Chapter 5.30 CABLE COMMUNICATIONS SYSTEMS

Cross references: Cable television facilities in new development, § 15.90.010 et seq.; businesses and business regulations, Title 5; streets, sidewalks, and other public places, Title 12; utilities, Title 13; zoning, Title 18; antennas and wireless communications facilities for new and substantially changed facilities, Chapter 18.205 CDC; and wireless communications facilities for eligible facilities requests, Chapter 18.207 CDC.

Article I. General Provisions

5.30.010 Purpose.

The purpose of this ordinance is to promote competition in the cable industry, facilitate the development of cable infrastructure, minimize aesthetic impacts and damage to public property, provide for the payment of reasonable compensation for the commercial use of public property, and establish customer service standards.

(Code 1965, § 6701; Code 2002, § 102-31. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.020 Definitions.

All of the following definitions shall be construed liberally for the purpose of maximizing the scope of this ordinance.

(a) Affiliate means any subsidiary of the Operator, any parent of the Operator, any Person in which the Operator has a Financial Interest, and any Person who is directly or indirectly under common control with the Operator.

(b) Basic cable service means the basic tier of service offered by the Operator in accordance with 47 U.S.C. 543(b)(7).

(c) Cable operator or operator means any person or group of persons (A) who 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) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a Cable System. Cable Operator includes, but is not limited to, affiliates of a Cable Operator who perform Cable Services through the operation of the Cable System within the franchise area.

(d) 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.

(e) Cable system or system means the facility proposed to be built, rebuilt, upgraded and/or operated by the Operator, which shall consist of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming, and which is provided to multiple subscribers within the City, but such term does not include: (A) a facility that serves only to retransmit the television signals of one (1) or more television broadcast stations; (B) a facility that serves Subscribers without using any public rights-of-way within the City; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of 47 U.S.C. §§ 201, et. seq., except that such facility shall be considered a Cable System (other than for purposes of 47 U.S.C. § 541(c)) 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 interaction or on-demand services; (D) an open video system that complies with 47 U.S.C. § 573; or (E) any facilities of any electric utility used solely for operating its electric utility system.

(f) FCC means the Federal Communications Commission, its designee, or any successor governmental entity thereto.

(g) Franchise means a non-exclusive authorization granted pursuant to this Ordinance and applicable law to construct, operate, and maintain a Cable System within the Public Rights-of-Way to provide Cable Service within all or a specified area of the City. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the City as required by State or City laws, ordinances or regulations, or for attaching devices to poles or other structures, whether owned by the City or a private entity, or for excavating or performing other work in or along Public Rights-of-Way, public property or private property.

(h) Franchise agreement means a contract entered into pursuant to this Chapter between the City and a Cable Operator that sets forth, subject to this Chapter, the terms and conditions under which a Franchise will be granted and exercised.

(i) Franchisee means a person that has been granted a Franchise by the City in accordance with the provisions of applicable law.

(j) Gross revenues. The term “Gross revenues” as used herein shall mean all revenues derived directly or indirectly by the Grantee or any affiliate of the Grantee from the operation of the cable system to provide cable services in the City. Gross revenues shall include, without limitation, the following: (i) fees charged to subscribers for basic service, cable programming service, premium service, pay-per-view programming, video-on-demand programming, a la carte programming, or other cable service; (ii) installation, disconnection, reconnection and change-in-service fees; (iii) franchise or license fees; (iv) late fees; (v) administrative fees, including FCC regulatory fees; (vi) charges for the rental or sales of converters and other equipment to subscribers; (vii) advertising revenues (excluding commissions paid to or retained by advertising agencies), provided, however, that revenues generated from advertising sales extending beyond the license area shall be prorated on a per subscriber basis, so that no revenues are double-counted, or attributed to more than one local governmental entity for purposes of calculating license fees; (viii) leased access channel fees; (ix) revenues for program guides; (x) studio and production equipment rental fees; and (xi) revenues from home shopping channels. Gross revenues shall be calculated in accordance with Generally Accepted Accounting Principle (“GAAP”).

Gross revenues do not include: (i) actual bad debt, provided however, that all or a part of any actual bad debt that is written off but subsequently collected shall be included in gross revenues in the period collected; (ii) the value of free cable services provided to employees of the Grantee; (iii) the value of advertising time on the cable system provided as consideration in barter transactions; (iv) any taxes on services furnished by Grantee which are imposed directly on any subscriber by the State of California, the City, or other governmental unit, and which are collected by the Grantee on behalf of the governmental unit; (v) any PEG capital support collected by the Grantee from the subscriber on behalf of the governmental unit or (vi) amounts received from programmers as reimbursement of marketing expenses and launch fees.

(k) Normal operating conditions means those conditions that are within the control of the Cable Operator. Conditions that are not within the control of the Cable Operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Conditions that are 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.

(l) Person means an individual, partnership, association, joint stock company, limited liability company, trust, corporation, or government entity.

(m) Peg means public, educational and governmental.

(n) Public rights of way means the surface of and the space above and below each of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the City limits: streets, roadways, highways, avenues, paths, lanes alleys, sidewalks, boulevards, easements, rights-of-way, and similar public property and areas that the City shall permit to be included within this definition from time to time. No reference herein to a “Public Right-of-Way” shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit use of the property for the purpose of installing, operating, and maintaining a Cable System. A Cable Operator shall be deemed to gain only those rights to use the property as are properly in the City, in its sole determination, and as the City may have the undisputed right and power to give.

(o) Subscriber means any Person who or which lawfully elects to become a recipient of Cable Service in a manner consistent with the Operator’s applicable terms of service.

(p) Transfer is any transaction in which (i) the Franchise or the rights and obligations held by the Operator under the Franchise are transferred or assigned to another Person or group of Persons; or (ii) there is a change in the direct or indirect control of the System, the Franchise or the Operator. The term “control,” as used herein, means working control, in whatever manner exercised. By way of illustration, and not limitation, the addition, deletion or other change of any general partner of the Operator, or a cable operator of the Cable System is such a change of control.

(Code 1965, § 6702; Code 2002, § 102-32. Ord. No. 06-7; Ord. No. 726; Ord. No. 88-4)

Article II. Cable Television

5.30.030 Franchise required.

No person shall establish, construct, operate, or maintain within this City a Cable System unless a Franchise has been obtained pursuant to the provisions of this Ordinance, and unless such Franchise is in full force and effect.

(Code 1965, § 6703; Code 2002, § 102-33. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.040 Granting.

The City Council may grant one or more nonexclusive revocable Franchises to establish, construct, operate and maintain Cable Systems within the City. A Franchise shall be effective only upon execution of a Franchise Agreement between the City and a Cable Operator and compliance with all requirements of this Code. In the event of any conflict between the express terms of this Ordinance and a Franchise Agreement, including any amendments to this Ordinance, the terms of such an Agreement shall prevail, except with respect to matters falling within the scope of the City’s police powers.

(Code 1965, § 6704; Code 2002, § 102-34. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.050 Term of franchise.

A franchise shall be granted a term as specified in the Franchise Agreement, but in any event not greater than 15 years.

(Code 1965, § 6705; Code 2002, § 102-35. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.060 Franchise characteristics.

(a) A Franchise authorizes use of Public Rights-of-Way for installing cables, wires, lines, optical fiber, underground conduit, and other devices necessary and appurtenant to the operation of a Cable System to provide Cable Service within a Franchise Area, but does not expressly or implicitly authorize a Cable Operator to provide service to, or install a Cable System on, private property without the owner’s consent or to use publicly or privately owned conduits or any public property other than the Public Rights-of-Way without a separate agreement with the owners thereof.

(b) A Franchise shall constitute both a right and an obligation to provide the Cable Services regulated by the provisions of this Ordinance and a Franchise Agreement.

(c) A Franchise is non-exclusive and shall not: explicitly or implicitly preclude the issuance of other Franchises to operate Cable Systems within the City; affect the City’s right to authorize use of Public Rights-of-Way or City-owned property by other Persons to operate Cable Systems or for other purposes as the City deems appropriate; or affect the City’s right to itself construct, operate, or maintain a Cable System.

(d) All privileges prescribed by a Franchise shall be subordinate to (without limitation) the City’s use and prior lawful occupancy of the Public Rights-of-Way or public property.

(e) The City reserves the right to reasonably designate, in accordance with its generally applicable procedures, where a Cable Operator’s facilities are to be placed within the Public Rights-of-Way or on any City-owned property the Cable Operator is otherwise authorized to use, and to resolve any disputes among users of the Public Rights-of-Way or such City-owned property.

(f) A Franchise authorizes use of the Public Rights-of-Way for the installation and operation of a Cable System to provide Cable Service within a Franchise Area. The City reserves its rights with respect to the regulation of telecommunications services and facilities, and to the extent allowed by applicable law, reserves the right to adopt a telecommunications ordinance.

(Code 1965, § 6706; Code 2002, § 102-36. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.070 Franchise applications.

(a) All applicants for a new Franchise shall submit a written application to the City. All applicants shall be expected to offer to subscribers a modern, efficient, cost-effective system that will facilitate high-quality maintenance, deliver a variety of programming and services, and provide the flexibility needed to adjust to changing technology and new developments in the industry. Applicants are encouraged to formulate their proposals in an innovative fashion, so as to meet the informational requirements of the City and the service needs of Subscribers. Proposals shall contain sufficient material to enable the City Council to make fully informed judgments concerning the adequacy of the proposal and the applicant’s qualifications to construct, operate and maintain a Cable System in the City. All applicants shall, at a minimum, provide the following information unless waived by the City Manager:

(1) The name, address and form of business of the applicant, and an identification of the ownership and control of the applicant, including: the names and addresses of the ten (10) largest holders of an ownership interest in the applicant and Affiliates of the applicant, and all Persons with five (5) percent or more ownership interest in the applicant and its Affiliates; the Persons who exercise working control over the applicant and its Affiliates, and the Persons who control those Persons, to the ultimate parent; all officers and directors of the applicant and its Affiliates; and any other business affiliation and Cable System ownership interest of each named Person.

(2) A description of the Cable Services that are or will be offered or provided by the applicant over its existing or proposed facilities.

(3) A description of the transmission facilities that will be used by the Cable Operator to offer or provide such cable services.

(4) Preliminary engineering plans, specifications and a network map of the facilities to be located within the City, all in sufficient detail to identify:

a. The location and route requested for applicant’s proposed cable facilities, including a description of the miles of plant to be installed, and a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route, the power sources that will be used, and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of the same.

b. The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the Public Rights-of-Way along the proposed route.

c. The location(s), if any, for interconnection with the facilities of other Cable Operators.

d. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate.

(5) If applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its cable facilities on existing utility poles along the proposed route.

(6) If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify:

a. The excess capacity currently available in such ducts or conduits before installation of applicant’s cable facilities;

b. The excess capacity, if any that will exist in such ducts or conduits after installation of applicant’s cable facilities.

(7) A preliminary construction schedule and completion dates.

(8) Financial statements prepared in accordance with generally accepted accounting principles by a certified public accountant or other accountant satisfactory to the City demonstrating the applicant’s financial ability to construct, operate, maintain, relocate and remove the facilities. If in the normal course of its business, the applicant does not prepare a separate financial statement for the Cable System, the applicant may submit a combined financial statement for the local region, which statement shall include the Cable System.

(9) Information in sufficient detail to establish the applicant’s technical qualifications, experience and expertise regarding the facilities and services described in the application, including identification of key personnel.

(10) Information to establish the applicant’s legal qualifications, including evidence that it has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide Cable Service.

(11) A detailed description of all other services that the applicant intends to provide and sufficient information to determine whether such services are subject to franchising.

(12) An accurate map showing the location of any existing facilities in the City that applicant intends to use or lease.

(13) A description of the services or facilities that the applicant will offer or make available to the City and other public, educational and governmental institutions.

(14) A description of applicant’s access and line extension policies.

(15) A written description and detailed map of the exact area or areas of the City the applicant desires to serve and a schedule for build-out to the entire franchise area.

(16) The number of activated, programmed channels that the applicant intends to provide together with the programming that the applicant intends to provide.

(17) All fees, deposits or charges required pursuant to Section 5.30.080 hereof.

(18) Such other and further information as may be requested by the City Manager.

(b) If a Franchise is granted to a Person who is acting on behalf of another or presenting its qualifications for the benefit of another and such information is not disclosed in the original application, such Franchise shall be deemed void and of no force and effect whatsoever.

(Code 1965, § 6707; Code 2002, § 102-37. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.080 Application fee.

An application fee for a new or renewal Franchise or for transfer of a Franchise may be required in the amount established from time to time by resolution of the City Council, to the extent consistent with applicable law.

(Code 1965, § 6708; Code 2002, § 102-38. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.090 New franchise procedure.

Upon receipt of an application for a new Franchise, the City Council may, by resolution, approve or conditionally approve a Franchise Agreement with the applicant or deny the application. In making any determination hereunder as to any application, the City Council shall give due consideration to: the quality of the service proposed; rates to Subscribers; experience, character, background and financial responsibility of the applicant, its management and owners; system design; technical and performance quality of equipment; willingness and ability to meet construction requirements and to abide by franchise limitations and requirements; and other considerations deemed pertinent by the City Council for safeguarding the interests of the City and the public.

(Code 1965, § 6709; Code 2002, § 102-39. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.100 Franchise renewal procedure.

(a) The procedure for franchise renewal shall be in accordance with applicable federal and state statutes.

(b) In the absence of federal and state statute specifically governing franchise renewal procedures, the following procedure shall apply, to the extent consistent with applicable law.

(c) At any time between twenty-four months and twelve months prior to the expiration of a franchise, a cable operator may apply for renewal of its franchise. Such application shall be made under the provisions of Section 5.30.070 through 5.30.100.

(d) Within twelve months of receipt of a completed application for renewal, the City Council shall hold a public hearing having afforded the Operator reasonable notice of such hearing. After this public hearing, the City Council shall grant or deny the application, basing its decision on the following factors:

(1) The Operator’s substantial compliance with the material terms of the existing Franchise and applicable law;

(2) The quality of the Operator’s services to its subscribers, including signal quality, response to consumer complaints and billing practices, but without regard to the mix or quality of cable services provided over the cable system, has been reasonable in light of community needs;

(3) Present and future cable-related community needs and interests of the Operator’s current and potential subscribers, taking into account the cost of meeting such needs and interests;

(4) The Operator’s financial, legal and technical qualifications to provide the services, facilities and equipment as set forth in the Operator’s proposal; and

(5) Such additional factors as the City Council considers relevant to the renewal of the franchise.

(e) In any renewal proceeding, the Operator shall be afforded adequate notice and shall be afforded fair opportunity for full participation. The Operator at its election and expense may have a transcript made of any such proceeding.

(f) The City Council, after a public hearing, may grant or deny a renewal application based on the criteria set forth in this section. The City shall grant or deny such application by resolution and, where the application is denied, the City shall state the reasons therefore.

(Code 1965, § 6710; Code 2002, § 102-40. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.110 Assignment and transfer.

The City shall select persons to whom it issues a franchise based upon the unique technical skills and talents of such persons to operate a cable communications system as well as upon such persons relevant experience and financial condition. As such, a franchise is personal to the franchisee and the identity of a franchisee is a material part of the city’s decision to issue a franchise. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer.

(Code 1965, § 6711; Code 2002, § 102-41. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.120 Transfer of ownership.

(a) City Council approval required. No Transfer shall occur unless prior application is made by the Operator to the City and the City Council’s prior written consent is obtained, pursuant to the Operator’s Franchise Agreement and this Cable Ordinance. Any such Transfer without the prior written consent of the City Council shall be considered to impair the City’s assurance of due performance, and shall be invalid. The granting of approval for a Transfer in one instance shall not render unnecessary approval any subsequent Transfer.

(1) Application. An Operator shall promptly notify the City Manager of any proposed Transfer. If any Transfer should take place without prior notice to the City Manager, the Operator shall promptly notify the City that such a Transfer has occurred. At least one hundred-twenty (120) calendar days prior to the contemplated effective date of a Transfer, the Operator shall submit to the City Manager an application for approval of the Transfer. Such an application shall provide complete information on the proposed transaction, including details of the legal, financial, technical, and other qualifications of the new controlling entity or transferee, and on the potential impact of the Transfer on Subscriber rates and service. At a minimum, the following information shall be included in the application, provided that, the Operator is not required to duplicate information that it submits to the City Manager to comply with its obligations under federal or State law:

a. All information and forms required under federal law;

b. All information required by this Ordinance;

c. Any contracts or other agreements that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein; and

d. Any shareholder reports or filings with the Securities and Exchange Commission that discuss the transaction.

(2) Supplemental information. The City shall notify an Operator of any insufficiency in the information provided in the application within thirty (30) days after receipt thereof. The failure of the City to so notify Operator of such insufficiency shall result in the application being deemed complete. For the purposes of determining whether it shall consent to a Transfer, the City or its agents may inquire into the qualifications of the prospective controlling entity or transferee and such other matters as the City may deem necessary to determine whether the Transfer is in the public interest and should be approved, denied, or conditioned as provided under this Ordinance. Notwithstanding whether the application has been deemed complete, the City may request additional information related to the proposed transaction to the extent permitted by applicable law.

(b) Determination by City. In making a determination as to whether to grant, deny, or grant subject to conditions, an application for a Transfer, the City may consider, without limitation, the legal, financial, technical and other qualifications of the proposed controlling entity or transferee to operate the Cable System; whether the Operator is in compliance with its Franchise Agreement and this Ordinance, and, if not, the proposed controlling entity transferee’s commitment to cure such noncompliance; and whether operation by the proposed controlling entity or transferee or approval of the Transfer would adversely affect the public health, safety, or welfare of Subscribers or the public.

(c) Transferee’s agreement. No application for a Transfer of the Franchise shall be granted unless the proposed controlling entity or transferee agrees in writing that it will abide by and accept all terms of its Franchise Agreement and this Ordinance and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous Operator under its Franchise Agreement and this Ordinance, for all purposes, including renewal.

(d) Approval does not constitute waiver. Approval by the City Council of a Transfer does not constitute a waiver or release of any of the rights of the City under a Franchise Agreement or this Ordinance, whether arising before or after the date of the Transfer.

(e) Exception for intra-company transfers. Notwithstanding the foregoing, a Transfer to an Affiliate of the Franchisee shall be excepted from the requirements of this section where (i) the Affiliate is wholly-owned and managed by the same ultimate parent as the transferor; and (ii) the transferee Affiliate:

(1) Notifies the City within thirty (30) days of the Transfer and, at that time, provides the agreements and warranties required by this section, describes the nature of the Transfer, and submits complete information describing who will have direct and indirect ownership and control of the Cable System after the Transfer;

(2) Warrants that it has read, accepts and agrees to be bound by each and every term of the Franchise Agreement and related amendments, regulations, ordinances and resolutions then in effect;

(3) Agrees to assume all responsibility for all liabilities, acts and omissions, known and unknown, of its predecessor Franchisee(s), for all purposes, including renewal;

(4) Agrees that the Transfer shall not permit it to take any position or exercise any right which could not have been exercised by its predecessor Franchisee(s);

(5) Warrants that the Transfer will not substantially increase the financial burdens upon or substantially diminish the financial resources available to the Franchisee (the warranty to be based on comparing the burdens upon and resources that will be available to the transferee compared to its predecessors), or otherwise adversely affect the ability of the Franchisee to perform;

(6) Warrants that the Transfer will not in any way adversely affect the City or Subscribers;

(7) Notifies the City that the Transfer is complete within five (5) business days of the date the Transfer is completed; and

(8) Agrees that the Transfer in no way affects any evaluation of its legal, financial or technical qualifications that may occur under the Franchise or applicable law after the Transfer, and does not directly or indirectly authorize any additional Transfers.

(f) The City’s consent to a transfer shall be required upon foreclosure or other judicial sale of all or a substantial part of the system or upon the termination of a lease covering all or a substantial part of the system, and the Cable Operator or Cable Operator shall notify the City. The notification shall be deemed notice of a change in control of the Cable Operator, which shall require the approval of the City Council.

(g) The City Council shall approve, conditionally approve or deny a transfer following receipt of all required materials within the period required under Federal law, if any, unless an extension is agree to by the City and the Cable Operator. Conditions of approval by the City Council may include, but are not limited to, the following: (a) Resolution of any outstanding franchise violations or performance deficiencies; (b) Payment of any outstanding franchise fees; (c) Filing of any appropriate bonds, insurance endorsements, letters of credit or guarantees; and (d) Written assumption of all obligations of the transferor by the transferee.

(h) Within thirty days after the date of the resolution approving transfer of the franchise, or within such extended period of time as the City Council in its discretion may authorize, the transferee shall file with the clerk of the City Council its written acceptance of the franchise, in a form satisfactory to the City, together with all required bonds and insurance certificates, and its agreement to be bound by and to comply with and to do all things required of it by the provisions of this division and the franchise award resolution. Such acceptance and agreement shall be acknowledged by the transferee before a notary public and shall be in a form and content satisfactory to and approved by the City attorney.

(i) Revocation following bankruptcy.

(1) Notwithstanding any other provision of this chapter, a Franchise will automatically terminate by force of law one hundred twenty (120) calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the Franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding.

(2) However, the Franchise may be reinstated if, within the one hundred twenty (120) day period:

i. The assignment, receivership or trusteeship is vacated; or

ii. The assignee, receiver, or trustee has fully complied with the terms and conditions of this article and the Franchise and has executed an agreement, approved by a court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of the Franchise Agreement and this code.

(j) Revocation upon foreclosure.

(1) Notwithstanding any other provision of this chapter, in the event of foreclosure or other judicial sale of any of Franchisee’s facilities, equipment, or property, the City may revoke a Franchise after a public hearing before the City Council, by serving notice upon the Franchisee and the successful bidder at the sale.

(2) The Franchise will be revoked and will terminate thirty (30) calendar days after serving such notice, unless:

i. The City approves the transfer of the Franchise to the successful bidder; and

ii. The successful bidder agrees with the City to assume and be bound by the terms and conditions of the Franchise and applicable law.

(k) Failure to comply with the requirements of this section is a material breach of this Article, subject to the remedies provided for herein.

(Code 1965, § 6712; Code 2002, § 102-42. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.130 Unauthorized operation of cable system.

Any Person occupying the Public Rights-of-Way of the City for the purpose of operating or constructing a Cable System, which Person does not hold a valid Franchise from the City, shall be subject to all provisions of this Article, including, but not limited to, those provisions regarding construction, technical standards and Franchise fees. The City at any time may require such Person to obtain a Franchise Agreement within thirty (30) days of receipt of a written notice from the City that a Franchise Agreement is required; require such Person to remove its property from the Public Rights-of-Way, and, at such Person’s sole expense, restore the area to a condition satisfactory to the City within a reasonable time period as the City shall determine; remove the property itself and restore the area to a satisfactory condition and charge the Person the costs therefor; and/or take any other action permitted by law, including, but not limited to, filing for and seeking damages for trespass. In no event shall a Franchise be created unless it is issued by action of the City Council and the Franchise terms are set forth in a Franchise Agreement. If a Cable Operator operates a cable system without first obtaining a valid Franchise from the City, the Cable Operator shall forfeit to the City all Gross Revenues from the system for so long as such unauthorized operation continues.

(Code 1965, § 6713; Code 2002, § 102-43. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.140 Acts at cable operator’s expense.

Any act that a Cable Operator is or may be required to perform under this Article, a Franchise Agreement, or applicable law shall be performed at the Cable Operator’s expense, unless expressly provided to the contrary in this Chapter, a Franchise Agreement, or applicable law.

(Code 1965, § 6714; Code 2002, § 102-44. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.150 Eminent domain.

Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the City’s rights of eminent domain to the extent to which such rights may apply to any Cable System or Franchise.

(Code 1965, § 6715; Code 2002, § 102-45. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.160 Annexations.

Within thirty (30) days after annexation of areas to the City which are served by a Cable Operator who does not have a Franchise from the City, the Cable Operator shall apply for a new Franchise. Pending consideration of such a Franchise, the Cable Operator shall comply with each and every provision of this Article, including but not limited to the franchise fee requirement. If a newly annexed area is not actively served by a Cable Operator, the Cable Operator(s) serving the area within the City contiguous to the newly annexed area shall provide service to that area within a reasonable time, subject to the provisions of any applicable Franchise Agreement, provided that the Cable Operator may request relief from this requirement upon a showing that it would be economically infeasible to extend service to that area.

(Code 1965, § 6716; Code 2002, § 102-46. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.170 Joint exercise of powers agreement.

Should a joint exercise of powers agreement (Gov. Code, § 6500 et seq.) or similar agreement be entered between the county and a City or cities located therein in accordance with law providing for the joint regulation of Cable Operators and cable services or other cooperative arrangements, involved Cable Operators shall be governed by, and subject to that agreement, pursuant to this Article’s provisions, provided that no such joint powers agreement shall impair any right or obligation of the Cable Operator under a franchise agreement.

(Code 1965, § 6717; Code 2002, § 102-47. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.180 Cable operator subject to other laws; police power.

(a) A Cable Operator at all times shall be subject to and shall comply with all applicable federal, State, and local laws, subject to Section 5.30.040 [Granting]. A Cable Operator at all times shall be subject to all lawful exercise of the police power of the City, including but not limited to all rights the City may have under 47 U.S.C. § 552. Nothing in a Franchise Agreement shall be deemed to waive the requirements of the various codes, ordinances, policies, rules, regulations, and practices of the City and the City Council, subject to the Operator’s lawful rights under its Franchise Agreement.

(b) No course of dealing between a Cable Operator and the City, or any delay on the part of the City in exercising any rights hereunder, or any acquiescence by the City in the actions of a Cable Operator that contravene any of the City’s rights (except to the extent such rights are expressly waived by the City in writing), shall operate as a waiver of any such rights of the City.

(c) The City shall have the maximum authority to regulate Cable Systems, Cable Operators, and Franchises as may now or hereafter be lawfully permissible; unless rights are expressly waived in a Franchise Agreement, they are hereby reserved, whether expressly enumerated or not.

(d) The City Manager and the City Council may, from time to time, issue such rules and regulations concerning Cable Systems as are consistent with, or authorized by, applicable law.

(e) The City Manager and the City Council may do all things which are necessary and convenient in the exercise of their jurisdiction under this Chapter.

(Code 1965, § 6718; Code 2002, § 102-48. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.190 Interpretation of franchise terms.

(a) The provisions of this Ordinance and any Franchise Agreement shall be liberally construed in order to effectuate the purposes and objectives of this Ordinance and the Franchise Agreement and to promote the public interest.

(b) Subject to federal law or regulation, a Franchise Agreement shall be governed by and construed in accordance with the laws of the State of California.

(Code 1965, § 6719; Code 2002, § 102-49. Ord. No. 726; Ord. No. 88-4; Ord. No. 06-7)

5.30.200 Administration.

The office of the City Manager is designated as having primary responsibility for the administration of every cable Franchise and this Article. Whenever a right may be exercised under this Article by the City or the City Manager, such right may also be exercised by a designated employee. No such delegation shall be deemed to constitute a delegation of legislative authority.

(Code 1965, § 6719; Code 2002, § 102-50. Ord. No. 93-14; Ord. No. 06-7)

5.30.210 Basic service.

The lowest priced level of cable service shall be available to all subscribers. No Subscriber shall be required to purchase any other service as a prerequisite to purchasing such level of service. Unless otherwise provided in a franchise agreement, the lowest priced level of service shall include all public, educational and government channels at no extra charge.

(Code 2002, § 102-51. Ord. No. 06-7)

5.30.220 Performance evaluation sessions.

The City and each Cable Operator shall hold scheduled performance evaluation sessions to the extent specified in the Franchise Agreement.

(Code 2002, § 102-52. Ord. No. 06-7)

5.30.230 Cable service to public buildings occupied by public agencies.

A Franchise Agreement may include provisions regarding installation of service outlets in buildings occupied by public agencies within the Franchise Area, and provision of service to such facilities, subject to negotiation between the parties and applicable law.

(Code 2002, § 102-53. Ord. No. 06-7)

5.30.240 PEG channels.

Subject to negotiation between the parties and applicable law, a Franchise Agreement may provide that a Cable Operator shall make available one or more dedicated channels on its Cable System for purposes of public, educational and governmental access, as set forth in the Franchise Agreement. Such channels shall be available on the lowest tier of basic service, to the extent consistent with the applicable Franchise Agreement. Such channels shall not be used for any advertisements or commercial programming without the permission of the City.

(Code 2002, § 102-54. Ord. No. 06-7)

5.30.250 PEG facilities.

A Franchise Agreement may include provisions regarding facilities, services and equipment for use in relation to public, educational and governmental access.

(Code 2002, § 102-55. Ord. No. 06-7)

5.30.260 Institutional network.

A Franchise Agreement may include provisions regarding construction and use of institutional networks.

(Code 2002, § 102-56. Ord. No. 06-7)

5.30.270 Public access usage management.

Nothing in this section shall prevent the City from delegating to an independent nonprofit entity such as a commission or nonprofit corporation the authority to manage all or any part of the City’s PEG facilities, programming and/or funds. The commission or nonprofit corporation may be established jointly with neighboring jurisdictions at the City’s sole option.

(Code 2002, § 102-57. Ord. No. 06-7)

5.30.280 Leased access.

A Cable Operator shall provide leased access channels as required by federal law.

(Code 2002, § 102-58. Ord. No. 06-7)

5.30.290 Interconnection.

A franchise agreement shall contain provisions related to the interconnection of a Cable Operator’s Cable System with other cable systems.

(Code 2002, § 102-59. Ord. No. 06-7)

5.30.300 Emergency override.

To provide an emergency alert capability, each Cable Operator shall install and maintain an Emergency Alert System which allows the City to simultaneously override audio signals and broadcast emergency messages on all television channels, as provided by the terms of its Franchise Agreement.

(Code 2002, § 102-60. Ord. No. 06-7)

5.30.310 Tree trimming.

When trimming trees, a Cable Operator shall comply with all City regulations applicable to utilities.

(Code 2002, § 102-61. Ord. No. 06-7)

5.30.320 Removal and abandonment of cable system.

In the event that a Franchise is terminated or expires without being renewed, or if all or a portion of a Cable System is not used for a period of ninety (90) days, the Cable Operator shall either remove the Cable system or the abandoned portion thereof or shall obtain the permission of the Director of City Management to abandon the Cable System in place within ninety (90) days. The Cable Operator shall obtain an encroachment permit prior to removing the Cable System.

(Code 2002, § 102-62. Ord. No. 06-7)

5.30.330 Acquisition of cable system.

Notwithstanding the granting of a Franchise, the City retains the right to acquire the Cable System at any time by negotiated sale or eminent domain, and retains the right to resell the Cable System to any third party. If the City denies the renewal of a Franchise, the City may acquire the Cable System at a price not to exceed fair market value, determined on the basis of the Cable System valued as a going concern but with no value allocated to the franchise. If the City revokes a Franchise, the City may acquire the Cable System at an equitable price.

(Code 2002, § 102-63. Ord. No. 06-7)

Article III. Customer Service

5.30.340 Continuity of service.

Subscribers have the right to receive, and a Cable Operator has the obligation to provide, efficient service, high-quality reception, prompt repairs and service interrupted only for good cause and for the shortest possible time. It shall be the right of all Subscribers to continue receiving service insofar as they have met financial and other obligations to the Cable Operator. In the event that the Cable Operator elects to over build, rebuild, modify, or sell the system, or the City Council gives notice of intent to terminate or fails to renew this franchise, the Cable Operator shall act so as to ensure that all subscribers receive continuous, uninterrupted service.

(a) Upon the expiration, revocation or termination of the Franchise, the Operator shall, upon request of the City, continue to operate the Cable System for a period of time not to exceed six (6) months from the date of such expiration, revocation or termination under the terms and conditions of this Agreement and the Franchise and to provide the regular Subscriber service and any and all of the services that may be provided at that time, and to retain all revenues received after payment of all costs and expenses arising in the ordinary course of business prior to the expiration, revocation, or termination.

(b) A Cable Operator shall forfeit its rights to notice and a hearing, and the City Council may, by resolution, declare its Franchise immediately terminated, in addition to any other relief or remedies the City may have under this Ordinance, a Franchise, or other applicable law, if:

(1) The Cable Operator fails to provide Cable Service in accordance with its Franchise over a substantial portion of the Franchise Area for ninety-six (96) consecutive hours, unless the City authorizes a longer interruption of service or the failure is due to force majeure, as characterized in a Franchise Agreement; or

(2) The Cable Operator, for any period, willfully, and without cause refuses to provide Cable Service in accordance with its Franchise over a substantial portion of the Franchise Area.

(Code 2002, § 102-64. Ord. No. 06-7)

5.30.350 Non-discriminatory services.

(a) A Cable Operator shall comply at all times with all applicable laws, rules, and regulations including the terms of its Franchise relating to nondiscrimination.

(b) All of a Cable Operator’s rates and charges shall be published and nondiscriminatory. Except as provided hereunder, a Cable Operator shall establish rates and charges for all Subscribers without regard for race, color, religion, age, sex, marital or economic status, national origin, sexual orientation, political ideology, creed, ancestry; the presence of any sensory, mental or physical handicap; or geographic location within the Cable Operator’s franchise area (except as permitted by any provision of a Franchise Agreement related to the length of subscriber drops or line extensions). Nothing in this section shall be construed to prohibit the temporary reduction or waiving of rates and charges in conjunction with promotional campaigns or discounted rates for provision of Cable Services to multiple unit buildings. Notwithstanding the foregoing, the Cable Operator may offer service to senior citizens at discounted rates.

(c) A Cable Operator shall not deny Cable Service, or otherwise discriminate against Subscribers, PEG access programmers or any other Persons on the basis of type of Dwelling Unit, race, color, religion, age, sex, marital or economic status, national origin, sexual orientation, political ideology, creed, ancestry; the presence of any sensory, mental or physical handicap; or geographic location within the franchise area (except as permitted by any provision of a Franchise Agreement related to the length of subscriber drops or line extensions).

(d) A Cable Operator shall not take any retaliatory action against a Subscriber because of the Subscriber’s exercise of any right it may have under federal, state, or local law, nor may the Cable Operator require a Subscriber to waive such rights as a condition of service.

(Code 2002, § 102-65. Ord. No. 06-7)

5.30.360 Local office.

A Franchise Agreement may require a Cable Operator to maintain a local business office in a location specified in the Franchise Agreement which shall be open during the hours specified in the Franchise Agreement.

(Code 2002, § 102-66. Ord. No. 06-7)

5.30.370 Line extensions.

(a) The Operator shall design, construct and maintain the Cable System to pass every Dwelling Unit in the Franchise Area, subject to any limitations specified in a Franchise Agreement.

(b) Standard line extension policy shall be one hundred fifty (150’) aerial feet, one hundred twenty-five feet (125’) underground. If the aerial or underground connection for service to a Subscriber’s location (sometimes known as a “drop”) requires no more than a one hundred fifty (150’) foot aerial extension or one hundred twenty five (125) foot underground extension measured from the nearest Street (unless the Operator has obtained a waiver from the City), the Operator shall provide the connection to its service at no charge for the initial one hundred fifty (150’) feet or one hundred twenty five (125") feet, as applicable, other than the Operator’s standard installation fee. This provision applies only to extensions from cable plant to a Dwelling Unit.

(c) In areas not meeting the requirements for mandatory extension of service, a Cable Operator shall provide, upon the request of a potential subscriber desiring service in an unserved area, an estimate of the reasonable costs required to extend service to said subscriber, including materials, labor, overhead and private easements, if necessary. A Cable Operator shall make reasonable efforts to extend service within four months upon request of said potential subscriber, who shall be responsible for all reasonable costs associated with the extension. A Cable Operator may require advance payment or assurance of payment satisfactory to the Cable Operator.

(Code 2002, § 102-67. Ord. No. 06-7)

5.30.380 New service requests.

(a) A Cable Operator shall provide service to all dwelling units within the City (subject to the limitations on line extensions in the previous section) pursuant to the following requirements:

(1) In any case in which either no new drop is required, or a new drop is required of no more than the standard underground or above-ground length prescribed by Section 5.30.370 (b), as measured from the nearest active or required feeder line along a reasonably direct route, a Cable Operator shall make cable service available at the standard connection charge within seven (7) days of receipt of any service request. In any case in which a new drop is required which is longer than the standard underground or above-ground drop length, as applicable, a Cable Operator shall make cable service available at the standard connection charge within fourteen (14) days of receipt of any service request. Notwithstanding the foregoing, if the service request requires a drop in excess of the standard underground or above-ground drop length, as applicable, a Cable Operator may charge the business or resident requesting service an additional amount which shall not exceed the actual time and materials cost of the drop in excess of the applicable drop length.

(2) Upon receiving a request for new service, a Cable Operator shall make reasonable efforts to promptly acquire all easements or rights of occupancy necessary for extension of service to such resident’s home and not already secured by the Cable Operator.

(Code 2002, § 102-68. Ord. No. 06-7)

5.30.390 System or individual outage complaints.

(a) Upon receipt of a request for service in the event of the following circumstances (each, a “service request”), the Cable Operator shall respond as follows: (1) to a system outage within two hours; (2) to a service interruption, within twenty-four hours; and (3) to all other reception problems, by the next working day or as agreed upon by the subscriber and a Cable Operator. The Cable Operator shall have available at all times a sufficient number of technicians capable of responding to the foregoing matters within the foregoing time frames’. A service interruption is the loss of picture or sound on one or more channels. A system outage is a service interruption resulting from a common cause that affects more than two Subscribers.

(b) When the nature of a service request described in subsection (1) requires work at a service location, a Cable Operator will be deemed to have responded to such service request when a field service representative competent to fix the problem arrives at the service location (which may be some portion of the Cable System and not a subscriber’s residence) and begins work on the problem. In the case of a response which involves a request for service at a subscriber’s residence, and the subscriber is not home when the field service representative arrives, response will be deemed to have taken place if the field service representative leaves notification of arrival and instructions for rescheduling on the subscriber’s front door.

(c) Where a Cable Operator is unable to respond to a service request within the applicable time period specified in this section, the Cable Operator shall make reasonable efforts, within such time period, to notify the complainant of the reason(s) and the estimated time frame for correction, and shall proceed to correct the service request at the earliest possible time.

(d) A Cable Operator shall complete repairs and maintenance for system outages and service interruptions within 24 hours, except in extenuating circumstances or as agreed to between the Cable Operator and the subscriber. Work on all other requests for service, other than installation, shall be completed within three days of the initial request.

(e) The time standards in Section 5.30.380 (New Service Requests) shall be met at least 95 percent of the time, measured on a quarterly basis.

(Code 2002, § 102-69. Ord. No. 06-7)

5.30.400 Scheduling appointments.

(a) All appointments for service, installations, or disconnection shall be specified by date. With the approval of the subscriber, weekday service calls shall be scheduled as morning or afternoon appointments during specified four hour blocks of time. For service calls responding to system or individual outages, holiday and weekend scheduling shall also be available. If the appointment cannot be kept, a Cable Operator shall make reasonable efforts to promptly notify the subscriber in advance and reschedule the appointment. Under normal operating conditions, a Cable Operator may not cancel an appointment with a Subscriber after the close of business on the business day prior to the scheduled appointment.

(b) Subscribers who have experienced a missed appointment due to the fault of a Cable Operator shall receive installation free of charge if the appointment was for installation. The Subscriber shall receive a credit against the basic service charge of twenty dollars ($20.00), or such other remediation as may be agreed to between the subscriber and the Cable Operator, if the missed appointment is for a service call. Alternatively, Subscribers may pursue their remedies pursuant to Civil Code section 1722.

(Code 2002, § 102-70. Ord. No. 06-7)

5.30.410 Notification of service interruptions.

Where service interruptions are planned, a Cable Operator shall notify Subscribers and the City at least forty-eight hours before the anticipated service interruption, provided that no notification shall be required for service interruptions that require less than two hours’ interruption of service and that also occur between 1:00 a.m. and 6:00 a.m. Notification need not be repeated before each anticipated interruption as long as the initial notification advises of the possibility of repeated interruptions during a specified period not to exceed one month. To the extent feasible, the Cable Operator shall avoid interruptions between 5:00 p.m. and midnight.

(Code 2002, § 102-71. Ord. No. 06-7)

5.30.420 Notification of service or channel changes.

The Cable Operator shall provide thirty (30) days’ advance written notice to Subscribers and the City of any change in channel assignment or in the video programming service provided over any channel, unless this requirement is waived by the City or by operation of federal or state law, or due to events beyond the reasonable control of the Operator.

(Code 2002, § 102-72. Ord. No. 06-7)

5.30.430 Telephone communication services.

(a) Each Cable Operator shall render efficient telephone communication service, sufficiently staffed by knowledgeable, courteous personnel.

(b) Customer Service Response. At a minimum, a Cable Operator shall have on duty a sufficient number of customer service representatives available to handle customer calls during normal business hours. During times not handled by customer service representatives, each system must have a capable answering service for repair requests or service complaints. Answering machines are not acceptable, except for automated response units that are used to process and route calls to on-duty personnel of the Cable Operator.

(c) Telephone system requirements. Each Cable Operator shall at all times provide a telephone system meeting the following requirements:

(1) Each Cable Operator shall maintain a phone system for purposes of promptly responding to telephone calls. Telephone numbers for customer service shall be listed in a local telephone directory. All telephone lines for customer service shall be toll free to subscribers within the franchise area.

(2) Knowledgeable, qualified customer service representatives shall be available to respond to customer telephone inquiries during normal business hours.

(3) Under normal operating conditions, during normal business hours, telephone answer time by a customer service representative, including wait time, and the time required to transfer the call, shall not exceed thirty seconds. Those systems which utilize automated answering and distributing equipment shall limit the number of routine rings to four or fewer. Systems not utilizing automated equipment shall make every effort to answer incoming calls as promptly as the automated systems. Under normal operating conditions, the customer shall receive a busy signal less than three percent of the total time that the telephone system is staffed by customer service representatives. These standards shall be met no less than ninety percent of the time measured quarterly.

(4) Each Cable Operator shall, by means of automatic monitoring equipment, track all customer service telephone calls and prepare quarterly summaries of all calls according to the criteria listed in subsection (c). Such report shall be delivered to the City annually and, in addition, as agreed to in the Franchise Agreement.

(5) In cases of major system outages or major service interruption, a Cable Operator may provide a recorded message informing customers of the problem and a reasonable estimate under the circumstances of the correction time as long as customers are still able to reach a customer service representative.

(6) In cases where a Cable Operator’s existing telephone system cannot demonstrate compliance with the standards set forth in subsections (c) or (d), the Franchise Agreement may specify comparable criteria for the Cable Operator’s telephone system and the time frame for compliance with the standards set forth in this section.

(Code 2002, § 102-73. Ord. No. 06-7)

5.30.440 Complaint log.

The Cable Operator shall keep a computer log or written record of (1) service calls and complaints which require the dispatch of a service vehicle to respond to the service call or complaint, and (2) calls regarding outages, regardless of whether a service vehicle was dispatched, together with the disposition of all such calls. Records kept in the ordinary course of business shall be available for public inspection by the affected Subscriber at the local office of the Cable Operator during regular office hours such that each subscriber may examine only his or her own records. The log or record shall be available for inspection by the City, in the presence of the affected subscriber, at any time at the local office of the Cable Operator during regular office hours. Before making a record available for inspection under this section, the Cable Operator may require reasonable advance notice, which shall in no event exceed one working day.

(Code 2002, § 102-74. Ord. No. 06-7)

5.30.450 Subscriber test requests.

Upon reasonable request or complaint by a Subscriber, a Cable Operator shall, at its sole expense, perform such signal level tests as necessary to establish if a signal of requisite quality is being delivered to the subscriber’s premises. The test shall be conducted at the Subscriber’s receiver and at other such locations deemed necessary by the Cable Operator, and a copy of the written test results shall be made available to the subscriber upon request.

(Code 2002, § 102-75. Ord. No. 06-7)

5.30.460 Conditions of service; subscriber information.

Each Cable Operator shall send or deliver to all new and reconnected Subscribers in writing and to all subscribers at least once a year, information concerning the conditions of service, including but not limited to: rates, fees, charges, deposits, refunds of deposits, available levels of service (tiers), payment options, discounts (if any), service call policy, privacy protections and disconnection and reconnection policy. Each Cable Operator shall provide a copy of such information to the City concurrent with its distribution to the Cable Operator’s subscribers.

(Code 2002, § 102-76. Ord. No. 06-7)

5.30.470 Complaints; subscriber information.

Upon connection or reconnection to the system and at least once a year, a Cable Operator shall, by appropriate means, such as a card or brochure, printed notice on billing statement, or billing insert, furnish to each subscriber information concerning the procedures for making inquiries or complaints to the Cable Operator or the City, including the name, address and local telephone number of the Cable Operator and the City. Each Cable Operator shall provide a copy of such information to the City concurrent with its distribution to the Cable Operator’s subscribers.

(Code 2002, § 102-77. Ord. No. 06-7)

5.30.480 Investigation of complaints.

(a) When there have been a significant number of complaints made, or where there exists other evidence which, in the judgment of the City, indicates a problem with the reliability or quality of Cable Service as required under this Article or in a Franchise Agreement, the City Council shall have the right and authority to require a Cable Operator to evaluate the performance, operation or administration of the Cable System including without limitation matters relating to customer service. The Cable Operator shall fully cooperate with the City in performing such evaluation and shall prepare results and a report, if requested, within thirty days after notice. Such report shall include the following information:

(1) The nature of the complaint or problem which precipitated the evaluation;

(2) What system component, operation or service was evaluated;

(3) The equipment used and procedures employed;

(4) The method, if any, by which such complaint or problem could be or has been resolved; and

(5) Any other information pertinent to the evaluation which may be required.

(b) The City may require that evaluations be supervised, or conducted, by an engineer, accountant or other consultant selected by the City and not on the permanent staff of the Cable Operator or the City. The engineer, accountant or other consultant shall sign all records of the evaluation and forward to the City such records with a report interpreting the results of the evaluation and recommending actions to be taken. The City’s rights under this section, shall be limited to evaluating specific subjects and characteristics based on complaints, circumstances or other evidence which cause the City to reasonably believe that evaluation is necessary to protect the public against substandard cable service.

(Code 2002, § 102-78. Ord. No. 06-7)

5.30.490 Non-compliance with standards.

In the event of repeated noncompliance with the customer service standards contained in this Article, the City may, in addition to pursuing any other civil or criminal remedy, direct the Cable Operator to take steps to ensure compliance with such standards.

(Code 2002, § 102-79. Ord. No. 06-7)

5.30.500 Billing, late fees, disconnection of service and notification of rate changes.

(a) Bills for service shall be on a regular cycle, on a monthly basis. Nothing in this section shall prohibit voluntary prepayment of services by Subscribers, provided that a Cable Operator shall not be required to offer or accept any discount or other reduction in the amount paid by any Subscriber for a voluntary prepayment of services. Each bill shall include a listing of the Cable Operator’s customer service telephone number in a manner that makes such number significantly more prominent than any other telephone numbers listed on the bill. Bills shall not list the City’s telephone number in a manner that causes confusion to the public.

(b) Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, level of service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits.

(c) In case of a billing dispute, a Cable Operator must respond to a written complaint from a Subscriber within thirty (30) days.

(d) Before itemizing on Subscriber bills any fees, taxes, assessments or other items payable to the City the itemization of which is not expressly authorized by state or federal statute or regulation, a Cable Operator shall submit a sample bill to the City for review and comment.

(e) Charges on a bill shall not be deemed delinquent and a Subscriber shall not be subject to a late fee, so long as payment is received from the Subscriber in a manner consistent with applicable law.

(f) A Cable Operator shall only disconnect a subscriber’s service for good cause. A Cable Operator shall not disconnect service for non-payment until the Cable Operator has provided the Subscriber with notice, provided on or after the due date of the subscriber’s bill and separately from that bill or any other standard monthly bill, at least ten (10) days in advance of the disconnection. The notice shall specify the earliest date the disconnection will occur, the total payment required to avoid disconnection and the telephone number and office hours to contact a customer service representative. In no event shall disconnection for nonpayment occur less than fourteen (14) days after the end of any billing period for which charges are delinquent.

(Code 2002, § 102-80. Ord. No. 06-7)

5.30.510 Credits for outages.

(a) Except for loss of service beyond the reasonable control of a Cable Operator, after notification from a Subscriber of a service interruption or system outage and following reasonable notice and opportunity to cure, the Cable Operator shall, upon request, credit the Subscriber’s account on a pro-rata basis one-thirtieth of the subscriber’s monthly rate for each day or portion of a day that the system outage service interruption continues. In addition, in cases where, within any seven-day period, there have been more than six system outages or service interruptions of fifteen minutes or more, the Cable Operator shall, upon request, credit the subscriber’s account for one-fourth of the subscriber’s monthly rate. Should a system outage or service interruption affect a pay-per-view or other similarly priced per-event service, the subscriber shall, upon request, be credited the charges for such service.

(b) Nothing in this section shall prohibit a Cable Operator from giving other credits.

(Code 2002, § 102-81. Ord. No. 06-7)

5.30.520 Refund of deposits.

A Cable Operator shall refund all Subscriber deposits within thirty days of termination of service. Any outstanding balance, including any equipment not returned by the Subscriber, may be deducted from the deposit. The refund shall be mailed to the Subscriber at no expense, or shall be handled as otherwise agreed to by the Subscriber.

(Code 2002, § 102-82. Ord. No. 06-7)

5.30.530 Parental control lock.

Each Cable Operator shall make available to Subscribers, upon request, a parental control locking device or digital code that permits inhibiting the video and audio portions of any Channels offered by the Operator.

(Code 2002, § 102-83. Ord. No. 06-7)

5.30.540 Privacy.

A Cable Operator shall comply with all federal laws in relation to privacy issues.

(Code 2002, § 102-84. Ord. No. 06-7)

5.30.550 Unauthorized connections and tampering.

No person, firm or corporation shall make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised Cable System for the purpose of taking or receiving television signals, radio signals, pictures, programs, or sound. Also no person, without the consent of the owner, shall tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound.

(Code 2002, § 102-85. Ord. No. 06-7)

5.30.560 Customer service penalties under state video franchises.

(a) The holder of a state video franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

(b) The City Manager or his/ her designee shall monitor the compliance of state video franchise holders with respect to state and federal customer service and protection standards. The City Manager or his/her designee will provide the state video franchise holder written notice of any material breaches of applicable customer service standards, and will allow the state video franchise holder 30 days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period will be subject to the following penalties to be imposed by the City:

(1) For the first occurrence of a violation, a fine of $500.00 shall be imposed for each day the violation remains in effect, not to exceed $1,500.00 for each violation.

(2) For a second violation of the same nature within 12 months, a fine of $1,000.00 shall be imposed for each day the violation remains in effect, not to exceed $3,000.00 for each violation.

(3) For a third or further violation of the same nature within 12 months, a fine of $2,500.00 shall be imposed for each day the violation remains in effect, not to exceed $7,500.00 for each violation.

A state video franchise holder may appeal a penalty assessed by the City Manager or his/her designee to the City Council within 60 days of the initial assessment. The City Council shall hear all evidence and relevant testimony and may uphold, modify or vacate the penalty. The City Council’s decision on the imposition of a penalty shall be final.

(Code 2002, § 102. Ord. No. 07-11.85.5)

Article IV. Construction and Technical Standards

5.30.570 Construction requirements.

All construction (including, but not limited to, the initial construction of the Cable System and any major rebuild, expansion, replacement, repair or maintenance of the Cable System) shall be performed in compliance with this Article and all other provisions of this Code. At least ninety (90) days prior to initiating any major construction (other than routine maintenance or repair, installation of subscriber drops or minor line extensions), a Cable Operator shall submit a construction plan to the City. For purposes of this section, “major construction” means a system upgrade, system rebuild, or any work in the Public Rights-of-Way that can be reasonably expected to affect System plant served by one or more fiber optic nodes. The construction plan shall include a description of the work, equipment specifications, existing and proposed locations of all facilities, traffic control plans, resident and business notification plans, steps to be taken to ensure compliance with local regulations, and a detailed construction schedule. The City may approve, conditionally approve or deny the construction plan. The City may require the posting of construction bonds. Additional construction requirements may be specified in a Franchise Agreement.

(Code 2002, § 102-86. Ord. No. 06-7)

5.30.580 Standards.

(a) Any construction, rebuild, upgrade, operation, maintenance, and repair of the System shall be in accordance in all material respects with all applicable sections of the Occupational Safety and Health Act of 1970, as amended; the National Electrical Safety Code and National Electric Code; Obstruction Marking and Lighting, AC 70/7460 i.e., Federal Aviation Administration; Construction, Marking and Lighting of Antenna Structures, Federal Communications Commission Rules, Part 17; and other applicable federal, state, or local laws and regulations, all as hereafter may be amended or adopted. In the event of a conflict among codes and standards, accepted cable industry practices shall control (except insofar as such practices, if followed, would result in a Cable System that could not meet express requirements of federal, state or local law, or in instances in which such practices are expressly preempted by other standards). Consistent with the foregoing, the City may ensure that work continues to be performed in an orderly and workmanlike manner, reflecting any changes that may occur over the Franchise term.

(b) A Cable Operator shall construct, install and maintain its Cable System in an orderly and professional manner, using due diligence and materials of good and durable quality. All such work shall be performed in close coordination with other public and private utilities following accepted construction procedures and practices and working through existing committees and organizations. All cable and wires shall be installed, where possible, parallel with and in the same manner as electric and telephone lines on the same poles. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations.

(c) A Cable Operator’s Cable System within the City shall meet or exceed the technical standards set forth in 47 C.F.R. § 76.601, et seq., and any other applicable technical standards.

(d) Upon reasonable request by the City, based on subscriber complaints or other evidence of non-compliance with a Franchise Agreement or applicable law, a Cable Operator shall perform, at its sole cost, all tests necessary to demonstrate compliance with the requirements of a Franchise Agreement and other technical and performance standards established by applicable law. Unless a Franchise Agreement or applicable law provides otherwise, all tests shall be conducted in accordance with federal rules and in accordance with the most recent edition of the National Cable Television Association’s “Recommended Practices for Measurements on Cable Television Systems,” or such other manual as may be directed under FCC regulations. A written report of any test results shall be filed with the City within seven (7) days of this test. If a location fails to meet technical or performance specifications, the Cable Operator, without requirement of additional notice or request from the City, shall promptly take corrective action, and retest the locations. Any deficiencies shall be corrected within thirty (30) days of the original test.

(e) Should the Cable Operator fail to meet technical or performance tests, the Cable Operator shall bear all costs associated with the test. Should the Cable Operator advise the City that testing is not necessary or required to resolve the system performance issue at hand, and the City still insists on testing pursuant to this Section, then the City shall bear the Operator’s reasonable cost of testing in the event that the Cable Operator passes the technical or performance test.

(f) Every System, and all parts thereof, shall be subject to the right of periodic inspection and testing by the City to determine compliance with the provisions of this Chapter, a Franchise Agreement, and other applicable law. The City shall have the right, upon request, to be notified and to be present when a System is tested by a Cable Operator, provided that the Cable Operator need not delay or reschedule testing to accommodate such a request. Each Cable Operator shall respond to requests for information regarding its System and its plans for the System as the City may from time to time issue, including requests for information regarding its plans for construction, operation, and repair, and the purposes for which the plant is being constructed, operated or repaired.

(g) A Cable Operator shall comply with all of the same standards and codes, including but not limited to the payment of inspection fees, to construct and maintain its system within private rights-of-way as are required for construction in the Public Rights-of-Way.

(Code 2002, § 102-87. Ord. No. 06-7)

5.30.590 Permits.

A Cable Operator shall obtain all necessary permits and pay all generally applicable related fees, including but not limited to permit processing and inspection fees, from the City before commencing any construction, repair, upgrade, rebuild or extension of the System, including the opening or disturbance of any Public Rights-of-Way, on private or public property within the City. The Operator shall adhere to all state and local laws and building and zoning codes currently or hereafter applicable to construction, operation, or maintenance of the System in the City and give due consideration at all times to the aesthetics of the property.

(Code 2002, § 102-88. Ord. No. 06-7)

5.30.600 Placement of facilities.

(a) Cable System operators shall follow City requirements for placement of facilities in Public Rights-of-Way or City-owned property including the specific location of facilities in the Public Rights-of-Way or City-owed property, and shall in any event install facilities in a manner that minimizes interference with the use of City-owned property and Public Rights-of-Way by others, including others that may be installing Cable Systems, other communications facilities, or utilities. The City shall have the right to inspect all facilities being placed underground before they are covered. It shall be a Cable Operator’s responsibility to arrange for inspection of underground facilities by the appropriate City official, and the City shall have the right to require an operator to reopen a trench or other underground installation if any facilities are covered before the City has inspected them.

(b) Upon order of the City Engineer, all work which does not comply with the permit, the approved plans or specifications for the work, or the requirements of this Chapter, the Franchise, or other applicable law, shall be promptly removed by the Cable Operator at its expense.

(Code 2002, § 102-89. Ord. No. 06-7)

5.30.610 Marking of facilities.

Each Cable Operator that places facilities underground shall be a member of USA and shall field mark the locations of its underground facilities upon request. Throughout the term of a Franchise, a Cable Operator shall locate its facilities for the City at no charge to the City.

(Code 2002, § 102-90. Ord. No. 06-7)

5.30.620 Existing poles and conduits.

To the extent possible, a Cable Operator shall use existing poles and conduits within the Public Rights-of-Way in installing its Cable System. If such poles and conduits are unavailable, then a Cable Operator shall construct its own wireholding structures within the Public Rights-of-Way, and install its facilities in those structures, provided there is sufficient room for additional structures in the Public Rights-of-Way. Where the Public Rights-of-Way cannot be used, a Cable Operator shall, to the extent possible, use existing poles and conduits located outside the Public Rights-of-Way, after obtaining any necessary authorizations. In no case may additional poles or other structures be installed in the Public Rights-of-Way or on any public property without the prior permission of the City.

(Code 2002, § 102-91. Ord. No. 06-7)

5.30.630 Notice of work.

Work by or on behalf of a Cable Operator concerning installation, maintenance, replacement or removal of a Cable System, or any part thereof, shall be publicized by the Cable Operator, at its cost, in the manner and at the times the City Manager periodically may direct.

(Code 2002, § 102-92. Ord. No. 06-7)

5.30.640 Use of public and private property.

(a) Should the grades or lines of the Public Rights-of-Way, whether on City-owned or private property, that a Cable Operator is authorized to use and occupy be changed at any time during the term of a Franchise, the Cable Operator shall, if necessary, as determined by the City, relocate or change its System, at its own cost and expense, so as to conform with the new grades or lines.

(b) Any alteration to any water and sewage mains or lines, to any drainage system or to any publicly-owned structures in the Public Rights-of-Way, whether on City-owned property or on private property, which alteration is required on account of the presence of a Cable Operator’s System in the Public Rights-of-Way or on such City-owned property or private property, shall be made at the sole cost and expense of the Cable Operator. During any work of constructing, operating or maintaining of a System, a Cable Operator shall, at its own expense, protect all existing structures belonging to the City and any other Person. The City may prescribe the manner in which a Cable Operator shall perform any work performed within the Public Rights-of-Way, whether on City-owned property or on private property.

(c) Unless otherwise specified in a Franchise, all System facilities shall be constructed, installed, and located in accordance with all applicable laws, ordinances, regulations and policies, and in accordance with the following terms and conditions:

(1) Poles, underground conduits, ducts or other wireholding structures shall not be installed in the Public Rights-of-Way or on other City property without the written permission of the City, or on private property of any third party without the written permission of the owner.

(2) Whenever any existing telephone, electric utility, Cable System, or other similar facilities are located underground within the Public Rights-of-Way or on City-owned property, a Person installing another Cable System also shall place its cables and passive electronic facilities underground.

(3) Whenever any existing telephone, electric utility, or communications facilities are located or relocated underground within the Public Rights-of-Way or on City-owned or private property, Cable Operators that then occupy the same Public Rights-of-Way, City-owned property or private property shall concurrently relocate their respective cables and passive electronic facilities underground, at their own expense, or in accordance with applicable law or current joint-use practices.

(d) Any and all Public Rights-of-Way, public property, or private property that is disturbed or damaged during the upgrade, rebuild, repair, replacement, relocation, operation, maintenance, or construction of a System shall be repaired, replaced and restored, in a good workmanlike, timely manner, to substantially the same condition as immediately prior to the disturbance (including appropriate landscape restoration). All repairs, replacements and restoration shall be undertaken within no more than thirty (30) days after the damage is incurred, and shall be completed as soon as reasonably possible thereafter. The City may require that repairs, replacements and restoration take place in a shorter period of time in situations in which City determines that a dangerous condition exists. The Operator shall warrant such repairs, replacements and restoration for at least three (3) years against defective materials or workmanship, with the exception of plants installed in the course of restoration.

(Code 2002, § 102-93. Ord. No. 06-7)

5.30.650 Interference with public projects; relocation of facilities.

(a) Nothing in this Chapter or any Franchise Agreement shall be in preference to, or in hindrance of, the right of the City, the City Council or any board, authority, commission or public service corporation to perform or carry on any construction, public works or public improvements of any description. Subject to applicable law, should a Cable Operator’s System in any way interfere with the construction, maintenance or repair of any public works or public improvements, the Cable Operator shall, at its sole cost and expense, protect or relocate its System, or part thereof, as directed by the City, the City Council, the City Manager or any City official, board, authority, or commission.

(b) If any Person that is authorized to place facilities in the Public Rights-of-Way, or on City-owned or private property requests a Cable Operator to protect, support, temporarily disconnect, remove, or relocate its facilities to accommodate the construction, operation, or repair of the facilities of such other Person, the Cable Operator shall, after seven (7) calendar days’ advance written notice, take action to effect the necessary changes requested. If the requested action is necessary to address an emergency that, in the opinion of the City, might affect the public health, safety or welfare, then the Cable Operator shall take immediate action upon receipt of notice of the request to complete the requested action. Unless the matter is governed by a valid contract, a local ordinance, regulation or policy, or a State or federal law or regulation, or in other cases where the System that is being requested to move was not properly installed, the reasonable cost of the same shall be borne by the party requesting the protection, support, temporary disconnection, removal, or relocation and performed at no charge to the City.

(c) A Cable Operator shall, at the request of any Person holding a valid permit issued by a governmental authority, temporarily remove, raise or lower its wires to permit the temporary or permanent moving of buildings, structures, equipment of whatever nature, or other objects. The expense of such temporary removal or raising or lowering of wires shall be borne solely by the requesting party, unless otherwise agreed upon by the Cable Operator and the requesting party. A Cable Operator shall be given not less than forty-eight (48) hours’ advance notice to arrange for such temporary wire changes.

(Code 2002, § 102-94. Ord. No. 06-7)

5.30.660 Other permits.

In addition to such permits as may be required by the City, a Cable Operator shall be required to obtain permits required by any other entity having jurisdiction.

(Code 2002, § 102-95. Ord. No. 06-7)

Article V. Administration and Enforcement

5.30.670 Franchise fees.

(a) All Cable Operators shall pay a franchise fee to the City in an amount equal to five percent (5%) of the Cable Operator’s Gross Revenues. The Cable Operator shall make franchise fee payments on the first day of each calendar quarter, or at such other times specified in the Franchise Agreement. Franchise fee payments shall be submitted together with documentation of the Cable Operator’s Gross Revenues in such form as may be agreed to in the Franchise Agreement.

(b) Payment of the Franchise fee shall not be considered in the nature of a tax or in lieu of other taxes or fees imposed by the City.

(c) The Franchise fee is in addition to all other taxes, fees and payments that a Cable Operator may be required to pay under its Franchise Agreement or any federal, State, or local law, and to any other tax, fee, or assessment imposed by utilities and cable operators for use of their services, facilities, or equipment, including any applicable amusement taxes and annual license taxes, except to the extent that such fees, taxes, or assessments shall be treated as a Franchise fee under Section 622 of the Cable Act, 47 U.S.C. § 542.

(d) A Cable Operator shall not designate the Franchise fee as a tax in any communication to a Subscriber.

(Code 2002, § 102-96. Ord. No. 06-7)

5.30.680 Fees on non-cable operator revenues.

In consideration of the use of public property, any person other than a Cable Operator who provides Cable Service over a Cable System for which charges are assessed to subscribers but which are not received by a Cable Operator shall pay a fee to the City in an amount equal to five percent (5%) of that person’s revenues. The Cable Operator whose Cable System is used by such person shall collect the foregoing fee from such person no later than the tenth (10th) day prior to the close of each calendar quarter and shall remit the fee to the City no later than the first (1st) day of the following calendar quarter. If the Cable Operator fails to collect or remit all or part of this fee, the Cable Operator shall be directly liable to the City for payment of the uncollected or unremitted fee.

(Code 2002, § 102-97. Ord. No. 06-7)

5.30.690 Audit.

The City, on an annual basis, shall be furnished a statement within ninety (90) days of the close of the calendar year, certified by an officer of the Operator reflecting the total amounts of Gross Revenues and all payments, and computations of the Franchise Fee for the previous calendar year. The City shall have the right to conduct an audit of the Operator’s books and records reasonably related to the calculation of Gross Revenues and Franchise Fees for the audit period not more frequently than once every three (3) years, upon sixty (60) days’ prior written notice to the Operator, and shall provide the City or its designee copies of such books and records, subject to the terms of a mutually satisfactory confidentiality agreement, substantially identical to the form of an agreement to be appended to the Operator’s Franchise Agreement. If such audit indicates a Franchise Fee underpayment of at least five percent (5%), and such finding is not contested, the Operator shall assume all reasonable costs of such an audit. If there is any underpayment, the Operator shall remit to the City all applicable Franchise Fees.

(Code 2002, § 102-98. Ord. No. 06-7)

5.30.700 Late payments.

In the event that the Cable Operator does not make any payments required by this Code on or before the date due, a late payment penalty shall accrue at a rate of one and one-half percent (1-1/2%) per month on the unpaid amount until paid, or such other amount as may be set by applicable law.

(Code 2002, § 102-99. Ord. No. 06-7)

5.30.710 No accord or satisfaction.

No acceptance by or payment to the City of a franchise fee, or any portion thereof, shall be construed as a release or an accord and satisfaction of any claim the City may have for further or additional sums due or for the performance of any other obligation of a Cable Operator, or as an acknowledgment that the amount paid is the correct amount due.

(Code 2002, § 102-100. Ord. No. 06-7)

5.30.720 Records and reports.

(a) Access to books and records.

(1) The City or its designee shall have the right to review, upon reasonable and timely written notice, during the hours of 9:00 a.m. to 5:00 p.m., Monday through Friday, at the Operator’s local office, all books, documents, and records reasonably necessary to ensure compliance with the Franchise.

(2) To the extent not inconsistent with applicable law, the Operator shall have the right to designate confidential and proprietary any confidential, proprietary, trade secret and privileged information that may be provided to the City and the City shall thereupon treat such information as privileged from disclosure under the California Public Records Act. The City shall provide the Operator with at least ten (10) business days’ advance notice of any request by a third party for disclosure of information designated by the Operator as confidential, proprietary, trade secret or privileged. To the extent that any information regarding the local Cable System is maintained, either separately or cumulatively with information concerning other Cable Systems or operations, by the Operator or an Affiliate, the Operator shall make copies of such records available for inspection and auditing at the local office within seven (7) days after receipt of a written request by the City.

(3) If any documents, books and records are too voluminous, or for security reasons cannot be copied and moved, then a Cable Operator may request that the inspection take place at some other location mutually agreed to by the City and a Cable Operator, provided that the Cable Operator shall pay all travel and additional expenses incurred by the City (above those that would have been incurred had the documents, books and records been produced at the Operator’s local office) in inspecting those documents, books and records or having those documents, books and records inspected by its designee.

(4) Without limiting the foregoing, a Cable Operator shall provide the City with the following within ten (10) days of receipt or (in the case of documents, books or records created by the Cable Operator or its Affiliate) filing:

a. Notices of deficiency or forfeiture related to the operation of the System; and

b. Copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by a Cable Operator, or by any partnership or corporation that owns or controls the Cable Operator directly or indirectly.

(5) Upon reasonable request and limited to matters directly affecting the Cable System or the City’s authority over the Cable System, Operator will provide copies of all petitions, applications, communications and reports submitted by the Operator or on behalf of the Operator to the Federal Communications Commission, Securities and Exchange Commission, or any other governmental authority having jurisdiction with respect to any matters affecting the Cable System. Copies of responses from any such governmental authority to the Operator shall likewise be furnished upon request to the City.

(b) Reports. A Cable Operator shall within ninety (90) days of each calendar year end, submit a written end of the year report to the City with respect to the preceding calendar year containing the information required by such Operator’s Franchise Agreement.

(1) Records of all complaints received with information sufficient to allow a Cable Operator to prepare the reports required in this Section 5.30.720, and the Operator’s Franchise Agreement;

(2) Records of outages known to a Cable Operator, with information sufficient to allow a Cable Operator to prepare the reports required in this Section 5.30.720 and the Operator’s Franchise Agreement;

(3) Records of service calls for repairs and maintenance indicating the date and time service was requested, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved;

(4) Records of installation/reconnection and requests for service extension, indicating the date of request, the date of acknowledgment, and the date and time service was extended; and

(5) System financial records prepared in accordance with generally accepted accounting principles.

(d) Additional records and reports. The City may require Cable Operators to maintain records, and to prepare reports relevant to determining a Cable Operator’s compliance with the terms and conditions of this Chapter and a Franchise.

(e) Maps. The Operator shall at all times maintain and upon request provide to the City: a full and complete set of plans, records and “as-built” maps showing the location of the Cable System installed or in use in the City, exclusive of Subscriber service drops and equipment provided in Subscribers’ homes. To the extent technically and economically feasible, the Operator shall also make records and maps available to the City in electronic format compatible with the City’s computer system.

(f) Waiver of reporting requirements. The City may, at its discretion, waive in writing the requirement of any particular report specified in this Section 5.30.720.

(Code 2002, § 102-101. Ord. No. 06-7)

5.30.730 Location of cable operator’s properties.

(a) Each Cable Operator shall at all times make and keep on file in the office of the Community Development Director current, full and complete plans and records to a scale and form approved by the Community Development Director, showing the location of all Cable System equipment installed or in use in streets, alleys and public places in the City.

(b) Each Cable Operator shall file with the Community Development Director, on or before the last day of March of each year, a current map or set of maps drawn to a scale designated by the Community Development Director, showing all Cable System equipment installed in streets, alleys and public places of the City during the previous year.

(Code 2002, § 102-102. Ord. No. 06-7)

5.30.740 Insurance.

A Cable Operator shall obtain, and by its acceptance of the Franchise specifically agrees that it will maintain, throughout the entire term of the Franchise, at its own cost and expense and keep in force and effect insurance policies in accordance with the requirements of its Franchise Agreement.

(Code 2002, § 102-103. Ord. No. 06-7)

5.30.750 Indemnification.

(a) No Franchise or other authorization to use the Public Rights-of-Way, or any independent permission to use City-owned property granted to a Cable Operator shall be valid or effective until and unless the City obtains adequate indemnity from such Cable Operator.

(b) Neither the provisions of this Section nor any damages recovered by the City shall be construed to limit the liability of a Cable Operator for damages to the City, its elected and appointed officers, officials, boards, commissions, employees, agents, and volunteers, and any other Person or Persons, under the Franchise.

(Code 2002, § 102-104. Ord. No. 06-7)

5.30.760 Performance bond.

A Franchise Agreement may require the Cable Operator to post a performance bond in an amount acceptable to the City to secure the performance of the Cable Operator’s obligations to repair and restore the Public Rights of Way in accordance with this Code. A Franchise Agreement may also require a Cable Operator to post a separate performance bond in an amount specified in the Franchise Agreement to secure the Cable Operator’s obligations under the Franchise Agreement and this Ordinance.

(Code 2002, § 102-105. Ord. No. 06-7)

5.30.770 Possessory interest.

The granting of a franchise pursuant to this Article may create an interest subject to property taxation pursuant to California Revenue and Taxation Code section 107 et seq. Each Cable Operator shall be solely responsible for payment of any such taxes.

(Code 2002, § 102-106. Ord. No. 06-7)

5.30.780 Violations.

(a) Civil and Criminal Penalties. Any person who violates any provision of this Article may be guilty of a misdemeanor or an infraction, as otherwise provided by applicable law.

(b) Civil Penalties. Any person who violates any provision of this Article, or who violates any condition of any license or permit issued hereunder, or who breaches any franchise agreement or other agreement with the City may be liable for a civil penalty, as otherwise provided by applicable law.

(1) The City shall have the right to revoke the Franchise for any material violation of a Franchise Agreement.

(2) Notice of Violation or Default. In the event the City believes that a Cable Operator has not complied with a material term of the Franchise, it shall notify the Operator in writing with specific details regarding the exact nature of the alleged noncompliance or default. No opportunity to cure is required for fraud.

(3) Operator’s Right to Cure or Respond. The Operator shall have ninety (90) days from the receipt of the City’s written notice: (A) to respond to the City, contesting the assertion of noncompliance or default; or (B) to cure such default; or (C) in the event that, by nature of the default, such default cannot be cured within the ninety (90) day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date that they will be completed.

(4) Public Hearings. In the event the Operator fails to respond to the City’s notice or in the event that the alleged default is not remedied within ninety (90) days or the date projected by the Operator, the City may give the Operator written notice of its intent to revoke the Franchise, stating its reasons. Prior to revoking the Franchise, the City shall schedule a public hearing, on at least thirty (30) calendar days’ notice, at which time the Operator and the public shall be given an opportunity to be heard. Following the public hearing, the City may determine whether to revoke the Franchise based on the information presented at the hearing, and other information of record, or, where applicable, grant additional time to the Operator to effect any cure. If the City determines to revoke the Franchise, it shall issue a written decision setting forth the reasons for its decision. A copy of such decision shall be transmitted to the Operator.

(d) Notwithstanding the foregoing, the City Council may declare a Franchise forfeited where the Cable Operator (i) fails to begin to exercise its rights under the Franchise within a period specified in the Franchise Agreement; (ii) transfers the Franchise in a manner inconsistent with the terms of the Ordinance or the Franchise Agreement; (iii) fails to pay the fees owed hereunder; or (iv) defrauds or attempts to defraud the City or its customers.

(e) Upon revocation, final denial of renewal pursuant to federal law, or forfeiture of a Franchise, a Cable Operator shall be obligated to cease using its System for the purposes authorized by the Franchise. The City may (i) purchase the Cable Operator’s facilities at a price established in accordance with 47 U.S.C. § 547, (ii) effect a transfer of the Cable Operator’s facilities to another person at such a price; or (iii) require the Cable Operator or its surety to remove some or all of the Cable Operator’s facilities from the Public Rights-of-Way or City-owned property and to restore the Public Rights-of-Way and City-owned property to their proper condition. Notwithstanding anything in this Chapter to the contrary, should a Cable Operator fail, refuse, or neglect to remove such facility, the City may remove the facility at the expense of the Cable Operator. Regardless of the existence or amount of any security fund or performance bond, the obligation of a Cable Operator to remove shall survive the termination of the Franchise. This provision does not authorize the City to purchase, effect a transfer of, or require a Cable Operator to remove, any facilities that are used to provide another service for which the Cable Operator holds a valid Franchise issued by the City Council.

(f) Cumulative Remedies. The foregoing remedies shall be deemed non-exclusive, cumulative remedies and in addition to any other remedy the City may have at law or in equity.

(Code 2002, § 102-107. Ord. No. 06-7)

Article VI. Rate Regulation

5.30.790 Authority.

The City reserves all of its rights under applicable law regarding the regulation of the rates charged by Cable Operators.

(Code 2002, § 102-108. Ord. No. 06-7)

5.30.800 Notice of rate increases.

No later than thirty (30) days prior to the effective date of any proposed increase in rates, the Cable Operator shall notify its subscribers of its proposed rates by mailing such notice to all subscribers, either separately or in conjunction with bills or other notices sent to subscribers.

(Code 2002, § 102-109. Ord. No. 06-7)

5.30.810 State video franchise and PEG fees.

(a) For any state video franchise holder operating within the boundaries of the City of Concord, there shall be a fee paid to the City equal to five percent of the gross revenue of that state video franchise holder.

(b) As of December 31, 2006, the City of Concord imposed a separate fee to support Public, Educational and Governmental (PEG) channels that are in excess of 1%. For any state video franchise holder operating within the boundaries of the City of Concord, there shall be an additional fee paid to the City equal to three percent (3%) of the gross revenue of that state video franchise holder, which fee shall be used by the City for PEG purposes consistent with state and federal law.

(c) Gross revenue, for the purposes of (a) and (b) above, shall have the definition set forth in California Public Utilities Code § 5860.

(d) Reauthorization. The City Council of the City of Concord hereby reauthorizes the PEG fees adopted by Ordinance 07-11. The fees shall remain unchanged and in full effect as to all state video franchise holders operating within the boundaries of the City of Concord.

(Code 2002, § 102-110. Ord. No. 07-11; Ord. No. 17-4, § 2)

5.30.820 Audit authority.

Not more than once annually, the City Manager or his designee may examine and perform an audit of the business records of a holder of a state video franchise to ensure compliance with section 5.30.810.

(Code 2002, § 102-111. Ord. No. 07-11)

5.30.830 City response to state video franchise applications.

(a) Applicants for state video franchises within the boundaries of the City of Concord must concurrently provide complete copies to the City of any application or amendments to applications filed with the Public Utilities Commission (PUC). One complete copy must be provided to the City Manager.

(b) Within 30 days of receipt, the City Manager will provide any appropriate comments to the PUC regarding an application or an amendment to an application for a state video franchise.

(Code 2002, § 102-112. Ord. No. 07-11)