Chapter 5.32 FRANCHISES

It is unlawful for any person to erect any telegraph, telephone, electric, or other poles in the streets or highways or to string any wires thereon, except for the purpose of repairing existing lines, or to lay or construct any railroad line or tracks or to exercise any similar privileges whatsoever within the city without first obtaining a franchise for that purpose in the manner specified by the city council or this chapter, or unless erected pursuant to state law. (Ord. 03-1893 § 1, 2003; 1964 Code § 1.18.)

Article II. Cable System Franchises

5.32.010 Short title.

This article shall constitute the “Cable System Regulatory Ordinance” of the city of Covina and may be referred to as such. (Ord. 03-1893 § 3, 2003.)

5.32.020 Definitions.

For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, 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 the same meaning as in the Cable Act, if one exists, and otherwise shall be given their common and ordinary meaning.

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

B. “Cable Act” means the 1984 Cable Act as amended by the 1992 Cable Television Consumer Protection and Competition Act and by the Telecommunications Act of 1996.

C. “Cable operator” means any person or group of persons who:

1. Provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system; or

2. Otherwise controls or is responsible for, through any arrangement, the management and operation of such cable system.

D. “Cable service” means the one-way transmission to subscribers of:

1. Video programming; or

2. Other programming service; and

3. 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:

1. A facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

a. A facility that serves only to retransmit the television signals of one or more television broadcast stations;

b. A facility that serves subscribers without using any public rights-of-way;

c. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

d. An open video system that complies with Section 653 of the Communications Act;

e. Any facilities of any electric utility used solely for operating its electric utility systems.

2. “Cable system” or “system” also means “community antenna television system” (as that term is used in Section 53066 of the Government Code of the State of California), or “CATV system.”

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

G. “City council” means the city council of the city of Covina.

H. “Franchise” means an initial authorization, or renewal thereof, issued by the council, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction and operation of a cable system. Any such authorization, in whatever form granted, shall not supersede the requirement to obtain any other license or permit required for the privilege of transacting business within the city as required by the other ordinances and laws of the city.

I. “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.

J. “Franchise fee” means any tax, fee, or assessment payment or assessment of any kind imposed by the city on a grantee or a subscriber, or both, solely because of their status as such. 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.

K. “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.

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

M. “Gross annual cable service revenues” means all revenue, determined in accordance with generally accepted accounting principles (hereafter “amounts”), received by grantee or by any affiliate of the grantee that is a cable operator from operation of the cable system to provide cable services to subscribers in the franchise area, specifically including, but not limited to: (1) amounts received for the provision of any video programming service, including basic cable programming, premium, per-channel, and per-program services; and (2) amounts received for installation, disconnection, reconnection, change-in-service, repair, maintenance, late fees, and rental or sale of equipment needed to receive cable service; and (3) amounts received for advertising; and (4) amounts received for carriage of any leased access programming on the cable system (including amounts for advertising); and (5) amounts received for carriage of home shopping channels; and (6) amounts received for studio and production equipment rental and personnel fees in the service area; and (7) amounts received for cable modem or Internet access service, to the extent this service is considered a cable service under federal law, or to the extent that the city is authorized to collect a fee on such services for use of the rights-of-way under applicable federal or state law. Such phrase shall not include: (1) any tax, fee or assessment of general applicability collected by the grantee from subscribers for pass-through to a government agency, including the FCC user fee; (2) unrecovered bad debt; and (3) the value of any free service or services required under a franchise agreement.

N. “Installation” means the connection of the cable system to subscribers’ terminals.

O. “Normal operating conditions” means those service conditions that are within the control of the grantee. Those conditions which are not within the control of the grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.

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

Q. “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.

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

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

T. “State” means the state of California.

U. “Public rights-of-way” 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 service area: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property.

V. “Subscriber” means a person who lawfully receives cable service over the cable system with grantee’s express permission. (Ord. 03-1893 § 3, 2003; Ord. 1419 § 1, 1979; Ord. 1232 § 2, 1973; 1964 Code § 12A.1.)

5.32.030 Franchise purposes.

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

A. To permit the grantee to construct, operate and maintain a cable system and to provide cable service within the designated service area;

B. To permit the grantee to erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along and across public rights-of-way and other public property owned by the city within the designated service area;

C. To permit the grantee to maintain and operate said cable system;

D. To set forth the obligations of the grantee under the franchise. (Ord. 03-1893 § 3, 2003.)

5.32.040 Franchise required.

It is unlawful for any person to construct, install, operate, or maintain a cable system in the city within any public rights-of-way or public property owned by the city without a properly granted franchise awarded pursuant to the provisions of this chapter. (Ord. 03-1893 § 3, 2003.)

5.32.050 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. (Ord. 03-1893 § 3, 2003.)

5.32.060 Franchise territory.

Any franchise shall be valid within all the municipal limits of the city, and within any area added to the city during the term of the franchise, unless otherwise specified in the franchise agreement. (Ord. 03-1893 § 3, 2003.)

5.32.070 Federal or state jurisdiction.

This chapter shall be construed in a manner consistent with all applicable federal and state laws, and shall apply to all franchises granted or renewed after the effective date of the ordinance enacting this chapter to the extent permitted by applicable law. (Ord. 03-1893 § 3, 2003.)

5.32.080 Franchise nontransferable.

A. Grantee shall not sell, transfer, lease, assign 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 city council, which consent shall not be unreasonably denied, withheld or delayed. Notwithstanding the foregoing, the prior consent of the city council shall not be required for an intra-corporate or intra-company transfer from one wholly-owned subsidiary to another wholly-owned subsidiary. Any attempt to sell, transfer, lease, assign or otherwise dispose of the franchise without the consent of the city council shall be null and void. The granting of a security interest in any grantee assets, or any mortgage or other hypothecation or by assignment of any right, title or interest in the cable system in order to secure indebtedness, 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. A “change in control” will be deemed to have occurred whenever there is a change in control of more than 25 percent ownership interest of the grantee or a change in actual working control in whatever manner exercised.

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

D. Grantee shall inform the city of any pending sale, transfer, lease, assignment, hypothecation, placing in trust or change in control, except as excluded in subsection (A) of this section. Transferor and transferee must file an application for the city’s consent to transfer control of or assign the franchise as set forth in subsections (H) and (I) of this section. Such applications shall be signed by duly authorized representative(s) of grantee. Additionally, to the extent allowed and provided for under state or federal law, grantor may require grantee to reimburse grantor for grantor’s reasonable processing and review expenses in connection with the proposed transfer of the franchise, including without limitation costs of administrative review, financial, legal and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication costs and document preparation expenses.

E. Grantee shall file with director a certified copy of the duly executed instrument of such sale, transfer, assignment, lease, hypothecation, trust or change in control within 30 days of the effective date of such sale, transfer, assignment, lease, hypothecation, trust or change in control. If such duly executed instrument is not filed with the city within 30 days after the effective date of such sale, transfer, assignment, lease, hypothecation, trust or change in control, then upon the expiration of said 30 days the franchise shall be subject to forfeiture and the city may, after notice and hearing, by ordinance repeal the franchise.

F. As a condition to the granting of consent to such sale, transfer, assignment, lease, hypothecation, trust or change in control, the city shall require an express and unconditional written acceptance of the terms and conditions of the existing franchise, as a condition to the transfer, accompanied by such guarantees as meet the requirements of CMC 5.32.240 and may impose such additional terms and conditions upon the franchise and upon the grantee or assignee which the city council deems to be in the public interest; provided, however, any such terms and conditions so attached shall be related to the legal, technical and financial ability of the prospective transferee or controlling party to operate the franchise in compliance with the franchise agreement.

G. Consent to any such transfer or change of control shall be refused if the city finds:

1. That the grantee is in material noncompliance with terms and conditions of the franchise; and/or

2. The transferee lacks (or in the case of a change in control, that the “grantee,” following the close of the proposed transaction, would no longer have) the legal, technical or financial ability to operate, maintain and/or (to the extent applicable) construct the cable system in a manner fully consistent with the terms and conditions of the existing franchise; and/or

3. The transferee’s record with other local cable franchise authorities, within the past three years, demonstrates that the applicant cannot be relied upon to comply with its material obligations under applicable law and the franchise; and/or

4. Approval of the transfer or change in control consent request would have a material negative effect on streets or other public rights-of-way or other public property within the franchise area that would be used by the applicant’s cable system; and/or

5. Approval of the transfer or change in control would cause a substantial disruption, degradation and/or cessation of cable services; and/or

6. Approval of the transfer or change in control would reduce competition in the provision of cable service within the franchise area.

H. Transferor’s (assignor’s) application shall include:

1. A fully completed FCC Form 394.

2. Identification and ownership of transferee. In its application for consent, transferor shall identify the transferee and its ownership in the same detail as if transferee were an applicant for an initial grant.

3. A copy of the complaint record as identified in CMC 5.32.270.

4. Financial statements. Current financial statements showing the financial condition of the franchise as of the date of the application. Upon request, transferor shall also agree to submit financial statements showing the condition of franchise as of the closing. Said financial statements shall have been audited and certified by an independent certified public accountant, and shall be submitted within 90 days of the request; provided, however, that if grantee’s financial books and records are not maintained in a manner that allows for the preparation of financial statements at the franchise level, then grantee shall present pro forma financial statements for the franchise prepared by an independent certified public accountant (as of the application date and closing) identifying all assumptions used in making allocations to create the pro forma financial statements for the franchise and the factual basis for those assumptions.

5. The submittal of an accounting and report of franchise fees set forth in Chapter 5.32 CMC within 30 days of the effective date of approval of transfer/assignment of the franchise, or of the date of close of the transfer/assignment. The transferee shall be responsible for any underpayment, and shall be entitled to a credit for any overpayment.

I. Transferee’s (assignee’s) application shall include:

1. A specific and complete response to the criteria set forth in CMC 5.32.140 (contents of application) in as complete a form as if transferee were applying for an initial franchise.

2. A statement explaining how the sources of capital set forth in the financial statements demonstrate that transferee has all the financial resources necessary to complete the proposed transaction, carry out all of the terms and conditions of the franchise, remedy any and all defaults and violations of the provisions of this chapter and the ordinance granting the franchise in the transferor’s past and present operations, make such other improvements and additions as may be required or proposed in the services and facilities, including but not limited to upgrading, rebuilds, and extensions of facilities and equipment.

3. Detailed financial information showing the effect of the transfer, sale or change of control on rates and services to subscribers.

4. If applicable, a summary of the plans and commitments of the transferee to remedy the specific defaults and violations in the operations of the cable operator (transferor) under the existing franchise.

J. Effect of Unauthorized Action. The taking of any action to transfer any interest or cause any change in control without the prior consent of the city shall be null and void, unless later ratified by the city, and shall be deemed a material breach of the franchise. If the city denies its consent to any such action and such action has nevertheless been effected, the city may revoke and terminate the franchise unless control of the cable system is promptly restored to its status prior to such unauthorized action or to a status acceptable to the city. (Ord. 03-1893 § 3, 2003.)

5.32.090 Geographical coverage.

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

B. Business and commercial facilities shall be passed and/or served if required by the provisions of the franchise agreement.

C. After service has been established by activating trunk and/or distribution cables and any nodes within any portion or portions of the service area, grantee shall provide cable service to any requesting subscriber within the service area within 30 days from the date of request; provided, that the grantee is able to secure all easements, rights-of-way, permits and landlord agreements necessary to extend cable service to such subscriber within such 30-day period on reasonable terms and conditions, and subject to any service area line extension requirements of the franchise agreement as well as other exceptions stated in this chapter, the franchise agreement or other applicable law. (Ord. 03-1893 § 3, 2003.)

5.32.100 Nonexclusive franchise.

Any franchise granted pursuant to this chapter shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable system, as it deems appropriate, subject to applicable state and federal law; provided, that if the grantor grants an additional franchise, then the material provisions of any such additional franchise shall be reasonably comparable to the terms and conditions in the initial grantee’s franchise and no more favorable or less burdensome than those applied to prior grantees, so that all grantees are accorded competitively neutral and nondiscriminatory treatment and equal protection under the law. Additional franchises shall also be granted in accordance with Section 53066.2 of the California Government Code. Notwithstanding the foregoing, grantor may require insurance or surety in excess of that required of other grantees in recognition of such a particular grantee being either a new entrant or because of the construction requirements specified in that grantee’s agreement with grantor. (Ord. 03-1893 § 3, 2003.)

5.32.110 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 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 public rights-of-way.

B. Where electric and telephone utilities are to be placed underground, grantor shall give each grantee serving the franchise area within which the area where utilities are to be placed underground at least 30 days’ prior written notice of the date on which open trenching will be available for the grantee’s installation of conduit, pedestals and vaults. On request of the grantor or developer, the grantee shall provide specifications needed for trenching. Developers of new construction with underground utilities shall provide cable operators holding a franchise for the area an opportunity to construct, install and maintain, on land identified on the map as dedicated or to be dedicated to public utility or right-of-way use, any underground cable equipment necessary to extend cable television services to each person in the development.

C. Grantor may require that any new entrant or nonincumbent grantee be responsible for its own underground trenching and the costs associated therewith, if, in grantor’s opinion, the public rights-of-way in any particular area cannot feasibly and reasonably accommodate additional cables. (Ord. 03-1893 § 3, 2003.)

5.32.120 Franchise modification.

The grantee may be required to pay any costs incurred by the grantor in processing a grantee request for franchise modification, lease or hypothecation of franchise, subject to the provision for such costs under state or federal law. Such allowable costs may include the costs incurred for hiring consultants to assist in evaluating the request. (Ord. 03-1893 § 3, 2003.)

5.32.130 Filing of franchise applications.

Any person desiring an initial franchise for a cable system shall file an application with the city. A reasonable, nonrefundable initial application fee established by the city shall accompany the initial franchise application to cover all validly documented 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 validly documented reasonable costs exceed the application fee, the selected applicant(s) shall pay the difference to the city within 30 days following receipt of an itemized statement of such costs. (Ord. 03-1893 § 3, 2003.)

5.32.140 Applications – Contents.

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

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

B. A resume of prior history of the applicant, including the expertise of applicant in the cable system field;

C. A list of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each shareholder having a five percent or greater interest, if a corporation;

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

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

F. A current financial statement of the 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 relevant additional information that the city deems applicable. (Ord. 03-1893 § 3, 2003.)

5.32.150 Consideration of initial applications.

A. Upon receipt of any application for an initial franchise, the city manager or a delegate 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 city council. Within 60 days after the close of the hearing, the city council shall make a decision based upon the evidence received at the hearing as to whether or not the initial franchise(s) should be granted, and, if granted, subject to what conditions. The city council may grant one or more franchises or may decline to grant any franchise. (Ord. 03-1893 § 3, 2003.)

5.32.160 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. 03-1893 § 3, 2003.)

5.32.170 Other requirements.

A. 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 or other information which includes the name of grantee, name of the individual, and a telephone number which can be called to verify that the individual is a contractor of grantee. Upon request by grantor, grantee shall provide a sample of the photo identification card within five business days. Every vehicle of the grantee or its major subcontractors shall be clearly identified as working for grantee.

B. Additional service standards and standards governing consumer protection and response by grantee to subscriber complaints not otherwise provided for in this chapter may be established in the franchise agreement or by separate ordinance adopted by the city council at a duly noticed meeting in accordance with applicable state or federal law. A verified and continuing pattern of significant noncompliance with material terms of this chapter or the franchise agreement may be deemed a material breach of the franchise; provided, that grantee shall receive due process in accordance with CMC 5.32.340 prior to any sanction being imposed. (Ord. 03-1893 § 3, 2003.)

5.32.180 Franchise fee.

A. Following the issuance and acceptance of the franchise, the grantee shall pay to the grantor a franchise fee on gross annual cable service revenues in the amount and at the times set forth in the franchise agreement.

B. The grantor, on a quarterly basis, shall be furnished a statement within 90 days of the close of the calendar quarter, either audited and certified by an independent certified public accountant or certified by an officer of the grantee, reflecting the total amounts of gross annual cable service revenues and all payments, deductions and computations for the period covered by the payment. Upon 30 days’ prior written notice, grantor shall have the right to conduct an independent financial audit of grantee’s gross annual cable service revenue and franchise fee records, in accordance with generally accepted accounting principles (GAAP), and if such audit indicates a franchise fee underpayment of five percent or more, the grantee shall reimburse the grantor for all reasonable documented costs of such 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 undisputed franchise fee payment or payment of any undisputed adjustment to any franchise fee is not received on or before the dates specified in the franchise agreement, unless otherwise excused, grantee shall pay an interest charge, computed from such due date, at an annual rate equal to the highest of the most recently published prime lending rate of any of the five largest member banks of the New York Clearing House Association, plus one percent during the period for which payment was due.

E. Franchise fee payments shall be made in accordance with the schedule indicated in the franchise agreement. (Ord. 03-1893 § 3, 2003.)

5.32.190 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 to satisfy all claims, liens and/or taxes due grantor from grantee which arise by reason of construction, operation, or maintenance of the cable system, and to satisfy any actual or liquidated damages arising out of a breach of the franchise agreement, subject to the procedures and amounts designated in this chapter and 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 30 days after receiving written confirmation from the bank where such security fund is deposited that grantor has made a draw against the security fund. Failure to replenish the security fund after receipt of a written notice and a reasonable opportunity to cure may be deemed a material breach of the franchise. (Ord. 03-1893 § 3, 2003.)

5.32.200 Cable system construction.

A. Grantee shall not construct any cable system facilities until grantee has secured the necessary permits from grantor or other responsible public agencies. The grantee shall be subject to all permit and bonding requirements applicable to contractors working within the public rights-of-way. No provision of this chapter or the franchise agreement shall be deemed a waiver of the obligation of a grantee to pay grantor for the issuance of a permit.

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

C. In those areas of the city where the grantee’s cables are located on the aboveground transmission or distribution facilities of the public and/or municipal utility providing telephone or electric power service, and in the event that the facilities of both the telephone and electric power utilities subsequently are placed underground, then the grantee likewise shall reconstruct, operate and maintain its transmission and distribution facilities underground, at grantee’s cost. Certain of grantee’s equipment, such as pedestals, amplifiers and power supplies, which normally are placed aboveground, may continue to remain in aboveground enclosures, unless otherwise provided in the franchise agreement.

D. Grantee shall obtain all required permits before beginning any work in, upon, along, across, under or over the public rights-of-way or any other public property, except for emergency work as provided in subsection (G) of this section. The height above public thoroughfares of all aerial wires shall conform to the requirements of the California regulatory body having jurisdiction thereof.

E. 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 the public rights-of-way, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said public rights-of-way, and not to materially interfere with existing public and municipal utility installations.

F. In the event that any property or improvement of the grantor in the public rights-of-way or on other city-owned public property is disturbed or damaged by the grantee or any of its contractors, agents or employees in connection with undertaking any and all work pursuant to the rights granted to the grantee pursuant to this chapter and the franchise agreement, the grantee shall promptly, at the grantee’s sole cost and expense, restore to the grantor’s reasonable satisfaction said property or improvement which was so disturbed or damaged. If such property or improvement shall, within two years (or, in the case of street improvement, until the street is resurfaced if resurfaced prior to the expiration of the two years) of the date the restoration was completed, become uneven, unsettled or otherwise require additional restorative work, repair or replacement because of the initial disturbance or damage to the property by the grantee, then the grantee, as soon as reasonably possible, shall, promptly upon receipt of written notice from the grantor and at the grantee’s sole cost and expense, restore to the grantor’s reasonable satisfaction said property or improvement which was disturbed or damaged. Any such restoration by the grantee shall be made in accordance with such materials and specifications as may, from time to time, be established by the grantor and made applicable to all users of the public rights-of-way.

G. Prior to commencing any work on the cable system in the public rights-of-way, the grantee shall obtain any and all permits, licenses and authorizations lawfully required for such work. If emergency work on the cable system in the public rights-of-way is required, the grantee shall with all due diligence seek to obtain any and all such required permits, licenses and authorizations within three working days after commencing such emergency work.

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

I. If the grantor lawfully elects to alter or change the grade or location of any public right-of-way, the grantee shall, upon reasonable notice by the grantor, and in a timely manner, remove, relay or relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.

J. The grantee, on request of any person holding a moving permit issued by the grantor, shall temporarily raise or lower its wires or fixtures to permit the moving of buildings. The expense of such temporary raising or lowering of wires or fixtures shall be paid by the person requesting the same, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than 20 business days’ prior written notice to arrange for the temporary wire or equipment changes.

K. The grantee shall have the authority to trim any trees or other natural growth overhanging the public rights-of-way so as to prevent the branches of such trees or other natural growth from coming in contact with the grantee’s wires, cables and other equipment. To the extent that grantee trims trees under this authority, the grantor may require all trimming of trees and natural growth to be done under its supervision and direction, at the expense of the grantee.

L. Grantee shall be subject to any and all lawful, generally applicable requirements established by the grantor with regard to the placement and screening of aboveground facilities located in the public rights-of-way. (Ord. 03-1893 § 3, 2003.)

5.32.210 Construction of equipment by additional franchises.

A. The grantor reserves the right to grant an encroachment permit to a cable franchise 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 grantor in the event the pending franchise application is not granted. The grantor may require an applicant to provide a separate trench for its conduit and/or cable at the applicant’s cost.

B. If the grantor authorizes or permits another cable system to operate within the municipal limits of the city, it may do so on condition that such new cable system entrant indemnify and hold harmless and reimburse the existing grantee from and against all costs and expenses incurred in strengthening poles, replacing poles, rearranging attachments, placing underground facilities and all other costs including those of existing grantee, the city and utilities, incident to inspections, make ready, and construction of an additional cable system in the franchise area; and the existing grantee may be required to be designated a third party beneficiary of such conditions as are incorporated into the authorization(s) granted to such new entrant cable system. (Ord. 03-1893 § 3, 2003.)

5.32.220 Applicable technical standards.

A. The grantee shall construct, install, operate and maintain its cable 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 written request, a written report of the results of the grantee’s two most recent proof of performance tests conducted pursuant to FCC and franchise standards and guidelines.

B. Should the FCC no longer require proof of performance tests, the grantee shall make and submit proof of performance tests and reports in response to a written request from the grantor. The form of the report shall be subject to the good faith negotiations and agreement of the grantor and grantee. Such report shall be submitted to the grantor within 30 days of issuance of the grantor’s request. (Ord. 03-1893 § 3, 2003.)

5.32.230 Noncompliance with standards.

Repeated and verified failure to maintain specified FCC technical standards may constitute a material breach of the franchise. (Ord. 03-1893 § 3, 2003.)

5.32.240 Costs of technical assistance.

Grantor may require grantee to pay the costs incurred by grantor for obtaining any technical assistance deemed necessary by grantor for obtaining independent verification of technical compliance with all franchise-imposed standards, subject to the provisions and application of state and federal law. (Ord. 03-1893 § 3, 2003.)

5.32.250 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. 03-1893 § 3, 2003.)

5.32.260 Insurance.

A. On or before commencement of franchise operations, the grantee shall furnish to grantor certificates of insurance for commercial general liability, automobile liability, workers’ compensation and property insurance from appropriately qualified insurance companies, which shall be admitted in the state. The certificates of insurance shall provide that the insurance is in force and will not be canceled or materially modified without 30 days’ prior written notice to grantor. The certificates of insurance shall be in a form reasonably satisfactory to grantor.

B. The grantee shall maintain at its cost throughout the term of the franchise a commercial general and automobile liability insurance policy which shall:

1. Include grantor, its officers, agents and employees as additional insureds with respect to liability arising from grantee’s operations;

2. Provide coverage 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; and/or

c. The strict liability of grantee;

3. Provide a combined single limit for commercial general liability and automobile liability insurance in the amount provided for in the franchise agreement.

C. The grantee shall maintain at its cost throughout the term of the franchise a policy of workers’ compensation insurance which shall comply with the laws of the state of California.

D. The grantee shall maintain at its cost throughout the term of the franchise a policy of property insurance which shall provide fire insurance with extended coverage on the 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. The certificates of insurance shall indicate the following information:

1. The policy number;

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

3. First named insureds and any additional insureds required by the franchise agreement and this chapter;

4. Type of insurance; and

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

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

F. The commencement of franchise operations shall not begin 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 or provide proof of new or renewed coverage following notice to grantor pursuant to subsection (A) of this section, grantor shall, upon 10 days’ notice to grantee, have the right to procure the required insurance and recover the cost thereof from grantee. 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.

H. Notwithstanding anything to the contrary in this chapter, grantee may elect to self-insure the insurance requirements contained herein in a manner consistent with the risk management program in effect from time to time after submitting verifiable proof of adequate financial capability and with the prior written approval of grantor in grantor’s reasonable discretion. (Ord. 03-1893 § 3, 2003.)

5.32.270 Records required.

A. Grantee shall at all times maintain:

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

2. A full and complete set of plans and record drawings showing the locations of the cable system components 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 for subscribers in the city, on a monthly basis;

4. If requested by grantor, a written or computer-stored record of subscriber complaints in a form kept in the ordinary course of business for the preceding 12 months for subscribers in the city;

5. A full and complete record of rates for programming services, equipment sales or rentals, installations and other subscriber charges. This information shall include, but not be limited to, rates for the basic cable service tier, tiers of service beyond basic cable service, premium service, pay-per-view services, late fees, additional outlets, converters, remote controls and any charges for installation or service at the subscriber’s premises.

B. The grantor may request inspection of additional records and documents kept in the normal course of business by grantee; provided, the items to be inspected 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 and subject to necessary confidentiality arrangements, grantee shall permit examination by any duly authorized representative of the grantor of all:

1. Franchise property and facilities, together with any appurtenant property and facilities of grantee situated within the service area and customer call facilities which may be within or outside the service area, as necessary to enable grantor to carry out grantor’s regulatory responsibilities under this chapter or the franchise agreement;

2. All records kept in the normal course of business 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. 03-1893 § 3, 2003.)

5.32.280 Annual reports.

A. No more often than once per year, within 90 days after the end of the calendar year, upon grantor’s written request, grantee shall submit a written report to grantor with respect to the preceding calendar year in a form approved by grantor, including, but not limited to, the following information:

1. 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, cable services begun or discontinued during the reporting year, if applicable;

2. A list of grantee’s officers and members of its board of directors which may be provided in the form of an annual report;

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

4. An indication of any residences which cannot be connected to the cable system in grantee’s service area, and a schedule for providing cable service;

5. Information as to:

a. The number of homes passed,

b. Total subscribers, and

c. The number of basic and pay subscribers;

6. A full and complete set of plans and record drawings showing the locations of the cable system installed or in use in the city, exclusive of subscriber service drops and equipment provided in subscriber’s homes and exclusive of confidential or proprietary information that would be open for public review under the California Public Records Act. It is the intent of this section that the grantor have a complete set of plans and record drawings. After the initial submission of a complete set of drawings, the grantee may satisfy the provisions of this section by providing updated portions of those sections of the drawings that have changed;

7. Any other information relevant to franchise regulation which the grantor shall reasonably request and which is relevant to its regulatory responsibilities as set forth in this chapter and the franchise agreement.

B. Upon request, grantee shall submit to grantor copies of all pleadings, applications and reports submitted by grantee to any federal, state or local court, regulatory agency, or other governmental body as well as copies of all decisions issued in response to such pleadings, applications and reports, which are nonroutine in nature and which will materially affect its cable system within the franchise area.

C. Information otherwise confidential by law and so designated by grantee, which is submitted to grantor, shall be retained in confidence by grantor and its authorized agents and shall not be made available for public inspection. Notwithstanding the foregoing, grantee shall have no obligation to provide copies of documents to grantor which contain trade secrets of grantee or which are otherwise of a confidential or proprietary nature to grantee unless it receives satisfactory assurances from grantor that such information can and will be held in strictest confidence and protected by the grantor. To the extent possible, grantee may provide grantor with summaries of any required documents or copies thereof with trade secrets and proprietary matters deleted therefrom. The burden of proof shall be on grantee to establish the confidential nature of any information submitted, to the reasonable satisfaction of the grantor.

D. Upon grantor’s request, 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 45 days of the publication of such reports.

E. 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.

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

G. The willful refusal, failure, or willful negligence of grantee to file any of the reports required as and when due under this chapter may be deemed a material breach of the franchise agreement if such reports are not provided to grantor within 30 days after receipt of written notice of noncompliance, and may subject the grantee to all remedies, legal or equitable, which are available to grantor under this chapter or the franchise agreement.

H. 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. (Ord. 03-1893 § 3, 2003.)

5.32.290 Opinion survey.

Upon written request of the grantor, but not more than once every two years, the grantee shall conduct a subscriber satisfaction survey pertaining to quality of service, which may be transmitted to subscribers in grantee’s invoice for cable services. The results of such survey shall be provided to the grantor on a timely basis. (Ord. 03-1893 § 3, 2003.)

5.32.300 Review of system performance.

A. Not more often than every two years throughout the term of the franchise, if reasonably requested by prior written notice from 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 those complaints 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 30 days after the conclusion of such a review meeting, grantor may issue findings with respect to the grantee’s franchise compliance and quality of service.

B. If grantor determines that grantee is not in compliance with the requirements of this chapter or the grantee’s franchise agreement, grantor shall provide grantee, in the form of written findings, the specific details of each alleged noncompliance. Grantor may then direct grantee to correct the areas of noncompliance within a reasonable period of time. Failure of the grantee, after due notice, to:

1. Correct the area(s) of noncompliance within the period specified therefor; or

2. Commence compliance within such period and diligently achieve compliance thereafter; or

3. Demonstrate that the allegations of noncompliance are incorrect;

may be considered a material breach of the franchise, and grantor may exercise any remedy specified in this chapter or the franchise agreement for such breach. (Ord. 03-1893 § 3, 2003.)

5.32.310 Special review.

The grantee shall comply with all appropriate technical standards of the FCC as published in Subpart K of Part 76 of Title 47 of the Code of Federal Regulations. To the extent those standards are altered, modified, or amended during the term of this franchise, the grantee shall comply with such alterations, modifications or amendments within a reasonable period after their adoption by the FCC. As provided in these rules, the franchising authority shall have, upon written request, the right to obtain a copy of tests and records required to be performed pursuant to the FCC’s rules or require additional tests, repeat tests, or tests involving specified subscriber terminals, in accordance with Section 76.601(c) of Title 47 of the Code of Federal Regulations. (Ord. 03-1893 § 3, 2003.)

5.32.320 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 reasonable written notice from the grantor and a reasonable opportunity to cure such nonperformance in accordance with the provisions of this chapter and the franchise, grantor may assess against grantee liquidated damages in an amount set forth in this chapter or the franchise agreement for any such violation(s). (Ord. 03-1893 § 3, 2003.)

5.32.330 Liquidated damages.

A. By acceptance of a franchise granted by the grantor, the grantee understands and shall agree that failure to comply with any time and performance requirements as stipulated in this chapter and the franchise agreement will result in damages to the grantor, and that it is and will be impractical to determine the actual amount of such damage in the event of delay or nonperformance. Each of the amounts set forth below has been set in recognition of the difficulty in affixing actual damages arising from violation of this chapter and breach of the franchise agreement. The franchise agreement shall include and incorporate provisions, where applicable, for liquidated damages to be paid to grantor by grantee in the following amounts, or amounts set forth in the franchise agreement, and chargeable to the letter of credit, bond or security fund, should grantee not make payment within 10 days of written notice by grantor that the amounts are due for the concerns listed in the notice. If, after following the process specified in CMC 5.32.340, grantor finds that grantee has failed to materially comply with provisions of this chapter or the franchise agreement, liquidated damages in the following amounts may be assessed for the following concerns:

1. Failure to complete system construction in accordance with the franchise agreement, unless the city manager, or his or her designee, approves the delay due to the occurrence of conditions beyond grantee’s control: $500.00 per day for each day, or part thereof, that the deficiency continues.

2. Failure to provide data, documents, or reports required by this chapter or the franchise agreement within 10 days after written request, or within such longer time as may be specified in said request: $100.00 per day for each day, or part thereof, that each violation continues.

3. Failure to test, analyze and report on the performance of the cable system as required by this chapter or the franchise agreement within such time as may be specified therein: $100.00 per day for each day, or part thereof, that such noncompliance continues.

4. Failure to provide in a continuing manner the type of cable services proposed in the grantee’s application as incorporated into the ordinance granting the franchise, unless the city manager, or his or her designee, approves a delay or change, or the grantee has obtained a modification of its obligation under Section 625 of the Cable Act: $500.00 per day for each day, or part thereof, that each noncompliance continues.

5. Failure to construct the cable system to an area meeting the density requirements following a written request therefor, within such time as may be agreed to by grantee and grantor: $100.00 per day for each day, or part thereof, that each noncompliance continues.

6. Failure to provide required notices to subscribers: $500.00 per month for each month, or part thereof, in which notices are not distributed.

7. Failure to provide current evidence upon request of insurance and bonding: $100.00 per month for each month, or part thereof, that each noncompliance continues. Nothing in this section shall preclude grantor’s exercise of its remedies as provided for under CMC 5.32.260 or 5.32.350 for grantee’s failure to procure or maintain the required insurance and bonding.

8. Nothing in this section shall preclude further liquidated damages as agreed upon by the parties in the franchise agreement or other remedies provided in this chapter or the franchise agreement.

B. If grantor determines that grantee may be liable for liquidated damages, grantor shall issue to grantee by personal delivery, registered mail or certified mail written notice of intention to assess liquidated damages and shall follow the procedures set forth in CMC 5.32.340. If, after following the procedures set forth in CMC 5.32.340, liquidated damages are assessed by the city council, liquidated damages shall begin to accrue after the correction period specified in the written notice has lapsed. The notice shall set forth the basis for the liquidated damages and give grantee a reasonable time in which to remedy the violation. (Ord. 03-1893 § 3, 2003.)

5.32.340 Procedure for remedying franchise violations.

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

A. Grantor shall first notify grantee of the alleged violation in writing by personal delivery or registered or certified mail, and demand correction, or evidence of nonviolation, within a reasonable time, which shall not be less than five business 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 20 business days in all other cases. If grantee fails to:

1. Correct the alleged violation within the time prescribed; or

2. Commence correction of the alleged violation within the time prescribed and diligently remedy such alleged violation thereafter; or

3. Provide credible evidence that there is no violation;

grantor shall then give, by personal delivery or registered or certified mail, written notice of not less than 15 days of a public hearing to be held before the city council. Said notice shall set forth in detail each of the violations alleged to have occurred. Grantee shall be provided a fair opportunity for full participation in the public hearing, including the right to be represented by legal counsel, to introduce relevant evidence and to question persons speaking at the public hearing. Upon grantee’s prior written request and advance payment by grantee, a complete verbatim record and transcript shall be made of such hearing.

B. Subsequent to the public hearing, the city council shall consider all relevant evidence presented, and thereafter render findings and its decision.

C. If the city council finds that:

1. The grantee has corrected the alleged violation; or

2. The grantee has diligently commenced correction of such alleged violation after notice thereof and is diligently proceeding to fully remedy such alleged violation; or

3. No material violation has occurred;

the proceedings shall terminate and no penalty or other sanction shall be imposed.

D. If the city council finds that material violations exist and that grantee:

1. Has not corrected the same in a satisfactory manner within 30 days after receipt of the first written notice from grantor; or

2. Has not diligently commenced correction of such violation within 30 days after receipt of the first written notice and is not diligently proceeding to fully remedy such violation;

then the city council may impose one or more of the remedies provided in this chapter and/or the franchise agreement. (Ord. 03-1893 § 3, 2003.)

5.32.350 Grantor’s power to revoke.

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

1. If grantee fails to perform any of its material obligations under this chapter or the franchise agreement and continues such failure to perform after receipt of due notice and a reasonable opportunity to cure;

2. If grantee fails to provide or maintain in full force and effect the insurance coverage or security fund as required by this chapter or in the franchise agreement;

3. If grantee violates 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 in good faith in an appropriate proceeding;

4. If grantee knowingly practices any material fraud or deceit upon grantor; or

5. To the extent allowed by applicable bankruptcy law, if grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt.

B. Prior to revoking a franchise, the city council shall cause to be served on the grantee written notice of its intent to consider revoking grantee’s franchise. Such notice shall be served on grantee at least 60 days prior to the date of the hearing on the issue. The notice shall contain the time and place of the hearing and shall be published at least once in a newspaper of general circulation within the franchise area 10 days prior to the hearing date. After completing the notice procedures set forth in this section, the city council may commence revocation hearings.

C. The city council shall hear any person(s) interested in the revocation and within 90 days after the date of the hearing shall make its determination, based on a preponderance of the evidence, whether the grantee has committed a material breach of the franchise or this chapter.

D. If the grantor determines that the grantee has committed a material breach, then the grantor may:

1. Declare the franchise revoked if the material breach has not been cured within the time provided by grantor; or

2. If the material breach is curable by the grantee, direct the grantee to take appropriate remedial action within the time and manner and under the terms and conditions reasonably specified by the grantor.

The termination and forfeiture of the grantee’s franchise shall in no way affect any right of grantor to pursue any remedy under the franchise or any provision of law. (Ord. 03-1893 § 3, 2003.)

5.32.360 Appeal of finding of revocation.

The grantee may appeal a finding of revocation made pursuant to CMC 5.32.350 to an appropriate court of competent jurisdiction, which shall have the power to review de novo. Any such appeal must be taken by the grantee within 90 days of the issuance of the grantor’s decision to revoke the franchise. (Ord. 03-1893 § 3, 2003.)

5.32.370 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 obligations pertaining to refunds and credits for interruptions in cable service under federal and state consumer protection laws. For the purpose of this section, causes or events not within the control of grantee shall include without limitation acts of God, war, strikes, sabotage, riots or civil disturbances, labor disputes, restraints imposed by order of a governmental agency or court not due to any violation by grantee, 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 governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of grantee, or the failure of the grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or repair of the cable system where the grantee has failed to exercise reasonable diligence to secure such supplies, services or equipment. (Ord. 03-1893 § 3, 2003.)

5.32.380 Abandonment or removal of franchise property.

A. If the grantee discontinues the use of any of its property within the public rights-of-way for a continuous period of six months, such property shall be deemed to have been abandoned by grantee. Any part of the cable system that is parallel or redundant to other parts of the cable system and is intended for use only when needed as a backup for the cable system or a part thereof shall not be deemed to have been abandoned because of its lack of use, provided notice is given to grantor of such status.

B. If grantee’s cable system is deactivated for a continuous period of six months without prior written notice to and approval by grantor and has been deemed abandoned, then grantee must, at grantor’s option and demand and at the sole expense of grantee, promptly remove all of grantee’s property from any streets or other public rights-of-way. Grantee must promptly restore the streets or other public areas from which its property, including aerial trunk and feeder lines, has been removed to the condition existing prior to grantee’s use of those streets or other public rights-of-way. 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. Grantor may, upon written application by grantee, approve the abandonment in place by grantee of any property under such terms and conditions as grantor may approve. Upon grantor-approved abandonment in place of any property, grantee must cause to be executed, acknowledged, and delivered to grantor such instruments as grantor may prescribe and approve in order to transfer and convey ownership of that property to grantor.

D. At the expiration, without a request for renewal or extension, of the term for which the franchise is granted, or upon a final determination concerning nonrenewal or revocation, as provided herein, the grantor shall have the right to require grantee to remove, at its own expense, all aboveground portions of the cable system from all streets and public rights-of-way within the service area within a reasonable period of time, which shall not be less than 180 days.

E. Notwithstanding anything to the contrary set forth in this chapter, with the city’s approval, the grantee may abandon any underground franchise property in place so long as it does not materially interfere with the use of the public rights-of-way in which such property is located or with use thereof by any public utility or other franchise holder. (Ord. 03-1893 § 3, 2003.)

5.32.390 Restoration by grantor – Reimbursement of costs.

Upon reasonable written notice and upon the failure of the grantee to commence, pursue or complete any work to be done in any public right-of-way required by law or by the provisions of this chapter or the franchise agreement, within the time prescribed therein and to the reasonable satisfaction of the grantor, the grantor shall provide grantee with a written notice providing 20 days to complete such work. If grantee has not completed such work after the 20-day notice, grantor may cause the work to be removed. If grantor removes the work, the grantor shall provide to the grantee an itemized work order setting forth in detail the exact nature of the removal work and the cost of such work. The grantee shall pay to the grantor the reasonable costs for such removal work no later than 30 days after receipt of the itemized work order. (Ord. 03-1893 § 3, 2003.)

5.32.400 Extended operation and continuity of services.

Upon revocation or a denial of renewal of the franchise, the grantor shall have the discretion to permit grantee to continue to operate the cable system for an extended period of time. If permitted by grantor, grantee may continue to operate the cable system under the terms and conditions of this chapter and the franchise and to provide cable services. The grantee shall use reasonable efforts to provide continuous, uninterrupted cable service to its subscribers, including operation of the cable system. (Ord. 03-1893 § 3, 2003.)

5.32.410 Receivership and foreclosure.

A. At the option of the grantor and to the extent allowed by applicable law, a franchise granted hereunder may be revoked 120 days after appointment of a receiver(s) or trustee(s) to take over and conduct the business of grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless:

1. The receivership or trusteeship shall have been vacated within said 120 days; or

2. Such receivers or trustees within said 120 days shall have remedied all the defaults under the franchise or provided a plan for the remedy of such defaults which is satisfactory to the grantor; or

3. Such receivers or trustees shall, within said 120 days, have executed an agreement duly approved by the court having jurisdiction whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise.

B. To the extent allowed by applicable law, in the case of a foreclosure or other judicial sale of the cable system, in whole or in part, the grantor may serve notice of revocation upon grantee and the successful bidder at such sale, and all rights and privileges of the grantee hereunder shall be revoked 120 days after service of such notice, unless:

1. Grantor shall have approved the transfer of the franchise in the manner provided by this chapter; and

2. The successful bidder shall have covenanted and agreed with grantor to assume and be bound by all terms and conditions of the franchise. (Ord. 03-1893 § 3, 2003.)

5.32.420 Reservation of grantor rights.

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. (Ord. 03-1893 § 3, 2003.)

5.32.430 Waiver.

A. 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; or (2) that the enforcement of such provision will impose an undue hardship on the grantee or on the subscribers. To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of the grantor. Waiver of any provision in one instance shall not be deemed a waiver of such provision subsequent to such instance nor be deemed a waiver of any other provision of the franchise unless the statement so recites. Grantor shall not grant or withhold waivers in a discriminatory manner.

B. The grantee shall not be excused from complying with any of the requirements of this chapter or the franchise agreement by any failure of the grantor on any one or more occasions to require or seek compliance with any such terms or conditions. (Ord. 03-1893 § 3, 2003.)

5.32.440 Rights of individuals.

A. Grantee shall not deny service, deny access, or otherwise discriminate against any citizen on the basis of race, color, religion, national origin, age or sex. Grantee shall also comply at all times with all other applicable federal, state and local laws and regulations relating to nondiscrimination. However, nothing in this chapter or the franchise agreement shall limit the right of the grantee to deny service to any household or individual which has a negative credit or service history with the grantee, which may include nonpayment of bills or theft or damage to grantee’s equipment, or who has threatened or assaulted grantee’s property or employees in the course of their employment.

B. No cable line, wire amplifier, converter, or other piece of equipment owned by grantee shall be installed by grantee in the subscriber’s premises, other than in appropriate easements, without first securing any required consent. If a subscriber requests service, permission to install upon subscriber’s property shall be deemed granted. (Ord. 03-1893 § 3, 2003.)

5.32.450 Privacy.

A grantee shall respect and refrain from invading the privacy of subscribers served by its cable system. A grantee shall comply with all of the requirements of 47 U.S.C. Section 551, as amended, California Government Code Section 53088.2(n), as amended, and California Penal Code Section 637.5, as amended. (Ord. 03-1893 § 3, 2003.)

Article III. CATV Consumer Protection

5.32.500 Title.

This article shall be known as and may be referred to as the “city of Covina multichannel video provider consumer protection ordinance.” (Ord. 03-1893 § 2, 2003; Ord. 94-1784, 1994.)

5.32.510 Intention.

It is the intention of the city council, by this article, to enact a Consumer protection ordinance applicable to all multichannel video providers within the city of Covina. (Ord. 03-1893 § 2, 2003; Ord. 94-1784, 1994.)

5.32.520 Cable Television and Video Provider Customer Service and Information Act.

A. No person shall violate the terms and provisions of the Cable Television and Video Provider Customer Service and Information Act, Government Code Section 53054, et seq. All multichannel video providers within the city shall comply with all of the terms and provisions of said Act. In the event of the failure of any multichannel video provider to distribute the annual notice required by Section 53055.1 of the Government Code, the city manager shall give written notice thereof to said provider to comply within 60 days, and upon failure of said operator or provider to so comply, a penalty in the sum of $500.00 for each year in which the notice is not distributed shall be imposed by the finance director. The penalties shall be due and owing immediately upon notice of its disposition and, in the case of a franchisee of the city, may be collected at the same time franchise fees are collected. Nonpayment of the penalty shall be grounds for termination of said franchise or a nonfranchisee multichannel video provider’s business license.

B. The annual notice as used herein, and as required by said Act, shall be given at least 60 days after the effective date of the ordinance enacting this section and, thereafter, on or about the first day of January of each year. The notice given to the city of Covina shall be delivered to the city manager and shall include a verbatim copy of the customer service standards established by each multichannel video provider within the city. (Ord. 03-1893 § 2, 2003; Ord. 94-1784, 1994.)

5.32.530 Video Customer Service Act.

No person shall violate the terms and provisions of the Video Customer Service Act, Government Code Section 53088, et seq. In the event any person, including the city of Covina, should claim that a multichannel video provider, as defined in Section 53088.1 of said Act and this article, is not complying with the terms and provisions of said Act or this article, or any person should have a dispute with said multichannel video provider under the provisions of said Act, written notice thereof may be filed with the city clerk.

A. Any person having a dispute with a multichannel video provider or having a complaint that the multichannel video provider is not complying with the terms and provisions of said Act shall reduce the complaint or dispute to writing and present same to the city clerk before the city clerk is required to act thereon. Upon receipt of said written notice, the city clerk shall, within 10 days, make a tentative determination of whether the matter set forth in the notice is within the terms and provisions of said Act.

B. If the city clerk should determine that the matter set forth in said notice is not within the terms and provisions of said Act within said 10 days, said city clerk shall return the written notice to the person providing the same with a written explanation of why the same is not covered under said Act.

C. If the city clerk determines that the notice appears to be under the terms and provisions of said Act, he or she shall give the multichannel video provider written notice of any alleged material breaches of the consumer service standards or said Act and allow the multichannel video provider at least 30 days from receipt of the notice to remedy the specified breach.

D. If, in the opinion of the city manager, or his or her designee, said breach is material and not remedied within said 30 days, said city manager or designee shall give the video operator a 10-day written notice of the penalties assessed for said breach as provided in Section 53088.2(o) of the Government Code of the State of California.

E. Pursuant to said Section 53088.2(o) and (p) of the Government Code, the city manager, or his or her designee, is hereby authorized to impose the penalties therein set forth on or 30 days after final reading of the ordinance codified in this article by the city council. The penalties shall not exceed the amounts therein set forth and shall be assessed in accordance with the terms and provisions of Section 53088.2. In the event any multichannel video provider should fail to pay said penalty when assessed, on written notice to the multichannel video provider the same may be grounds for the revocation of the multichannel video provider’s franchise or business license. However, any monetary penalty assessed under the provisions of this section shall be reduced dollar-for-dollar to the extent any liquidated damages or penalty provision of any applicable franchise document imposes a monetary obligation upon the multichannel video provider for customer service failures, and no other monetary damages may be imposed in such a case.

F. Any person directly affected by any ruling or determination of the city clerk or the city manager or his or her designee may, by written notice filed within 10 days of receipt of written notice of the decision complained of, appeal said decision to the city council. The city clerk shall thereafter schedule a public hearing on said appeal before the city council within 60 days of the receipt of said appeal. (Ord. 03-1893 § 2, 2003; Ord. 94-1784, 1994.)

5.32.540 Definitions.

In addition to the provisions of any franchise documents pertaining to consumer protection the following consumer protection standards are adopted and, where inconsistent with the franchise documents, shall govern:

A. For the purpose of this article the following definitions shall apply:

1. “Company” shall mean any multichannel video provider operating within the city of Covina.

2. “Customer service representative” shall mean the representative of said company that is designated and trained to assist multichannel video provider customers with all matters pertaining to the provision of service.

3. “Consumer” or “customer” shall mean that person to whom company provides multichannel video services within the city of Covina.

4. “Systems” shall mean the multichannel video provider’s transmission equipment and method that delivers multichannel video services within the city of Covina.

5. “Multichannel video provider” shall mean any person, company, or service, which provides one or more channels of video programming to a residence, including a home, condominium, or apartment where some fee is paid, whether directly or as included in dues or rental charges, for that service, whether or not public rights-of-way are utilized in the delivery of the video programming. A “multichannel video provider” shall include, but not be limited to, providers of cable television, master antenna television, satellite master antenna television, direct broadcast satellite, multipoint distribution services, and other providers of video programming, whatever their technology. A “multichannel video provider” shall not include a landlord providing only broadcast video programming to a single-family home or other residential dwelling consisting of four units or fewer.

6. “Standard” installations shall mean those aerial installations that are up to 125 feet in length from the existing distribution system and that do not require separate permits or pole attachment rearrangements.

B. Each multichannel video provider within the city of Covina shall comply with the following consumer standards:

1. Require that a customer service representative will be available to respond to customer’s or PEG channel programmer’s telephone inquiries Monday through Friday from 9:00 a.m. to 5:00 p.m. and on Saturday from 9:00 a.m. to 1:00 p.m. Holidays are excluded. These designated times constitute minimum normal business hours as determined by city as permitted by state and federal law, and the multichannel video provider’s customer service center shall also be open during these hours. The multichannel video provider shall provide telephone availability to its subscribers 24 hours a day, seven days a week. After normal business hours an answering service or an automated response system must be provided. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day.

2. Under normal operating conditions, telephone answering time by a customer service representative, including wait time and the time required to transfer the call, shall not exceed 30 seconds. The number of routine rings shall be limited to four or fewer. Under normal conditions customer callers shall receive a busy signal less than three percent of the time. This standard shall be met no less than 90 percent of the time measured on a quarterly basis and in accordance to a methodology proposed by multichannel video provider and approved by the city. The city shall have an absolute right, upon three days’ written notice, to inspect any and all telephone response and monitoring information as necessary for the city to assure that the multichannel video provider is meeting its requirements.

3. Under normal operating conditions, each of the following standards will be met no less than 90 percent of the time measured on a quarterly basis in accordance to methodology proposed by multichannel video provider and approved by the city:

a. Standard installations will be performed within seven business days after an order has been placed.

b. Excluding those situations reasonably beyond the control of the multichannel video provider (which include natural disasters, civil disturbances, power outages, telephone network outages and severe or unusual weather conditions), the multichannel video provider will respond to service interruptions, defined as three or more signal outages affecting more than one channel in a single zip code area, promptly and in no event later than four hours after notification.

Other service problems will be responded to by the close of business on the next working day of the multichannel video provider.

c. The in-home appointment window alternatives for installations and service calls shall not be longer than four hours. The customer may choose the appointment window most convenient for them. In 90 percent of cases, multichannel video provider shall respond on same-day basis to service calls for repair of a nonworking converter or remote control device if the call is received by 3:00 p.m.

d. If, at any time an installer or technician is running late and will not arrive within the prescribed window, an attempt to contact the customer will be made and the appointment rescheduled as necessary at a time which is convenient for the customer.

4. Multichannel video provider billing statements shall be clear, concise and understandable: bills will be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges and bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. Multichannel video provider shall consult with the city on any changes to company’s statement and will consider the city’s suggestions for modifications.

5. No customer shall have their service disconnected unless there has been compliance with the provisions of Government Code Section 53088, et seq.

6. In 90 percent of cases, refund checks will be issued within 30 days; but, in no event, later than 45 days following the resolution of the request and the return of the equipment supplied by the multichannel video provider if service is terminated.

7. Multichannel video provider will cooperate with the city’s annual customer service and local programming survey.

8. Customers will be notified a minimum of 30 days in advance of any rate or channel realignment change, changes in products and services offered, billing and complaint procedures and service maintenance policies, as provided in Government Code Section 53088.2(h).

9. Multichannel video provider shall maintain records of the number of service interruptions longer than 30 minutes (on subscriber and institutional networks); service requests, complaints and service calls; their breakdown and resolution and comparison on a year-to-date and previous-quarter/last-year basis. The records shall be in a format developed by multichannel video provider and shall be available for inspection by the city.

10. Customers and local PEG channel programmers shall be afforded access to company’s management structure including the system customer service manager and system general manager. System management staff will respond to PEG channel programmers and customer complaints or inquiries within one working day of the initial request. Customers will, at least annually, be informed of this option via written notice.

11. Multichannel video provider shall file all general customer communications with the city. Company’s filing with the city shall at least be concurrent with its initial distribution to customers. General customer communications include, but are not limited to, marketing materials, rate increase correspondence, annual notification information required under state law, marketing promotions and service contract doorknob hangers.

12. Multichannel video provider will prepare and submit to the city a policy with respect to procedures for access to subscriber’s property.

13. Although actual application of this section shall occur on a case-by-case basis as determined by the multichannel video provider, it shall be general policy that if the multichannel video provider personnel does not arrive for installation or service calls within a designated four-hour time frame agreed to by the consumer, the consumer may request and is entitled to one month’s worth of the subscriber’s total bill. If the multichannel video provider fails to provide such credit, and the request was made by the consumer within 60 days of the missed appointment, the city may request the multichannel video provider to issue the credit. The acceptance of the above service credit shall not prohibit the consumer from seeking additional remedies pursuant to applicable state law.

14. If the multichannel video provider does not mail a check for a refund (including applicable interest) to any consumer disconnecting service with an outstanding credit within the next billing cycle or 30 days, whichever is earlier, the consumer may request and it shall be the general policy of the company that the customer is entitled to receive a $10.00 payment except in special circumstances. In addition to the initial refund (and applicable interest) due, if the multichannel video provider fails to provide the $10.00 payment and the request was made by the consumer within 60 days after failure to receive the refund, the city may request the multichannel video provider to provide the $10.00 payment as well as any outstanding refund (and applicable interest) due.

15. It shall be the multichannel video provider’s general policy that if the multichannel video provider cannot perform standard installations, within seven calendar days of request by a consumer, the consumer may request and is entitled to receive a $10.00 credit except in special circumstances. If the multichannel video provider fails to provide the $10.00 credit and the request was made by the consumer within 60 days of the installation request, the city may request the multichannel video provider to issue the credit.

16. The multichannel video provider shall provide an automatic credit to all consumers where there is an outage of all channels for a period of 24 consecutive hours or more which affects the entire city, regardless of the cause of the outage. The credit for such an outage shall equal, at a minimum, the value of 1/13 of each customer’s monthly bill for the first 24 consecutive-hour period and prorated for each additional four-hour period or portion thereof that the outage continues. The multichannel video provider shall provide an automatic credit to all affected consumers when there is an outage of any premium service for a period of 25 consecutive hours or more which affects the entire city, regardless of the cause of the outage. The credit shall equal, at a minimum, the value of 1/13 of each consumer’s monthly bill for the first 24 consecutive-hour period and prorated for each additional four-hour period or portion thereof that the outage continues.

17. Upon request of the consumer, it shall be the policy of the company that the multichannel video provider shall provide a credit to a consumer whenever an outage or outages of four or more hours in a 24-hour period has affected any of the nonpremium channels received by a consumer as part of their service. The credit shall equal the value of 1/13 of each consumer’s monthly bill for the outages of four hours or greater duration occurring in a 24-hour period. In the event that a premium channel is affected by the outage, the credit shall equal the value of 1/13 of the consumer’s monthly premium rate for each outage of four hours or greater duration occurring in a 24-hour period.

18. Consumers will be given at least 30 days’ notice of any scrambling or descrambling of a channel(s), or rate changes that are within the company’s control.

19. The multichannel video provider shall offer consumers the option to receive an A/B switch at the time of initial service installation for no additional installation cost, and shall provide consumers with written information as to how to use such a switch. The multichannel video provider may charge a reasonable price for said switch. Upon consumer request, the multichannel video provider shall provide an A/B switch after the initial installation of service. If the consumer requests installation of such a switch (to receive broadcast television without cable hookup), the company may charge reasonable fees for such installation and equipment.

20. If, in the opinion of the city manager, there has been a material violation of the terms and provisions of this section which has not been remedied despite notices to do so or the assessment of fees and fines, a written notice may be given to the multichannel video provider setting forth in detail the nature of the violation and proceedings commenced as provided in any franchise agreement documents or other documents for the revocation of any franchise and/or license to do business or permit. (Ord. 03-1893 § 2, 2003; Ord. 94-1784, 1994.)

Article IV. Regulation of State-Issued Cable Television and Video Franchises²

5.32.550 Applicability of chapter to state video services franchisees.

Notwithstanding any provision of this chapter to the contrary, nothing in this chapter shall be deemed to require any person or entity to obtain a franchise issued by the city, to the extent that such person or entity is authorized to provide cable service or video services under a cable franchise or video services franchise issued under applicable state or federal law, including but not limited to Sections 5800 et seq. of the California Public Utilities Code. The requirements and provisions of this chapter shall not apply or be enforced to the extent that they actually conflict with applicable state or federal law. (Ord. 08-1950 § 2, 2008.)

5.32.560 Regulation of state video services franchisees.

CMC 5.32.550 through 5.32.620 are designed to regulate video service providers holding state video franchises and operating within the city. As of January 1, 2007, the state of California has the sole authority to grant state video franchises pursuant to the Digital Infrastructure and Video Competition Act of 2006 (“Act”). Pursuant to the Act, the city of Covina shall receive a franchise fee and shall receive a fee for public, educational and government (“PEG”) programming purposes from all state video franchise holders operating within the city. Additionally, the city has the responsibility to establish and enforce penalties, consistent with state law, against all state video franchise holders operating within the city for violations of customer service standards, but the Act grants all authority to adopt customer service standards to the state. The Act leaves unchanged the city’s authority to regulate the city’s current cable franchises in accordance with this chapter and the cable franchises currently in effect, until such time as the cable franchisees no longer hold a city franchise or are no longer operating under a current or expired city franchise. (Ord. 08-1950 § 3, 2008.)

5.32.570 State video franchise and PEG fees.

A. For any state video franchise holder operating within the boundaries of the city of Covina, there shall be a fee paid to the city equal to five percent of the gross revenue of that state video franchise holder.

B. For any state video franchise holder operating within the boundaries of the city of Covina, there shall be an additional fee paid to the city equal to one percent of the gross revenue of that state video franchise holder, which fee shall be used by the city for public, educational, and government access purposes consistent with state and federal law. This fee obligation shall take effect upon the earlier of: (1) the fulfillment of all obligations to remit cash payments to the city for support of public, educational, and government access facilities which are contained within a city-issued cable franchise that was in effect on January 1, 2007, and which remained unsatisfied as of the effective date of the ordinance codified in this article; or (2) the termination by the holder of a city-issued cable franchise of its franchise as provided under state law. The intent of this subsection is to comply with the requirements of subsections (l), (m), and (n) of Section 5870 of the California Public Utilities Code, and the fee established in this subsection is intended to be a fee authorized by subsection (n) of Section 5870.

C. Gross revenue, for the purposes of subsections (A) and (B) of this section, shall have the definition set forth in California Public Utilities Code 5860. (Ord. 08-1950 § 4, 2008.)

5.32.580 Audit authority.

Not more than once annually, the city manager or his or her designee may examine and perform an audit of the business records of all holders of a state video franchise operating within the boundaries of the city of Covina to ensure compliance with CMC 5.32.570. (Ord. 08-1950 § 5, 2008.)

5.32.590 Customer service penalties under state video franchises.

A. Any holder of a state video franchise operating within the boundaries of the city of Covina shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

B. The city manager shall monitor the compliance of holders of a state video franchise operating within the boundaries of the city of Covina with respect to state and federal customer service and protection standards. The city manager, or his or 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 for each violation.

2. For a second violation of the same nature within 12 months, a fine of $1,000 shall be imposed for each day the violation remains in effect, not to exceed $3,000 for each violation.

3. For a third or further violation of the same nature within 12 months, a fine of $2,500 shall be imposed for each day the violation remains in effect, not to exceed $7,500 for each violation.

C. A holder of a state video franchise operating within the boundaries of the city of Covina may appeal a penalty assessed by the city manager 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. (Ord. 08-1950 § 6, 2008.)

5.32.600 City response to state video franchise applications.

A. Applicants for state video franchises, or amendments to existing franchises, that will authorize the applicant to operate within the boundaries of the city of Covina must concurrently provide complete copies to the city of any applications or amendments to applications filed with the Public Utilities Commission. At a minimum, 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 Public Utilities Commission regarding an application or an amendment to an application for a state video franchise. (Ord. 08-1950 § 7, 2008.)

5.32.610 Notice to adjacent property owners prior to installation of video services facilities.

A. Any holder of a state video franchise, or city-issued cable franchise, operating within the boundaries of the city of Covina, that proposes to install above-ground facilities in the public right-of-way shall, prior to applying for an encroachment permit for the installation of such facilities, but in no case less than 20 days prior to installing such facilities, provide written notice to the owner of the private or public property (excluding the public right-of-way) nearest to the proposed facility. For purposes of this subsection, “above-ground facilities” shall include only those facilities that are located on the ground or on a base or pedestal that is on the ground, and shall exclude aerial or pole-mounted facilities.

B. Any franchisee to which this section applies shall provide the city with a copy of the proposed form of notice to be used in compliance with subsection (A) of this section, no less than 10 days prior to mailing or delivering the notice. The city may require the franchisee to amend the form of the notice. Once the city has approved the form of notice, the franchisee shall not be required to obtain additional approvals of notice from the city, so long as the franchisee does not materially deviate from the form of notice approved by the city. (Ord. 08-1950 § 8, 2008.)

5.32.620 Savings clause.

Each provision of this chapter is separate and distinct, and individually enforceable. In the event any provision is declared to be unlawful, the enforceability of all other provisions shall not be affected. CMC 5.32.550 through this section shall not limit the city’s authority to regulate the city’s current cable franchisee in accordance with CMC 5.32.005 through 5.32.540 and any cable franchises currently in effect until such time that any cable franchisee no longer holds a city franchise or is no longer operating under a current or expired city franchise. (Ord. 08-1950 § 9, 2008.)

For statutory provisions regarding the granting of public utility franchises by local governments, see Public Utilities Code § 6001 et seq. and Government Code § 39732; for provisions regarding the granting of CATV franchises by local government, see Government Code § 53066.

Code reviser’s note: Ords. 17-02, 17-03 and 17-16 reauthorize the fee of state-franchised video service providers to support public, educational, and governmental channel facilities codified in CMC 5.32.570, which will remain unchanged and in full effect as to all state-franchised video service providers.