Chapter 5.64
CABLE TELEVISION
Sections:
5.64.050 Regulation of franchise.
5.64.060 Design and construction requirements.
5.64.100 Miscellaneous provisions.
5.64.010 Intent.
A. The city, pursuant to applicable federal and state law, is authorized to grant one or more nonexclusive franchises to construct, operate, maintain and reconstruct cable television systems within the city limits.
B. The city council finds that the development of cable television and communications systems has the potential of having great benefits and impact upon the residents of the city. Because of the complex and rapidly changing technology associated with cable television, the city council further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the city or such persons as the city may designate. It is the intent of this chapter and subsequent amendments to provide for and specify the means to attain the best possible cable television service to the public and any franchises issued pursuant to this chapter shall be deemed to include this as an integral finding thereof. (Ord. 95-7 § 3 (part), 1995)
5.64.020 Short title.
This chapter shall be known and may be cited as the “cable television ordinance.” (Ord. 95-7 § 3 (part), 1995)
5.64.030 Definitions.
For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning.
A. “Basic cable service” means any service tier which includes the retransmission of local television broadcast signals.
B. “Cable television system” or “system,” also referred to as “cable communications system” or “cable system,” means a facility within the city 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 tern does not include:
1. A facility that serves only to transmit television signals of one or more television broadcast stations;
2. A facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility uses any public rights-of-way;
3. A facility of a common carrier, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or
4. Any facilities of any electric utility used solely for operating its electric utility system.
C. “Cable service” means the total of the following:
1. The one-way transmission to subscribers of video programming or other programming service; and
2. Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
D. “Channel” or “cable channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system which is capable of delivering a television channel as defined by the Federal Communications Commission.
E. “Franchise” means an initial authorization, or renewal thereof, issued by the council, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement or otherwise, which authorizes the construction or operation of cable system.
F. “Franchise agreement” means a franchise grant ordinance or a contractual agreement, containing the specific provisions of the franchise granted, including referenced, specifications, requirements and other related matters.
G. “Franchise fee” means any fee or assessment of any kind imposed by the city, as grantor, on a grantee as compensation for the grantee’s use of the public rights-of-way. The term “franchise fee” does not include:
1. Any tax, fee or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services);
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 of the franchise including payment for bonds, security funds, letters of credit, insurance, indemnification, penalties or liquidated damages; or
4. Any fee imposed under Title 17, United states code.
H. “Grantee” means any person receiving a franchise pursuant to this chapter and under the granting franchise agreement and its lawful successors, transferees or assignees.
I. “Grantor” or “city” means the city as represented by the council or any delegate acting within the scope of its jurisdiction.
J. “Gross annual revenues” means the annual gross revenues received by a grantee from all sources of operations of the cable television system within the city utilizing the public streets and rights-of-way for which a franchise is required in order to deliver such cable service, excluding refundable deposits, rebates or credits, except that any sales, excise or other taxes or charges collected for direct pass-through to local, state or federal government, other than the franchise fee, shall not be included.
K. “Initial service area” means the area of the city which will receive service initially, as set forth in any franchise agreement.
L. “Installation” means the connection of the system to subscribers’ terminals, and the provision of cable service.
M. “Person” means an individual, partnership, association, limited liability company, joint stock company, trust, corporation or governmental entity.
N. “Public, educational or government access facilities” or “PEG access facilities” means the total of the following:
1. Channel capacity designed for noncommercial public, educational or government use; and
2. Facilities and equipment for the use of such channel capacity.
O. “Section” means any section, subsection or provision of this chapter.
P. “Service area” or “franchise area” means the entire geographic area within the city as it is now constituted or may in the future be constituted, unless otherwise specified in the franchise agreement.
Q. “Service tier” means a category or cable service or other services provided by a grantee and for which a separate rate is charged by the grantee.
R. “State” means the state of California.
S. “Street” means each of the following, which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the city limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas that the grantor shall permit to be included within the definition of street from time to time.
T. “Subscriber” means any person who or which elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connection with the cable television system, and who is responsible for payment of the charges therefor. (Ord. 95-7 § 3 (part), 1995)
5.64.040 Grant of franchise.
A. Grant. A franchise granted by the city under the provisions of the cable ordinance shall encompass the following purposes:
1. To engage in the business of providing cable service and such other services as may be permitted by law, which grantee chooses to provide, to subscribers within the designated service area.
2. 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 television system in, on, over, under, upon, along and across streets or other public places within the designated service area.
3. To maintain and operate said franchise properties for the origination, reception, transmission, amplification and distribution of television and radio signals and for the delivery of cable services, and such other services as may be permitted by law.
4. To set forth the obligations of a grantee under the franchise.
B. Franchise Required. It is unlawful for any person to construct, install or operate a cable television system in the city within any street without a properly granted franchise awarded pursuant to the provisions of this chapter.
C. Term of Franchise. 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.
D. Franchise Renewal. A franchise granted hereunder may be renewed upon application by the grantee pursuant to the provisions of applicable state and federal law and of this chapter.
E. Franchise Territory. Any franchise shall be valid within all the territorial limits of the city, and within any area added to the city during the term of the franchise, unless otherwise specified in the franchise agreement.
F. 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 this chapter to the extent permitted by applicable law.
G. Franchise Nontransferable.
1. Grantee shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in part, either by force or involuntary sale or by ordinary sale, contract, consolidation or otherwise, the franchise or any of the rights or privileges therein granted, without the prior consent of the council and then only upon such terms and conditions as may be prescribed by the council, which consent shall not be unreasonably denied or delayed; provided that such consent shall not be required for transactions between any parent, subsidiary or commonly owned entities. Any attempt to sell, transfer, lease, assign or otherwise dispose of the franchise without the consent of the council shall be null and void. The granting of a security interest in any grantee assets, or any mortgage or other hypothecation solely for purposes of financing, shall not, by itself, be considered a transfer for the purposes of this section.
2. The requirements of subsection (G)(1) of this section shall apply to any change of control of grantee. The word “control” as used herein is not limited to major stockholder or partnership interests, but includes actual working control in whatever manner exercised. The acquisition or accumulation by any person or group of persons acting in privity of forty per unit of the voting shares or interests in grantee or any person which controls grantee shall be presumed to constitute a change of control of grantee, but grantee shall be entitled to rebut such presumption.
3. Grantee shall notify grantor in writing of any foreclosure or any other judicial sale of all or a substantial part of the franchise property of the grantee. Such notification shall be considered by grantor as notice that a change in control of ownership of the franchise has taken place and the provisions under this section governing the consent of grantor to such change in control of ownership shall apply.
4. For the purpose of determining whether it shall consent to such change, sale, transfer, lease, assignment, sublease, disposal or acquisition of control, grantor may inquire into the qualifications of the prospective transferee or controlling party and grantee shall assist grantor in such inquiry. In seeking grantor’s consent to any change of ownership or control, grantee shall have the responsibility of insuring that the transferee completes any required application identical or substantially similar to FCC Form 394 “Application for Franchise Authority Consent to Assignment of Control of Cable Television Franchise,” or any successor form.
An application shall be submitted to grantor not less than sixty days prior to the date of transfer. The transferee shall be required to establish that it possesses the qualifications and financial and technical capability to operate and maintain the system and comply with all franchise requirements for the remainder of the term of the franchise. If the legal, financial, character and technical qualifications of the applicant are satisfactory, the grantor shall consent to the transfer of the franchise on such terms and conditions as it determines in its discretion.
5. Any financial institution having a pledge of the grantee or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the grantor that it or its designee satisfactory to the grantor shall take control of and operate the cable television system, in the event of a grantee default of its financial obligations. Further, said financial institution shall also submit a plan for such operation within thirty days of assuming such control that will insure, to the grantor’s satisfaction, continued service and compliance with all franchise requirements at at least the same level, during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year unless extended by the grantor in its discretion and during said period of time it shall have the right to petition the grantor to transfer the franchise to another grantee.
6. Upon consummation of the transfer, grantee shall pay grantor an application fee to cover grantor’s reasonable out-of-pocket processing and review expenses in connection with the transfer of the franchise or of control of the franchise, not to exceed one thousand five hundred dollars. Any such application fee shall not be charged against any franchise fee due to grantor during the term of the franchise.
H. Geographical Coverage.
1. Grantee shall design, construct and maintain the cable television system to have the capability to pass every dwelling unit within the public streets and rights-of-way in the city, subject to any service area and line extension requirements of the franchise agreement.
2. After service has been established by activating trunk and/or distribution cables for any service area, grantee shall provide service to any requesting subscriber within that service area within thirty days from the date of request, provided that the grantee is able to secure all rights-of-way necessary to extend service to such subscriber within such thirty day period on reasonable terms and conditions.
I. Nonexclusive Franchise. Any franchise granted shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable television system or any component thereof, as it seems appropriate, subject to applicable state and federal law, provided that if the grantor grants an additional franchise on terms more favorable to the second grantee (whether by the grant of greater benefits or the imposition of less obligations), then the initial grantee shall have the right to renegotiate its franchise to incorporate the more favorable terms.
J. Multiple Franchises.
1. 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:
a. The capacity of the public rights-of-way to accommodate multiple cables in addition to the cables, conduits and pipes of the utility systems, such as electrical power, telephone, drainage, water, gas and sewerage.
b. The benefits that may accrue to cable subscribers as a result of cable system competition, such as lower rates and improved service.
c. The disadvantages that may result from cable system competition, such as the requirement for multiple pedestals on residents’ property, and the disruption arising from numerous excavations of the rights-of-way.
2. Each grantee awarded a franchise to serve the entire city shall offer service to all residences in the city, in accordance with construction and service schedules mutually agreed upon between grantor and grantee, line extension policies, and applicable law.
3. Developers of new residential housing with underground utilities shall provide conduit to accommodate cables for at least two cable systems.
4. Grantor may require that any new grantee be responsible for its own underground trenching and the costs associated therewith, if, in grantor’s opinion, the rights-of-way in any particular area cannot feasibly and reasonably accommodate additional cables. (Ord. 95-7 § 3 (part), 1995)
5.64.050 Regulation of franchise.
A. Franchise Application. Any person desiring an initial franchise for a cable television system shall file an application with the city. A reasonable nonrefundable application fee established by the city shall accompany the application to cover all costs reasonably born and 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 costs exceed the application fee, the selected applicant(s) shall pay the difference to the city within thirty days following receipt of an itemized statement of such costs.
B. Application Contents. An application for an initial franchise for a cable television system shall contain, where applicable:
1. A statement as to the proposed franchise and service area;
2. A resume of prior history of the applicant, including the expertise of applicant in the cable television field;
3. A list of the partners, general and limited, of the applicant, of a partnership, or of those owning or controlling over five percent of the stock, of a corporation;
4. A list of officers, directors and managing employees of the applicant, together with a description of the background of each such person;
5. 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 controlling in whole or in part by the applicant;
6. The most recent 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;
7. A proposed construction and service schedule;
8. Any reasonable additional information that the city deems applicable.
C. Consideration of Application.
1. Upon receipt of any application for an initial franchise, the city manager shall prepare a report and make recommendations respecting such application to the council.
2. A public hearing shall be set and noticed prior to any initial franchise grant, at a time and date approved by the council. Within thirty days after the close of the hearing, the council shall make a decision based upon the evidence received at the hearing as to whether or not the franchise(s) should be granted, and, if granted, subject to what conditions. The council may grant one or more franchises, or may decline to grant any franchise.
D. 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. If mutually agreed to in a franchise renewal agreement, grantee shall reimburse grantor for costs incidental to the franchise renewal award, not to exceed any maximum specified in the renewal agreement. Any such reimbursement shall not be charged against any franchise fee due to the grantor during the term of the franchise.
E. Minimum Consumer Protection and Service Standards.
1. Except as otherwise provided in the franchise agreement, grantee shall maintain a local office or offices to provide the necessary facilities, equipment and personnel to comply with the following consumer protection and service standards under normal operating conditions:
a. Knowledgeable, qualified company representatives will be available to respond to customer telephone inquiries Monday through Friday during normal business hours.
b. Sufficient toll-free telephone line capacity during normal business hours to assure, on average, that a minimum of ninety percent of all calls, measured on a quarterly basis, will be answered within thirty seconds, including wait time and time required to transfer the call; emergency telephone line capacity on a twenty-four hour basis, including weekends and holidays.
c. Under normal operating conditions, the customer will receive a busy signal less than three percent of the total time that the cable office is open for business.
d. If grantee utilizes automated answering and distributing equipment, such equipment will limit the number of routine rings to four or fewer. If grantee does not utilize automated equipment, grantee shall make every effort to answer incoming calls as promptly as the automated systems.
e. A bill payment location within the city open during normal business hours nine a.m. to five p.m., Monday to Friday, excluding holidays and at least three weekend hours each week which is adequately staffed to accept subscriber payments and respond to service requests and complaints.
f. Consumer Information. At the time service is initiated, each new customer will be provided written information covering:
i. A channel lineup card;
ii. The time allowed to pay outstanding bills;
iii. Grounds for termination of service;
iv. The steps grantee must take before terminating service;
v. How the customer can resolve billing disputes;
vi. The steps necessary to have service reconnected after involuntary termination;
vii. The fact that customers shall have the right to speak with a supervisor, and if none is available, the supervisor shall return the customer’s call within one working day;
viii. The appropriate regulatory authority with whom to register a complaint and how to contact such authority.
g. Requests for Cable Service and Repairs.
i. Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions exceeding four hours between midnight and six a.m. and exceeding one hour between six a.m. and midnight shall be preceded by notice over the cable system to customers in the affected area. To the extent that grantee can control them, scheduled interruptions shall occur during a period of minimum system use, preferably between midnight and six a.m.
ii. Grantee shall maintain a repair force of technicians capable of responding to subscriber requests for service within the following time frames under normal operating conditions no less than ninety-five percent of the time measured on a quarterly basis:
(A) Installation. An installation staff capable of installing service to any residential subscriber within seven business days after receipt of a request, in all areas where coaxial feeder cable has been activated within one hundred fifty feet of the residence, provided that grantee is able to secure all rights-of-way necessary to extend service to such subscriber on reasonable terms and conditions within such seven day period.
(B) Outages. Grantee will respond to service interruptions promptly and in no event later than twenty-four consecutive hours after becoming aware of such interruption. Other service problems will be responded to within thirty-six consecutive hours during the normal work week.
(C) Inferior Reception Quality. Grantee will respond within thirty-six consecutive hours during the normal work week of receiving a request for service identifying a problem concerning picture or sound quality.
iii. Grantee shall schedule, within a specified four hour time period, appointments with subscribers for installation or service. Specifying appointments as either “morning” or “afternoon” shall be deemed to comply with this requirement. The obligation of grantee to specify installation or service appointments within a designated four hour time period shall be consistent with grantee’s scheduling calendar, such that when available morning and afternoon appointments have been scheduled, additional subscribers requesting installation or service on such days may be advised that grantee’s service personnel may arrive at any point during the business day, the subscriber may request grantee to make an appointment for morning or afternoon service on the next business day in which such appointments are available.
iv. Grantee shall be deemed to have responded to a request for service under provisions of this subsection when a service representative arrives at the service location and begins work on the problem. If an appointment was scheduled per subsection (E)(1)(g)(iii) of this section, or an appointment was not scheduled, and a subscriber is not home when a service representative arrives (within the appointment window if one was scheduled), response shall be deemed to have taken place if the representative leaves written notification of arrival.
v. The term “normal operating conditions” as used in this chapter means those service conditions which are within the control of grantee. Those conditions which are not within grantee’s control include, but are not limited to, natural disasters, civil disturbances, power outages, telephone networks outages, and severe or unusual weather conditions. Those conditions which are within grantee’s control 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.
F. Complaint Procedures.
1. Grantee shall establish written procedures for receiving, acting upon and resolving subscriber complaints without intervention by the grantor. The written procedures shall prescribe the manner in which a subscriber may submit a complaint either orally or in writing specifying the subscriber’s grounds for dissatisfaction. Grantee shall file a copy of these procedures with grantor.
2. Grantor shall have the right to review grantee’s response to subscriber complaints in order to determine grantee’s compliance with the franchise requirements, subject to the subscriber’s right to privacy.
G. Continuity of Service.
1. It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the grantee are honored. In the event that the grantee elects to rebuild, modify, or sell the system, or the grantor gives notice of intent to terminate or not to renew the franchise, the grantee shall act so as to ensure that all subscribers receive service so long as the franchise remains in force.
2. In the event of a change of control of grantee or in the event a new operator acquires the system, the original grantee shall cooperate with the grantor, new grantee or operator in maintaining continuity of service to all subscribers. During such period, the original grantee shall be entitled to the revenues for any period during which it operates the system.
3. Except as reasonably necessary for system maintenance, construction, rebuild, or upgrade activity, grantee shall not intentionally terminate the ongoing operation of the cable system so as to deny cable service to its subscribers. Because the provision of cable service to subscribers is a unique service, money damages would not be a sufficient remedy for violation of this subsection. Grantee shall be entitled to equitable relief, including injunctive relief and specific performance, as a remedy for violation of this subsection. Such remedy shall not be deemed to be the exclusive remedy, but shall be in addition to any other remedy provided for in this chapter or the franchise agreement or at law or in equity.
H. Identification. All officers, agents or employees of grantee or its contractors or subcontractors who, in the normal course of work come into contact with members of the public or who require entry onto subscribers’ premises shall carry a photo-identification card in a form reasonably approved by grantor. Grantee shall account for all identification cards at all times. Every vehicle of the grantee or its major subcontractors shall be clearly identified as working for grantee.
I. Additional Service Standards. Additional service standards and standards governing consumer protection and response by grantee to subscriber complaints not otherwise provided for in this chapter may be established in franchise agreement, and grantee shall comply with such standards in the operations of the cable television system. A verified and continuing pattern of noncompliance may be deemed a material breach of the franchise, provided that grantee shall receive due process, including written notification and an opportunity to cure, prior to any sanction being imposed.
J. Franchise Fee.
1. Following the issuance and acceptance of the franchise, the grantee shall pay to the grantor a franchise fee in the amount set forth in the franchise agreement.
2. The grantor, on an annual basis, shall be furnished a statement within sixty days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by an officer of the grantee, reflecting the total amounts of gross annual receipts and all payments, deductions and computations for the period covered by the payment. Upon thirty days prior written notice, grantor shall have the right to conduct an independent audit of grantee’s records, in accordance with generally accepted accounting procedures, and if such audit indicates a franchise fee underpayment of two percent or more, the grantee shall pay such underpayment within thirty days and shall assume all reasonable costs of such an audit.
3. 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 under the franchise agreement, for the performance of any other obligation of the grantee.
4. In the event that any franchise payment or recomputed amount is not made on or before the dates specified in the franchise agreement, grantee shall pay as additional compensation:
a. An interest charge, computed from such due date, at an annual rate equal to the prime lending rate of First Interstate Bank or any other bank as adopted by resolution of the council, plus one percent during the period for which payment was due; and
b. If the payment is late by forty-five days or more, a sum of money equal to five percent of the amount due in order to defray those additional expenses and costs incurred by the grantor by reason of delinquent payment.
5. Franchise fee payment shall be made in accordance with the schedule indicated in the franchise agreement.
K. Security Fund.
1. Grantor may require grantee to provide a security fund in an amount and form established in the franchise agreement or a guarantee by a corporate parent. The amount of any security fund shall be established based on the extent of the grantee’s obligations under the terms of the franchise.
2. The security fund or guarantee shall be available to grantor to satisfy all claims, liens and/or taxes due grantor from grantee which arise by reason of construction, operation or maintenance of the system and to satisfy any actual or liquidated damages arising out of a franchise breach, subject to the procedures and amounts designated in the franchise agreement.
3. If the security fund is drawn upon by grantor in accordance with the procedures established in this chapter and the franchise agreement, grantee shall cause the security fund to be replenished to the original amount no later than thirty days after each withdrawal by grantor. Failure to replenish the security fund shall be deemed a material breach of the franchise.
L. Hold Harmless. Grantee shall indemnify, defend and hold grantor, its council, boards, commissions, officers, agents and employees harmless from any liability, loss, claims, damages, costs or expenses, to the extent provided in the franchise agreement.
M. Insurance.
1. On or before commencement of franchise operations, the grantee shall obtain policies of liability, workers’ compensation and property insurance from appropriately qualified insurance companies.
2. The policy of liability insurance shall:
a. Be issued to grantee and name grantor, its council, boards, commissions, officers, agents and employees as additional insureds;
b. Indemnify for all liability for personal and bodily injury, death and damage to property arising from activities conducted and premises used pursuant to this chapter by providing coverage therefor, including but not limited to:
i. Negligent acts or omissions of grantee, and its officers, agents, servants and employees, committed in the conduct of franchise operations, and/or
ii. Use of motor vehicles;
c. Provide a combined single limit for comprehensive general liability and comprehensive automobile liability insurance in the amount provided for in the franchise agreement. Such insurance policy shall be noncancellable without thirty days prior written notice thereof directed to grantor.
3. The policy of workers’ compensation insurance shall comply with the laws of the state of California.
4. The policy of property insurance shall provide fire insurance with extended coverage on the franchise property used by grantee in the conduct of franchise operations in an amount adequate to enable grantee to resume franchise operations following the occurrence of any risk covered by this insurance.
5. Grantee shall file with grantor prior to commencement of franchise operations a certificate of insurance for each of the required policies executed by the company issuing the policy or by a broker authorized to issue such a certificate, certifying that the policy is in force and providing the following information with respect to said policy:
a. The policy number;
b. The date upon which the policy will become effective and the date upon which it will expire;
c. The names of the named insureds and any additional insured required by the franchise agreement;
d. The subject of the insurance;
e. The type of coverage provided by the insurance; and
f. The amount or limit of coverage provided by the insurance.
If the certificate of insurance does not provide all of the above information, grantor reserves the right to inspect the relevant insurance policies.
6. Conduct of franchise operation shall not commence until grantee has complied with the aforementioned provisions of this subsection.
7. In the event grantee fails to maintain any of the above-described policies in full force and effect, grantor shall, upon forty-eight hours notice to grantee, have the right to procure the required insurance and recover the cost thereof from grantee. Grantor shall also have the right to suspend the franchise during any period that grantee fails to maintain said policies in full force and effect. In order to account for increases in consumer prices, no more than once during any five year period, grantor shall have the right to order grantee to increase the amounts of the insurance provided in the franchise agreement. Such order may be made by grantor after conducting a duly noticed public hearing. Increases in insurance coverage shall be based upon current prudent business practices of like enterprises involving the same or similar risks.
N. Records Required and Grantor’s Right to Inspect.
1. Grantee shall at all times maintain:
a. A record of all service calls and interruptions or degradation of service experienced for the preceding two years provided that such complaints result in or require a service call, subject to the subscriber’s right of privacy.
b. A full and complete set of plans, records and “as-built” maps showing the locations of the cable television system installed or in use in the city, exclusive of subscribers service drops and equipment provided in subscribers’ homes.
c. If requested by grantor, a summary of service calls, identifying the number, general nature and disposition of such calls, on a quarterly basis. A summary of such service calls shall be submitted to the grantor within thirty days following any grantor request, in a form reasonably acceptable to the grantor.
2. The grantor may impose reasonable requirements for additional information, records and documents from time to time, provided they reasonably relate to the scope of the city’s rights under this chapter or the grantee’s franchise agreement.
3. Upon reasonable notice, and during normal business hours, grantee shall permit examination by any duly authorized representative of the grantor of all franchise property and facilities, together with any appurtenant property and facilities of grantee situated within or without the city, and all records relating to the franchise, provided they are necessary to enable the grantor to carry out its regulatory responsibilities under this chapter or the franchise agreement. Grantee shall have the right to be present at any such examination. (Ord. 95-7 § 3 (part), 1995)
5.64.060 Design and construction requirements.
A. Grantee shall not construct any cable system facilities until grantee has secured the necessary permits from grantor, or other cognizant public agencies.
B. In those areas of the city where transmission lines or distribution facilities of the public utilities providing telephone and electric power service are underground, the grantee likewise shall construct, operate and maintain its transmission and distribution facilities therein underground.
C. In those areas of the city where the grantee’s cables are located on the aboveground transmission or distribution facilities of the public utility providing telephone or electric power service, and in the event that the facilities of both such public utilities subsequently are placed underground, then the grantee likewise shall reconstruct, operate and maintain its transmission and distribution facilities underground, at grantee’s cost. Certain of grantee’s equipment, such as pedestals, amplifiers and power supplies, which normally are placed above ground, may continue to remain in aboveground enclosures, unless otherwise provided in the franchise agreement.
D. Any changes in or extensions of any poles, anchors, wires, cables, conduits, vaults, laterals or other fixtures and equipment (herein referred to as “structures”), or the construction of any additional structures, in, upon, along, across, under or over the streets, alleys and public ways shall be made only after grantee has secured all permits required therefor and under the direction of grantor’s city engineer or a designee and in compliance with the standards and specifications of grantor. The height above public thoroughfares of all aerial wires shall conform to the requirements of the California Public Utilities Commission or other regulatory body having jurisdiction thereof.
1. All transmission and distribution structures, lines, and equipment erected by the grantee shall be constructed and located so as not to interfere with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places, and not to interfere with existing public utility installations.
2. In the event that any property or improvement of the grantor in the public rights-of-way is disturbed or damaged by the grantee or any of its contractors, agents or employees in connection with undertaking any and all work pursuant to the right granted to the grantee pursuant to this chapter, the grantee shall promptly, at the grantee’s sole cost and expense, restore as nearly as practicable to their former condition said property or improvement which was so disturbed or damaged, and in the event that any such property or improvement shall at any later time become uneven, unsettled, or otherwise require restoration, repair or replacement because of such disturbance or damage by the grantee, then the grantee shall promptly upon receipt of notice from the grantor or otherwise and at the grantee’s sole cost and expense, restore as nearly as practicable to their former condition said property or improvement which was disturbed or damaged. Any such restoration by the grantee shall be made in accordance with such materials and specification as may, from time to time, be then provided for by grantor ordinance.
3. Prior to commencing any work in the public rights-of-way, the grantee shall obtain any and all permits lawfully required by such grantor’s codes and ordinances of general application for such work. In the event that emergency work may be required by the grantee, however, the grantee shall obtain any and all such permits within three working days after the beginning of such emergency work.
4. There shall be no unreasonable or unnecessary obstruction of the public rights-of-way by the grantee in connection with any of the work herein provided for, and the grantee shall maintain such barriers, signs and warning signals during any such work performed on or about the public rights-of-way or adjacent thereto as may be required by applicable law and/or as may be necessary to reasonably avoid injury or damage to life and property.
5. If at any time during the period of this franchise the grantor shall lawfully elect to alter or change the grade or location of any street, alley or other public rights-of-way, the grantee shall, upon reasonable notice by the grantor, remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense and in each instance shall comply with the requirements of the grantor.
6. The grantee shall not place poles, conduits or other fixtures above or belowground where the same will interfere with any gas, electric, telephone fixtures, water hydrants or other utility and all such poles, conduits or other fixtures placed in any street shall be so placed as to comply with all ordinances of the grantor.
7. The grantee may be required by the grantor to permit joint use of its poles, conduits and appurtenances located in the streets, alleys or other public rights-of-way, by utilities insofar as such joint use may be reasonably practicable and upon payment of reasonable rental therefor; provided that in the absence of agreement regarding such joint use, the council shall provide for arbitration of the terms and conditions of such joint use and the compensation to be paid therefor, which award shall be final.
8. The grantee shall, on request of any person holding a moving permit issued by the grantor, temporarily move its wires or fixtures to permit the moving of buildings, the expense of such temporary removal to be paid by the person requesting the same. The grantee shall be given not less than forty-eight hours advance notice to arrange for such temporary changes and may require payment in advance.
9. The grantee shall have the authority, except when in conflict with applicable grantor ordinances, to trim any trees upon and overhanging the streets, alleys, sidewalks and public places so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee, except that at the option of the grantor, such trimming may be done by grantor, or under grantor’s supervision and direction.
E. In new residential developments in which the electric power and telephone utilities are underground, the following procedure shall apply with respect to access to and utilization of underground easements:
1. The developer shall be responsible for contacting and surveying all franchised cable operators to ascertain which operators desire to provide cable service to that development. The developer may establish a reasonable deadline to receive cable operator responses. The final development map shall indicate the cable operators that have agreed to serve the development.
2. If one or two cable operators wish to provide service, they shall be accommodated in the joint utilities trench on a nondiscriminatory shared cost basis. If fewer than two operators indicate interest, the developer shall provide conduit to accommodate two sets of good cable television cables and dedicate to the city any initially unoccupied good conduit. The developer shall be entitled to recover the costs of such initially unoccupied conduit in the event that grantor subsequently leases or sells occupancy or use rights to any grantee.
3. The developer shall provide at least ten working days notice of the date that utility trenches will be open to the cable operators that have agreed to serve the development. When the trenches are open, cable operators shall have two working days to begin the installation of their cables, and five working days after beginning installation to complete installation.
4. The final development map shall not be approved until the developer submits evidence that it has, or has agreed in the subdivision agreement, that it will:
a. Notify each grantee that underground utility trenches are to be open as of an estimated date, and that each grantee will be allowed access to such trenches, including trenches from proposed streets to individual homes or home sites, on specified nondiscriminatory terms and conditions; and
b. Receive a written notification from each grantee that the grantee intends to install its facilities during the open trench period on the specified terms and conditions, or such other terms and conditions as are mutually agreeable to the developer and the grantee, or receive no reply from a grantee within ten days after its notification to such grantee, in which case the grantee will be deemed to have waived its opportunity to install its facilities during the open trench period.
5. Share the joint utilities trench subject to compliance with state regulatory agency and utility standards. If such compliance is not possible, the developer shall provide a separate trench for the cable television cables, with the entire cost shared among the developer and participating grantees. With the concurrence of the developer, the affected utilities and the grantees alternative installation procedures, such as the use of deeper trenches, may be utilized, subject to the applicable law.
6. A grantee wishing to serve an area where the trenches have been closed shall be responsible for its own trenching and associated costs.
7. In the event that more than one franchise is awarded, the city may limit the number of drop cables per residence, or to require that the drop cable(s) be utilized only by the grantee selected by the resident to provide service.
8. The city may grant an encroachment permit to a 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 city in the event the pending franchise application is not granted. The city may require an applicant to provide a separate trench for its conduit and/or cable, at the applicant’s cost. The construction of such separate trench, if provided, shall be coordinated with, and subject to, the developer’s overall construction schedule.
F. Technical Standards.
1. The grantee shall construct, install, operate and maintain its system in a manner consistent with all applicable federal, state and local laws, ordinances, construction standards, governmental requirements, FCC technical standards, and any detailed standards set forth in its franchise agreement. In addition, the grantee shall provide to the grantor, upon request, a written report of the results of the grantee’s periodic proof of performance tests conducted pursuant to FCC and franchise standards and guidelines.
2. Repeated and verified failure to maintain specified technical standards shall constitute a material breach of the franchise. (Ord. 95-7 § 3 (part), 1995)
5.64.070 Reports.
A. Annual Reports. Within ninety days after the end of the calendar year, unless grantor agrees that submission only upon request will be satisfactory, grantee shall submit a written annual report to grantor with respect to the preceding calendar year in a form reasonably 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, services begun or discontinued during the reporting year;
2. A list of grantee’s partners, officers, members of its board of directors and/or other principals of grantee;
3. A list of stockholders of record or other equity investors holding ten percent or more of the voting interest in grantee;
4. An indication of any residences in grantee’s service area where service is not available and a schedule for providing service;
5. Information as to the number of homes passed, subscribers, additional television outlets and the number of basic and pay subscribers; and
6. Any other information regarding franchise regulation which the grantor shall reasonably request, and which is relevant to its regulatory responsibilities.
B. Copies of Federal and State Communications.
1. Upon specific request, grantee shall submit to grantor copies of all pleadings, applications and reports submitted by grantee to, as well as copies of all decisions, correspondence and actions by, any federal, state or local court or regulatory agency, which are nonroutine in nature and which will materially affect its cable television operations within the franchise area. Information otherwise confidential by law and specifically designated as such 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. In the event of legal challenge to grantor’s withholding of any such information, grantee shall be responsible for defending against such challenge and shall indemnify grantor against any costs, expenses (including attorney’s fees), losses, judgments or liabilities in connection therewith.
2. Notwithstanding the foregoing, grantee shall have no obligation to provide copies of documents to grantor which contain trade secrets of grantee or which are otherwise of a confidential or proprietary nature to grantee unless it receives satisfactory assurances from grantor that such information can and will be held in strictest confidence by the grantor. To the extent possible, grantee will provide grantor with summaries of any required documents or copies thereof with trade secrets and proprietary matters deleted therefrom. The burden of proof shall be on grantee to establish the confidential nature of any information submitted, to the reasonable satisfaction of the grantor.
C. Public Reports. If grantee is publicly held, a copy of each grantee’s annual and other periodic reports and those of its parent, if any, shall be submitted to grantor within forty-five days of its issuance.
D. Complaint Report and Opinion Survey. Upon request of the grantor, but not more than once annually, the grantee shall conduct a subscriber satisfaction survey pertaining to quality of service, which may be transmitted to subscribers in grantee’s invoice for cable services. The results of such survey shall be provided to the grantor on a timely basis. The cost of such survey shall be borne by the grantee.
E. Privacy Report. Upon grantor’s request, but no more than once annually, grantee shall submit to grantor a report indicating the degree of compliance with the provisions contained in Section 5.64.100(F) of this chapter and all steps taken to assure that the privacy rights of individuals have been protected.
F. Reports - General.
1. All reports required under this chapter or the franchise agreement, except those required by law to be kept confidential, shall be available for public inspection in the grantor’s offices during the normal business hours.
2. All reports and records required under this chapter or the franchise agreement, shall be furnished at the sole expense of grantee, except as otherwise provided in this chapter or the franchise agreement.
3. The willful refusal, failure, or neglect of grantee to file any of the reports required as and when due under this chapter or the franchise agreement may be deemed a material breach of the franchise agreement if such reports are not provided to grantor within thirty days after written request therefor, and may subject the grantee to all remedies, legal or equitable, which are available to grantor under the franchise or otherwise.
4. Any materially false or misleading statement or representation made knowingly and willfully by the grantee in any report required under this chapter or the franchise agreement may be deemed a material breach of the franchise and may subject grantee to all remedies, legal or equitable, which are available to grantor under the franchise or otherwise. (Ord. 95-7 § 3 (part), 1995)
5.64.080 Systems evaluation.
A. Annual Review of System Performance. Each year throughout the term of the franchise, if requested by the grantor, grantor and grantee shall meet publicly to review system performance and quality of service. The various reports required pursuant to this chapter or the franchise agreement, results of technical performance tests, the record of subscriber complaints and grantee’s response to complaints, and the information acquired in any subscriber surveys, shall be utilized as the basis for review. In addition, any subscriber may submit comments or complaints during the review meetings, either orally or in writing, and these shall be considered. Within thirty days after the conclusion of a system performance review meeting, grantor may issue findings with respect to the cable system’s franchise compliance and quality of service. If grantor determines that grantee is not in compliance with the requirements of this chapter or the grantee’s franchise, grantor may direct grantee to correct the areas of noncompliance within a reasonable period of time. Failure of grantee, after due notice, to correct the areas of noncompliance within the period specified therefor or to commence compliance within such period and diligently achieve compliance thereafter, shall be considered a material breach of the franchise, and grantor may exercise any remedy within the scope of this chapter and the franchise agreement.
B. Special Review of System Performance. When there has been a pattern of complaints made or where there exists other evidence which, in the judgment of the grantor, casts reasonable doubt on the reliability or quality of cable service to the effect that the grantee is not in compliance with the requirements of this chapter or its franchise, the grantor shall have the right to compel the grantee to test, analyze and report on the performance of the system in order to protect the public against substandard cable service. Grantor may not compel grantee to provide such tests or reports unless and until grantor has provided grantee with at least thirty days notice of its intention to exercise its rights under this section and has provided grantee with an opportunity to be heard prior to its exercise of such rights. Such test or tests shall be made and the report shall be delivered to grantor no later than thirty days after the grantor notifies the grantee that it is exercising such right, and shall be made at grantee’s sole cost. Such report shall include the following information: the nature of the complaints which precipitated the special tests, what system component was tested, the equipment used and procedures employed in said testing, the results of such tests, and the method by which such complaints were resolved. Any other information pertinent to the special test also shall be reported.
C. Special Evaluation Sessions. The grantor may hold special evaluation sessions at any time during the term of a franchise, provided such sessions are held no more often than once every three years. The grantee shall be notified of the place, time and date thereof and the topics to be discussed. Such sessions may be open to the public and if so, shall be advertised in a newspaper of general circulation at least thirty days before each session. The sessions may include an evaluation of any items considered relevant to the cable system, the subscribers and the grantor. Either the grantor or the grantee may propose items for discussion or evaluation. (Ord. 957 § 3 (part), 1995)
5.64.090 Franchise breaches.
A. Remedies for Franchise Violations. If grantee fails to perform in a timely manner any material obligation required by this chapter or a franchise granted hereunder, following notice from the grantor and an opportunity to cure such nonperformance in accordance with the provisions of subsection (B) of this section and the franchise, grantor may at its option and in its sole discretion:
1. Cure the violation and recover the actual cost thereof from the grantee and/or the security fund established herein if such violation is not cured within thirty days after written notice to the grantee of the violation;
2. Assess against and recover from grantee damages to the extent allowed by law for any such violation(s) if such violation is not cured, or (except where the violation is failure to pay any sum due) if grantee has not commenced a cure, on a schedule acceptable to grantor, within thirty days after written notice to the grantee of the violation. Such assessment may be withdrawn from any security fund, but such withdrawal shall not constitute a waiver by grantor of any right or remedy it may have under this chapter, the franchise or applicable law, including without limitation, its right to recover from grantee such additional damages, losses, costs and expenses, including actual attorney’s fees, as may have been suffered or incurred by grantor by reason of or arising out of such breach of the franchise.
B. Procedure for Remedying Franchise Violations. Prior to imposing any remedy or other sanction against grantee specified in this chapter or the franchise agreement, grantor shall give grantee notice and opportunity to be heard on the matter, in accordance with the following procedures:
1. Grantor shall first notify grantee of the violation in writing by personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall not be less than five days in the case of the failure of the grantee to pay any sum or other amount due the grantor under this chapter or the grantee’s franchise and thirty days in all other cases. If grantee fails to correct the violation within the time prescribed or (except where the violation is failure to pay any sum or other amount) if grantee fails to commence correction of the violation within the time prescribed and diligently remedy such violation thereafter, the grantor shall then give written notice of not less than twenty days of a public hearing to be held before the council. Said notice shall specify the violations alleged to have occurred.
2. At the public hearing, the council shall hear and consider all relevant evidence and thereafter render findings and its decision.
3. In the event the council finds that the grantee has corrected the violation or has diligently commenced correction of such violation after notice thereof from grantor and is diligently proceeding to fully remedy such violation, or that no material violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.
4. In the event the council finds that a material violation exists and that grantee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation after notice thereof from grantor and is not diligently proceeding to fully remedy such violation, the council may impose one or more of the remedies provided in this chapter or the franchise agreement as it, in its discretion, deems appropriate under the circumstances.
C. Grantor’s Power to Revoke. Grantor reserves the right to revoke any franchise granted pursuant to this chapter and revoke all rights and privileges associated with it in the following circumstances, each of which shall represent a default by grantee and a material violation under the franchise:
1. If grantee shall default in the performance of its obligations under this chapter or the franchise agreement and (except where the default is failure to pay any sum or other amount) shall continue such default after receipt of due notice and reasonable opportunity to cure the default;
2. If grantee shall fail to provide or maintain in full force and effect any insurance coverage or security fund as required in this chapter or franchise agreement;
3. If grantee shall violate any order or ruling of any regulatory body having jurisdiction over the grantee relative to the grantee’s franchise, unless such order or ruling is being contested by grantee by appropriate proceedings conducted in good faith;
4. If grantee practices any fraud or deceit upon grantor.
The termination and forfeiture of the grantee’s franchise shall in no way affect any right of the grantor to pursue any remedy under the franchise or any provision of law including this chapter.
D. 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 its franchise granted hereunder is prevented by a cause or event not within grantee’s control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof; provided, however, that such inability to perform shall not relieve a grantee from the obligations imposed by this chapter, the franchise agreement, federal and state law pertaining to refunds and credits for interruptions in service. For the purpose of this section, causes or events not within the control of grantee shall include acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency (other than the grantor acting pursuant to this chapter or the franchise agreement) or court, explosions, acts of public enemies, natural disasters such as floods, earthquakes, landslides and fires, and similar causes, but shall not include financial inability of the grantee to perform or failure of the grantee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of grantee, or the failure of the grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or repair of the cable communications system where the grantee has failed to exercise reasonable diligence to secure such supplies, services or equipment. (Ord. 95-7 § 3 (part), 1995)
5.64.100 Miscellaneous provisions.
A. Abandonment or Removal of Franchise Property.
1. In the event that the use of any franchise property of grantee within the public rights-of-way is discontinued for a continuous period of twelve months, grantee shall be deemed to have abandoned that franchise property. Any part of the cable system that is parallel or redundant to other parts of the system and is intended for use only when needed as a backup for the system or a part thereof, shall not be deemed to have been abandoned because of its lack of use.
2. Grantor, upon such terms as grantor may impose, may give grantee permission to abandon, without removing, any system facility or equipment laid, directly constructed, operated or maintained under the franchise.
3. Unless such permission is granted or unless otherwise provided in this chapter, the grantee shall remove all abandoned aboveground facilities and equipment upon receipt of written notice from grantor and shall restore any affected street or other public way or public places to its former state at the time such facilities and equipment were removed, so as not to impair its usefulness. In removing its plant, structures and equipment, grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all streets, public ways and places in as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles, or attachments. Grantor shall have the right to inspect and approve the condition of the streets, public ways, public places, cables, wires, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this chapter and the franchise agreement 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.
4. Upon abandonment of any franchise property in place, the grantee, if required by the grantor, shall submit to the grantor an instrument, satisfactory in form to the grantor, transferring to the grantor the ownership of the franchise property abandoned.
5. At the expiration of the term for which the franchise is granted, or upon its revocation or earlier expiration, as provided herein, or in any such case without renewal, extension or transfer, the grantor shall have the right to require grantee to remove, at its own expense, all aboveground portions of the cable television system from all streets, public ways and public places within the city within a reasonable period of time, which shall not be less than one hundred eighty days or more than three hundred sixty-five days.
6. Notwithstanding anything to the contrary set forth in this chapter, the grantee may abandon any underground franchise property in place so long as it does not materially interfere with the use of the street or public way or place in which such property is located or with the use thereof by any public utility or other grantee.
B. Restoration by Grantor; Reimbursement of Costs. In the event of a failure by grantee to complete any work required herein or by any other law or ordinance, and if such work is not completed within thirty days after receipt of written notice thereof from grantor or (except in cases of emergency constituting a threat to public health, safety or welfare) if more than thirty days are reasonably required therefor, if grantee does not commence such work within such thirty days period and diligently complete the work thereafter, grantor may cause such work to be done and grantee shall reimburse grantor the costs thereof within thirty days after receipt of an itemized list of such costs. Without relieving grantee of such obligation, grantor may recover all or a portion of such costs through the security fund provided by grantee.
C. Extended Operation and Continuity of Services. Upon expiration or revocation of the franchise, the grantor shall have the discretion to grant a short-term license in lieu of a franchise to permit grantee to continue to operate the cable television system for a specific period of time, not to exceed twelve months. Grantee shall continue to operate the system under the terms and conditions of this chapter and the license and to provide the regular subscriber service and any and all of the services that may be provided at that time. It shall be the right of all subscribers to continue to receive all available services, provided that financial and other obligations to grantee are honored. The grantee shall use reasonable efforts to provide continuous, uninterrupted service to its subscribers, including operation of the system during transition periods following franchise expiration or termination. D. Receivership and Foreclosure.
1. A franchise shall, at the option of grantor, cease and terminate one hundred twenty days after appointment of a receiver or receivers or trustee or trustees, to take over and conduct the business of grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty days or unless: (a) such receivers or trustees shall have, within one hundred twenty days, after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise, and the receivership or trustees within said one hundred twenty days shall have remedied all the defaults under the franchise or provided a plan satisfactory to grantor, for the remedy of such defaults which is satisfactory to the grantor; and (b) such receivers or trustees shall, within said one hundred twenty days, execute 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 granted.
2. In the case of a foreclosure or other judicial sale of the franchise property, or any material part thereof, grantor may serve notice of termination upon grantee and the successful bidder at such sale, in which event the franchise and all rights and privileges of the grantee hereunder shall cease and terminate thirty days after service of such notice, unless: (a) grantor shall have approved the transfer of the franchise, as and in the manner that this chapter provides; and (b) such successful bidder shall have covenanted and agreed with grantor to assume and be bound by all terms and conditions of the franchise.
E. Rights Reserved to Grantor.
1. 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.
2. The grantor may waive any provision of the franchise, except those required by federal or state regulation, if the grantor determines: (a) that it is in the public interest to do so, and (b) that the enforcement of such provision will impose an undue hardship on the grantee or the subscribers. To be effective, such waiver 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.
F. Rights of Individuals.
1. Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, physical disability, age, sex or sexual orientation. Grantee shall comply at all times with all other applicable federal, state and local laws and regulations relating to nondiscrimination.
2. Grantee shall adhere to the applicable equal employment opportunity requirements of federal, state and local regulations, as now written or as amended from time to time.
3. Neither grantee, nor any person, agency or entity shall, without the subscriber’s consent, tap or arrange for the tapping, of any cable, line, signal input device, or subscriber outlet or receiver for any purpose except routine maintenance of the system, detection or investigation of unauthorized service, polling with audience participation, or audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified.
4. In the conduct of providing its services or in pursuit of any collateral commercial enterprise resulting therefrom, grantee shall take reasonable steps to prevent the invasion of a subscriber’s or general citizen’s right of privacy or other personal rights through the use of the system as such rights are delineated or defined by applicable law. Grantee shall not without lawful court order or other applicable valid legal authority utilize the system’s interactive two-way equipment or capability for unauthorized personal surveillance of any subscriber or general citizen.
5. No cable line, wire amplifier, converter, or other piece of equipment owned by grantee shall be installed by grantee in the subscriber’s premises, other than in appropriate easements, without first securing any required consent. If a subscriber requests service, permission to install upon subscriber’s property shall be presumed.
6. The grantee and its agents and employees, shall not sell or otherwise make available to any party without consent of the subscriber pursuant to state and federal privacy laws:
a. Any list containing the names and addresses of subscribers who request in writing to be removed from such list; and
b. Any list which identifies the viewing habits of individual subscribers, without the prior written consent of such subscribers. This does not prohibit the grantee from providing composite ratings of subscriber.
G. Separability. If any provision of this chapter is held by any court or by any federal or state agency of competent jurisdiction to be invalid as conflicting with any federal or state law, rule or regulation now or hereafter in effect, or for any other reason, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, such provisions shall be considered a separate, distinct, and independent part of this chapter, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision thereof which had been held invalid or modified is no longer in conflict with such law, rule or regulation, or otherwise invalid, said provision shall thereupon return to full force and effect and shall thereafter be binding on grantor and grantee, provided that grantor shall give grantee thirty days written notice of such change before requiring compliance with said provision or such longer period of time as may be reasonably required for grantee to comply with such provision.
H. Notices. Grantee shall maintain throughout the term of the franchise, a local address for service of notices by mail.
I. Captions. The captions to sections throughout this chapter are intended solely to facilitate reading and reference. Such captions shall not affect the meaning or interpretation of this chapter.
J. No Recourse Against the Grantor. The grantee shall have no recourse whatsoever against the grantor or its council, officials, boards, commissions, agents, or employees for any loss, costs, expenses, or damage arising out of any provision of the franchise or because of the enforcement of the franchise.
K. Nonenforcement by the Grantor. The grantee shall not be relieved of its obligation to comply with any of the provisions of this chapter or the franchise agreement by reason of any failure of the grantor to enforce prompt compliance. (Ord. 95-7 § 3 (part), 1995)