Chapter 14.08
CABLE SYSTEM REGULATION
Sections:
14.08.030 Franchise terms and conditions.
14.08.040 Franchise applications and renewal.
14.08.050 Minimum consumer protection and service standards.
14.08.060 Franchise fee and financial requirements.
14.08.070 Construction requirements.
14.08.090 Indemnification and insurance requirements.
14.08.100 Records and reports.
14.08.110 Review of system performance.
14.08.120 Franchise violations.
14.08.130 Force majeure—Grantee’s inability to perform.
14.08.140 Abandonment or removal of franchise property.
14.08.150 Grantor and subscriber rights.
14.08.010 Short title.
This chapter shall constitute the “Cable System Regulatory Chapter” of the city of Cerritos and may be referred to as such. (Ord. 907 § 3 (part), 2005)
14.08.020 Definitions.
For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning.
(1) “Applicable law” means all lawfully enacted federal, state and city laws, ordinances, codes, rules, regulations, orders and any amendments or successors thereto.
(2) “Affiliate” or “affiliated person” means each person who falls into one or more of the following categories: (a) each person having, directly or indirectly, a controlling interest in grantee; (b) each person in which grantee has, directly or indirectly, a controlling interest; (c) each officer, director, general partner, limited partner holding an interest of twenty percent or more, joint venturer, or joint venture partner in grantee’s cable system in the city; and (d) each person, directly or indirectly, controlling, controlled by, or under common control with grantee; provided, that “affiliated person” excludes the grantor, any limited partner holding an interest of less than twenty percent in the grantee, or any creditor of grantee, solely by virtue of its status of creditor, and which is not otherwise an affiliated person by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with grantee.
(3) “Basic cable service” means any service tier which includes the retransmission of local television broadcast signals.
(4) “Cable operator” means any person or group of persons who:
(a) Provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system; or
(b) Otherwise controls or is responsible for, through any arrangement, the management and operation of such cable system.
(5) “Cable service” means:
(a) The one-way transmission to subscribers of:
(i) Video programming; or
(ii) Other programming service; and
(b) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
(6) “Cable system” or “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 a community, but such term does not include:
(a) A facility that serves only to retransmit television signals of one or more television broadcast stations;
(b) A facility that serves subscribers without using any public rights-of-way;
(c) 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 be considered a cable system (other than for the purposes of 47 U.S.C. 541) to the extent such facility is used in the transmission of video programming directly to subscribers; unless the extent of such use is solely to provide interactive on-demand services;
(d) An open video system that complies with Title VI of the Communications Act of 1934 (47 U.S.C. 573) as amended; or
(e) Any facilities of any electric utility used solely for operating its electric utility system.
(7) “Channel” or “cable channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system which is capable of delivering a standard video signal as defined by the Federal Communications Commission.
(8) “City manager” means the city manager of the city of Cerritos, or his or her designee.
(9) “Council” or “city council” means the city council of the city of Cerritos.
(10) “Franchise” means an initial authorization, or renewal thereof, issued by the council, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system. Any such authorization, in whatever form granted, shall not supersede the requirement to obtain any license or permit required for the privilege of transacting business within the city as required by the other ordinances and laws of the city.
(11) “Franchise agreement” means a franchise grant ordinance or a contractual agreement, containing the specific provisions of the franchise granted, including references, specifications, requirements and other related matters.
(12) “Franchise fee” means any fee or assessment of any kind imposed by the city on a grantee as compensation for the grantee’s use of the public rights-of-way. The term “franchise fee” does not include:
(a) Any tax, fee or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services, but not including a tax, fee or assessment which is unduly discriminatory against cable operators or cable subscribers);
(b) Capital costs which are required by the franchise to be incurred by grantee for public, educational, or governmental 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.
(13) “Grantee” means any “person” receiving a franchise pursuant to this chapter and under the granting franchise ordinance or agreement, and its lawful successor, transferee or assignee.
(14) “Grantor” or “city” means the city of Cerritos as represented by the council or such representative as the council may designate to act on cable matters on its behalf.
(15) “Gross annual cable service revenues” means the annual gross revenues received directly or indirectly by a grantee, or an affiliate of grantee, from the operation of the cable system to provide cable service within the service area. Gross annual cable service revenues shall include, but not be limited to, subscriber revenue, equipment charges, late fees, advertising revenue, home shopping revenue and imputed revenue derived from trades and barters equivalent to the market value of goods and services provided by grantee. Gross annual cable service revenues shall not include refundable deposits, rebates or credits, unrecovered bad debt, or any sales, excise or other taxes or charges imposed externally to the franchise, and collected for direct pass-through to local, state or federal government.
(16) “Installation” means the connection of the system to subscribers’ terminals, and the provision of service.
(17) “Normal operating conditions” means those service conditions which are within the control of grantee. Those conditions which are not within the control of the grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.
(18) “Person” means an individual, partnership, association, joint stock company, trust, corporation, proprietorship or governmental entity.
(19) “Public, educational or government access facilities” or “PEG access facilities” means the total of the following:
(a) Channel capacity designated for public, educational, or government use; and
(b) Facilities and equipment for the use of such channel capacity.
(20) “Section” means any section, subsection or provision of this chapter.
(21) “Service area” or “franchise area” means the entire geographic area within the municipal boundaries of the city as it is now constituted or may in the future be constituted, unless otherwise specified in the franchise.
(22) “Service tier” means a category of cable service or other services provided by a cable operator and for which a separate rate is charged.
(23) “State” means the state of California.
(24) “Street” or “public way” or “public rights-of-way” means each of the following which have been dedicated for public use or are hereafter dedicated for public use and maintained under public authority or by others and located within the service area: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property.
(25) “Subscriber” or “customer” or “consumer” means any person who or which elects to subscribe to, for any purpose, cable service provided by the grantee by means of or in connection with the cable system, and who pays the charges therefor. (Ord. 907 § 3 (part), 2005)
14.08.030 Franchise terms and conditions.
(1) Franchise Purposes. A franchise granted by the city under the provisions of this chapter shall encompass the following purposes:
(a) To permit the grantee to engage in the business of providing cable service to subscribers within the designated service area.
(b) To identify and specify those conditions, definitions, itemizations, specifications and other particulars of the franchise agreement between grantor and grantee.
(c) To identify and authorize the grantee to erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along and across streets or other public places within the designated service area as permitted in this chapter and the franchise agreement.
(d) To permit the grantee to maintain and operate said franchise properties for the origination, reception, transmission, amplification, and distribution of cable services.
(e) To set forth the obligations of the grantee under the franchise.
(2) Franchise Required. Upon and after the effective date of this chapter, it shall be unlawful for any person to construct, install or operate a cable system in the city within any public way without a properly granted franchise awarded pursuant to the provisions of this chapter. Any person who violates this section shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine of not more than five thousand dollars, or by imprisonment in the county jail, or both such fine and imprisonment.
(3) Term of Franchise.
(a) A franchise granted hereunder shall be for a term established in the franchise agreement, commencing on the grantor’s adoption of an ordinance or resolution authorizing the franchise.
(b) A franchise granted hereunder may be renewed upon application by the grantee pursuant to the provisions of applicable law.
(4) Franchise Territory. Any franchise shall be valid within all the municipal limits of the city, and within any area added to the city during the term of the franchise, unless otherwise specified in the franchise agreement.
(5) Federal or State Jurisdiction. This chapter shall be construed in a manner consistent with all applicable law, and shall apply to all franchises granted, transferred or renewed upon or after the effective date of this chapter to the extent permitted by applicable law.
(6) Applicable Law, Police Power.
(a) Except as specified in any franchise, the grantee shall be subject to all applicable law.
(b) The city retains every power and right that the city has under applicable law.
(c) Nothing in any franchise shall be deemed to waive any of the city’s governmental rights or police powers.
(7) Franchise Nontransferable.
(a) Grantee shall not sell, transfer, assign or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation or otherwise (collectively “transfer”), the franchise, any of the rights or privileges therein granted, or the cable system, without the prior written consent of the council and consistent with applicable law; provided, however, grantee shall have the right to pledge, hypothecate and assign the franchise from time to time for security purposes to a lender or lenders without the need for such consent. If such lender acquires the franchise through said security interest, any subsequent transfer from such lender shall be subject to prior written consent of the council and consistent with applicable law. Any attempt to transfer the franchise without the consent of the council shall be null and void. The granting of consent for a transfer in one instance will not render unnecessary approval of any subsequent transfer.
(b) The requirements of subsection (7)(a) of this section shall apply to any change in control of grantee. The word “control” as used herein includes majority ownership, and actual working control in whatever manner exercised. In the event that grantee is a corporation, prior consent of the council shall be required where ownership or control of more than twenty percent of the ownership or voting stock of the grantee, or grantee’s immediate, intermediate or ultimate parent is acquired by a person or group of persons acting in concert, none of whom own or control the voting stock of the grantee as of the effective date of the franchise, singularly or collectively.
(c) Grantee shall notify grantor in writing of any foreclosure or any other judicial sale of all or a substantial part of the franchise property of the grantee or upon the termination of any lease or interest covering all or a substantial part of said franchise property. Such notification shall be considered by grantor as notice that a change in control or ownership of the franchise has taken place and the provisions under this section governing the consent of grantor to such change in control or ownership shall apply.
(d) Grantee shall promptly notify grantor of any proposed transfer. If any transfer should take place without prior notice to grantor, grantee shall promptly notify grantor that such a transfer has occurred. At least one hundred twenty calendar days before the contemplated effective date of a transfer, grantee shall submit to grantor an application (hereinafter “application”) for approving the transfer. Such application will provide complete information on the proposed transaction.
(e) The following information must be included in the application; provided, that grantee is not required to duplicate information that it submits to grantor to comply with its obligations under applicable law. No application shall be considered complete until all required information is received by the grantor.
(i) All information and forms required under applicable law, including Federal Communications Commission Form 394 or equivalent;
(ii) All information required in this section for franchise grants, renewals, modifications or transfers;
(iii) A detailed statement of the corporate or other business entity organization and management structure of the proposed transferee, together with an explanation of how decisions regarding the cable system will be made if the proposed transaction is approved;
(iv) Any contracts or other documents that relate to the proposed transaction, including all documents, schedules, exhibits or the like referred to therein;
(v) Any shareholder reports or filings with the Securities and Exchange Commission that discuss the transaction;
(vi) Complete information regarding any potential impact of the transfer on subscriber rates and services;
(vii) A brief summary of the proposed transferee’s plans for at least the next five years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of services and any other changes affecting or enhancing the performance of the cable system; and
(viii) Legal, technical and financial qualifications of the prospective transferee.
(f) Grantor may require grantee, or any prospective transferee, to provide additional information as it may deem necessary to determine whether the transfer is in the public interest and should be approved, denied or conditioned. Grantee and any prospective transferees shall assist grantor in any such inquiry and provide information requested. Failure to do so may result in the request for transfer being denied.
(g) In determining whether to grant, deny or grant subject to conditions an application for a transfer of a franchise, grantor’s consideration may include, but is not necessarily limited to:
(i) The legal, financial and technical qualifications of the transferee to operate the cable system;
(ii) Any potential impact of the transfer on subscriber rates or services;
(iii) Whether the incumbent grantee is in compliance with its franchise and applicable law and, if not, the proposed transferee’s commitment to cure such noncompliance;
(iv) Whether the transferee owns or controls any other cable system in the service area and whether operation by the transferee may eliminate or reduce competition in the delivery of the cable service in the service area; and
(v) Whether operation by the transferee or approval of the transfer would adversely affect subscribers, the public or grantor’s interest in the cable franchise or applicable law.
(h) Any transfer without grantor’s prior written approval is ineffective, and will make a franchise subject to revocation and to any other remedies available under the franchise or applicable law, except where a request for approval or sale is subject to a deadline for action under 47 U.S.C. 537 and grantor fails to act by the time required under 47 U.S.C. 537.
(i) Grantor will not approve a transfer request unless the transferee agrees in writing that it will abide by and accept all terms of the cable franchise and applicable law and that the transferee will assume the obligations, liabilities and responsibility for all acts and omissions of the previous grantee under the franchise and applicable law for all purposes, including renewal, unless grantor, in its sole discretion, expressly waives this requirement in whole or in part.
(j) Any submission of an application for transfer of a franchise shall be accompanied by a nonrefundable franchise processing fee in the amount of five thousand dollars. Upon transfer, grantee shall reimburse grantor for grantor’s processing and review expenses in connection with the transfer of the franchise including without limitation costs of administrative review, financial, legal and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication costs and document preparation expenses. Any such reimbursement shall not be charged against any franchise fee due to grantor during the term of the franchise.
(8) Geographical Coverage.
(a) Grantee shall design, construct and maintain the cable system to have the capability to pass every improvement in the service area.
(b) After service has been established by activating trunk and/or distribution cables for any service area, grantee shall provide service to any requesting subscriber within that service area within thirty days from the date of request; provided, that the grantee is able to secure all rights-of-way, permits and landlord agreements necessary to extend service to such subscriber within such thirty-day period on reasonable terms and conditions.
(9) Nonexclusive Franchise. Any franchise granted pursuant to this chapter shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable system, as it deems appropriate, subject to applicable law.
(10) Multiple Franchises. Grantor may grant any number of franchises subject to applicable law. Grantor may limit the number of franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations, such as:
(a) The capacity of the public rights-of-way to accommodate multiple cables in addition to the cables, conduits and pipes of the utility systems, such as electrical power, telephone, gas and sewerage.
(b) The benefits that may accrue to subscribers as a result of cable system competition, such as lower rates and improved service.
(c) The disadvantages that may result from cable system competition, such as the requirement for multiple pedestals on residents’ property, and the disruption arising from numerous excavations of the public rights-of-way.
(11) Franchise Modification. The grantee may be required to pay any costs incurred by the grantor in processing a grantee request for franchise modification. Upon written request from the grantee, the grantor shall provide grantee with an estimate of the total processing costs prior to entering into the review of the request. Such costs shall be paid by the grantee prior to final consideration of the request by the grantor.
(12) Contents of Franchise Agreements. If there is any conflict or inconsistency between the provisions of a franchise agreement authorized by the city council and provisions of this chapter as of the effective date of the franchise agreement, the provisions of this chapter shall control except where a provision of the franchise agreement expressly states otherwise. Should this chapter be amended, revised, superseded or otherwise changed after the effective date of a franchise agreement issued pursuant to this chapter in such way as would materially affect the terms and conditions of such franchise agreement, said amendment, revision or change to this chapter shall not apply to such franchise without the affected grantee’s approval. This provision shall not apply in circumstances of grantor’s use of its police power or where applicable law permits grantor to make amendments, revisions or changes to this chapter that shall apply to such franchise without grantee’s approval. (Ord. 907 § 3 (part), 2005)
14.08.040 Franchise applications and renewal.
(1) Filing of Applications. Any person desiring an initial franchise for a cable system shall file an application with the city. A nonrefundable initial application fee established by resolution of the city shall accompany the initial franchise application to cover all validly documented costs associated with processing and reviewing the application, including without limitation costs of administrative review, financial, legal and technical evaluation of the applicant, notice and publication requirements with respect to the consideration of the application and document preparation expenses. In the event such validly documented costs exceed the application fee, the selected applicant(s) shall pay the difference to the city within thirty days following receipt of an itemized statement of such costs.
(2) Applications—Contents. An application for an initial franchise for a cable system shall contain, where applicable:
(a) The names and addresses of persons authorized to act on behalf of the applicant with respect to the application;
(b) The name and address of the applicant and identification of applicant’s ownership and control, including:
(i) The names and addresses of the ten largest holders of an ownership interest in the applicant and all persons in the applicant’s direct ownership chain; and
(ii) The names and addresses of all persons owning ten percent or more in the applicant; and
(iii) The names and addresses of all persons controlling the applicant either directly or indirectly; and
(iv) All of applicant’s officers and directors and persons in the applicant’s direct ownership chain;
(c) A demonstration of the applicant’s technical ability to construct and/or operate the proposed cable system, including identification of key personnel;
(d) A demonstration of the applicant’s legal qualifications to construct and/or operate the proposed cable system;
(e) A statement prepared by an independent certified public accountant or independent financial institution regarding the applicant’s financial ability to complete the construction and operation of its proposed cable system;
(f) A description of the applicant’s prior experience in cable system ownership, construction, and operation;
(g) Identification of California cities and counties where the applicant or its principals own, or have an interest in, a cable franchise. If an applicant does not have a cable franchise in California, it shall provide the information for its operations in other states;
(h) Identification of the area of the city to be served by the proposed cable system, including a description of the boundaries of the proposed service area;
(i) A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, headend, and PEG access facilities;
(j) A plan for constructing the proposed cable system, including estimated plant mileage and location; proposed construction schedule; a description, where appropriate, of how services will be converted from existing facilities to new facilities;
(k) The proposed initial rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services;
(l) A demonstration of how the applicant will meet the community’s future cable-related needs and interests, including descriptions of the capacity, facilities, and support for public, educational, and governmental use of the cable system (including institutional networks);
(m) Pro forma financial projections for the proposed cable franchise term, including a statement of projected income and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules;
(n) If the applicant proposes to provide cable service to an area already served by an existing franchisee, the ability of public rights-of-way and other property that would be used by the applicant to accommodate an additional system;
(o) Any other information as may be necessary to demonstrate compliance with the requirements of applicable law; and
(p) An affidavit or declaration of the applicant or its authorized officer certifying to the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the application meets all requirements of applicable law.
(3) Consideration of Initial Applications.
(a) Upon receipt of any application for an initial franchise, the city manager shall prepare a report and make recommendations respecting such application to the council.
(b) A public hearing shall be set prior to any initial franchise grant, at a time and date approved by the council. Within sixty days after the close of the hearing, the council shall make a decision based upon the evidence received at the hearing as to whether or not the initial franchise(s) should be granted, and, if granted, subject to what conditions. The council may grant one or more franchises, or may decline to grant any franchise.
(4) Franchise Renewal. Franchise renewals shall be in accordance with applicable law. Grantor and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise. (Ord. 907 § 3 (part), 2005)
14.08.050 Minimum consumer protection and service standards.
(1) Operational Standards.
(a) Except as otherwise provided in the franchise agreement, grantee shall meet or exceed the following consumer protection and service standards under normal operating conditions:
(i) Sufficient toll-free telephone line capacity during normal business hours to assure that telephone answer time by a customer service representative, including wait time, shall not exceed thirty seconds; and callers needing to be transferred shall not be required to wait more than thirty seconds before being connected to a service representative. Under normal operating conditions, a caller shall receive a busy signal less than three percent of the time. Grantee’s customer service telephone number(s) shall be listed in the telephone directories of all telephone service providers serving the city of Cerritos.
(ii) Emergency toll free telephone line capacity on a twenty-four-hour basis, including weekends and holidays. After normal business hours, the telephone calls may be answered by a service or an automated response system, and calls received after normal business hours by such service or automated response system must be responded to by a trained company representative by the next business day. During periods when an answering device, including, but not limited to voice-mail, is used, grantee shall provide personnel who shall contact the answering device or machine, at a minimum, every four hours to check on requests for service or complaints.
(iii) A business and service and payment office conveniently located to subscribers open during normal business hours where grantee provides adequate staffing to accept subscriber payments and the return or exchange of subscriber equipment. “Conveniently located” shall either be within the city, or at such different location as may be detailed in grantee’s franchise agreement. Normal business hours shall include some evening hours, at least one night per week, and/or some weekend hours, but in no case less than forty-eight hours per week. The grantee may petition the grantor to reduce its business hours if the extended hours are not justified by subscriber demand, and grantor may not unreasonably deny the petition.
(iv) An emergency system maintenance and repair staff, capable of responding to and repairing major system malfunction on a twenty-four-hour-per-day basis.
(v) An installation staff, capable of installing service to any subscriber requiring a standard installation within seven days after receipt of a request, in all areas where trunk and feeder cable have been activated. “Standard installations” shall be those that are located up to one hundred twenty-five feet from the existing distribution system, unless otherwise defined in any franchise agreement.
(vi) Grantee shall schedule, within a specified four-hour time period during normal business hours, all appointments with subscribers for installation of service, service calls and other activities at the subscriber location. Grantee may schedule installation and service calls outside of normal business hours for the express convenience of the customer. Grantee shall not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. If a grantee representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer shall be contacted and the appointment rescheduled, as necessary, at a time which is mutually agreeable to the grantee and the customer.
(b) Under normal operating conditions, the standards of subsections (1)(a)(i) through (1)(a)(ii) of this section shall be met not less than ninety percent of the time measured on a quarterly basis. For the purposes of this section, “quarterly” shall mean any consecutive three calendar month period and is not necessarily coincident with a calendar quarter. Under normal operating conditions, the standards of subsections (1)(a)(iv) through (1)(a)(vi) of this section shall be met not less than ninety-five percent of the time measured on a quarterly basis.
(c) Grantee shall not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply.
(d) The grantee shall offer and fully describe to those wishing to become a subscriber and existing subscribers who have experienced a missed appointment (where the missed appointment was not the subscriber’s fault) that the potential or existing subscriber may choose from at least the following options:
(i) Installation or service call free of charge, if the appointment was for an installation or service call for which a fee was to be charged;
(ii) An opportunity to elect remedies under California Civil Code Section 1722, if applicable.
(2) Service Standards.
(a) 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, shall be preceded by notice and shall occur during a period of minimum use of the cable system, preferably between one a.m. and five a.m. local time.
(b) The grantee shall maintain a repair force of technicians normally capable of responding to subscriber requests for service within the following time frames:
(i) For a system outage: within two hours, including weekends, of receiving subscriber calls or requests for service which by number identify a system outage of sound or picture of one or more channels, affecting at least ten percent of the subscribers of the system.
(ii) For an isolated outage: within twenty-four hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one or more channels that affects five or more subscribers. On weekends, an outage affecting fewer than five subscribers shall result in a service call no later than the next business day.
(iii) For inferior signal quality: within two business days of receiving a request for service identifying a problem concerning picture or sound quality.
(c) Within twenty-four hours of grantee’s discovery of a service outage meeting or exceeding the outage thresholds of subsections (2)(b)(i) and (2)(b)(ii) of this section, grantee shall submit to grantor an e-mail, or other mutually agreed form of written communication, detailing at least the following information detailing the nature of the outage: date, time, location, cause and number of subscribers affected.
(d) Grantee shall be deemed to have responded to 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, the technician shall leave written notification of arrival.
(e) Grantee shall not charge for the repair or replacement of defective or malfunctioning equipment provided by grantee to subscribers, unless the defect was caused by the subscriber, or the equipment owned by the subscriber requires repair or replacement.
(f) With regard to subscribers with mobility-limiting disabilities, upon subscriber request, each grantee shall arrange for pickup and/or replacement of converters or other grantee equipment at the subscriber’s address or by a satisfactory equivalent (such as providing postage prepaid mailer).
(g) Unless excused, grantee shall determine the nature of the problem resulting in a request for service within two business days of beginning work and resolve all cable system related problems within five business days unless technically infeasible.
(3) Billing and Information Standards.
(a) A franchisee’s billing statement must be clear, concise, and understandable; must itemize each category of service and equipment provided to the subscriber; and must state clearly the charges therefor.
(b) A grantee’s billing statement must show a specific payment due date not earlier than the later of:
(i) Fifteen days after the date the billing statement is mailed; or
(ii) The tenth day of the service period for which the bill is rendered.
(c) A late fee or administrative fee (collectively referred to below as a “late fee”) may not be imposed for payments earlier than twenty-seven days after the due date specified in the bill.
(i) A late fee may not be imposed unless the subscriber is provided written notice at least ten days before the date the fee is imposed that a fee will be imposed, the date the fee will be imposed and the amount of the fee that will be imposed if the delinquency is not paid. The notice of delinquency and impending late fee assessment may be part of a subscriber billing statement. A late fee may not be imposed unless the outstanding balance exceeds ten dollars.
(ii) Subscribers shall not be charged a late fee or otherwise penalized for any failure by a grantee, including failure to timely or correctly bill the subscriber, or failure to properly credit the subscriber for a payment timely made. Payments shall be considered timely if received by the due date.
(iii) A grantee’s bill must permit a subscriber to remit payment by mail or in person at the grantee’s local office.
(d) In case of a billing dispute, the grantee shall respond to a written complaint from a subscriber within thirty days. Pending resolution of the billing dispute, grantee shall exercise care to ensure that no termination or late charge notices are issued for the disputed portions of the bill.
(e) Credits or refunds shall automatically be provided by grantee on a pro rata basis to any subscriber(s) affected by interruption(s) of service for more than three hours due to actions or outages under the control of the grantee, exclusive of scheduled repairs, maintenance or franchise-required construction that grantee has provided advance written notice of to subscribers. In cases where advance written notice is provided to subscribers, the time period detailed in said notice shall not exceed six hours in any twenty-four-hour period. In cases where said notice has been given to subscribers and the service interruption exceeds the period detailed in said notice, the provisions of this section shall apply.
In the event grantee has improperly or inadvertently disconnected cable services to a subscriber, grantee shall provide for restoration without charge to subscriber as soon as possible, but no later than within two days of discovery of disconnection. Grantee shall credit or provide refunds to any subscriber improperly or inadvertently disconnected from receiving cable services for the period of time without cable service.
All credits or refunds for service shall be issued no later than the customer’s next billing cycle following the determination that a credit is warranted. For subscribers terminating service, refunds shall be issued promptly, but no later than thirty days after the return of any grantee-supplied equipment.
(f) Grantee shall provide written information on each of the following areas:
(1) At the time of the installation of service;
(2) At least annually to all subscribers; and
(3) At any time upon request:
(i) Products and services offered; and
(ii) Prices and options for programming services and conditions of subscription to programming and other services; and
(iii) Installation and service maintenance policies; and
(iv) Instructions on how to use the cable service; and
(v) Channel positions of programming carried on the system; and
(vi) Billing and complaint procedures, including the time to pay outstanding bills, the grounds for termination of service, the process for resolving billing disputes, and the address and telephone number of the grantor office designated for dealing with cable-related issues.
(g) Upon the initial provision of cable service to any subscriber, grantee shall pro rate the first invoice for cable service to reflect, to the extent appropriate, any partial billing period due to the introduction of service at a time other than the initiation of a billing cycle.
(h) Upon the initial provision of cable service to any subscriber, grantee shall provide a written notice to the subscriber containing substantially the following information:
“Subscriber understands that the company uses public rights-of-way and other facilities of the city of Cerritos in providing service and that this continued use cannot be guaranteed. Subscriber agrees not to make any claims against the city of Cerritos or its officers or employees in the event that such use is denied for any reason, and company is unable, in its discretion, to provide service over alternate routes.”
(i) Subscribers and grantor shall be notified of any changes in rates, programming services or channel positions as soon as possible in writing and in accordance with applicable law. Notice must be given to subscribers and grantor a minimum of thirty days in advance of such changes if the change is within the control of the grantee. In addition, grantee shall notify subscribers and grantor thirty days in advance of any significant changes in the information required in subsection (3)(f) of this section.
(4) Verification of Compliance with Standards.
(a) Upon ten days’ prior written notice, grantee shall respond to a request for information made by grantor regarding grantee’s compliance with any or all of the standards required in subsections (1), (2) and (3) of this section. Grantee shall provide sufficient documentation to permit grantor to verify grantee’s compliance.
(b) A repeated and verifiable pattern of noncompliance with the consumer protection standards of subsections (1), (2) and (3) of this section, after grantee’s receipt of due notice and not less than a thirty-day opportunity to cure, may be deemed a material breach of the franchise agreement.
(c) The grantor, pursuant to subsection (1)(c) of this section, may require grantee to acquire equipment to determine compliance with the telephone answering standards of this section on a franchise-by-franchise basis. Should grantee have its own telephone equipment which can report on telephone line(s) usage, the grantee, upon written request from the grantor, shall submit such report from its own system in order to verify compliance with the telephone answering standards of this section.
(d) Grantee shall take necessary steps to ensure that adequate telephone lines and/or staffing are available to permit grantee to satisfy its obligations under this chapter and the franchise. Consideration shall be given for periods of promotional activities or outages. The monthly billing period shall be considered as a normal, daily activity for purposes of determining the availability of adequate telephone lines and/or staffing.
(5) Subscriber Complaints and Disputes.
(a) Grantee shall establish written procedures for receiving, acting upon and resolving subscriber complaints without intervention by the grantor. The written procedures shall prescribe the manner in which a subscriber may submit a complaint either orally or in writing specifying the subscriber’s grounds for dissatisfaction. Grantee shall file a copy of these procedures with grantor.
(b) Upon prior written request, grantor shall have the right to review grantee’s response to any subscriber complaints in order to determine grantee’s compliance with the franchise requirements, subject to the subscriber’s right to privacy.
(c) Grantee’s response to subscriber complaints, as well as complaints made by subscribers to grantor and provided by grantor to grantee, shall be acknowledged within one business day of receipt by grantee. The resolution of subscriber complaints shall be effected by grantee not later than three business days after receipt of the complaint, or a longer period if such complaint cannot reasonably be resolved within three business days. Should a grantee supervisor not be available when requested by a subscriber, a supervisor shall respond to the subscriber’s complaint at the earliest possible time, and in no event later than the end of the next business day. For complaints received by grantor and provided by grantor to grantee, grantee shall notify grantor of grantee’s progress in responding to, and resolving, said complaints.
(6) Truth in Advertising.
(a) Each grantee shall take appropriate steps to ensure that all written franchisee promotional materials, announcements, and advertising of cable service to subscribers and the general public, where price information is listed in any manner, clearly and accurately discloses price terms. In the case of telephone orders, a grantee shall take appropriate steps to ensure that price terms are clearly and accurately disclosed to potential customers in advance of taking the order.
(b) Each grantee shall maintain a file available for public inspection containing all notices provided to subscribers under these customer service standards, as well as all promotional offers made to subscribers. The notices and offers will be kept in the file for at least one year from the date of such notice or promotional offer.
(7) Other Requirements.
(a) In the event grantee fails to operate the system for seven consecutive days other than for reasons beyond the control of grantee, without prior approval or subsequent excuse of the grantor, the grantor may, at its sole option, operate the system or designate an operator until such time as grantee restores service under conditions acceptable to the grantor or a permanent operator is selected. If the grantor should fulfill this obligation for the grantee, then during such period as the grantor fulfills such obligation, the grantor shall be entitled to collect all revenues from the system, and the grantee shall reimburse the grantor for all costs or damages in excess of the revenues collected by grantor that are the result of grantee’s failure to perform.
(b) All officers, agents or employees of grantee or its contractors or subcontractors who, in the normal course of work come into contact with members of the public or who require entry onto subscribers’ premises, shall carry a photo-identification card in a form approved by grantor. Grantee shall account for all identification cards at all times. Every vehicle of the grantee or its major subcontractors shall be clearly identified as working for grantee.
(c) Additional service standards and standards governing consumer protection and response by grantee to subscriber complaints not otherwise provided for in this chapter may be established in the franchise agreement or by separate ordinance as permitted by applicable law. (Ord. 907 § 3 (part), 2005)
14.08.060 Franchise fee and financial requirements.
(1) Franchise Fee.
(a) Following the issuance and acceptance of the franchise, the grantee shall pay to the grantor a franchise fee on gross annual cable service revenues in the amount and at the times set forth in the franchise agreement.
(b) The grantor, on an annual basis, shall be furnished a statement within one hundred twenty days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by an officer or authorized financial representative of the grantee, reflecting the total amounts of gross revenues and all payments, deductions and computations for the period covered by the payment. Upon thirty days’ prior written notice, grantor shall have the right to conduct an independent financial audit of grantee’s gross annual cable service revenue and franchise fee records, and if such audit indicates a franchise fee underpayment of three percent or more, the grantee shall assume all documented costs of such audit.
(c) Except as otherwise provided by applicable law, no acceptance of any payment by the grantor shall be construed as a release or as an accord and satisfaction of any claim the grantor 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.
(d) In the event that any franchise fee payment or payment of any adjustment to any franchise fee is not made on or before the dates specified in the franchise agreement, unless otherwise excused, grantee shall pay an interest charge, computed from such due date, at an annual rate equal to the prevailing commercial prime interest rate in effect upon the due date, plus twelve percentage points.
(e) Franchise fee payments shall be made in accordance with the schedule indicated in the franchise agreement.
(2) Security.
(a) Grantor may require grantee to provide security, in an amount and form established in the franchise agreement. The amount of the security shall be established based on the extent of the grantee’s obligations under the terms of the franchise.
(b) The security shall be available to grantor to satisfy all claims, liens and/or taxes due grantor from grantee which arise by reason of construction, operation, or maintenance of the system, and to satisfy any actual or liquidated damages arising out of a material breach of the franchise agreement, subject to the procedures and amounts designated in the franchise agreement.
(c) If the security is drawn upon by grantor in accordance with the procedures established in this chapter and the franchise agreement, grantee shall cause the security to be replenished to the original amount no later than thirty days after receiving written confirmation from the issuer where such security is maintained that grantor has made a draw against the security. Failure to replenish the security shall be deemed a material breach of the franchise. (Ord. 907 § 3 (part), 2005)
14.08.070 Construction requirements.
(1) System Construction.
(a) Grantee shall not construct any cable system facilities until grantee has secured the necessary permits from grantor, or other responsible public agencies. The grantee shall be subject to all permit and bonding requirements applicable to contractors working within the public rights-of-way. No provision of this chapter or the franchise agreement shall be deemed a waiver of the obligation of a grantee to pay grantor for the issuance of a permit.
(b) Prior to performing any work in the public right-of-way, grantee shall give appropriate notice to the “underground service alert” (“USA”), or any similar type service provider as designated by the grantor.
(c) Grantee shall construct, operate and maintain its distribution facilities underground.
(d) Certain of grantee’s equipment, such as pedestals, amplifiers and power supplies, which normally are placed above ground, may continue to remain in above-ground enclosures, unless otherwise provided for by applicable law or in the franchise agreement. The city engineer, or a designee, shall have the right to approve the location, size, color, shape and screening for all above-ground appurtenances.
(e) Any changes in or extensions of any conduits, vaults, laterals or other fixtures and equipment (herein referred to as “structures”), or the construction of any additional structures, in, upon, along, across, under or over the streets, alleys and public ways shall be made under the direction of city engineer or a designee, who shall, if the proposed change, extension or construction conforms to the provisions hereof, issue written permits therefor.
(i) All transmission and distribution structures, lines and equipment constructed by the grantee shall be located so as not to interfere with the proper use of the public rights-of-way, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said public rights-of-way, and not to materially interfere with existing public and municipal utility installations.
(ii) In the event that any property or improvement of the grantor in the public rights-of-way is disturbed or damaged by the grantee or any of its contractors, agents or employees in connection with undertaking any and all work pursuant to the rights granted to the grantee pursuant to this chapter and the franchise agreement, the grantee shall promptly, at the grantee’s sole cost and expense, restore to as reasonably close to the condition existing immediately prior to the disturbance or damage of said property or improvement which was so disturbed or damaged. Any such restoration shall be to the grantor’s satisfaction. If such property or improvement shall, within one year (or in the case of street improvement, until the street is resurfaced if resurfaced prior to the expiration of the one year) of the date the restoration was completed, become uneven, unsettled or otherwise require additional restorative work, repair or replacement because of the initial disturbance or damage to the property by the grantee, then the grantee, as soon as reasonably possible, shall, promptly upon receipt of written notice from the grantor and at the grantee’s sole cost and expense, restore to the grantor’s satisfaction said property or improvement which was disturbed or damaged. Any such restoration by the grantee shall be made in accordance with such materials and specifications as may, from time to time, be established by the grantor.
(iii) If emergency work on the system in the public right-of-way is required, the grantee shall with all due diligence seek to obtain any and all such required permits, licenses and authorizations within three working days after commencing such emergency work.
(iv) There shall be no unreasonable or unnecessary obstruction of the public rights-of-way by the grantee in connection with any of the work provided for herein. The grantee shall maintain any barriers, signs and warning signals during any work performed on or about the public rights-of-way or adjacent thereto as may be necessary to reasonably avoid injury or damage to life and property.
(v) If the city manager or city engineer determines that the grantee has created an unsafe condition in the public right-of-way or adjacent thereto, the city shall have the authority to issue a work stoppage order restricting any work by grantee in the public rights-of-way until the unsafe condition has been corrected to the city’s reasonable satisfaction. In cases where unsafe conditions are found by the city, the grantee shall correct the condition as soon as possible unless otherwise permitted by the city.
(vi) If the grantor lawfully elects to alter or change the grade or location of any public right-of-way, the grantee shall, upon reasonable notice by the grantor, and in a timely manner, remove, relay and relocate grantee’s underground conduits, manholes and other fixtures at its own expense; provided, that grantee shall be entitled to share in any grantor-provided funds or reimbursements provided to utilities or other users of the public rights-of-way for such relocation.
(vii) The grantee shall not place conduits or other fixtures above or below ground where the same will interfere with any gas, electric, telephone fixtures, water hydrants or other utility, and all such conduits or other fixtures placed in any street shall be so placed as to comply with all ordinances of the grantor.
(viii) Subject to provisions of city code, the grantee shall request of the grantor that certain trees or other natural growth overhanging the public rights-of-way be trimmed so as to prevent the branches of such trees or other natural growth from coming in contact with the grantee’s equipment. The grantor may require all trimming of trees and natural growth at the expense of the grantee.
(ix) Grantee shall be subject to any and all requirements established by the grantor with regard to the placement and screening of facilities and equipment located in the public rights-of-way. Such requirements may include, but not be limited to, use of landscaping to screen pedestals and cabinets and requiring that construction be flush with the natural grade of the surrounding area.
(x) Grantee shall use only chalk-based paints to mark the public rights-of-way in connection with the construction or maintenance of the cable system. All paint marks remaining after grantee’s clean-up following the completion of the construction or maintenance work must be removed by grantee by means of chemicals, water or high-pressure water within thirty days following receipt by grantee of grantor’s written notice requiring such removal.
(2) Multiple Franchises. If the grantor authorizes or permits another cable system to operate within the municipal limits of the city, grantee shall cooperate with such franchisee to the extent necessary in the event that the installation of such new cable system requires the placing underground facilities incident to the construction of an additional cable system in the franchise area. The cost of the construction and installation of the new entrant cable system shall, however, be borne by the new cable franchisee. (Ord. 907 § 3 (part), 2005)
14.08.080 Standards.
(1) Applicable Standards.
(a) The grantee shall construct, install, operate and maintain its cable system in a manner consistent with applicable law, construction standards, local codes, governmental requirements, FCC technical standards, and any detailed standards set forth in its franchise agreement. In addition, the grantee shall provide to the grantor, upon written request, a written report of the results of the grantee’s periodic proof of performance tests conducted pursuant to FCC standards and guidelines.
(b) Should the FCC no longer require proof of performance tests, the grantee shall make and submit such proof of performance tests and reports in response to a written request from the grantor. Such report shall be submitted to the grantor within thirty days of issuance of the grantor request.
(2) Noncompliance with Standards. Repeated and verified failure to maintain specified technical standards shall constitute a material breach of the franchise. (Ord. 907 § 3 (part), 2005)
14.08.090 Indemnification and insurance requirements.
(1) Hold Harmless. Grantee shall indemnify, defend and hold grantor, its officers, agents and employees harmless from any liability, claims, damages, costs or expenses, to the extent provided in the franchise agreement.
(2) Insurance.
(a) On or before commencement of franchise operations, the grantee shall furnish to grantor certificates of insurance for liability, workers’ compensation and property insurance from appropriately qualified insurance companies, which shall be “admitted” in the state of California. The certificates of insurance shall provide that the insurance is in force and will not be cancelled or modified without thirty days prior written notice to grantor. The certificates of insurance shall be in a form satisfactory to grantor. The grantee shall maintain at its cost throughout the term of the franchise, the insurance required herein and in any franchise agreement.
(b) The policy of liability insurance shall:
(i) Name grantor, its officers, agents and employees as additional insured;
(ii) Indemnify all liability for personal and bodily injury, death and damage to property arising from activities conducted and premises used pursuant to this chapter by providing coverage therefor, including but not limited to: negligent acts or omissions of grantee, and its agents, servants and employees, committed in the conduct of franchise operations, and/or use of motor vehicles;
(iii) Provide a combined single limit for comprehensive general liability and comprehensive automobile liability insurance in the amount provided for in the franchise agreement.
(c) The policy of workers’ compensation insurance shall comply with the laws of the state of California.
(d) The policy of property insurance shall provide fire insurance with extended coverage on the franchise property used by grantee in the conduct of franchise operations in an amount adequate to enable grantee to resume franchise operations following the occurrence of any risk covered by this insurance.
The certificates of insurance shall indicate the following information:
(i) The policy number;
(ii) The date upon which the policy will become effective and the date upon which it will expire;
(iii) The names of the primary insureds and any additional insured required by the franchise agreement;
(iv) The subject of the insurance;
(v) The type of coverage provided by the insurance;
(vi) The amount or limit of coverage provided by the insurance; and
(vii) Any cancellation provisions.
Grantor reserves the right to inspect the original and/or receive copies of the relevant insurance policies.
(e) The commencement of franchise operations shall not begin until grantee has complied with the aforementioned provisions of this section.
(f) In the event grantee fails to maintain any of the above-described policies in full force and effect, grantor shall, upon forty-eight hours’ notice to grantee, have the right to procure the required insurance and recover the cost thereof from grantee. Grantor shall also have the right to suspend the franchise during any period that grantee fails to maintain said policies in full force and effect. (Ord. 907 § 3 (part), 2005)
14.08.100 Records and reports.
(1) Records Required.
(a) Grantee shall at all times maintain:
(i) A written or computer-stored record of all service calls and interruptions or degradation of service experienced for the preceding two years; provided, that such complaints result in or require a service call, subject to the subscriber’s right of privacy.
(ii) A full and complete set of plans and record drawings showing the locations of the cable system installed or in use in the city, exclusive of subscriber service drops and equipment provided in subscriber’s homes.
(iii) If requested by grantor, a summary of service calls, identifying the number, general nature and disposition of such calls, on a monthly basis. A summary of such service calls shall be submitted to the grantor within thirty days following any written request by grantor, in a form acceptable to the grantor.
(iv) If requested by grantor, a complaint record which shall contain a semi-annual (through June 30th and December 31st) breakdown indicating the total number of complaints received for the preceding reporting period, and shall indicate the classifications of complaints as follows: construction, billing, customer relations/service and miscellaneous.
(v) A full and complete record of rates for programming services, equipment, installations and other subscriber charges. This information shall include, but not be limited to, rates for the basic service tier, tiers of service beyond the basic tier, premium service, pay-per-view services, late fees, additional outlets, converters, remote controls and any charges for installation or service at the subscriber premises.
(b) The grantor may impose requests for additional information, records and documents from grantee, provided they relate to the scope of the city’s rights under this chapter or the grantee’s franchise agreement.
(c) Upon reasonable notice, and during normal business hours, grantee shall permit examination by any duly authorized representative of the grantor of all:
(i) Franchise property and facilities, together with any appurtenant property and facilities of grantee situated within the service area; and
(ii) All records relating to the franchise, provided they are necessary to enable the grantor to carry out its regulatory responsibilities under this chapter or the franchise agreement. Grantee shall have the right to be present at any such examination. Information that a grantee may consider to be confidential or proprietary shall be provided in accordance with the procedures of subsection (2)(d) of this section.
(2) Reports.
(a) Within ninety days after the end of the calendar year, grantee shall submit a written report to grantor with respect to the preceding calendar year in a form approved by grantor, including, but not limited to, the following information:
(i) A summary of the previous year’s (or in the case of the initial reporting year, the initial year’s) activities in development of the cable system, including, but not limited to, services begun or discontinued during the reporting year;
(ii) A list of grantee’s officers and members of its board of directors;
(iii) A list of stockholders or other equity investors holding ten percent or more of the voting interest in grantee;
(iv) Information as to:
(1) The number of homes passed;
(2) Total subscribers; and
(3) The number of basic and pay subscribers.
(v) A full and complete set of maps showing the locations of the cable system installed or in use in the city, exclusive of subscriber service drops and equipment provided in subscriber’s homes. It is the intent of this section that the grantor have a complete set of trunk and feeder maps. After the initial submission of a complete set of drawings, the grantee may satisfy the provisions of this section by providing updated portions of those sections of the drawings which have changed.
(vi) Any other information relevant to franchise regulation which the grantor shall request, and which is relevant to grantor’s regulatory responsibilities.
(b) The grantor may impose requests for additional reports, information, records and documents from grantee, provided they relate to the scope of the city’s rights under this chapter or the grantee’s franchise agreement.
(c) Upon request, grantee shall submit to grantor copies of all pleadings, applications and reports submitted by grantee to any federal, state or local court, regulatory agency, or other governmental body as well as copies of all decisions issued in response to such pleadings, applications and reports, which are non-routine in nature and which will materially affect its cable system within the franchise area.
(d) Information otherwise confidential by law and so designated by grantee, which is submitted to grantor, shall be retained in confidence by grantor and its authorized agents and shall not be made available for public inspection. Notwithstanding the foregoing, grantee shall have no obligation to provide copies of documents to grantor which contain trade secrets of grantee or which are otherwise of a confidential or proprietary nature to grantee unless it receives satisfactory assurances from grantor, as expressed in a written confidentiality agreement, that such information can and will be held in strictest confidence and protected by the grantor. To the extent possible, grantee may provide grantor with summaries of any required documents or copies thereof with trade secrets and proprietary matters deleted therefrom. The burden of proof shall be on grantee to establish the confidential nature of any information submitted, to the reasonable satisfaction of the grantor.
(e) If grantee is publicly held, a copy of each grantee’s annual and other periodic reports and those of its parent shall be submitted to grantor within forty-five days of the publication of such reports.
(f) Upon grantor’s request, but no more than annually, grantee shall submit to grantor a privacy report indicating the degree of compliance with the provisions contained in Sections 14.08.150(3)(c), (3)(d), (3)(e), (3)(f) and (3)(h) and all steps taken to assure that the privacy rights of individuals have been protected.
(g) All reports required under this chapter, except those required by law to be kept confidential, shall be available for public inspection in the grantor’s offices during normal business hours.
(h) All reports and records required to be delivered to grantor under this chapter shall be furnished at the sole expense of grantee, except as otherwise provided in the franchise agreement.
(i) The willful refusal, failure, or willful negligence of grantee to file any of the reports required as and when due under this chapter may be deemed a material breach of the franchise agreement if such reports are not provided to grantor within thirty days after written request therefor, and may subject the grantee to all remedies, legal or equitable, which are available to grantor under this chapter or the franchise agreement.
(j) Any materially false or misleading statement or representation made knowingly and willfully by the grantee in any report required under this chapter, the franchise agreement or applicable law, may be deemed a material breach of the franchise and may subject grantee to all remedies, legal or equitable, which are available to grantor.
(3) Opinion Survey. Upon written request of the grantor, but not more than once every two years, the grantee shall conduct a subscriber satisfaction survey pertaining to quality of service, which may be transmitted to subscribers. The survey shall be designed to be returned to the grantor and shall be subject to grantor’s prior review and approval, said approval to be in writing. The cost of such survey shall be borne by the grantor, said costs to be agreed to by grantor and grantee prior to transmittal to subscribers. (Ord. 907 § 3 (part), 2005)
14.08.110 Review of system performance.
(1) Biannual Review.
(a) Throughout the term of the franchise, but not more frequently than once in any two calendar year period, if requested by prior written notice from the grantor, grantor and grantee shall meet to review system performance and quality of service. The various reports required pursuant to this chapter, results of technical performance tests, the record of subscriber complaints and grantee’s response to those complaints, and the information acquired in any subscriber surveys, shall be utilized as the basis for review. In addition, any subscriber may submit comments or complaints during the review meetings, either orally or in writing, and these shall be considered. Within thirty days after the conclusion of such a review meeting, grantor may issue findings with respect to the cable system’s franchise compliance. Within thirty days of the issuance of such findings, the grantee shall provide the grantor with grantee’s written response to the findings.
(b) If grantor determines that grantee is not in compliance with the requirements of this chapter or the grantee’s franchise agreement, grantor shall provide grantee, in the form of written findings, the specific details of each alleged noncompliance. Grantor may then direct grantee to correct the areas of noncompliance within a reasonable period of time. Failure of the grantee, after due notice, to:
(i) Correct the area(s) of noncompliance within the period specified therefor; or
(ii) Commence compliance within such period and diligently achieve compliance thereafter; or
(iii) Demonstrate that the allegations of noncompliance are incorrect;
shall be considered a material breach of the franchise, and grantor may exercise any remedy within the scope of this chapter and the franchise agreement considered appropriate under the circumstances. (Ord. 907 § 3 (part), 2005)
14.08.120 Franchise violations.
(1) Remedies for Violations. If grantee fails to perform in a timely manner any material obligation required by this chapter or a franchise granted hereunder, following written notice from the grantor and an opportunity to cure such nonperformance in accordance with the provisions of this section, grantor may at its option and in its sole discretion:
(a) Cure the violation and recover the actual cost thereof from the security fund established in the franchise agreement, unless grantor, in its sole discretion, has provided grantee with additional time to effectuate a cure.
(b) Assess against grantee liquidated damages in an amount set forth in the franchise agreement for any such violations if such violation is not cured, or if grantee has not commenced a cure, on a schedule reasonably acceptable to grantor. Such assessment may be withdrawn from the security fund, and shall not constitute a waiver by grantor of any other right or remedy it may have under the franchise or applicable law, including without limitation, its right to recover from grantee such additional damages, losses, costs and expenses, including actual attorney’s fees, as may have been suffered or incurred by grantor by reason of or arising out of such material breach of the franchise.
(i) Within three days of a withdrawal from the security fund, grantor will mail, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal to grantee.
(ii) If, at the time of grantor’s withdrawal, the amounts available are insufficient to provide the total payment toward which the withdrawal is directed, the balance of such payment will continue as grantee’s obligation to grantor until it is paid.
(iii) Not later than thirty days after receipt of notification to grantee by certified mail, return receipt requested, of a withdrawal from the security fund, grantee will deliver to grantor for deposit in the security fund an amount equal to the amount so withdrawn.
(iv) Failure to make timely delivery of such amount to grantor or to restore the letter of credit will constitute a material violation of the cable franchise.
(2) Procedure for Remedying Franchise Violations. Prior to imposing any remedy or other sanction against grantee specified in this chapter, grantor shall give grantee notice and opportunity to be heard on the matter, in accordance with the following procedures:
(a) The city manager shall first notify grantee of the alleged violation in writing by personal delivery or registered or certified mail, and demand correction, or evidence of nonviolation, within a reasonable time, which shall not be less than thirty calendar days. If grantee fails to:
(i) Correct the alleged violation within the time prescribed; or
(ii) Commence correction of the alleged violation within the time prescribed and diligently remedy such alleged violation thereafter; or
(iii) Provide evidence that there is no violation, the city manager shall then give, by personal delivery or registered or certified mail written notice of not less than fifteen days of a hearing. Said notice shall set forth in detail each of the violations alleged to have occurred.
(b) The city manager shall hear and consider all other relevant evidence, and thereafter render findings and its decision.
(c) If the city manager finds that:
(i) The grantee has corrected the alleged violation; or
(ii) The grantee has diligently commenced correction of such alleged violation after notice thereof and is diligently proceeding to fully remedy such alleged violation; or
(iii) No material violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.
(d) If the city manager finds that a material violation exists and that grantee:
(i) Has not corrected the same in a satisfactory manner; or
(ii) Has not diligently commenced correction of such violation after notice thereof and is not diligently proceeding to fully remedy such violation; then the city manager may impose one or more of the remedies provided in this chapter and the franchise agreement as the city manager, in his or her discretion, deems appropriate under the circumstances.
(e) Grantee may appeal any findings of the city manager to the council. The council shall schedule a hearing on the issue within thirty days of receipt by the city manager of grantee’s appeal. The hearing will provide grantee with the full opportunity to participate and present evidence.
(3) Grantor’s Power to Revoke.
(a) Grantor may revoke any franchise granted pursuant to this chapter and rescind all rights and privileges associated with it in the following circumstances, each of which shall represent a default by grantee and a material breach under the franchise:
(i) If grantee fails to perform any of its material obligations under this chapter or the franchise agreement and continues such failure to perform after receipt of due notice and a reasonable opportunity to cure;
(ii) If grantee fails to provide or maintain in full force and effect the insurance coverage or security fund as required in the franchise agreement and continues such failure to perform after receipt of due notice and a reasonable opportunity to cure;
(iii) If grantee violates any final order or ruling of any regulatory body having jurisdiction over the grantee relative to the grantee’s franchise;
(iv) If grantee practices any material fraud or deceit upon grantor.
(b) After completing the procedures set forth in subsection (2) of this section, the grantor shall cause to be served on grantee written notice of grantor’s intent to revoke grantee’s franchise. Such notice shall be served on grantee at least thirty days prior to the date of the hearing on the issue. The notice shall contain the time and place of the hearing and shall be published at least once in a newspaper of general circulation within the franchise area ten days prior to the hearing date.
(c) The council shall hear any person(s) interested in the revocation and within ninety days after the date of the hearing shall make its determination whether the grantee has committed a material breach of the franchise.
(d) If the grantor determines that the grantee has committed a material breach, then the grantor may:
(i) Declare the franchise revoked and any security fund and bonds forfeited; or
(ii) If the material breach is curable by the grantee, direct the grantee to take appropriate remedial action within the time and manner and under the terms and conditions specified by the grantor.
The termination and forfeiture of the grantee’s franchise shall in no way affect any right of grantor to pursue any remedy under the franchise or any provision of law.
(4) Appeal of Council Finding. The grantee may appeal any council finding made pursuant to subsections (2) and (3) of this section to an appropriate court of jurisdiction. Any such appeal must be taken by the grantee within ninety days of the issuance of the council’s written decision. (Ord. 907 § 3 (part), 2005)
14.08.130 Force majeure—Grantee’s inability to perform.
In the event grantee’s performance of any of the terms, conditions or obligations required by this chapter or a franchise granted hereunder is prevented by a cause or event not within grantee’s control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof; provided, however, that such inability to perform shall not relieve a grantee from the obligations imposed by Section 14.08.050(3)(e) pertaining to refunds and credits for interruptions in service. For the purpose of this section, causes or events not within the control of grantee shall include without limitation acts of God, war, strikes, sabotage, riots or civil disturbances, labor disputes, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires, but shall not include financial inability of the grantee to perform or failure of the grantee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of grantee, or the failure of the grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or repair of the cable system where the grantee has failed to exercise reasonable diligence to secure such supplies, services or equipment. (Ord. 907 § 3 (part), 2005)
14.08.140 Abandonment or removal of franchise property.
(1) Abandonment or Removal.
(a) If the grantee discontinues the use of any of its property within the public rights-of-way for a continuous period of six months, such property shall be deemed to have been abandoned by grantee. Any part of the cable system that is parallel or redundant to other parts of the system and is intended for use only when needed as a backup for the system or a part thereof shall not be deemed to have been abandoned because of its lack of use.
(b) Grantor, upon such reasonable terms as grantor may lawfully impose, may give grantee permission to abandon, without removing, any system facility or equipment laid, directly constructed, operated or maintained under the franchise. Unless such permission is granted or unless otherwise provided in this chapter, the grantee shall remove all abandoned above-ground facilities and equipment upon receipt of written notice from grantor and shall restore to grantor’s satisfaction any affected public right-of-way. In removing its plant, structures and equipment, grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public rights-of-way in as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles, or attachments. Grantor shall have the right to inspect and approve the condition of the public rights-of-way, cables, wires, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this chapter and the security fund as provided herein shall continue in full force and effect during the period of removal and until full compliance by grantee with the terms and conditions of this subsection (1).
(c) Upon the approved abandonment of any franchise property, the grantee, if required by the grantor, shall submit to the grantor an instrument, satisfactory in form to the grantor, transferring to the grantor the ownership of the abandoned franchise property.
(d) At the expiration, without renewal or extension, of the term for which the franchise is granted, or upon its revocation, as provided herein, the grantor shall have the right to require grantee to remove, at its own expense, all above-ground portions of the cable system from all streets and public ways within the service area within a reasonable period of time, which shall not be less than one hundred eighty days.
(e) Notwithstanding anything to the contrary set forth in this chapter, the grantee may abandon any underground franchise property in place so long as it does not materially interfere with the use of the public rights-of-way in which such property is located or with the use thereof by any public utility or other franchise holder.
(2) Restoration by Grantor: Reimbursement of Costs. Upon written notice and upon the failure of the grantee to commence, pursue or complete any work to be done in any public right-of-way required by law or by the provisions of this chapter or the franchise agreement, within the time prescribed and to the satisfaction of the grantor, the grantor may cause the work to be commenced and/or completed. The grantor shall provide to the grantee an itemized work order setting forth in detail the exact nature of the work completed and the supplies used in such work. The grantee shall pay to the grantor the costs for such work no later than thirty days after receipt of the itemized work order.
(3) Extended Operation and Continuity of Services.
(a) Upon expiration or revocation of the franchise, the grantor shall have the discretion to permit grantee to continue to operate the cable system for an extended period of time. Grantee shall continue to operate the system under the terms and conditions of this chapter and the franchise, as existed immediately prior to said expiration or revocation, and to provide the regular subscriber service and any and all of the services that may be provided at that time. It shall be the right of all subscribers to continue to receive all available services provided that financial and other obligations to grantee are honored; provided, however, this provision is not intended to and does not create a third-party beneficiary relationship between grantee and any subscriber. The grantee shall use reasonable efforts to provide continuous, uninterrupted service to its subscribers, including operation of the system during transition periods following franchise expiration or termination.
(b) Subject to applicable law, it shall be the right of all subscribers to continue receiving cable service insofar as their financial and other obligations to the grantee are honored. In the event that the grantee elects to rebuild, modify, or sell the system, or the grantor gives notice of intent to terminate or not to renew the franchise, the grantee shall act so as to ensure that all subscribers receive cable service so long as the franchise remains in force. No provision in this section is intended to and does not create a third-party beneficiary relationship between grantee and any subscriber.
(c) In the event of a change of control of grantee, or in the event a new operator acquires the system, the original grantee shall cooperate with the grantor, new grantee or operator in maintaining continuity of service to all subscribers. During such period, grantee shall be entitled to the revenues for any period during which it operates the system.
(4) Receivership and Foreclosure.
(a) At the option of the grantor and subject to applicable law, a franchise granted hereunder may be revoked one hundred twenty days after appointment of a receiver(s) or trustee(s) to take over and conduct the business of grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless:
(i) The receivership or trusteeship shall have been vacated within said one hundred twenty days; or
(ii) Such receivers or trustees within said one hundred twenty days shall have remedied all the defaults under the franchise or provided a plan for the remedy of such defaults which is satisfactory to the grantor; or
(iii) Such receivers or trustees shall, within said one hundred twenty days, have executed an agreement duly approved by the court having jurisdiction whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise.
(b) In the case of a foreclosure or other judicial sale of the cable system, in whole or in part, the grantor may serve notice of revocation upon grantee and the successful bidder at such sale, and all rights and privileges of the grantee hereunder shall be revoked thirty days after service of such notice, unless:
(i) Grantor shall have approved the transfer of the franchise, in the manner provided by law; and
(ii) The successful bidder shall have covenanted and agreed with grantor to assume and be bound by all terms and conditions of the franchise. (Ord. 907 § 3 (part), 2005)
14.08.150 Grantor and subscriber rights.
(1) Reservation of Grantor Rights.
(a) In addition to any rights specifically reserved to the grantor by this chapter, the grantor reserves to itself every right and power which is required to be reserved by a provision of applicable law or under the franchise.
(b) Any right or power in, or duty retained or imposed upon grantor, or any commission, officer, employee, department or board of grantor; may be delegated by grantor, or to such other person or entity as grantor may designate to act on its behalf.
(2) Waiver.
(a) The grantor shall have the right to waive any provision of the franchise imposing an obligation on grantee, except those required by applicable law, if the grantor determines (1) that it is in the public interest to do so, or (2) that the enforcement of such provision will impose an undue hardship on the grantee or on the subscribers. To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of the grantor. Waiver of any provision in one instance shall not be deemed a waiver of such provision subsequent to such instance nor be deemed a waiver of any other provision of the franchise unless the statement so recites.
(b) The grantee shall not be excused from complying with any of the requirements of this chapter or the franchise agreement by any failure of the grantor on any one or more occasions to require or seek compliance with any such terms or conditions.
(3) Rights of Individuals.
(a) 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, sex, handicap, marital status or other protected classes. Grantee shall comply at all times with all other applicable law relating to nondiscrimination.
However, nothing in this chapter or the franchise shall limit the right of the grantee to deny service to any household or individual who has a negative credit or service history with the grantee, which may include non-payment of bills or theft or damage to grantee’s equipment, or who has threatened or assaulted employees of the grantee in the course of their employment. In cases of bad or negative credit, grantee may require the payment of a deposit.
(b) Grantee shall adhere to the applicable equal employment opportunity requirements of applicable law, as now written or as amended from time to time.
(c) Without a lawful court order or applicable valid legal authority, neither grantee, nor any person, agency, or entity shall, without the subscriber’s consent, tap, or arrange for the tapping, of any cable, line, signal input device, or subscriber outlet or receiver for any purpose except routine maintenance of the system, detection of unauthorized service, polling with audience participation, or audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified.
(d) In the conduct of providing its cable services or in pursuit of any collateral commercial enterprise resulting therefrom, grantee shall take steps to prevent the invasion of a subscriber’s or general citizen’s right of privacy or other personal rights through the use of the system as such rights are delineated or defined by applicable law. The grantee shall not without lawful court order or other applicable valid legal authority utilize the system’s interactive two-way equipment or capability, if such equipment or capability exists, for unauthorized personal surveillance of any subscriber or general citizen.
(i) Except for its own use, or in connection with the provision of cable services or for release of data to the grantor, the grantee shall not permit its system to be used for data collection purposes, nor shall it otherwise collect data which would reveal the commercial product or other preferences or opinions of an individual subscriber, members of their families, or their guests, licensees or employees, unless the grantee shall have received the prior written consent of such subscriber which written consent shall be maintained by grantee in its files for at least three years.
(ii) In any event, the grantee shall not disclose or permit the release or sale of data on individual subscribers or groups thereof, but may disclose or permit the release or sale of aggregate data only.
(e) Grantee shall not disclose individual subscriber preferences, viewing habits, beliefs, philosophy, creeds, or religious beliefs to any third person, firm, agency, governmental unit, or investigating agency without court authority or the prior written consent of the subscriber.
(i) Such written consent, if given, shall be limited to a period of time not to exceed one year, or a term agreed upon by the grantee and the subscriber.
(ii) The grantee shall not condition the delivery or receipt of cable services to any subscriber on any such consent.
(iii) A subscriber may revoke, without penalty or cost, any consent previously given by delivering to the grantee in writing a statement of the subscriber’s intent to so revoke.
(f) The grantee shall not disclose, or sell, or permit the disclosure or sale of its subscriber list without the prior written consent of each subscriber on such list; provided, that grantee may use its subscriber list as necessary for the construction, marketing, and maintenance of the grantee’s services and facilities authorized by a franchise, and the billing of subscribers for cable services; and provided further, that consistent with applicable law, grantor may use grantee’s subscriber list for the purpose of communication with subscribers in connection with matters relating to the operation, management, and maintenance of the cable system.
(g) No cable line, wire amplifier, converter, or other piece of equipment owned by grantee shall be installed by grantee in the subscriber’s premises, other than in appropriate easements, without first securing any required consent. If a subscriber requests service, permission to install upon subscriber’s property shall be deemed granted.
(h) Grantee shall comply with applicable law regarding subscriber privacy including, but not limited to, Section 631 of the Cable Act (47 U.S.C. 551). (Ord. 907 § 3 (part), 2005)
14.08.160 Severability.
If any provision of this chapter is held by any court or by any federal or state agency of competent jurisdiction, to be invalid as conflicting with any applicable law now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of applicable law, such provision shall be considered a separate, distinct, and independent part of this chapter, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that applicable law is subsequently repealed, rescinded, amended or otherwise changed, so that the provision thereof which had previously been held invalid or modified is no longer in conflict with applicable law, said provision shall thereupon return to full force and effect and shall thereafter be binding on grantor and grantee; provided, that grantor shall give grantee thirty days’ written notice of such change before requiring compliance with said provision or such longer period of time as may be reasonably required for grantee to comply with such provision. (Ord. 907 § 3 (part), 2005)