Chapter 5.12
COMMUNITY ANTENNA TELEVISION SYSTEM1
Sections:
5.12.020 Use of chapter for advertising--Exclusiveness of franchise.
5.12.030 Franchise--Uses permitted--Term.
5.12.040 Franchisee--Payments to county.
5.12.050 Franchise--Limitations.
5.12.060 Rights reserved to the county.
5.12.080 Property of franchisee--Approval of location.
5.12.090 Property of franchisee--Removal or abandonment.
5.12.100 Changes required by public improvements.
5.12.110 Failure to perform street work.
5.12.120 Faithful performance bond.
5.12.130 Indemnification of the county.
5.12.140 Operational standards.
5.12.150 Miscellaneous provisions.
5.12.160 Application for franchise.
5.12.170 Compliance with requirements.
5.12.010 Definitions.
Whenever in this chapter the words or phrases defined in this section are used, they shall have the respective meanings assigned to them in the following definitions:
A. "Commence operation" means the completion of at least one of the following:
1. The stringing of at least one-half mile of coaxial cable on utility or other poles in the public ways of this county, or
2. The installation of the receiving antenna and facilities capable of receiving satisfactory reception and retransmission, according to the technical standards herein, the television signals from at least one television station located in San Francisco.
B. "Community antenna television system," or "CATV," means coaxial cables, waveguides or other conductors and equipment for providing television and audio communication services by cable or through its facilities as herein contemplated. "CATV" does not mean or include the use of any system of "pay TV" as herein defined.
C. "Franchisee" means the person(s) or corporation(s) to whom or which a franchise under this chapter is granted by the county and the lawful successor or assignee of said person(s) or corporation(s).
D. "Gross receipts" means any and all compensation and other consideration in any form whatever and any contributing grant or other subsidy received directly or indirectly from subscribers, users, television stations or others in payment for the franchisee's services in providing television signals or electrical impulses to subscribers within the county; and "gross receipts" means all those yearly gross receipts of the franchisee collected by said franchisee which said franchisee would not have received but for the grant of said franchise, and said figures shall not be abated by any formula, or in any way, to reflect the percentage of such receipts attributable to the use of the county's public ways in relation to the capital investment of the franchisee in the remainder of the franchisee's facilities.
"Gross receipts" does not include any taxes on the service furnished by the franchisee and imposed directly on any subscriber by the county, state or other governmental unit and collected by the franchisee for such governmental unit.
E. "Local television station" means a television station licensed by the Federal Communications Commission to operate in Sacramento/San Joaquin County (or counties) and which delivers a Grade A signal to the county with news of local and public affairs.
F. "Pay TV" means any system for the transmission and receipt of television signals in which the subscriber or set owner pays a fee or charge based upon the particular program or programs received.
G. "Public way" means any street, highway, road, walk, freeway, parkway, lane, alley, court or drive, in which the public has a right-of-way, or any easement which the county controls and the terms of which are broad enough to include the passage of transmission lines for CATV cables, now or hereafter existing as such. Included in this definition are the areas on, above or below the surface of such ways insofar as the public right extends thereto.
H. "Subscribers" means any person or entity receiving for any purpose the CATV service of the franchise herein.
I. "TV" means television. (Ord. 385 §1, 1966).
5.12.020 Use of chapter for advertising--Exclusiveness of franchise.
A. Advertising for Proposals for CATV. This chapter shall be referred to and incorporated by reference in any advertising which this county may wish to do inviting proposals for the granting of an exclusive franchise to construct, erect, operate and maintain upon the public ways of this county a CATV system and shall be referred to and incorporated by reference in any franchise which may hereafter be granted by this county.
B. Exclusiveness of Franchise. Any franchise granted by this county shall be nonexclusive. (Ord. 385 §2, 1966).
5.12.030 Franchise--Uses permitted--Term.
Any franchise granted pursuant to the provisions of this chapter shall authorize and permit the franchisee to engage in the business of providing and operating a CATV system in the county, and for that purpose to construct, erect, install, repair, replace, reconstruct, maintain and retain in, on, under, upon, across and along any public way such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system; arid, in addition, so to use, operate and provide similar facilities on properties rented or leased from a public utility franchised or permitted to do business in the county.
No franchise, or any renewal thereof, granted by the county under this chapter shall be for a term longer than twenty years following the date of acceptance of such franchise or the renewal thereof, by the franchisee. Any such franchise may be terminated prior to its expiration by the county in the event that after sixty days' notice to franchisee by the county of franchisee's failure to comply with a material provision of this chapter or notice to cease violation by act or omission of any term or condition of this chapter and such condition continues to exist, then after the county has found, after notice and public hearing, that:
A. The franchisee has failed to comply with any material provisions of this chapter, or has, by act or omission, violated any term or condition of any franchise or permit issued under this chapter; or
B. The provisions of this chapter have become invalid or unenforceable, and the county further finds that such provisions constitute a consideration material to the grant of said franchise; provided, however, that the franchisee shall be given at least sixty days' notice of any proposed termination proceeding.
No provision of this chapter shall be construed to preclude the franchisee from introducing program material into a franchised CATV system or portion thereof. (Ord. 385 §3, 1966).
5.12.040 Franchisee--Payments to county.
Franchisee shall, during the term for which this franchise is granted, pay to county two percent of the gross annual receipts of franchisee arising from the use, operation or possession of said franchise; provided, however, that no percentage shall be paid for the first five years succeeding the date of the grant of said franchise, but thereafter such percentage shall be payable annually, and if such payment shall not be made, such franchise shall be forfeited. The method of computing said payment shall be in accordance with that laid down by the Supreme Court of the state in its construction of the foregoing language, and any future modification of such method set forth in any decision of the Supreme Court hereafter rendered shall supersede the method employed prior to such decision. (Ord. 385 §4, 1966).
5.12.050 Franchise--Limitations.
A. No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically prescribed herein.
B. Any privilege claimed in any public way by the franchisee under such franchise shall be subordinate to any prior lawful occupancy of said pubic way or public property.
C. Any such franchise shall be a privilege to be held in personal trust by the original franchisee. It cannot in any event be sold, transferred, leased or assigned, disposed of in whole or in part, either by forced or voluntary sale, merger, consolidation or otherwise without prior consent of the county expressed by resolution, and then only under such conditions as may be therein prescribed; provided, however, that no such consent shall be required for any transfer in trust, mortgage or other hypothecation, as a whole or in part, to secure an indebtedness. The consent of the county may not be arbitrarily refused; provided, however, the proposed assignee must show financial responsibility and must agree to comply with the provisions of this chapter.
D. Time shall be of the essence of any franchise granted under this chapter. The franchisee shall not be relieved of its obligation to comply promptly with any of the provisions of this chapter, or by any failure of the county to enforce prompt compliance.
E. Any right or power in, or duty impressed upon any officer, employee, department or board of the county is subject to transfer by the county to any other officer, employee, department or board of the county.
F. The franchisee shall have no recourse whatsoever against the county for any loss, cost, expense or damage arising out of any provision or requirement of this chapter or its enforcement.
G. Franchisee is subject to all requirements of the county ordinances, rules, regulations and specifications of the county heretofore or hereafter enacted or established, including but not limited to those concerning street work, street excavation, use, removal, and relocation of property within a street, and other street work.
H. Any franchise granted under this chapter shall not relieve the franchisee of any obligation involved in obtaining pole space from any department of the county, the utility companies or from others maintaining poles in the public ways of this county, wherein the franchisee finds it necessary under its operation to make use of those poles as may now exist or which may hereafter exist in the rights-of-way of this county. (Ord. 385 §5, 1966).
5.12.060 Rights reserved to the county.
There is reserved to the county every right and power which is required to be herein reserved or provided by any ordinance of the county or by general law; and the franchisee, by his acceptance of this franchise, agrees to be bound thereby, and to comply with any action or requirement of the county in its exercise of any such right or power, heretofore or hereafter enacted or established. (Ord. 385 §6, 1966).
5.12.070 Time of performance.
Franchisee shall proceed within thirty days after any franchise is granted hereunder to secure all pole line attachment agreements and other pertinent permits as required and necessary for the installation; shall commence installation within one hundred fifty days of the date that all necessary pole line attachment agreements and permits are received; shall complete initial operation in at least thirty percent of the county within two hundred ten days of the date that all necessary pole line attachment and permit agreements are obtained; and, shall complete installation and operation within all of the developed streets and areas within the county at the time of the awarding of this franchise within two years of the date that all necessary pole line attachment agreements and permits are obtained. The county may extend the time for the beginning of the installation for additional periods in the event that the franchisee can demonstrate that delays are caused by reason or circumstances beyond his control and cannot be overcome by the exercise of reasonable diligence on his part; provided further, that said extensions rest entirely with the within setout time limits not thus excused shall be deemed a material failure to perform under the terms of this contract and said franchise may be forfeited on declaration thereof by the county. (Ord. 385 §7, 1966).
5.12.080 Property of franchisee--Approval of location.
A. Any poles, wire, cable lines, conduits or other properties of franchisee to be constructed or installed in the public ways shall be so constructed or installed only at such locations and in such manner as shall be approved by the appropriately designated county official, acting in the exercise of his reasonable discretion.
B. The franchisee may install or erect any facilities or apparatus on public property or rights-of-way within the county upon obtaining written approval of the appropriately designated county official, in advance.
C. Construction or installation of franchisee's cable lines or conduits in all other public places, owned or controlled by the county, shall be subject to the approval of and regulation by the county in advance. (Ord. 385 §8, 1966).
5.12.090 Property of franchisee--Removal or abandonment.
A. In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of twelve months, or in the event such system or property has been installed in any public way or public place without complying with the requirements of its franchise, or the franchise has been terminated or cancelled or has expired, the franchisee, upon being given notice, shall promptly remove from the streets or public places all such property and poles, or such system other than that which the county may permit to be abandoned in place. In the event of any such removal, the franchisee shall promptly restore the public way, or other area from which such property has been removed, to a condition satisfactory to the county.
B. Any property of the franchisee remaining in place ninety days after the termination of the franchise shall be considered permanently abandoned. The county may extend this time not to exceed sixty days.
C. Any property abandoned in place by the franchisee shall be abandoned in such a manner as the county may prescribe. Under permanent abandonment of the property of the franchisee in place, the property becomes that of the county and the franchisee shall commit to the county an instrument, to be approved by the county counsel, transferring to the county the ownership of such property. (Ord. 385 §9, 1966).
5.12.100 Changes required by public improvements.
The franchisee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street, public way or public place, or remove from the public way or public place, any property of the franchisee when required by the county or its designate by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines and tracks or other type of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity, or any other structures of public improvements; provided, however, that franchisee shall in all such cases have the privilege and be subject to the obligations to abandon any property of the franchisee in place as provided in Section 5.12.090. (Ord. 385 §10, 1966).
5.12.110 Failure to perform street work.
Upon failure of the franchisee to complete any work required by law or by the provisions of this chapter to be done in any public way, within the time prescribed and to the satisfaction of the county or its designate, the county may cause such work to be done and the franchisee shall pay to the county the cost thereof in the itemized amounts reported by the properly designated county official to the franchisee, within thirty days after receipt of such itemized report. (Ord. 385 §11, 1966).
5.12.120 Faithful performance bond.
A. The franchisee shall, concurrently with the filing of and acceptance of the award of any franchise granted under this chapter, file with the county clerk, and at all times thereafter maintain in full force and effect for the term of the franchise, at franchisee's sole expense, a corporate surety bond, in a company approved by and in a form to be approved by the county counsel, in the amount of five thousand dollars, renewable annually; provided, that said bond may be reduced to _________________ (______) on demonstration to the satisfaction of the county that the net worth and the ability of the company to perform, justify same. Said bond shall be conditioned upon the faithful performance of franchisee and that in the event franchisee fails to comply with any one or more of the material provisions of this chapter, that there shall be recoverable jointly and severally from the principal and surety of such bond, any damages or loss suffered by the county as a result thereof, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the franchisee as prescribed hereby which may be in default, plus a reasonable allowance for attorney's fees and costs, to the full amount of the bond; said condition to be a continuing obligation for the duration of this franchise, and thereafter until the franchisee has liquidated all of its obligations with the county that may have arisen from the acceptance of this franchise by the franchisee or from its exercise of any privilege herein granted. The bond shall provide that thirty days' prior written notice of intention not to renew, cancellation or material change, be given to the county.
B. Neither the provision of this section, any bond accepted by the county pursuant hereto, nor any damages recovered by the county thereunder shall be construed to excuse faithful performance by the franchisee or limit the liability of the franchisee under this franchise or for damages, either to the full amount of the bond or otherwise. (Ord. 385 §12, 1966).
5.12.130 Indemnification of the county.
A. Franchisee agrees that at all times during the existence of this franchise it will maintain in force, furnish and file with the county, at its own expense, a general comprehensive liability insurance policy, in protection of the county, its boards, commissions, officers, agents and employees, in a company authorized to do business in the state, and in a form to be approved by the county counsel, protecting the county and said persons against liability for loss or damages for personal injury, death and property damage or civil suit occasioned by the operations of franchisee under this franchise with a minimum liability limit of three hundred thousand dollars for personal injury or death of any one person, and six hundred thousand dollars for personal injury or death of any two or more persons in any one occurrence, and, fifty thousand dollars for damage to property resulting from any one occurrence; provided, that nothing herein shall restrict said county from amending these minimums at any time after two years from date of granting said franchise.
B. The policies mentioned in the foregoing paragraph shall name the county of Amador as an additional insured, and shall also contain a provision that a written notice of cancellation or reduction in coverage of said policy shall be delivered to the county not less than ten days in advance of the effective date thereof. If such insurance is provided in either case by a policy which also covers franchisee or any other entity or person than those above named, then such policy shall contain the standard cross-liability endorsement.
C. No franchise granted under this chapter shall become effective unless and until each of the foregoing policies of insurance as required by this section has been delivered to the county. (Ord. 385 §13, 1966).
5.12.140 Operational standards.
The CATV system shall be installed and maintained in accordance with the highest and best accepted standards of the CATV industry, to the effect that subscribers shall receive the highest possible quality service. In determining the satisfactory extent of such standards, the following will apply:
A. The CATV system shall be installed using all-band equipment capable of passing the entire VHF television and FM spectrum.
B. The system shall have the further capability of converting UHF (ultra high frequency) signals to VHF (very high frequency) channels for distribution to the subscriber receivers.
C. The system shall provide a minimum signal level of 2,000 microvolts (across 300 ohms) at the input terminals of each of the television receivers connected to the system.
D. The system and all equipment shall be designed and rated for twenty-four hours per day continuous operation.
E. The minimum system signal to noise ratio as measured at the output of any standard trunkline amplifier shall be 46 db or better on all channels carried on the system.
F. Hum modulation of the video (picture) shall be less than five percent.
G. The system shall use components having a VSWR of 2.0 or less, as measured utilizing standard back-matching techniques. This shall apply to all passive components only.
H. The system as installed shall be capable of passing color television signals with a material degradation of the color fidelity or the imposing of any sync clipping on the color burst information contained on the color-modulated video carrier of the station carried.
I. FM (frequency modulation) signals distributed on this system shall be balanced as to amplitude in the same manner that television signals distributed shall have amplitude balance within the guidelines set forth under cable attenuation characteristics with the cable utilized in the system for distribution of signals. (Ord. 385 §14, 1966).
5.12.150 Miscellaneous provisions.
A. All notices herein provided for shall be dispatched by certified mail to parties concerned as follows: for the county, County Clerk, Amador County, Court House, Jackson, California; for the franchisee, as provided by any franchise granted pursuant to the provisions of this chapter. All matters provided to be filed with the county shall be filed with the county clerk.
B. In any proposal submitted for a franchise under this chapter, the applicant shall set forth a complete installation and service charge as a maximum amount which said applicant would charge subscribers for installation and service for the first two years after the granting of the franchise, and said maximums shall be binding on the applicant during said first two years. Thereafter, or before if special circumstances so warrant, the rate schedule for any service agreement or increase thereto must have the written approval of the county.
C. The franchisee shall assume the cost of publication of the ordinance codified herein and all subsequent ordinances implementing the ordinance codified herein or establishing rates or regulations hereunder. A bill for publication costs incurred to date shall be presented to the franchisee by the county upon the franchisee's filing of acceptance and shall be paid within thirty days thereof.
D. The franchisee shall maintain a regular office and service department so located so as to be able to provide prompt and efficient service to the subscribers located in this county at all times.
E. The franchisee shall not within the county engage in the sale, leasing, repair or installation of television or FM radio receivers.
F. Nothing in a franchise granted hereunder shall be construed as a franchise to distribute service commonly known as "pay TV."
G. Franchisee shall comply with all FCC regulations to protect local television stations. There shall be no noticeable degradation of any picture or sound signal received by the CATV subscriber. When it occurs that there is simultaneous duplication of the program being telecast by the local station or stations which is (are) authorized by the Federal Communications Commission to furnish off-the-air television reception in their Grade A contour for the county, and when such programs are identical in all respects as to color, time and program content, then for that period during which such duplication exists, the CATV franchisee shall, if requested by the local station, remove from active transmission over the cable system the signal(s) of the outlying station(s). It shall, however, be the duty of the local station to so advise the CATV system franchisee of its desire of nonduplication at least seventy-two hours prior to the actual scheduled time of said program. In the case of weekly programs repeated in the same time period two or more weeks in succession, notification will be necessary one time only.
H. In the event of the Public Utilities Commission of the state or the Federal Communications Commission taking jurisdiction over all or a part of the regulations listed herein as a part of this chapter, then the authority herein vested in the county in the applicable areas shall cease.
I. The franchisee shall deliver adequate television signals from at least one educational television channel, so long as there is such a channel available, and at least ten other channels from both local and outlying television stations. The signals of local television stations shall be carried without degradation of quality and there shall not be deliberate degradation of any signals, local or outlying.
J. Programs carried on any channel shall not be interrupted or altered by the CATV franchisee except as may hereafter be required or requested by local, county, state or national civil defense authorities or as otherwise provided by law. (Ord. 385 §15, 1966).
5.12.160 Application for franchise.
A. Application for a franchise hereunder shall be filed with the county clerk in a form approved by the county and shall contain the following information:
1. The name and address of applicant;
2. A general description of the applicant's proposed CATV operation, which shall include a complete CATV service system throughout the entire area within the county;
3. A statement or schedule in a form approved by the county showing the proposed rates and charges to subscribers, as set forth herein under Section 5.12.150B;
4. A statement detailing the corporate organization of the applicant, if any, including the names and addresses of anyone owning interest by way of stock, options or other wise of the applicant, together with a showing of percentage of ownership to each. In the case of corporations where stock is publicly traded, the aforementioned list of all of those people owning stock is waived. Said statement shall also set forth the names of subsidiary companies or holding companies affiliated with applicant, and a listing of other CATV areas being served by applicant, or affiliates;
5. A statement setting forth all arguments and understandings, whether written or oral or implied, existing between the applicant and any person, firm, group or corporation with respect to this proposed franchise and its proposed operation. Failure to meet the requirements of this paragraph will, at the option of the county, make null and void the awarding of this franchise to any group which has not fully complied hereunder;
6. Applicant shall furnish one of the following:
a. A financial statement for the last current fiscal year together with a resolution from the corporate board of directors authorizing the expenditure of the funds necessary to build this CATV system (if a corporation), or
b. A letter or other suitable written evidence from a recognized lending or funding source addressed to both the applicant and this county advising that this lending or funding source has studied the proposed CATV system, and the applicant's financial ability, and that this lending or funding source has agreed to make the necessary required funds available to the applicant for construction of this cable television system if the applicant is awarded this franchise;
7. A statement of the proposed percentage franchise fee payment to the county, referred to in Section 5.12.040 of this chapter.
B. Upon consideration of any application, the county may grant an exclusive franchise for CATV to such applicant as may appear from said application to be in its own opinion best qualified to render proper and efficient CATV service to television viewers and subscribers in the county, based on quality and quantity of service, character, financial ability to perform, subscription rate to subscribers, income to the county, personal experience with or outstanding contractual agreements with individuals or firms with CATV installation and operating experience, and, the ability of the chosen applicant to render a service which best meets the public interest, convenience and necessity in the franchised area, the county of Amador.
C. Any franchise issued pursuant to this chapter shall include the following condition:
"The CATV system herein franchised shall be used and operated solely and exclusively for the purpose expressly authorized by ordinance of the County of Amador and no other purpose whatsoever, without the expressed approval of the County." (Ord. 385 §16, 1966).
5.12.170 Compliance with requirements.
No franchise issued hereunder shall become effective until all of the requirements of this chapter are fully met, including the filing of the certificates of insurance required herein, with the county clerk. (Ord. 385 §17, 1966).
5.12.180 Specific limitation.
All applicants applying for the franchise to be granted under the terms of this chapter shall include in their applications the following paragraph, and said paragraph shall become a material part of the franchise as granted:
"This applicant for the CATV franchise in the County of Amador herein states that it shall have 100 percent (100%) physical control and carry 100 percent (100%) maintenance responsibility for all of the equipment, installation and maintenance for the CATV plant proposed herein; and further, that these responsibilities shall not be delegated to any other individual, firm or organization without the approval of the County." (Ord. 385 §18, 1966).
For statutory authority of counties to license the construction of a community antenna television system and to prescribe rules and regulations deemed necessary to protect the subscribers of the service, see Gov. Code §53066.