be placed underground in conjunction with such
construction or property development. The grantee shall promptly thereafter
provide the developer or property owner with specifications as needed for
trenching, installation of conduit, vaults, pedestals, cable, and related
components, and for the pre—wiring of the units being constructed.
Installation.
The developer or property owner will, at its own cost and expense, (i) perform
all necessary trenching and backfilling for underground distribution system of
any cable communications system authorized to provide service in such area,
(ii) provide for the installation of all conduit, vaults, and pedestals
required for the distribution and transmission lines of the cable system to be
located in such distribution and service laterals (with the grantee to place
the cable therein and attach all required electronic components thereto) , and
(iii) provide for the pre-wiring of each residential dwelling unit located in
such which are to be installed by the developer or property owner under the
provisions of this section shall be borne by the developer or property owner.
The cost of this cable and associated electronics required for such underground
distribution system or for such pre—wiring shall be borne by the grantee.
13.24.080 Undergrounding at
multiple dwelling units. In cases of multiple dwelling units serviced by
aerial utilities, the grantee shall make every effort to minimize the number of
individual aerial drop cables giving preference to undergrounding of multiple
drop cables between the pole and the dwelling unit.
13.24.090 Street occupancy. A.
Existing Facilities. The grantee shall utilize existing poles, conduit occupied
by the grantee s activated cable distribution system, and other facilities
whenever possible, and shall not construct or install any new, different, or
additional poles, conduits or other facilities in the streets until the written
approval of the city is obtained. However, no location of any pole or wire
holding structure of the grantee in the streets shall be a vested interest and
such poles or structures shall be removed or modified by the grantee at its own
expense for any of the reasons set forth in this section.
B.
Notice of Construction. The grantee shall notify the city at least ten days
prior to the intention of the grantee to commence any construction in any
streets. The city shall cooperate with the grantee in granting any permits
required therefor. Construction by the grantee shall not unreasonably interfere
with the use of such streets and shall be done in accordance with the pertinent
provisions of this code and the grantee’s franchise.
C.
Manner of Installation. All transmission lines, equipment and structures shall
be so installed and located as to cause minimum interference with the rights
and reasonable convenience of property owners and shall be kept and maintained
in a safe, adequate and substantial condition and in good order and repair. The
grantee shall employ ordinary care and shall install and maintain in use
commonly accepted methods and devices for preventing failures and accidents
which are likely to cause damage, injuries, or nuisances to the public.
Suitable barricades, flags, lights, flares, or other devices shall be used at
such times and places as are reasonably required for the safety of members of
the public. Any poles or other fixtures placed in any street by the grantee
shall be placed in such a manner as not to unreasonably interfere with the usual
travel on such public way.
D.
Restoration. The grantee shall, at its own expense, and in a manner approved by
the city, restore to the standards and specifications required by the code or
the grantee’s franchise any damage or disturbance caused to the streets by the
grantee, and its employees, agents, or contractors as a result of its
operations or construction on its behalf in connection with the exercise of its
rights under its franchise.
E.
No Charge to City. Whenever, in case of fire or other disaster, it becomes
necessary in the judgment of the city to remove any of the grantee’s facilities
due to material and imminent harm to the public health, safety, property, or
welfare, no charge shall be made by the grantee against the city for
restoration and repair.
F.
Tree Trimming. The grantee shall have the authority to trim trees on public
property in accordance with the provisions of this code at its own expense as
may be necessary to protect its wires and facilities, subject to the
supervision and direction of the city. Trimming of trees on private property
shall require consent of the property owner.
G.
Relocation. The grantee at its expense shall protect, support, temporarily
disconnect, relocate, or remove any property of the grantee when, in the opinion
of the city, the same is reasonably required by reason of traffic conditions,
public safety, street vacation, freeway or street grade, installation of
sewers, drains, water pipes, powerline, signal line, transportation facilities,
tracks, or any other type of structure or improvement by governmental agencies
whether acting in a governmental or a proprietary capacity, or any other public
improvement, including, but not limited to, movement of buildings,
redevelopment, or any general program under which the city shall undertake to
cause any such properties to be located beneath the surface of the ground,
provided the facilities of both the telephone and electric utilities are to be
similarly undergrounded. Where public funds or funds from property owners are
specifically available for such work of protection, support, disconnection,
relocation, removal, or undergrounding of the cable system, whether pursuant to
statute or otherwise, the grantee shall be reimbursed for such work to the
extent of the availability of such funds. Nothing hereunder shall be deemed a
taking of the property of the grantee and the grantee shall be entitled to no
surcharge by reason of anything hereunder.
H.
Right of City to Perform. Upon failure of the grantee to commence, pursue, or
complete any work required by law or by the provisions of this chapter or the
grantee s franchise to be done by the grantee in any street within the time
prescribed therein or herein and to the satisfaction of the city, the city may,
at its option, upon five days notice to grantee cause such work to be done if
the grantee has failed to promptly commence such work, and the grantee shall
pay to the city the reasonable cost thereof in the itemized amounts reported by
the city to the grantee within thirty days after receipt of such itemized
report; provided, that no such written direction need be given by the city in
the event of material and imminent harm to the public health, safety, property,
or welfare.
I.
Paving or Curb Cuts. The grantee shall make no paving or curb cuts in the
streets unless absolutely necessary, and only after the grantee has secured an
encroachment permit issued by the city authorizing such cuts.
J.
Conduit Required. The city reserves the rights to require conduit for
underground cabling.
13.24.100 Construction and
technical standards. A. Construction Standards.
1. The grantee shall comply with all
applicable city construction codes and permit procedures and pay all applicable
permit and inspection fees with respect thereto.
2. Construction undertaken by the grantee
with respect to its cable communications system shall comply with all federal,
state and city laws, rules and regulations applicable thereto.
3. All the grantee’s plant and equipment,
including, but not limited to the antenna site, headend, distribution system,
towers, house connections, structures, poles, wire, cable, coaxial cable,
fixtures and appurtenances shall be installed, located, erected, constructed,
reconstructed, replaced, removed, repaired, maintained and operated in
accordance with good engineering practices, performed by experienced
maintenance and construction personnel so as not to endanger or unreasonably
interfere with the streets or public improvements or to unreasonably interfere
with the rights of any property owner, or to unnecessarily hinder or obstruct
pedestrian or vehicular traffic.
B.
Technical Standards. The cable communications system shall meet all technical
and performance standards contained in the franchise.
C.
Test and Compliance Procedures. The grantee shall submit within sixty days
after request by the city a detailed test plan describing the methods and
schedules for testing the cable communications system set forth in the FCC’s
rules and regulations shall constitute a satisfactory test plan for purposes of
demonstrating compliance with such provisions.
D.
Special Tests. At any time after commencement of service to subscribers the
city may require additional tests, full or partial repeat tests, or test
involving a specific subscriber’s terminal. Requests for other evidence
indicating a material unresolved controversy and significant noncompliance, and
such test shall be limited to the particular matter in controversy. The city
shall endeavor to so arrange its requests for such special test so as to
minimize hardship or inconvenience to the grantee and to the subscriber.
OPERATION AND MAINTENANCE
Sections:
13.28.010
Services to be provided.
13.28.020
Open books and records.
13.28.030
Records required.
13.28.040
Consumer protection.
13.28.050
Rights of individuals.
13.28.060
Continuity of service.
13.28.070
Grantee rules and regulations.
13.28.080
Tenant rights.
13.28.010 Services to be provided.
The grantee shall initially provide the cable services set forth in its
franchise.
13.28.020 Open books and records.
The city shall have the right to inspect at any time during normal business
hours and upon reasonable prior notice to the grantee all maps, cable
communications system construction plans, financial records limited to gross
revenues, service complaint logs, and performance test results which relate to
the operation of the franchise and are maintained at the grantee’s office
within the service area. If any of such records are not kept in the grantee’s
local office, or upon reasonable request made available to the city, and if the
city shall determine that an examination of such records is necessary or
appropriate to the performance of any of the city’s duties, than all travel and
maintenance expenses necessarily incurred in making such examination shall be
paid by the grantee.
13.28.030 Records required. In
any event the grantee shall at all times maintain:
A.
Subscriber Complaints. Grantee shall maintain a written record or the
equivalent, stored in computer memory and cable of being retrieved, of
complaints received and interruptions and/or degradation of service for a
period of three years. In any event the grantee shall maintain: such records,
or a reasonable summary thereof, identifying the number and nature of
complaints and their disposition for each month at issue. Such records shall be
furnished to the city upon request of the city, allowing reasonable time to
assemble and/or copy the same.
B.
System Maps. A full and complete set of plans, records, and “as—built” maps, as
of a reasonably current date, accurately showing the location of the cable
communications system equipment then installed or in use in the service area
exclusive of subscriber service drops. Such plans, records, and maps will be
furnished to the city upon request of the city, allowing reasonable time to
assemble and/or copy the same.
13.28.040 Consumer protection.
A. Consumer Service Standards. The grantee shall maintain the necessary
facilities, equipment and personnel to comply with the following consumer
standards under normal conditions of operation:
1. Sufficient toll—free telephone line
capacity during normal business hours to assure on twenty consecutive business
days average that a minimum of ninety percent of all callers for any service
will not be required to wait more than three minutes before being connected to
a service representative. Grantor may require that grantee acquire, install and
maintain adequate monitoring equipment to assure performance hereunder. For purposes
of the computation required in this section, the grantee shall be allowed to
exclude any days on which material system outages occurred.
2. Emergency toll—free telephone answering
capacity on a twenty—four hour basis, including weekends and holidays. A tape
recorded answering machine does not constitute an answering service. A bonafide
answering (business) service is acceptable;
3. An emergency system maintenance and
repair staff capable of responding to and commencing repairing of major system
malfunction on a twenty—four hour basis;
4. Grantee shall schedule, within a
specified four—hour time period, all appointments with subscribers for
installation or service. In the event grantee fails to observe such time
limits, the affected subscriber shall have such remedies as may be provided by
law.
B.
Request of Cable Service Repairs.
1. The grantee shall render efficient
service, make repairs promptly, and interrupt service only for good cause and
for the shortest time possible. Scheduled interruptions, insofar as possible
and practical, shall be preceded by notice and shall occur during period of
minimum use of the system, preferably between midnight and six a.m. A written
log or an equivalent stored in computer memory and capable of access and reproduction,
shall be maintained for all service interruptions and requests for cable
service repair as required and such log shall indicate when repairs were
commenced and completed. Such records shall be maintained for thirty—six
months.
2. The grantee shall maintain a repair force
of technicians normally capable of responding to subscriber requests for
services within the following time frames:
a. System outage: Within two hours,
including weekends and holidays, of receiving subscriber calls which by number
identify a system outage of sound or picture of six or more channels, affecting
all the subscribers of the system or a considerable number thereof;
b. Isolated outage: Within twenty-four
hours, including weekends, of receiving requests for service identifying an
isolated outage of sound or picture for six or more channels;
c. Inferior reception quality: Within
forty—eight hours, excluding weekends and holidays, of receiving a request for
service identifying a problem concerning picture or sound quality.
3. Grantee shall be deemed to have responded
to a complaint or a request for service under the provisions of this section
when a technician arrives at the service location and begins work on the
problem. In the case of a subscriber not being home when the technician
arrives, response shall be deemed to have taken place if the technician leaves
written notification of arrival.
No
charge shall be made to the subscriber for any service call unless the service
request can be demonstrated to be non—cable system in origin, or subscriber
caused.
C.
Verification of Standards. Upon reasonable notice, the grantee shall
demonstrate compliance with any or all of the standards required in subsection
(A) or (B) of this section. The grantee shall provide sufficient detail to
permit the grantor to verify the extent of compliance no more than twice per
year, however if any noncompliance is detected the grantor may in its sole
discretion require such additional verification as it deems necessary and at
grantee’s expense for each time additional verification is needed.
D.
Noncompliance with Standards. A repeated and verifiable pattern of
-noncompliance with the consumer protection standards of subsections (A) and
(B) of this section, after grantee receipt of due notice and an opportunity to
cure, may be termed a breach of the franchise, subject to any and all remedies
as prescribed in Section 13.16.110 herein and applicable law.
E.
Local Office. The grantee shall maintain an office in Siskiyou County which
shall be open during business hours and have a publicly listed toll-free
telephone. The grantee may use an answering service to receive such complaints and
request during other than the grantee s usual business hours or on such days as
the grantee is not open for business.
F.
Notice to Subscribers. The grantee shall furnish each subscriber, at the time
service is installed, written information that clearly sets forth the name,
address, and local telephone number of the grantee for purposes of inquiries or
complaints concerning cable service.
13.28.050 Rights of individuals.
A. Nondiscrimination. The grantee shall not deny service, deny access, or
otherwise discriminate against subscribers, channel users, or general citizens
on the basis of race, color, religion, national origin, age, or sex. The
grantee shall comply at all times with all other applicable federal, state, and
city laws and regulations and all executive and administrative orders relating
to nondiscrimination which are hereby incorporated and made part of this
chapter by reference.
B.
Equal Employment Opportunity. The grantee shall strictly adhere to the equal
employment opportunity requirements of the FCC and state and local authorities,
as amended from time to time.
C.
Monitoring. No signals of a cable communications channel shall be transmitted
from a subscriber terminal for purposes of monitoring individual viewing
patterns or practices without the express written permission of the subscriber.
The request for such permission shall be contained in a separate document with
a prominent statement that the subscriber is authorizing the permission in full
knowledge of its provisions. Such written permission shall be for a limited
period of time not to exceed one year, which shall be renewable at the option
of the subscriber. No penalty shall be invoked for a subscriber’s failure to
provide or renew such an authorization. The authorization shall be revocable at
any time by the subscriber without penalty of any kind whatsoever. Such
authorization is required for each type or classification of cable television
activity planned; provided, that the grantee shall be entitled to conduct
system—wide or individually addressed sweeps for the purpose of verifying
system integrity, controlling return path transmissions or billing for pay
services, or for the purpose of detecting unauthorized connections to the cable
communications system.
D.
Subscriber Information. The grantee’s policy, with respect to personally
identifiable information, shall be consistent with federal, state and local
laws, rules, and regulations with respect thereto.
13.28.060 Continuity of service.
A. Continuity Required. It shall be the right of all subscribers to continue
receiving service insofar as their financial and other obligations to the
grantee are honored. In the event that the grantee elects to overbuild,
rebuild, modify or sell the cable communications system, or the city gives notice
of intent to terminate or fails to renew the franchise, the grantee shall act
so as to minimize the period of any interruption in service resulting
therefrom. Such interruptions, insofar as possible, shall be preceded by notice
to the affected subscribers and shall be limited to periods of minimum use of
the service or services to be interrupted.
B.
Operation by Grantee After Termination. In the event of a change of grantee, or
in the event a new operator acquires the cable communications system, the grantee
shall cooperate with the city, new grantee, or operator in maintaining
continuity of service to all subscribers. During such period, the grantee shall
be entitled to the revenues for any period during which it operates the system.
13.28.070 Grantee rules and
regulations. The grantee shall have the authority to promulgate such rules,
regulations, terms, and conditions governing the conduct of its business as the
grantee shall consider reasonably necessary to enable the grantee to exercise
its rights and perform its obligations under the franchise and to assure
service to each and all of its subscribers; provided, that such rules,
regulations, terms, and conditions shall not be in conflict with the provisions
hereof or applicable federal and state laws, rules, and regulations, terms, and
conditions within thirty days after any change therein.
13.28.080 Tenant rights. The
grantee shall be required to provide tenants in individually billed units of a
multiple dwelling unit housing facility with all cable services offered to
other dwelling units located within the service area, so long as the owner of
the facility consents in writing, if requested by the grantee, to the
following:
A.
To the grantee’s providing of the service directly to individual units of the
facility;
B.
To reasonable conditions and times for installation, maintenance, and
inspection of the system on the facility premises;
C. To reasonable conditions promulgated by the grantee to protect the grantee’s equipment and to encourage widespread use of the system; and
D.
To not discriminate in retail charges or otherwise between tenants who receive
cable service and those who do not.
Chapter 13.32
RIGHTS RESERVED TO THE CITY
Sections:
13.32.010
Right to purchase system.
13.32.020
Right of inspection of construction.
13.32.010 Right to purchase system.
The city may in any lawful manner and upon the payment of a fair valuation
lawfully ascertained, purchase, condemn, acquire, take over, and hold the
property and plant of the grantee in whole or in part. If such purchase or
taking over be upon revocation of the franchise or at the expiration of the
term of the franchise, such evaluation shall not include any sum for the value
of the franchise or grant under which such plant and property is being
operated. The city may require that grantee comply with all applicable building
codes and regulations, and specifications which might otherwise be required by
the city.
13.32.020 Right of inspection of
construction. The city shall have the right to inspect all construction or
installation work performed in the streets pursuant to the provisions of the
grantee’s franchise and to make such tests as are provided in this title, such
franchise, or applicable federal, state or city law as it shall find necessary
to ensure compliance with the terms of this title, the franchise, and such
other pertinent provisions of law.
Chapter 13.36
RIGHTS RESERVED TO THE
GRANTEE
Sections:
13.36.010
Rights of grantee generally.
13.36.020
Right of appeal.
13.36.010 Rights of grantee
generally. In the event of any dispute between the city and the grantee
arising with respect to this chapter or the grantee’s franchise, or with
respect to any rights or obligations arising therefrom, the grantee shall first
pursue and exhaust all available administrative remedies. Thereafter, the
grantee may pursue appropriate legal action.
13.36.020 Right of appeal. The
grantee may appeal any action by any officer, employee, department, board, or
commission of the city with respect to the grantee’s franchise to the appeals
board of the city in accordance with the provisions set forth in Section
16.04.085 or any other applicable, or successor, provision.
Chapter 13.40
REPORTS
Sections:
13.40.010
Annual reports.
13.40.020
Plant survey report.
13.40.030
Public reports.
13.40.040
Surveys.
13.40.050
Miscellaneous reports.
13.40.060
Inspection of facilities.
13.40.070
Public inspection.
13.40.080
Failure to report.
13.40.090
False statements.
13.40.100
Cost of reports.
13.40.010 Annual reports. At
the city’s sole option, within sixty days after the close of the grantee’s
fiscal year, the grantee shall submit a written annual report, in a form
approved by the city, which shall contain the following information:
A.
Activities Undertaken. A summary of the previous year’s (or, in the case of the
initial report year, the initial year’s) activities in development of the cable
communications system, including, but not limited to, services begun or
discontinued during the reporting year and the number of subscribers for each
class of service;
B.
Partners, Officers, and Directors. A list of the grantee’s general partners,
officers, members of its board of directors, or other principals, as the case
may be;
C.
Principal Partners and Stock holders. A list of partners, stockholders, or
other equity investors holding five percent or more of the partnership interest
in the grantee or the voting interest in the grantee, its parent and subsidiary
and affiliated corporations, if any.
13.40.020 Plant survey report.
At the city’s sole option, the grantee shall submit to the city, within ninety
days after its request therefor, an annual plant survey report which shall be a
complete survey of the grantee’s plant and a full report thereon relating to
the most recently completed calendar year. Said report shall contain a
description of the portions of the service area that have been cabled and have
all cable services available and shall reference the availability of “as—built”
maps showing location of the cable communications system installed in the
service area as of the end of the calendar year for which such report is
requested. Said report shall be in sufficient detail to enable the city to
ascertain that the technical standards of the FCC are achieved and maintained,
which shall be satisfied by incorporating in the plant survey report the proof
of performance report completed by the grantee for such calendar year. If the
city has reason to believe that portions or all of the system materially fail
to satisfy the FCC technical standards applicable to cable communications
systems, at the city’s request, but no more often than once each three years,
the grantee and the city shall agree upon the appointment of a qualified
independent engineer to evaluate and verify the technical performance of the
cable system. The cost of such evaluation indicates that the cable
communications system material fails to meet such FCC technical standards, in
which case the cost thereof shall be borne solely by the grantee.
13.40.030 Public reports. Upon
request of the city, the grantee shall furnish copies of any publicly available
report concerning the grantee, its parent, or affiliates, including, but not
limited to, annual and other periodic reports filed with the Securities and
Exchange Commission.
13.40.040 Surveys. Upon
request of the city, the grantee shall furnish the results of any survey
undertaken by the grantee of a representative sample of all of it subscribers;
provided, that the grantee shall give the city at least ten days prior notice
of any such survey to permit the city to submit requests for items to be
included in such survey. The grantee may, in its reasonable judgment, elect not
to include any of all or those items requested by the city for incorporation
survey.
13.40.050 Miscellaneous reports.
The grantee shall submit to the city such other information or reports in such
forms and at such times as the city may reasonably request; provided, that such
information or reports shall relate directly to information or reports which
the city is entitled to receive under the terms of this chapter or the grantee
s franchise and, provided further, that the grantor shall bear the reasonable
expense of preparing such information or reports.
13.40.060 Inspection of facilities.
The grantee shall allow the city to make inspections of any of the grantee s
distribution facilities and equipment at any time during the grantee’s normal
business hours upon reasonable notice or, in the case of emergency, upon demand
without prior notice, to allow the city to verify the accuracy of any submitted
report.
13.40.070 Public inspection.
All reports subject to public disclosure and maintained in the city’s records
shall be available for public inspection at a designated city office during
normal business hours.
13.40.080 Failure to report.
The refusal, failure or neglect of the grantee to file any of the reports
required under this chapter or the grantee’s franchise shall be deemed a
material breach of the franchise if the grantee fails to file such report,
after receipt of written notice from the city with respect thereto, within the
period of cure allowed under this chapter for an event of default by the
grantee in the performance of any of its material obligations under this
chapter and shall subject the grantee to all remedies, legal or equitable,
which are available to the city under the grantee’s franchise or otherwise.
13.40.090 False statements.
Any materially false or misleading statement or representation made knowingly
by the grantee in any report required under this chapter or the franchise shall
be deemed a material breach of the franchise and shall subject the grantee to
all remedies, legal or equitable, which are available to the city under the
grantee’s franchise or otherwise.
13.40.100 Cost of reports. All
reports and records required under this or any other section shall be furnished
at the sole expense of the grantee, except with respect to miscellaneous
information and reports as set forth herein.
Chapter 13.44
MISCELLANEOUS PROVISIONS
Sections:
13.44.010
Severability.
13.44.020
Notices.
13.44.030
Nonenforcement by the city.
13.44.040
Theft of services and tampering.
13.44.050
Force majeure.
13.44.010 severability. If any
term, covenant, condition, or provision of this title or the application
thereof to any person or circumstance is, to any extent, invalid or
unenforceable, the remaining terms, covenants, conditions, and provisions of
this title or such franchise, or the application of such term, covenant,
condition, or provision to persons or circumstances other than those to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term, covenant, condition, and provision of this title or such franchise shall
be valid and enforced to the fullest extent permitted by law.
13.44.020 Notices. The grantee
shall maintain within Siskiyou County throughout the term of the franchise an
address for service of notices by mail.
13.44.030 Nonenforcement by the
city. The grantee shall not be relieved of its obligation to comply with
any of the provisions of this chapter by reason of any failure of the city to
enforce prompt compliance.
13.44.040 Theft of services and tampering.
No person, whether a subscriber to the cable communications system, may
intentionally or knowingly damage or cause to be damaged any wire, cable,
conduit, equipment, apparatus, or appurtenance of the grantee, or commit any
act with intent to cause damage, or to tap, tamper with, or otherwise connect
any wire or device to a wire, cable, conduit, equipment, apparatus, or
appurtenance of the grantee with the intent to obtain a signal or impulse from
the cable communications system without authorization from or compensation to
the grantee, or to obtain cable or other communication services with intent to
cheat or defraud the grantee of any lawful charge to which it is entitled.
13.44.050 Force majeure. In
the event the grantee s performance of any of the terms, conditions,
obligations, or requirements as are set forth in this title, is prevented or
impaired due to any cause beyond its reasonable control or not reasonably
foreseeable, such inability to perform shall be deemed to be excused and no
penalties or sanctions shall be imposed as a result thereof, provided that the
grantee has notified the city in writing within thirty days of its discovery of
the occurrence of such an event. Such causes beyond the grantee s reasonable
control or not reasonably forseeable shall include, but shall not be limited
to, acts of God and civil emergencies.