Chapter 5.20 CABLE TELEVISION FRANCHISES

For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning.

“Basic cable service” means any service tier which includes the retransmission of local television broadcast signals.

“Cable service” means the total of the following:

1. The one-way transmission to subscribers of video programming or other programming service; and

2. Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.

“Cable television system” or “system,” also referred to as “cable communications system” or “cable system,” means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment, that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

1. A facility that serves only to transmit television signals of one or more television broadcast stations;

2. A facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility uses any public rights-of-way;

3. A facility of a common carrier, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or

4. Any facilities of any electric utility used solely for operating its electric utility system.

“Channel” or “cable channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system which is capable of delivering a television channel as defined by the Federal Communications Commission.

“Council” means the city council of the city of Cotati.

“Franchise” means an initial authorization, or renewal thereof, issued by the city council, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system.

“Franchise agreement” means a franchise grant ordinance or a contractual agreement, containing the specific provisions of the franchise granted, including references, specifications, requirements and other related matters.

“Franchise fee” means any fee or assessment of any kind imposed by a franchising authority on a grantee as compensation for the grantee’s use of the public rights-of-way. The term “franchise fee” does not include:

1. Any tax, fee or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services, but not including a tax, fee or assessment which is unduly discriminatory against cable operators or cable subscribers);

2. Capital costs which are required by the franchise to be incurred by grantee for public, educational, or governmental access facilities;

3. Requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or

4. Any fee imposed under Title 17, United States Code.

“Grantee” means any person receiving a franchise pursuant to this chapter and under the granting franchise ordinance or agreement, and its lawful successor, transferee or assignee.

“Grantor” or “city” means the city of Cotati as represented by the council or any delegate acting within the scope of its jurisdiction.

“Gross annual receipts” means the annual gross receipts received by a grantee from all sources of operations of the cable television system within the city utilizing the public streets and rights-of-way for which a franchise is required in order to deliver such cable service, excluding refundable deposits, rebates or credits, except that any sales, excise or other taxes or charges collected for direct pass-through to local, state or federal government, other than the franchise fee, shall not be included.

“Initial service area” means the area of the city which will receive service initially, as set forth in any franchise agreement.

“Installation” means the connection of the system to subscribers’ terminals and the provision of service.

“Person” means an individual, partnership, association, joint stock company, trust, corporation or governmental entity.

“Public, educational or government access facilities” or “PEG access facilities” means the total of the following:

1. Channel capacity designated for noncommercial public, educational, or government use; and

2. Facilities and equipment for the use of such channel capacity.

“Section” means any section, subsection or provision of this chapter.

“Service area” or “franchise area” means the entire geographic area within the city as it is now constituted or may in the future be constituted, unless otherwise specified in the franchise granting ordinance or agreement.

“Service tier” means a category of cable service or other services provided by a grantee and for which a separate rate is charged by the grantee.

“State” means the state of California.

“Street” means 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, lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas that the grantor shall permit to be included within the definition of street from time to time.

“Subscriber” means any person who or which elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connection with the cable system, and who pays the charges therefor. (Ord. 626 § 2(part), 1994).

5.20.030 Franchise to install and operate.

A franchise granted by the city under the provisions of this chapter shall encompass the following purposes:

A. To engage in the business of providing cable television service, and such other services as may be permitted by law, which grantee chooses to provide, to subscribers within the designated service area.

B. To erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain, cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along and across streets or other public places within the designated service area.

C. To maintain and operate said franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals and for the delivery of cable services, and such other services as may be permitted by law.

D. To set forth the obligations of a grantee under the franchise. (Ord. 626 § 2(part), 1994).

5.20.040 Franchise required.

It is unlawful for any person to construct, install or operate a cable television system in the city within any public street without a properly granted franchise awarded pursuant to the provisions of this chapter. (Ord. 626 § 2(part), 1994).

5.20.050 Term of the franchise.

A. A franchise granted hereunder shall be for a term established in the franchise agreement, commencing on the grantor’s adoption of an ordinance or resolution authorizing the franchise.

B. A franchise granted hereunder may be renewed upon application by the grantee pursuant to the provisions of applicable state and federal law and of this chapter. (Ord. 626 § 2(part), 1994).

5.20.060 Franchise territory.

Any franchise shall be valid within all the territorial limits of the city, and within any area added to the city during the term of the franchise, unless otherwise specified in the franchise granting ordinance or agreement. (Ord. 626 § 2(part), 1994).

5.20.070 Federal or state jurisdiction.

This chapter shall be construed in a manner consistent with all applicable federal and state laws and regulations, and shall apply to all franchises granted or renewed after the effective date of the ordinance codified in this chapter to the extent permitted by applicable law or regulation. Grantor reserves the right to regulate in all areas not preempted by federal or state law or regulation. (Ord. 626 § 2(part), 1994).

5.20.080 Nontransferable.

A. Grantee shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation or otherwise, the franchise or any of the rights or privileges therein granted, without the prior consent of the council and then only upon such terms and conditions as may be prescribed by the council, which consent shall not be unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign or otherwise dispose of the franchise without the consent of the council shall be null and void. The granting of a security interest in any grantee assets, or any mortgage or other hypothecation, shall not be considered a transfer for the purposes of this section.

B. The requirements of subsection (A) of this section shall apply to any change in control of grantee. The word “control” as used herein is not limited to major stockholders or partnership interests, but includes actual working control in whatever manner exercised. In the event that grantee is a corporation, prior authorization of the council shall be required where ownership or control of more than twenty percent of the voting stock of grantee is acquired by a person or group of persons acting in concert, none of whom own or control the voting stock of the grantee as of the effective date of the franchise, singularly or collectively.

C. Grantee shall notify grantor in writing of any foreclosure or any other judicial sale of all or a substantial part of the franchise property of the grantee or upon the termination of any lease or interest covering all or a substantial part of said franchise property. Such notification shall be considered by grantor as notice that a change in control of ownership of the franchise has taken place and the provisions under this section governing the consent of grantor to such change in control of ownership shall apply.

D. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, grantor may inquire into the qualifications of the prospective transferee or controlling party, and grantee shall assist grantor in such inquiry. In seeking grantor’s consent to any change of ownership or control, grantee shall have the responsibility of insuring that the transferee completes an application in form and substance reasonably satisfactory to grantor, which application shall include the information required under subsections (A) through (H) of Section 5.20.130 of this chapter. An application shall be submitted to grantor not less than one hundred twenty days prior to the date of transfer. The transferee shall be required to establish that it possesses the qualifications and financial and technical capability to operate and maintain the system and comply with all franchise requirements for the remainder of the term of the franchise. If the legal, financial, character, and technical qualifications of the applicant are satisfactory, the grantor shall consent to the transfer of the franchise within one hundred twenty days after receipt of the application for transfer. The consent of the grantor to such transfer shall not be unreasonably denied or delayed.

E. Any financial institution having a pledge of the grantee or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the grantor that it or its designee satisfactory to the grantor shall take control of and operate the cable television system, in the event of a grantee default of its financial obligations. Further, said financial institution shall also submit a plan for such operation within thirty days of assuming such control that will insure continued service and compliance with all franchise requirements during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year unless extended by the grantor in its discretion and during said period of time it shall have the right to petition the grantor to transfer the franchise to another grantee.

F. Upon transfer, grantee shall reimburse grantor for grantor’s reasonable processing and review expenses in connection with a transfer of the franchise or of control of the franchise, including without limitation, costs of administrative review, financial, legal and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication costs and document preparation expenses. Any such reimbursement shall not be charged against any franchise fee due to grantor during the term of the franchise. Any franchise agreement may impose a ceiling on the amount of the reimbursement. (Ord. 626 § 2(part), 1994).

5.20.090 Geographical coverage.

A. Grantee shall design, construct and maintain the cable television system to have the capability to pass every dwelling unit in the city, subject to any service area line extension requirements of the franchise agreement.

B. After service has been established by activating trunk and/or distribution cables for any service area, grantee shall provide service to any requesting subscriber within that service area within thirty days from the date of request; provided, that the grantee is able to secure all rights-of-way necessary to extend service to such subscriber within such thirty day period on reasonable terms and conditions. (Ord. 626 § 2(part), 1994).

5.20.100 Nonexclusive franchise.

Any franchise granted shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable television system or any component thereof, as it deems appropriate, subject to applicable state and federal law; provided, that if the grantor grants an additional franchise on terms more favorable to the second grantee (whether by the grant of greater benefits or the imposition of lesser obligations), then the initial grantee shall have the right, upon request, to benefit equally from the more favorable or less burdensome terms. (Ord. 626 § 2(part), 1994).

5.20.110 Multiple franchises.

A. Grantor may grant any number of franchises subject to applicable state or federal law. Grantor may limit the number of franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations, such as:

1. The capacity of the public rights-of-way to accommodate multiple cables in addition to the cables, conduits and pipes of the utility systems, such as electrical power, telephone, gas and sewerage;

2. The benefits that may accrue to cable subscribers as a result of cable system competition, such as lower rates and improved service;

3. The disadvantages that may result from cable system competition, such as the requirement for multiple pedestals on residents’ property, and the disruption arising from numerous excavations of the rights-of-way.

B. Each grantee awarded a franchise to serve the entire city shall offer service to all residences in the city, in accordance with construction and service schedules mutually agreed upon between grantor and grantee, and consistent with applicable law.

C. Developers of new residential housing with underground utilities shall provide conduit to accommodate cables for at least two cable systems in accordance with the provisions of Section 5.20.200(E).

D. Grantor may require that any new grantee be responsible for its own underground trenching and the costs associated therewith, if, in grantor’s opinion, the rights-of-way in any particular area cannot feasibly and reasonably accommodate additional cables. (Ord. 626 § 2(part), 1994).

5.20.120 Franchise applications.

Any person desiring an initial franchise for a cable television system shall file an application with the city. A reasonable nonrefundable application fee established by the city shall accompany the application to cover all reasonable costs associated with processing and reviewing the application, including without limitation costs of administrative review, financial, legal and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication requirements with respect to the consideration of the application and document preparation expenses. In the event such reasonable costs exceed the application fee, the selected applicant(s) shall pay the difference to the city within thirty days following receipt of an itemized statement of such costs. (Ord. 626 § 2(part), 1994).

5.20.130 Applications – Contents.

An application for an initial franchise for a cable television system shall contain, where applicable:

A. A statement as to the proposed franchise and service area;

B. Resume of prior history of applicant, including the expertise of applicant in the cable television field;

C. List of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each stockholder, if a corporation;

D. List of officers, directors and managing employees of applicant, together with a description of the background of each such person;

E. The names and addresses of any parent or subsidiary of applicant or any other business entity owning or controlling applicant in whole or in part, or owned or controlled in whole or in part by applicant;

F. A current financial statement of applicant verified by a certified public accountant audit or otherwise certified to be true, complete and correct to the reasonable satisfaction of the city;

G. Proposed construction and service schedule;

H. Any reasonable additional information that the city deems applicable. (Ord. 626 § 2(part), 1994).

5.20.140 Consideration of initial applications.

A. Upon receipt of any application for an initial franchise, the city manager shall prepare a report and make recommendations respecting such application to the city council.

B. A public hearing shall be set prior to any initial franchise grant, at a time and date approved by the council. Within thirty days after the close of the hearing, the council shall make a decision based upon the evidence received at the hearing as to whether or not the franchise(s) should be granted, and, if granted, subject to what conditions. The council may grant one or more franchises, or may decline to grant any franchise. (Ord. 626 § 2(part), 1994).

5.20.150 Franchise renewal.

Franchise renewals shall be in accordance with applicable law. Grantor and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise. (Ord. 626 § 2(part), 1994).

5.20.160 Minimum consumer protection and service standards.

A. Except as otherwise provided in the franchise agreement, grantee shall maintain a conveniently located local office or offices within the city to provide the necessary facilities, equipment and personnel to comply with the following consumer protection and service standards under normal conditions of operation:

1. Sufficient toll-free telephone line capacity during normal business hours to assure that telephone calls shall be answered before the fourth ring; telephone answer time by a customer service representative, including wait time, shall not exceed thirty seconds; and callers needing to be transferred shall not be required to wait more than thirty seconds before being connected to a service representative. A caller shall receive a busy signal less than three percent of the time. The above responses shall be achieved for at least ninety percent of the calls under normal conditions.

2. Emergency toll free telephone line capacity on a twenty-four hour basis, including weekends and holidays. After normal business hours, the telephone calls may be answered by a service or an automated response system, including an answering machine. Calls received after normal business hours must be responded to by a trained company representative on the next business day.

3. A conveniently located local business and service office open during normal business hours at least eight hours daily, and a minimum of two to four hours weekly on evenings or weekends, and adequately staffed to accept subscriber payments and respond to service requests and complaints.

4. An emergency system maintenance and repair staff, capable of responding to and repairing major system malfunction on a twenty-four hour per day basis.

5. An installation staff, capable of installing service to any subscriber requiring a standard installation within seven days after receipt of a request, in all areas where trunk and feeder cable have been activated. “Standard installations” shall be those that are located up to one hundred fifty feet from the existing distribution system, unless otherwise defined in any franchise agreement.

6. Grantee shall schedule, within a specified four hour time period during normal business hours, all appointments with subscribers for installation of service, service calls and other activities at the subscriber location. Grantee may schedule installation and service calls outside of normal business hours for the express convenience of the customer. Grantee shall not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. If a grantee representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer shall be contacted and the appointment rescheduled, as necessary, at a time which is convenient for the customer.

B. The standards of subsections (A)(2) through (6) of this section shall be met not less than ninety-five percent of the time measured on a quarterly basis.

C. Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the cable system, preferably between midnight and six a.m.

D. The grantee shall maintain a repair force of technicians normally capable of responding to subscriber requests for service within the following time frames:

1. For a system outage: within two hours, including weekends, of receiving subscriber calls or requests for service which by number identify a system outage of sound or picture of one or more channels, affecting at least ten percent of the subscribers of the system;

2. For an isolated outage: within twenty-four hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one or more channels that affects three or more subscribers. On weekends, an outage affecting fewer than three subscribers shall result in a service call no later than the following Monday morning;

3. For inferior signal quality: within forty-eight hours, excluding weekends, of receiving a request for service identifying a problem concerning picture or sound quality.

Grantee shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives at the service location and begins work on the problem. In the case of a subscriber not being home when the technician arrives, the technician shall leave written notification of arrival. Three successive subscriber failures to be present at an appointed time shall excuse grantee of the duty to respond.

Grantee shall not charge for the repair or replacement of defective equipment provided by grantee to subscribers.

E. Unless excused, grantee shall determine the nature of the problem within forty-eight hours of beginning work and resolve all cable system related problems within five business days unless technically infeasible.

F. Subscriber bills shall be clear, concise, accurate and understandable. Consistent with normal industry practices, bills shall be itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills shall also clearly delineate all activity during the billing period, including optional charges, rebates and credits.

In case of a billing dispute, the grantee shall respond to a written complaint from a subscriber within thirty days.

G. Upon request, grantee shall provide appropriate credits or refunds to subscribers whose service has been interrupted for four or more hours.

All credits for service shall be issued no later than the customer’s next billing cycle following the determination that a credit is warranted.

Refunds shall be issued promptly, but no later than either:

1. The subscriber’s next billing cycle following resolution of the request, or thirty days, whichever is earlier; or

2. The return of the equipment supplied by the grantee if service is terminated.

H. Grantee shall provide written information on each of the following areas at the time of the installation of service, at least annually to all subscribers, and at any time upon request:

1. Products and services offered; and

2. Prices and options for programming services and conditions of subscription to programming and other services; and

3. Installation and service maintenance policies; and

4. Instructions on how to use the cable service; and

5. Channel positions of programming carried on the system; and

6. Billing and complaint procedures, including the address and telephone number of the grantor office designated for dealing with cable-related issues.

I. Subscribers shall be notified of any changes in rates, programming services or channel positions as soon as possible through announcements on the cable system and in writing. Notice must be given to subscribers a minimum of thirty days in advance of such changes if the change is within the control of the grantee. In addition, grantee shall notify subscribers thirty days in advance of any significant changes in the information required in subsection (H) of this section.

J. Upon five days written notice from grantor, grantee shall establish its compliance with any or all of the standards required above. Grantee shall provide sufficient documentation to permit grantor to verify the compliance.

K. A repeated and verifiable pattern of noncompliance with the consumer protection standards of subsections (A) through (H) of this section, after grantee’s receipt of due notice and an opportunity to cure, may be deemed a material breach of the franchise agreement.

L. Grantee shall establish written procedures for receiving, acting upon and resolving subscriber complaints without intervention by the grantor. The written procedures shall prescribe the manner in which a subscriber may submit a complaint either orally or in writing specifying the subscriber’s grounds for dissatisfaction. Grantee shall file a copy of these procedures with grantor. Said procedures shall include a requirement that grantee respond to any written complaint from a subscriber within thirty days of receipt.

M. Grantor shall have the right to review grantee’s response to subscriber complaints in order to determine grantee’s compliance with the franchise requirements, subject to the subscriber’s right to privacy.

N. It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the grantee are honored. In the event that the grantee elects to rebuild, modify, or sell the system, or the grantor gives notice of intent to terminate or not to renew the franchise, the grantee shall act so as to ensure that all subscribers receive service so long as the franchise remains in force.

In the event of a change of control of grantee, or in the event a new operator acquires the system, the original grantee shall cooperate with the grantor, new grantee or operator in maintaining continuity of service to all subscribers. During such period, grantee shall be entitled to the revenues for any period during which it operates the system.

O. In the event grantee fails to operate the system for seven consecutive days without prior approval or subsequent excuse of the grantor, the grantor may, at its sole option, operate the system or designate an operator until such time as grantee restores service under conditions acceptable to the grantor or a permanent operator is selected. If the grantor should fulfill this obligation for the grantee, then during such period as the grantor fulfills such obligation, the grantor shall be entitled to collect all revenues from the system, and the grantee shall indemnify the grantor against any damages grantor may suffer as a result of such failure.

P. All officers, agents or employees of grantee or its contractors or subcontractors who, in the normal course of work come into contact with members of the public or who require entry onto subscribers’ premises shall carry a photo-identification card. Grantee shall account for all identification cards at all times. Every vehicle of the grantee or its major subcontractors shall be clearly identified as working for grantee.

Q. Grantor reserves the right to regulate cable rates, to the maximum extent permitted by applicable law and/or regulation, in a manner consistent with such law and or regulation. (Ord. 626 § 2(part), 1994).

5.20.170 Additional service standards.

Additional service standards and standards governing consumer protection and response by grantee to subscriber complaints not otherwise provided for in this chapter may be established in the franchise agreement, and grantee shall comply with such standards in the operations of the cable television system. A verified and continuing pattern of noncompliance may be deemed a material breach of the franchise, provided that grantee shall receive due process, including written notification and an opportunity to cure, prior to any sanction being imposed. (Ord. 626 § 2(part), 1994).

5.20.180 Franchise fee.

A. Following the issuance and acceptance of the franchise, the grantee shall pay to the grantor a franchise fee in the amount set forth in the franchise agreement.

B. The grantor, on an annual basis, shall be furnished a statement within sixty days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by an officer of the grantee, reflecting the total amounts of gross receipts and all payments, deductions and computations for the period covered by the payment. Upon thirty days prior written notice, grantor shall have the right to conduct an independent audit of grantee’s records, in accordance with generally accepted accounting procedures, and if such audit indicates a franchise fee underpayment of two percent or more, the grantee shall assume all reasonable costs of such an audit.

C. Except as otherwise provided by law, no acceptance of any payment by the grantor shall be construed as a release or as an accord and satisfaction of any claim the grantor may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of the grantee.

D. In the event that any franchise payment or recomputed amount is not made on or before the dates specified in the franchise agreement, grantee shall pay as additional compensation:

1. An interest charge, computed from such due date, at an annual rate equal to the cost of funds announced by the Eleventh District of the Federal Reserve Bank (San Francisco) plus one percent during the period for which payment was due; and

2. If the payment is late by forty-five days or more, a sum of money equal to five percent of the amount due in order to defray those additional expenses and costs incurred by the grantor by reason of delinquent payment.

E. Franchise fee payments shall be made in accordance with the schedule indicated in the franchise agreement. (Ord. 626 § 2(part), 1994).

5.20.190 Security fund.

A. Grantor may require Grantee to provide a security fund, in an amount and form established in the franchise agreement. The amount of the security fund shall be established based on the extent of the grantee’s obligations under the terms of the franchise.

B. The security fund shall be available to grantor as provided in Section 5.20.340 to satisfy all claims, liens and/or taxes due grantor from grantee which arise by reason of construction, operation, or maintenance of the system, and to satisfy any actual or liquidated damages arising out of a franchise breach, subject to the procedures and amounts designated in the franchise agreement.

C. If the security fund is drawn upon by grantor in accordance with the procedures established in this chapter and the franchise agreement, grantee shall cause the security fund to be replenished to the original amount no later than thirty days after each withdrawal by grantor. Failure to replenish the security fund shall be deemed a material breach of the franchise. (Ord. 626 § 2(part), 1994).

5.20.200 Design and construction requirements.

A. Grantee shall not construct any cable system facilities until grantee has secured the necessary permits from grantor, or other cognizant public agencies.

B. In those areas of the city where transmission lines or distribution facilities of the public utilities providing telephone and electric power service are underground, the grantee likewise shall construct, operate and maintain its transmission and distribution facilities therein underground.

C. In those areas of the city where the grantee’s cables are located on the above-ground transmission or distribution facilities of the public utility providing telephone or electric power service, and in the event that the facilities of both such public utilities subsequently are placed underground, then the grantee likewise shall reconstruct, operate and maintain its transmission and distribution facilities underground, at grantee’s cost, or at the cost of the developer or other private party, if any, who causes such underground relocation to be required. Certain of grantee’s equipment, such as pedestals, amplifiers and power supplies, which normally are placed above ground, may continue to remain in above-ground enclosures, unless otherwise provided in the franchise agreement.

D. Any changes in or extensions of any poles, anchors, wires, cables, conduits, vaults, laterals or other fixtures and equipment (herein referred to as “structures”), or the construction of any additional structures, in, upon, along, across, under or over the streets, alleys and public ways shall be made under the direction of grantor’s city engineer or a designee, who shall, if the proposed change, extension or construction conforms to the provisions hereof, issue written permits therefor. The height above public thoroughfares of all aerial wires shall conform to the requirements of the California Public Utilities Commission or other regulatory body having jurisdiction thereof.

1. All transmission and distribution structures, lines and equipment erected by the grantee shall be located so as not to interfere with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places, and not to interfere with existing public utility installations.

2. In the event that any property or improvement of the grantor in the public rights-of-way is disturbed or damaged by the grantee or any of its contractors, agents or employees in connection with undertaking any and all work pursuant to the right granted to the grantee pursuant to this chapter, the grantee shall promptly, at the grantee’s sole cost and expense, restore as nearly as practicable to their former condition said property or improvement which was so disturbed or damaged, and in the event that any such property or improvement shall at any later time become uneven, unsettled or otherwise require restoration, repair or replacement because of such disturbance or damage by the grantee, then the grantee, as soon as reasonably possible, shall, promptly upon receipt of notice from the grantor and at the grantee’s sole cost and expense, restore as nearly as practicable to their former condition said property or improvement which was disturbed or damaged. Any such restoration by the grantee shall be made in accordance with such materials and specifications as may, from time to time, be then provided for by grantor ordinance.

3. Prior to commencing any work in the public rights-of-way, the grantee shall obtain any and all permits lawfully required by such grantor codes and ordinances of general application for such work. In the event that emergency work may be required by the grantee, however, the grantee shall obtain any and all such permits within three working days after the beginning of such emergency work.

4. There shall be no unreasonable or unnecessary obstruction of the public rights-of-way by the grantee in connection with any of the work herein provided for, and the grantee shall maintain such barriers, signs and warning signals during any such work performed on or about the public rights-of-way or adjacent thereto as may be necessary to reasonably avoid injury or damage to life and property.

5. If at any time during the period of this franchise the grantor shall lawfully elect to alter or change the grade or location of any street, alley or other public rights-of-way, the grantee shall, upon reasonable notice by the grantor, remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at it own expense, and in each instance comply with the requirements of the grantor.

6. The grantee shall not place poles, conduits or other fixtures above or below ground where the same will interfere with any gas, electric, telephone fixtures, water hydrants or other utility, and all such poles, conduits or other fixtures placed in any street shall be so placed as to comply with all ordinances of the grantor.

7. The grantee may be required by the grantor to permit joint use of its property and appurtenances located in the streets, alleys or other public rights-of-way, by utilities insofar as such joint use may be reasonably practicable and upon payment of reasonable rental therefor; provided, that in the absence of agreement regarding such joint use, the city council shall provide for arbitration of the terms and conditions of such joint use and the compensation to be paid therefrom, which award shall be final.

8. The grantee shall, on request of any person holding a moving permit issued by the grantor, temporarily move its wires or fixtures to permit the moving of buildings, the expense of such temporary removal to be paid by the person requesting the same, and the grantee shall be given not less than forty-eight hours advance notice to arrange for such temporary changes.

9. The grantee shall have the authority, except when in conflict with existing grantor ordinances, to trim any trees upon and overhanging the streets, alleys, sidewalks and public places so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee, except that at the option of the grantor, such trimming may be done by it, or under its supervision and direction, at the expense of the grantee.

E. In the event of multiple franchisees desiring to serve new residential developments in which the electric power and telephone utilities are underground, the following procedure shall apply with respect to access to and utilization of underground easements.

1. The developer shall be responsible for contacting and surveying all franchised cable operators to ascertain which operators desire to provide cable television service to that development. The developer may establish a reasonable deadline to receive cable operator responses. The final development map shall indicate the cable operators that have agreed to serve the development.

2. If one or two cable operators wish to provide service, they shall be accommodated in the joint utilities trench on a nondiscriminatory shared cost basis. If fewer than two operators indicate interest, the developer shall provide conduit to accommodate two sets of cable television cables and dedicate to the city any initially unoccupied conduit. The developer shall be entitled to recover the costs of such initially unoccupied conduit in the event that grantor subsequently leases or sells occupancy or use rights to any grantee.

3. The developer shall provide at least ten working days notice of the date that utility trenches will be open to the cable operators that have agreed to serve the development. When the trenches are open, cable operators shall have two working days to begin the installation of their cables, and five working days after beginning installation to complete installation.

4. The final development map shall not be approved until the developer submits evidence that:

a. It has notified each grantee that underground utility trenches are to be open as of an estimated date, and that each grantee will be allowed access to such trenches, including trenches from proposed streets to individual homes or home sites, on specified nondiscriminatory terms and conditions; and

b. It has received a written notification from each grantee that the grantee intends to install its facilities during the open trench period on the specified terms and conditions, or such other terms and conditions as are mutually agreeable to the developer and the grantee, or has received no reply from a grantee within ten days after its notification to such grantee, in which case the grantee will be deemed to have waived its opportunity to install its facilities during the open trench period.

5. Sharing the joint utilities trench shall be subject to compliance with state regulatory agency and utility standards. If such compliance is not possible, the developer shall provide a separate trench for the cable television cables, with the entire cost shared among the participating operators. With the concurrence of the developer, the affected utilities and the cable operators, alternative installation procedures, such as the use of deeper trenches, may be utilized, subject to applicable law.

6. Any cable operator wishing to serve an area where the trenches have been closed shall be responsible for its own trenching and associated costs.

7. In the event that more than one franchise is awarded, the city reserves the right to limit the number of drop cables per residence, or to require that the drop cable(s) be utilized only by the cable operator selected by the resident to provide service.

8. The city reserves the right to grant an encroachment permit to a cable franchisee applicant to install conduit and/or cable in anticipation of the granting of a franchise. Such installations shall be at the applicant’s risk, with no recourse against the city in the event the pending franchise application is not granted. The city may require an applicant to provide a separate trench for its conduit and/or cable, at the applicant’s cost. The construction of such separate trench, if provided, shall be coordinated with, and subject to, the developer’s overall construction schedule. (Ord. 626 § 2(part), 1994).

5.20.210 Technical standards.

A. The grantee shall construct, install, operate and maintain its system in a manner consistent with all applicable laws, ordinances, construction standards, governmental requirements, FCC technical standards, and any detailed standards set forth in its franchise agreement. In addition, the grantee shall provide to the grantor, upon request, a written report of the results of the grantee’s periodic proof of performance tests conducted pursuant to FCC and franchise standards and guidelines.

B. Repeated and verified failure to maintain specified technical standards shall constitute a material breach of the franchise. (Ord. 626 § 2(part), 1994).

5.20.220 Hold harmless.

Grantee shall indemnify, defend and hold grantor, its officers, agents and employees harmless from any liability, claims, damages, costs or expenses, to the extent provided in the franchise agreement. (Ord. 626 § 2(part), 1994).

5.20.230 Insurance.

A. On or before commencement of franchise operations, the grantee shall obtain policies of liability, Workers’ Compensation and property insurance from appropriately qualified insurance companies.

B. The policy of liability insurance shall:

1. Be issued to grantee and name grantor, its officers, agents and employees as additional insureds;

2. Indemnify for all liability for personal and bodily injury, death and damage to property arising from activities conducted and premises used pursuant to this chapter by providing coverage therefor, including but not limited to:

a. Negligent acts or omissions of grantee, and its agents, servants and employees, committed in the conduct of franchise operations, and/or

b. Use of motor vehicles;

3. Provide a combined single limit for comprehensive general liability and comprehensive automobile liability insurance in the amount provided for in the franchise agreement. Such insurance policy shall be subject to review by grantor’s legal counsel; and

4. Be noncancellable without thirty days prior written notice thereof directed to grantor.

C. The policy of Workers’ Compensation Insurance shall comply with the laws of the state of California.

D. The policy of property insurance shall provide fire insurance with extended coverage on the franchise property used by grantee in the conduct of franchise operations in an amount adequate to enable grantee to resume franchise operations following the occurrence of any risk covered by this insurance.

E. Grantee shall file with grantor prior to commencement of franchise operations a certificate of insurance for each of the required policies executed by the company issuing the policy or by a broker authorized to issue such a certificate, certifying that the policy is in force and providing the following information with respect to said policy:

1. The policy number;

2. The date upon which the policy will become effective and the date upon which it will expire;

3. The names of the named insureds and any additional insured required by the franchise agreement;

4. The subject of the insurance;

5. The type of coverage provided by the insurance; and

6. The amount or limit of coverage provided by the insurance.

If the certificate of insurance does not provide all of the above information, grantor reserves the right to inspect the relevant insurance policies.

F. Conduct of franchise operations shall not commence, until grantee has complied with the aforementioned provisions of this section.

G. In the event grantee fails to maintain any of the above-described policies in full force and effect, grantor shall, upon forty-eight hours notice to grantee, have the right to procure the required insurance and recover the cost thereof from grantee. Grantor shall also have the right to suspend the franchise during any period that grantee fails to maintain said policies in full force and effect. In order to account for increases in consumer prices, no more than once during any five year period, grantor shall have the right to order grantee to increase the amounts of the insurance provided in the franchise agreement. Such order may be made by grantor after conducting a duly noticed public hearing. Increases in insurance coverage shall be based upon current prudent business practices of like enterprises involving the same or similar risks. (Ord. 626 § 2(part), 1994).

5.20.240 Records required and grantor’s right to inspect.

A. Grantee shall at all times maintain:

1. A record of all service calls and interruptions or degradation of service experienced for the preceding two years; provided, that such complaints result in or require a service call, subject to the subscriber’s right of privacy.

2. A full and complete set of plans, records and “as-built” maps showing the locations of the cable television system installed or in use in the city, exclusive of subscriber service drops and equipment provided in subscriber’s homes.

3. If requested by grantor, a summary of service calls, identifying the number, general nature and disposition of such calls, on a monthly basis. A summary of such service calls shall be submitted to the grantor within thirty days following any grantor request, in a form reasonably acceptable to the grantor.

B. The grantor may impose reasonable requests for additional information, records and documents from time to time, provided they reasonably relate to the scope of the city’s rights under this chapter or the grantee’s franchise agreement.

C. Upon reasonable notice, and during normal business hours, grantee shall permit examination by any duly authorized representative of the grantor of all franchise property and facilities, together with any appurtenant property and facilities of grantee situated within or without the city, and all records relating to the franchise, provided they are necessary to enable the grantor to carry out its regulatory responsibilities under this chapter or the franchise agreement. Grantee shall have the right to be present at any such examination. (Ord. 626 § 2(part), 1994).

5.20.250 Annual reports.

Within ninety days after the end of the calendar year, grantee shall submit a written annual report to grantor, if requested in writing by grantor, with respect to the preceding calendar year in a form approved by grantor, including, but not limited to, the following information:

A. A summary of the previous year’s (or in the case of the initial reporting year, the initial year’s) activities in development of the cable system, including but not limited to, services begun or discontinued during the reporting year;

B. A list of grantee’s officers, members of its board of directors, and other principals of grantee;

C. A list of stockholders or other equity investors holding five percent or more of the voting interest in grantee;

D. An indication of any residences in grantee’s service area where service is not available, and a schedule for providing service;

E. Information as to the number of homes passed, subscribers, additional television outlets, and the number of basic and pay subscribers; and

F. Any other information relevant to franchise regulation which the grantor shall reasonably request, and which is relevant to its regulatory responsibilities. (Ord. 626 § 2(part), 1994).

5.20.260 Copies of federal and state communications.

A. Upon request, grantee shall submit to grantor copies of all pleadings, applications and reports submitted by grantee to, as well as copies of all decisions, correspondence and actions by, any federal, state or local court, regulatory agency, or other governmental body which are non-routine in nature and which will materially affect its cable television operations within the franchise area. Information otherwise confidential by law and so designated by grantee, which is submitted to grantor, shall be retained in confidence by grantor and its authorized agents and shall not be made available for public inspection.

B. Notwithstanding the foregoing, grantee shall have no obligation to provide copies of documents to grantor which contain trade secrets of grantee or which are otherwise of a confidential or proprietary nature to grantee unless it receives satisfactory assurances from grantor that such information can and will be held in strictest confidence by the grantor. To the extent possible, grantee will provide grantor with summaries of any required documents or copies thereof with trade secrets and proprietary matters deleted therefrom. The burden of proof shall be on grantee to establish the confidential nature of any information submitted, to the reasonable satisfaction of the grantor. (Ord. 626 § 2(part), 1994).

5.20.270 Public reports.

If grantee is publicly held, a copy of each grantee’s annual and other periodic reports and those of its parent, shall be submitted to grantor within forty-five days of its issuance. (Ord. 626 § 2(part), 1994).

5.20.280 Complaint report and opinion survey.

Upon written request of the grantor, but not more than once annually, the grantee shall conduct a subscriber satisfaction survey pertaining to quality of service, which may be transmitted to subscribers in grantee’s invoice for cable services. The results of such survey shall be provided to the grantor on a timely basis. The cost of such survey shall be borne by the grantee. (Ord. 626 § 2(part), 1994).

5.20.290 Privacy report.

Upon grantor’s request, but no more than annually, grantee shall submit to grantor a report indicating the degree of compliance with the provisions contained in Section 5.20.430 herein and all steps taken to assure that the privacy rights of individuals have been protected. (Ord. 626 § 2(part), 1994).

5.20.300 Reports – General.

A. All reports required under this chapter, except those required by law to be kept confidential, shall be available for public inspection in the grantor’s offices during normal business hours.

B. All reports and records required under this chapter shall be furnished at the sole expense of grantee, except as otherwise provided in this chapter or the franchise agreement.

C. The willful refusal, failure, or neglect of grantee to file any of the reports required as and when due under this chapter, may be deemed a material breach of the franchise agreement if such reports are not provided to grantor within thirty days after written request therefor, and may subject the grantee to all remedies, legal or equitable, which are available to grantor under the franchise or otherwise.

D. Any materially false or misleading statement or representation made knowingly and willfully by the grantee in any report required under this chapter or under the franchise agreement may be deemed a material breach of the franchise and may subject grantee to all remedies, legal or equitable, which are available to grantor under the franchise or otherwise. (Ord. 626 § 2(part), 1994).

5.20.310 Annual review of system performance.

Each year throughout the term of the franchise, if requested in writing by the grantor, grantor and grantee shall meet publicly to review system performance and quality of service.

The various reports required pursuant to this chapter, results of technical performance tests, the record of subscriber complaints and grantee’s response to complaints, and the information acquired in any subscriber surveys, shall be utilized as the basis for review. In addition, any subscriber may submit comments or complaints during the review meetings, either orally or in writing, and these shall be considered. Within thirty days after the conclusion of a system performance review meeting, grantor may issue findings with respect to the cable system’s franchise compliance and quality of service.

If grantor determines that grantee is not in compliance with the requirements of this chapter or the grantee’s franchise, grantor may direct grantee to correct the areas of noncompliance within a reasonable period of time. Failure of grantee, after due notice, to correct the areas of noncompliance within the period specified therefor or to commence compliance within such period and diligently achieve compliance thereafter, shall be considered a material breach of the franchise, and grantor may exercise any remedy within the scope of this chapter and the franchise agreement considered appropriate. (Ord. 626 § 2(part), 1994).

5.20.320 Special review of system performance.

When there have been complaints made or where there exists other evidence which, in the judgment of the grantor, casts reasonable doubt on the reliability or quality of cable service to the effect that the grantee is not in compliance with the requirements of this chapter or its franchise, the grantor shall have the right to compel the grantee to test, analyze and report on the performance of the system in order to protect the public against substandard cable service. Grantor may not compel grantee to provide such tests or reports unless and until grantor has provided grantee with at least thirty days notice of its intention to exercise its rights under this section and has provided grantee with an opportunity to be heard prior to its exercise of such rights. Such test or tests shall be made and the report shall be delivered to the grantor no later than thirty days after the grantor notifies the grantee that it is exercising such right, and shall be made at grantee’s sole cost. Such report shall include the following information: The nature of the complaints which precipitated the special tests, what system component was tested, the equipment used and procedures employed in said testing, the results of such tests, and the method by which such complaints were resolved. Any other information pertinent to the special test shall be recorded. (Ord. 626 § 2(part), 1994).

5.20.330 Special evaluation sessions.

The grantor may hold special evaluation sessions at any time during the term of a franchise, provided such sessions are held no more often than once every three years. The grantee shall be notified of the place, time and date thereof and the topics to be discussed. Such sessions may be open to the public and advertised in a newspaper of general circulation at least thirty days before each session. The sessions may include an evaluation of any items considered relevant to the cable system, the subscribers and the city. Either the grantor or the grantee may propose items for discussion or evaluation. (Ord. 626 § 2(part), 1994).

5.20.340 Remedies for franchise violations.

If grantee fails to perform in a timely manner any material obligation required by this chapter or a franchise granted hereunder, following notice from the grantor and an opportunity to cure such nonperformance in accordance with the provisions of Section 5.20.350 of this chapter and the franchise, grantor may at its option and in its sole discretion:

A. Cure the violation and recover the actual cost thereof from the security fund established herein if such violation is not cured within thirty days after written notice to the grantee of grantor’s intention to cure and draw upon the security fund;

B. Assess against grantee liquidated damages in an amount set forth in the franchise agreement for any such violation(s) if such violation is not cured, or if grantee has not commenced a cure, on a schedule acceptable to grantor, within thirty days after written notice to the grantee of grantor’s intention to assess liquidated damages. Such assessment may be withdrawn from the security fund, and shall not constitute a waiver by grantor of any other right or remedy it may have under the franchise or applicable law, including without limitation, its right to recover from grantee such additional damages, losses, costs and expenses, including actual attorney’s fees, as may have been suffered or incurred by grantor by reason of or arising out of such breach of the franchise. (Ord. 626 § 2(part), 1994).

5.20.350 Procedure for remedying franchise violations.

Prior to imposing any remedy or other sanction against grantee specified in this chapter, grantor shall give grantee notice and opportunity to be heard on the matter, in accordance with the following procedures:

A. Grantor shall first notify grantee of the violation in writing by personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall not be less than five days in the case of the failure of the grantee to pay any sum or other amount due the grantor under this chapter or the grantee’s franchise and thirty days in all other cases. If grantee fails to correct the violation within the time prescribed or if grantee fails to commence correction of the violation within the time prescribed and diligently remedy such violation thereafter, the grantor shall then give written notice of not less than twenty days of a public hearing to be held before the council. Said notice shall specify the violations alleged to have occurred.

B. At the public hearing, the council shall hear and consider all relevant evidence, and thereafter render findings and its decision.

C. In the event the council finds that the grantee has corrected the violation or has diligently commenced correction of such violation after notice thereof from grantor and is diligently proceeding to fully remedy such violation, or that no material violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.

D. In the event the council finds that material violations exist and that grantee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation after notice thereof from grantor and is not diligently proceeding to fully remedy such violation, the council may impose one or more of the remedies provided in this chapter and the franchise agreement as it, in its discretion, deems appropriate under the circumstances. (Ord. 626 § 2(part), 1994).

5.20.360 Grantor’s power to revoke.

Grantor reserves the right to revoke any franchise granted pursuant to this chapter and rescind all rights and privileges associated with it in the following circumstances, each of which shall represent a default by grantee and a material breach under the franchise grant:

A. If grantee shall default in the performance of its material obligations under this chapter or the franchise agreement and shall continue such default after receipt of due notice and reasonable opportunity to cure the default;

B. If grantee shall fail to provide or maintain in full force and effect the insurance coverage or security fund as required in the franchise agreement;

C. If grantee shall violate any order or ruling of any regulatory body having jurisdiction over the grantee relative to the grantee’s franchise, unless such order or ruling is being contested by grantee by appropriate proceedings conducted in good faith;

D. If grantee practices any fraud or deceit upon grantor;

E. If grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt.

The termination and forfeiture of the grantee’s franchise shall in no way affect any right of grantor to pursue any remedy under the franchise or any provision of law. (Ord. 626 § 2(part), 1994).

5.20.370 Force Majeure – Grantee’s inability to perform.

In the event grantee’s performance of any of the terms, conditions or obligations required by this chapter or a franchise granted hereunder is prevented by a cause or event not within grantee’s control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof; provided, however, that such inability to perform shall not relieve a grantee from the obligations imposed by Section 5.20.160(E) pertaining to refunds and credits for interruptions in service. For the purpose of this section, causes or events not within the control of grantee shall include without limitation acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires, but shall not include financial inability of the grantee to perform or failure of the grantee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of grantee, or the failure of the grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or repair of the cable communications system where the grantee has failed to exercise reasonable diligence to secure such supplies, services or equipment. (Ord. 626 § 2(part), 1994).

5.20.380 Abandonment or removal of franchise property.

A. In the event that the use of any property of grantee within the public rights-of-way is discontinued for a continuous period of twelve months, grantee shall be deemed to have abandoned that franchise property. Any part of the cable system that is parallel or redundant to other parts of the system and is intended for use only when needed as a backup for the system or a part thereof, shall not be deemed to have been abandoned because of its lack of use.

B. Grantor, upon such terms as grantor may impose, may give grantee permission to abandon, without removing, any system facility or equipment laid, directly constructed, operated or maintained under the franchise. Unless such permission is granted or unless otherwise provided in this chapter, the grantee shall remove all abandoned above-ground facilities and equipment upon receipt of written notice from grantor and shall restore any affected street to its former state at the time such facilities and equipment were installed, so as not to impair its usefulness. In removing its plant, structures and equipment, grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles, or attachments. Grantor shall have the right to inspect and approve the condition of the public ways, public places, cables, wires, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this chapter and the security fund as provided herein shall continue in full force and effect during the period of removal and until full compliance by grantee with the terms and conditions of this section.

C. Upon abandonment of any franchise property in place, the grantee, if required by the grantor, shall submit to the grantor an instrument, satisfactory in form to the grantor, transferring to the grantor the ownership of the franchise property abandoned.

D. At the expiration of the term for which the franchise is granted, or upon its revocation or earlier expiration, as provided herein, in any such case without renewal, extension or transfer, the grantor shall have the right to require grantee to remove, at its own expense, all above-ground portions of the cable television system from all streets and public ways within the city within a reasonable period of time, which shall not be less than one hundred eighty days.

E. Notwithstanding anything to the contrary set forth in this chapter, the grantee may abandon any underground franchise property in place so long as it does not materially interfere with the use of the street or public rights-of-way in which such property is located or with the use thereof by any public utility or other cable grantee. (Ord. 626 § 2(part), 1994).

5.20.390 Restoration by grantor – Reimbursement of costs.

In the event of a failure by grantee to complete any work required herein or by any other law or ordinance, and if such work is not completed within thirty days after receipt of written notice thereof from grantor or, if more than thirty days are reasonably required therefor, if grantee does not commence such work within such thirty day period and diligently complete the work thereafter (except in cases of emergency constituting a threat to public health, safety or welfare), grantor may cause such work to be done and grantee shall reimburse grantor the costs thereof within thirty days after receipt of an itemized list of such costs, or grantor may recover such costs through the security fund provided by grantee. (Ord. 626 § 2(part), 1994).

5.20.400 Extended operation and continuity of services.

Upon expiration or revocation of the franchise, the grantor shall have the discretion to permit grantee to continue to operate the cable television system for an extended period of time. Grantee shall continue to operate the system under the terms and conditions of this chapter and the franchise and to provide the regular subscriber service and any and all of the services that may be provided at that time. It shall be the right of all subscribers to continue to receive all available services; provided, that financial and other obligations to grantee are honored. The grantee shall use reasonable efforts to provide continuous, uninterrupted service to its subscribers, including operation of the system during transition periods following franchise expiration or termination. (Ord. 626 § 2(part), 1994).

5.20.410 Receivership and foreclosure.

A. A franchise granted hereunder shall, at the option of grantor, cease and terminate one hundred twenty days after appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty days, or unless: (1) such receivers or trustees shall have, within one hundred twenty days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise granted pursuant hereto, and the receivership or trustees within said one hundred twenty days shall have remedied all the faults under the franchise or provided a plan for the remedy of such faults which is satisfactory to the grantor; and (2) such receivers or trustees shall, within said one hundred twenty days, execute an agreement duly approved by the court having jurisdiction in the premises whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise granted.

B. In the case of a foreclosure or other judicial sale of the franchise property, or any material part thereof, grantor may serve notice of termination upon grantee and the successful bidder at such sale, in which event the franchise granted and all rights and privileges of the grantee hereunder shall cease and terminate thirty days after service of such notice, unless: (1) grantor shall have approved the transfer of the franchise, as and in the manner that this chapter provides; and (2) such successful bidder shall have covenanted and agreed with grantor to assume and be bound by all terms and conditions of the franchise. (Ord. 626 § 2(part), 1994).

5.20.420 Rights reserved to grantor.

A. In addition to any rights specifically reserved to the grantor by this chapter, the grantor reserves to itself every right and power which is required to be reserved by a provision of any ordinance or under the franchise.

B. The grantor shall have the right to waive any provision of the franchise, except those required by federal or state regulation, if the grantor determines (1) that it is in the public interest to do so, and (2) that the enforcement of such provision will impose an undue hardship on the grantee or the subscribers. To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of the grantor. Waiver of any provision in one instance shall not be deemed a waiver of such provision subsequent to such instance nor be deemed a waiver of any other provision of the franchise unless the statement so recites. (Ord. 626 § 2(part), 1994).

5.20.430 Rights of individuals.

A. Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, age or sex. Grantee shall comply at all times with all other applicable federal, state and local laws and regulations relating to nondiscrimination.

B. Grantee shall adhere to the applicable equal employment opportunity requirements of federal, state and local regulations, as now written or as amended from time to time.

C. Neither grantee, nor any person, agency, or entity shall, without the subscriber’s consent, tap, or arrange for the tapping, of any cable, line, signal input device, or subscriber outlet or receiver for any purpose except routine maintenance of the system, detection of unauthorized service, polling with audience participation, or audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified.

D. In the conduct of providing its services or in pursuit of any collateral commercial enterprise resulting therefrom, grantee shall take reasonable steps to prevent the invasion of a subscriber’s or general citizen’s right of privacy or other personal rights through the use of the system as such rights are delineated or defined by applicable law. Grantee shall not without lawful court order or other applicable valid legal authority utilize the system’s interactive two-way equipment or capability for unauthorized personal surveillance of any subscriber or general citizen.

E. No cable line, wire amplifier, converter, or other piece of equipment owned by grantee shall be installed by grantee in the subscriber’s premises, other than in appropriate easements, without first securing any required consent. If a subscriber requests service, permission to install upon subscriber’s property shall be presumed.

F. The grantee, or any of its agents or employees, shall not sell, or otherwise make available to any party without consent of the subscriber pursuant to state and federal privacy laws:

1. Any list of the names and addresses of subscribers containing the names and addresses of subscribers who request in writing to be removed from such list; and

2. Any list which identifies the viewing habits of individual subscribers, without the prior written consent of such subscribers. This does not prohibit the grantee from providing composite ratings of subscriber viewing to any party. (Ord. 626 § 2(part), 1994).