Chapter 4.04 CABLE TELEVISION SYSTEMS

This chapter is enacted by the City pursuant to the Cable Act, the City’s police powers, its powers and rights to control the use of the public right-of-way, within the City, and all other applicable laws.

(Ord. 838, passed -- 2003)

4.04.030 DEFINITIONS.

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. When not inconsistent with the context, words used in the present tense include the future tense, and words in singular number include the plural number. Words not defined by this section shall be given the meaning set forth in the Cable Act, and if not defined therein, their common and ordinary meaning.

ACCESS, PEG ACCESS, or PEG USE. Refers to the availability or use of a cable system or open video system for public, educational or government use (including institutional network use) by public or private agencies, institutions, organizations, groups, and individuals, including, but not limited to, grantor and its designated access providers, to acquire, create, and distribute programming not under grantee’s editorial control, including, but limited to, the following:

1. Public access or public use where members of the general public are the primary or designated programmers or users having editorial control over their programming;

2. Educational access or educational use where educational institutions are the primary or designated programmers or users having editorial control over their programming; and

3. Government access or government use where grantor or other governmental institutions designated by grantor are the primary or designated programmers having editorial control over their programming.

AFFILIATE. Any person directly or indirectly controlling, controlled by, or under common control of grantee.

CABLE ACT. The Cable Communications Policy Act of 1984 (47 U.S.C. §§ 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992 (Pub. L. No. 102-385) and the Telecommunications Act of 1996 (Pub. L. No. 104-104) as hereinafter may be amended.

CABLE SERVICE. Constitutes the following:

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

2. Subscriber interaction, if any, which is required for the selection or use of the video programming or other programming service, as hereinafter may be amended.

CABLE SYSTEM or SYSTEM. Grantee’s facilities, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide video programming and which is provided to multiple subscribers within the City. The term does not include:

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

2. A facility that serves subscribers without using any public right-of-way;

3. A facility of a common carrier which is subject, in whole or in part, to the provisions of Subchapter II of Chapter 5 of Title 47 of the United States Code, except that the facility shall be considered a Cable System (other than for purposes of 47 U.S.C. § 541(c)) to the extent the facility is used in the transmission of video programming directly to subscribers, unless the extent of the use is solely to provide interactive on-demand services; or if the facility is used to provide cable service, whether on a common carrier or non-common carrier basis, directly to customers;

4. An open video system, as defined below, that complies with 47 U.S.C. § 573; or

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

COMMUNICATIONS ACT. The Communications Act of 1934 (48 Stat. 1064, 15 U.S.C. § 21; 47 U.S.C. §§ 35, 151 through 155, 201 through 221, 301 through 329, 401 through 416, 501 through 505, 601 through 609 (as subsequently amended and as hereinafter may be amended).

COMPLETE SYSTEM CONSTRUCTION. The point in time when all transmission equipment, facilities, and construction work is installed and completed, and when all appropriate tests have been completed such that applicable performance standards pertaining to or dependant upon the construction is verified. The term COMPLETE SYSTEM CONSTRUCTION does not include marketing and installation of subscriber service.

CONTROL(ING/ED). The possession, directly or indirectly, of the power to direct, or to cause the direction of, the management and policies of a specified person, whether through the ownership of voting securities, by contract or otherwise.

DISTRIBUTION FACILITY/(IES). Cable equipment which is not specific to a subscriber, including trunk and distribution lines, but excluding drop lines to specific locations.

DROP LINES. The cable and related equipment connecting the cable system’s plant to equipment at the subscriber’s premises.

EDUCATIONAL ACCESS CHANNEL. A channel on the cable system which designates educational institutions as the primary providers of noncommercial programming.

FCC. The Federal Communications Commission.

FRANCHISE. The right to construct, operate, and maintain a cable system using the City’s streets and rights-of-way pursuant to the terms and conditions of this chapter and other relevant provisions of the Municipal Code, the franchise agreement, any resolution approving the transfer of the franchise, and any agreement between the City and grantee relating to the operation of the cable system.

FRANCHISE AGREEMENT. An agreement granting a franchise pursuant to the terms of the agreement and this chapter. Any conflict between the terms of this chapter and the franchise agreement shall be resolved in favor of the FRANCHISE AGREEMENT.

FRANCHISE AREA. The geographic area within the City designated in a franchise where grantee may operate a cable system, as defined in the franchise agreement.

GOVERNMENT ACCESS CHANNEL. A channel on the cable system which is provided by grantee to grantor and other governmental institutions designed by grantor on which noncommercial informational programming regarding government activities and programs may be presented.

GRANTEE. Any person to whom a valid franchise is granted by the City under this chapter, and the lawful successor, transferee or assignee of the person.

GROSS REVENUES. Any and all revenue which is received, whether directly or indirectly, by grantee, from or in connection with the provision of cable services over the subject cable system, or any part of the system. The revenue shall include, but not be limited to, the following:

1. Any and all fees charged to subscribers for cable services including without limitation fees for any and all basic service, optional service, tier service, audio service, commercial service, premium service, pay television service, pay per view service and related per event service, or for the distribution of any other cable services over the cable system;

2. Any and all fees charged to subscribers for installation, disconnection, reconnection, change in service, and similar fees;

3. Any and all fees charged to subscribers for converters, remote controls or other equipment leased, rented or sold to subscribers in connection with the delivery of cable services;

4. Any and all fees charged to subscribers for service charges and/or late fees attributable to delinquent accounts;

5. Any and all revenue collected by grantee from its subscribers for direct payment to a third party as a cost of doing business (including, without limitation, possessory interest tax, copyright fees, program license fees, and subscriber payments for PEG access);

6. Any and all revenue received from cable services related activities, including, without limitation, any and all revenue received from leased access programmers and other users, or the use, license, or lease of studio rental and production equipment, or the sale, exchange, or cablecast of any programming developed on or for community service channels or institutional users, or the sale of advertising or the lease of channel capacity on a cable system, without deduction for any commission paid to an advertising agency in connection with the sale of advertising on a cable system. Any and all revenue of any person which is derived directly or indirectly from or in connection with the provision of cable services over the cable system, including, but not limited to, revenue or compensation which is paid by any of the following: the subscribers or users of the cable system, or the advertisers on the cable system, or any other party; and is paid to any of the following: the suppliers of programming on the cable system, or home shopping services in connection with the sales of products or services derived from programming transmitted over the cable system, to the extent the revenue represents payment, in whole or in part, for the use of a channel on the system; or leased access programmers for programming transmitted over the cable system;

7. Refundable deposits that are not returned to subscribers following termination of service;

8. Gross revenues shall include revenue derived from subscriptions to cable information services as defined by the Communications Act provided over the cable system in the franchise Area should a final determination by Congress, a court of competent jurisdiction, or the FCC which classifies Cable Information Service, or any other service offered by grantee, as a cable services (as that term is defined in the Cable Act) beginning on the effective date of the final determination;

9. Gross revenues shall not include any tax of general applicability imposed upon grantee by the City, state, federal, or any other governmental entity and required to be collected by grantee and passed through to the taxing entity, provided the taxes are identified as a separate line item on subscriber statements. The franchise fee shall be included in gross revenues;

10. In computing gross revenues from sources other than subscribers, including but not limited to revenue from the sale of advertising, lists of the names and addresses of grantee’s subscribers, home shopping services, guide sales, or the lease of channel capacity over its cable system, which revenue is attributable both to the operation of grantee’s cable system inside the City and in areas outside the City, the aggregate revenue received by grantee from the other sources shall first be multiplied by a fraction, the numerator of which shall be the number of grantee’s subscribers in the City as of the last day of the relevant billing period and the denominator of which shall be the number of subscribers within all relevant areas served by grantee for that specific service as of the last day of the period, and then assessed for franchise fees; and

11. Gross revenues shall include revenue received by any entity other than the grantee where necessary to prevent evasion or avoidance of the obligation under this agreement to pay the franchise fees.

MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTOR or VIDEO PROGRAMMING DISTRIBUTOR. A person such as, but not limited to, a cable system operator, an open video system operator, as defined below, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive only satellite program distributor, who makes available multiple channels of video programming for purchase by subscribers or customers.

NORMAL OPERATING CONDITIONS. Service conditions that are within the control of grantee. Those conditions that are ordinarily within the control of grantee include, but are not limited to, special promotions, rate increases, regular peak or seasonal demand periods, and scheduled maintenance or upgrade of the cable system. Those conditions that are not in control of grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions.

OPEN VIDEO SYSTEM. A facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable services, including video programming, and that is provided to multiple subscribers within the City, provided that the FCC has certified that the system complies with 47 C.F.R. §§ 76.1500 et seq., entitled “Open Video Systems.”

OPEN VIDEO SYSTEM OPERATOR. Any person or group of persons who provides cable services over an open video system and directly or through one (1) or more affiliates owns a significant interest in that open video system, or otherwise controls or is responsible for the management and operation of that open video system.

PUBLIC ACCESS CHANNEL. A channel on the cable system which is provided by grantee for noncommercial programming produced by members of the public or a nonprofit corporation formed by the City to operate and manage such a channel.

PUBLIC RIGHT(S) OF WAY. Any of the following that are controlled, used or dedicated for use by the public and located within the City’s jurisdictional limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, rights-of-way and similar public property within which grantee may place its facilities for operating a cable system.

SERVICE INTERRUPTION. The loss or impairment of the cable services on one or more channels or frequency bands of the cable system used in connection with the provision of cable services to any subscriber.

SUBSCRIBER. Any person who pays for cable services provided by grantee by means of the cable system.

VIDEO PROVIDER. Any person, company, or service that provides one or more channels of video programming to a residence, including a home, condominium, apartment, or mobile home, where some fee is paid for that service, whether directly or as included in dues or rental charges, and whether or not public rights-of-way are used in the delivery of that video programming. A VIDEO PROVIDER includes, without limitation, providers of cable television service, master antenna television, satellite master antenna television, direct broadcast satellite, multipoint distribution services, and other providers of video programming, whatever their technology.

(Ord. 838, passed -- 2003; Am. Ord. 870, § 4, passed 8-25-2008)

II. PROCEDURES FOR GRANTING, RENEWING, TRANSFERRING, AND ACQUIRING CABLE TELEVISION FRANCHISES

4.04.040 A FRANCHISE IS REQUIRED TO OPERATE A CABLE SYSTEM.

A. It shall be unlawful for any person to establish, operate or carry on the business of distributing to any persons in the City any cable service, by means of a cable system, unless a franchise therefore is first obtained pursuant to the provisions of this chapter, and unless the franchise is in full force and effect.

B. It shall be unlawful for any person to construct, install or maintain within any public right-of-way in the City, or within any other public property of the City, or within any privately owned area within the City which has not yet become a public right-of-way but is designated or delineated as a proposed public right-of-way on any tentative subdivision map approved by the City, any equipment or facilities for distributing any cable services, by means of a cable system, unless a franchise authorizing the use of the street or property or area has first been obtained pursuant to the provisions of this chapter, and unless the franchise is in full force and effect.

C. It shall be unlawful for any person to make any unauthorized connection, whether physically, electronically, acoustically, inductively or otherwise, with any part of a franchised cable system within this City for the purpose of enabling himself or herself or others to receive any cable services carried on a cable system, without the permission of grantee.

D. It shall be unlawful for any person, without the consent of grantee, to willfully tamper with, remove, or injure any cables, wires, or equipment used in conjunction with a cable system.

E. This section shall be construed to require a franchise in every instance, except to the extent that the requirement is preempted by state or federal law.

(Ord. 838, passed -- 2003)

4.04.050 THE CITY MAY GRANT A CABLE FRANCHISE.

The City may grant a franchise to any person, whether operating pursuant to an existing franchise or not, who offers to provide a cable system pursuant to the terms and provisions of this chapter. The franchise shall be subject to all ordinances and regulations of general application now in effect or subsequently enacted, including, without limitation, those concerning encroachment permits, business licenses, zoning, and building.

(Ord. 838, passed -- 2003)

4.04.060 FRANCHISE DURATION AND RENEWAL.

A. The term of the franchise or any franchise renewal shall be established in the franchise agreement.

B. A franchise may be renewed by the City upon application of grantee pursuant to procedures established by the City, subject to applicable federal and state law. In the event the City does not establish the renewal procedures, the franchise renewal procedures set forth in the Cable Act shall apply.

(Ord. 838, passed -- 2003)

4.04.070 LIMITATIONS OF FRANCHISE.

A. Any franchise granted under this chapter shall be nonexclusive and for the term specified by the franchise agreement.

B. No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically presented herein.

C. The grant of a franchise, right, or license to use public right-of-way for purposes of providing cable service shall not be construed as a right or license to use the public right-of-way for any other purpose.

D. Any privilege claimed by grantee under a franchise in a public right-of-way or any other public property shall be subordinate to any prior or subsequent lawful occupancy or use thereof, or easement therein, by the City or other government entity.

E. A franchise granted hereunder shall not relieve grantee of any obligation related to obtaining pole space from any department of the City, utility company, or from others maintaining poles in the public right-of-way.

F. Any right or power in, or duty imposed upon any officer, employee, department, or board of the City shall be subject to transfer by the City to any other officer, employee, department, or board of the City.

(Ord. 838, passed -- 2003)

4.04.080 RIGHTS RESERVED TO THE CITY.

A. Subject to those restrictions, if any, that are mandated by state or federal law, neither the granting of any franchise nor any of the provisions of this chapter shall be construed to prevent the City from granting additional franchises.

B. Grantee, by its acceptance of any franchise, agrees to be bound by all ordinances and regulations of general application now in effect or subsequently enacted (including without limitation those that concern encroachment permits, business licenses, zoning and building) and to comply with any action or requirements of the City in its exercise of the rights or power; provided, however, that the ordinances and regulations shall not materially affect grantee’s rights or obligations under the franchise.

C. Neither the granting of any franchise, nor any of the provisions of this chapter, shall constitute a waiver or bar to the exercise of any governmental right or power of the City.

D. This chapter shall not be construed to impair or affect, in any way, the right of the City to acquire the property of grantee through the exercise of the power of eminent domain, in accordance with applicable law.

E. The City Council may do all things which are necessary in the exercise of its jurisdiction under this chapter and may determine any question of fact which may arise during the existence of any franchise granted under this chapter.

(Ord. 838, passed -- 2003)

4.04.090 TRANSFERS AND ASSIGNMENTS.

A. No franchise shall be transferred, sold or assigned, nor shall any of the rights, privileges, interests or property related to the franchise be transferred, sold, hypothecated or assigned, either in whole or in part, directly or indirectly, voluntarily or involuntarily, to any person without the prior consent of the City granted by resolution of the City Council. The granting of a security interest in any assets of the grantee, or any mortgage or other hypothecation, will not be deemed a transfer for the purposes of this section.

B. Transfer of a franchise includes but is not limited to any transaction in which control of the franchise is transferred from one (1) person or group of persons to another person or group of persons, or ownership or other interest in grantee or its cable system is transferred from one person or group of persons to another person or group of persons, or the rights and obligations held by grantee under the franchise agreement are transferred or assigned to another person or group of persons. In addition, a transfer of the franchise shall be deemed to have occurred upon the transfer on a cumulative basis of ownership or control of 20% of:

1. The voting interest of grantee; or

2. The person exercising management authority over grantee.

C. Grantee shall promptly notify the City in writing of a proposed transfer and shall file with the City Manager an application requesting approval of the proposed transfer (“transfer application”). The transfer application shall meet the requirements of § 4.04.110 (with the transferee being the applicant), and shall provide complete information on the proposed transaction, including a copy of the bona fide offer, and details on the legal, financial, technical, and other qualifications of the transferee.

D. In making a determination on whether to approve the transfer application, the City Council shall consider the legal, financial, technical, and other qualifications of the transferee to operate the system, whether the incumbent cable system operator is in compliance with its franchise agreement and this chapter and, if not, the candidate transferee’s commitment and plan to cure the noncompliance, whether operation by the transferee would adversely affect cable services to subscribers or otherwise be contrary to the public interest, and such other criteria provided for by applicable state and federal law.

E. A transfer application shall not be granted unless the proposed transferee agrees in writing that it will abide by and accept all terms of this chapter, the franchise agreement, and such other agreements, regulations or restrictions that pertain to the franchise, assume the obligations and liabilities of the previous grantee under the franchise, and assume such other conditions as may be prescribed by the City Council resolution approving the transfer.

F. Approval by the City of a transfer application does not constitute a waiver or release of any of the rights of the City under this chapter or a franchise agreement, whether arising before or after the date of the transfer.

(Ord. 838, passed -- 2003)

4.04.100 FRANCHISE AREA - ANNEXATIONS.

A. The franchise area shall be established by the franchise agreement.

B. Territory annexed to the City (“annexed territory”) which is not within the franchise area of an existing franchise may be added to grantee’s franchise pursuant to City Council resolution.

C. All rights acquired under a franchise or license granted by a public entity other than the City (“foreign franchise”) shall terminate by operation of law as to annexed territory where grantee of the franchise or license has not commenced installation of a cable system in the annexed territory before the date the annexation becomes effective. Where feasible, City shall provide notice to the holder of a foreign franchise of the City’s intent to annex territory that may result in a termination under this section. Failure to provide the notice shall not affect the termination of the foreign franchise.

D. Where grantee of a foreign franchise has commenced installation of a cable system in annexed territory on or before the date the annexation becomes effective, grantee may continue to provide cable services to the annexed territory for the balance of the initial term of the franchise (exclusive of any renewal or extension not granted by the City), subject to the terms and conditions then in effect under the franchise, and the timely payment to the City of all franchise fees paid in connection with the service (or such other fees imposed by the City up to the maximum permitted by law).

(Ord. 838, passed -- 2003)

4.04.110 APPLICATION FOR FRANCHISES - CONTENTS OF APPLICATION.

A. Applications for the grant of a new franchise may be submitted by any person pursuant to the requirements of this chapter. The City may, by advertisement or any other means, solicit applications for a new franchise pursuant to a request for proposal (“RFP”).

B. An application for a new franchise to construct, operate, or maintain any cable system in the City shall be filed with the office of the City Clerk and shall be on forms prescribed by the City. The City reserves the right to waive all application formalities where the City determines that the best interests of the City would be served by the waiver. The City may, at its sole discretion, request new or additional proposals.

C. Unless waived in writing by the City, all applications for a franchise shall, at the minimum, contain the following:

1. The name, address, and telephone number of the applicant;

2. A detailed statement of the corporation or business entity organization of the applicant, including but not limited to, the following:

a. The names, residence, and business addresses of all officers and directors of the applicant;

b. The names, residence, and business address of all officers, persons and entities having an ownership interest of 5% or more in the applicant and the respective ownership share of each such officer, person or entity;

c. The names and address of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including, but not limited to, cable systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby;

d. A detailed description of all previous experience of the applicant in providing cable service or other similar or related communications services;

e. A detailed and complete financial statement of the applicant, certified by an independent certified public accountant, for the fiscal year preceding the date of the application. The City may require a statement from an independent certified public accountant or a recognized lending institution, certifying that the applicant has available sufficient financial resources to construct and operate the proposed cable system in the City;

f. A detailed financial plan (pro forma) for the operation of the proposed cable system, during the term of the proposed franchise, in the format required by the City; and

g. A description of any other cable system franchise(s) awarded to the applicant, its parent or subsidiary, including the place and term of these franchises; the status of their completion, the total cost of completion of each cable system; and the amount of applicant’s and its parent’s or subsidiary’s resources committed to the completion of these cable systems.

3. A detailed description of the proposed plan of operation of the applicant which shall include, but not be limited to, the following:

a. A detailed map indicating all areas proposed to be served, and a proposed time schedule for the construction of the cable system and the installation of all equipment necessary to become operational throughout the entire area to be serviced;

b. A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers, including installation charges and other service charges;

c. A detailed statement describing the actual equipment and operational standards proposed by the applicant;

d. A copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any subscriber; and

e. A detailed statement describing any existing or proposed agreements and undertakings between the applicant and any person, which materially relates to the application and the granting of the franchise.

4. A detailed description of the applicant’s plan to provide public, educational and government access channel capacity services, facilities, and equipment;

5. A detailed description of the applicant’s plans to address the institutional network needs of the City;

6. A copy of any agreement covering the franchise area, if existing between the applicant and the local telephone and/or electric utilities providing for the use of any facilities of the utility including but not limited to poles, lines or conduits; and

7. Any other details, statements, or information pertinent to the subject matter of the application which shall be required or requested by the City.

(Ord. 838, passed -- 2003)

4.04.120 SELECTION OF GRANTEE.

A. The City may make any investigations as it deems necessary to determine the ability of an applicant to satisfactorily perform its obligations under a franchise. The applicant shall timely furnish to the City all the information and data as the City may request. Failure to provide any information shall constitute sufficient grounds for rejection of any application.

B. Upon receipt of a complete application, with all information required by the City, and after the City staff completes its investigation and review of the application, the City Manager shall prepare a report and make recommendations to the City Council concerning the application.

C. The City Council shall hold a noticed public hearing on the application. Written notice shall be given at least ten (10) days prior to the hearing on the application. Within 60 days after the close of the hearing, unless an extension of time is mutually agreed upon by the City and the applicant, the City Council shall make a decision as to whether the franchise should be granted, and if granted, subject to what conditions. The City Council may grant one (1) or more franchises, or may decline to grant any franchise.

D. In making its determination as to whether to grant an application for a new franchise, the City may consider any and all factors which affect the interests of the community including, but not limited to, the quality of the cable service proposed, the areas to be served, the rates to be charged, the amount of franchise fee to be generated, the experience, character, background, performance history and financial responsibility of an applicant (and its management and owners), the technical performance and quality of equipment, the applicant’s willingness and ability to meet construction requirements and all other limitations and requirements pertaining to the franchise, and all other matters deemed pertinent by the City for protecting the interests of the City and the public.

E. Any decision of the City Council concerning the granting or denial of a franchise pursuant to this chapter shall be final.

(Ord. 838, passed -- 2003)

4.04.130 FRANCHISE RENEWAL.

Franchise renewals shall be processed and reviewed in accordance with then applicable law. The City and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise.

(Ord. 838, passed -- 2003)

4.04.140 MULTIPLE FRANCHISES.

The City may in its sole discretion limit the number of franchises granted at any one (1) time based upon its consideration of all appropriate criteria which shall include, but not be limited to, the following:

A. The capability of the public rights-of-way to accommodate the facilities of any proposed additional cable systems;

B. The advantages and disadvantages that may result from additional cable system competition; and

C. The City may require that any grantee be responsible for its own underground trenching and any associated costs if, in the City’s opinion, the public rights-of-way in any area do not feasibly and reasonably accommodate the additional cables, machinery, equipment, or other items contemplated in connection with the construction, maintenance and operation of a proposed new cable system. In addition, grantee shall comply with applicable federal and state laws regarding pole attachments.

(Ord. 838, passed -- 2003)

4.04.150 FRANCHISE APPLICATION PROCESSING COSTS.

A. In connection with any application for a new franchise, a franchise renewal, or a franchise transfer, each applicant shall pay a filing fee equal to the estimated costs determined by the City in processing and analyzing the application. The costs shall include all administrative, consultant, noticing and document preparation expenses. No application shall be considered without payment of the fee. If the City’s actual costs in processing and reviewing the application are less than the amount of the fee, any remaining funds from the fee shall be refunded to the applicant within 60 days after final approval or denial of their application. In the event that the deposit is less than the City’s actual costs, grantee shall pay the additional costs to the City within 30 days after written notice from the City that the additional payment is required.

B. Any application fees are exclusive of grantee’s obligation to pay other costs and fees required by this chapter, the franchise agreement or the franchise, including without limitation construction inspection fees, permit fees, and franchise fees.

(Ord. 838, passed -- 2003)

4.04.160 FRANCHISE FEE.

A. As compensation for any franchise granted, and in consideration of permission to use the public right-of-way in the operation of its cable system, and because the City will incur costs (other than application fees) in regulating and administering the franchise, grantee shall pay to the City a franchise fee in the amount equal to 5% of grantee’s gross revenues, or such other amount as the City Council may set by resolution or specify in the franchise agreement.

B. The franchise fee assessed shall be paid quarterly, to be received by the City Treasurer not later than 45 days after the close of each quarter of grantee’s fiscal year.

C. On a quarterly basis, grantee shall provide the City a complete and accurate statement verified by grantee’s chief financial officer stating all gross revenues for the past quarter, listing every revenue source, and depicting gross revenue computations.

D. On an annual basis, grantee shall, if requested by the City, file a complete and accurate statement certified by grantee’s chief financial officer, stating all gross revenues for the year, listing every revenue source, and depicting gross revenue computations. If the City has any concerns or objections relating to the report, the City shall have 60 days to notify grantee and request additional information. Grantee shall have 60 days to provide additional information to resolve any concerns or objections to the City’s satisfaction. Thereafter, the City may, at its sole discretion, request that the statement be certified by an independent certified public accountant, at grantee’s sole cost; provided, however, that any such request shall be made within 60 days after grantee’s response is received.

E. At any time during the term of a franchise, the City shall have the right to conduct, or require grantee to obtain, an independent audit by certified public accountants of any and all records of grantee that are related to gross revenue reports or computations. Grantee shall pay the costs of the audit not more frequently than once every five (5) years or upon a proposed transfer or change of control of the franchise. The certified public accountants shall be required to certify in the audit that the grantee is in compliance with this chapter and the franchise agreement. Grantee shall maintain in a readily accessible place all the records for a minimum of four (4) years after any payment period that the record pertains to. This right shall be in addition to City’s right to conduct any other audit.

F. In the event that any franchise fee payment is not paid by the due date, interest shall be charged monthly at a monthly rate of 1-1/2%. In addition, if any franchise fee is not paid in full within 15 days after receipt of notice from the City as to the delinquency of the payment, a late fee in amount of 5% of the delinquent amount shall be assessed.

G. In the event grantee claims to have overpaid by more than 5% the amount of franchise fee actually due during any given quarter, it shall file an application with the City within one (1) year after the payment was made. The failure to timely and properly make the claim shall constitute a waiver by grantee of any right to the claimed overpayment, whether by refund, offset, credit or any other accommodation. All the applications shall state the amount of claimed overpayment, the reason for the claimed overpayment, and sufficient documentation to allow the City to verify grantee’s claim. Upon request by the City, grantee shall provide any further information that is deemed relevant by the City. All the applications shall be considered by the City Council, and the City Council’s decision with respect to the applications shall be final.

(Ord. 838, passed -- 2003)

4.04.170 CONTENTS OF CABLE TELEVISION FRANCHISE.

A. Generally. The terms and provisions of a franchise agreement for the operation of a cable system may include, without limitation, the following subject matters.

B. Specifically.

1. The nature, scope, geographical area, and duration of the franchise;

2. The applicable franchise fee to be paid to the City, including the percentage amount, the method of computation, and the time for payment;

3. Requirements relating to compliance with and implementation of state and federal laws and regulations pertaining to the operation of the cable system;

4. Requirements relating to the construction, upgrade, or rebuild of the cable system, as well as the provision of special services, such as outlets for public buildings, emergency alert capability, and parental control devices;

5. Requirements relating to the maintenance of a performance bond, a security fund, a letter of credit, or similar assurances to secure the performance of the grantee’s obligations under the franchise agreement;

6. Requirements relating to liability insurance, workers’ compensation insurance, and indemnification;

7. Additional requirements relating to consumer protection and customer service standards, including the resolution of subscriber complaints and disputes and the protection of subscribers’ privacy rights;

8. Requirements relating to the grantee’s support of local cable usage, including the provision of public, educational, and government access channels, the coverage of public meetings and special events, and financial or technical support for public, education, and governmental access uses;

9. Requirements relating to construction, operation, and maintenance of the cable system within the public rights-of-way, including compliance with all applicable building codes and permit requirements, the abandonment, removal, or relocation of facilities, and compliance with FCC technical standards;

10. Requirements relating to recordkeeping, accounting procedures, reporting, periodic audits, and performance reviews, and the inspection of grantee’s books and records;

11. Acts or omissions constituting material breaches of or defaults under the franchise agreement, and the applicable penalties or remedies for those breaches or defaults, including fines, penalties, liquidated damages, suspension, revocation and termination;

12. Requirements relating to the sale, assignment, or other transfer or change in control of the franchise;

13. The grantee’s obligation to maintain continuity of service and to authorize, under certain specified circumstances, the City’s operation and management of the cable system; and

14. Any additional requirements, conditions, policies, and procedures as may be mutually agreed upon by the parties to the franchise agreement and that will, in the judgment of the City, best serve the public interest and protect the public health, welfare, and safety.

(Ord. 838, passed -- 2003)

4.04.180 BREACH OF FRANCHISE - GROUNDS FOR ASSESSMENT OF PENALTIES AND FRANCHISE REVOCATION.

A. In addition to all other rights and powers retained by the City under this chapter or otherwise, the City reserves the right to terminate any franchise and all rights and privileges of grantee, or assess damages or penalties against grantee, in the event of any material breach of its terms and conditions.

B. A material breach by grantee shall include, but not be limited to, the following:

1. Violation of any material provision of this chapter, the franchise agreement or any material rule, order, regulation or directive issued in connection with the franchise;

2. Evasion of any material provision of this chapter or the franchise agreement, or the practice of fraud or deceit upon the City or its subscribers and customers;

3. Material misrepresentation of fact in an application for a new franchise, renewal or transfer of a franchise, whether by act or omission;

4. Failure to pay any franchise fee when the payment is due;

5. Failure to restore cable service after 72 consecutive hours of interrupted cable service, except in the event that the City approves in writing a longer period of interruption after making a determination that there exists just cause for the longer period of interruption;

6. Failure to provide at least 80% of subscribed cable services over the cable system for a period of five (5) days, except in the event that the City approves in writing a longer period of interruption after making a determination that there exists just cause for the longer period of interruption;

7. Failure to substantially meet customer service standards established in the franchise over any consecutive three (3)-month period of time;

8. Failure to initiate or complete system construction, or reconstruction within the time set forth in the franchise, unless the City Council expressly approves the delay by motion or resolution, due to the occurrence of conditions beyond grantee’s control;

9. Failure to provide or maintain in full force and effect at all times any insurance coverage, letter of credit or bonds required by the franchise agreement;

10. Violation of orders or rulings of any regulatory body having jurisdiction over grantee relating to the franchise;

11. Failure to provide, upon written request, data, documents, reports, or information; and

12. Failure to pay debts and obligations as they mature in accordance with normal business practices; assignment of grantee or its assets for the benefit of its creditors; dissolution, liquidation or ceasing to conduct business; application by grantee for (or consent by grantee to) the appointment of a receiver, trustee, liquidator; or the filing of a bankruptcy petition by grantee to the extent permitted by federal law or the sale of all or substantially all of grantee’s assets.

(Ord. 838, passed -- 2003)

4.04.190 PROCEDURE FOR ADJUDICATION OF BREACHES OF THE FRANCHISE.

A. Prior to imposing any liquidated damages, sanction, or penalty upon grantee, including termination of the franchise, the City Manager shall demand, in writing, that grantee cure the breach within a specified period, which period shall not be less than 30 days following notification. However, only 15 days notice shall be required in the case of failure to pay monies due. In addition, the City may, in an emergency, prescribe a notice less than 30 days consistent with the nature of the emergency. An emergency under this subsection (A) means an occurrence or condition that creates an actual or imminent danger to life or property.

B. Should grantee fail to provide sufficient written proof within the specified cure period that corrective action has been taken, or that corrective action is being actively and expeditiously pursued by grantee, then the City Manager may, in his or her sole discretion, elect to either place the issue of termination or other penalty before the City Council pursuant to § 4.04.200 of this ordinance or refer the matter to an appropriate hearing officer for his or her determination pursuant to § 4.04.210.

(Ord. 838, passed -- 2003)

4.04.200 CITY COUNCIL HEARING PROCEDURES.

A. The City Council may hold a public hearing to determine whether grantee materially breached the franchise and the appropriate penalty to be imposed, if any, as a result of the breach. The City shall cause to be served upon grantee, at least ten (10) days prior to the date of the hearing, written notice of any intent to terminate the franchise and the time and place of the hearing. Grantee may appear at the hearing and present the evidence, orally or in writing, that it deems relevant and appropriate to the Council’s deliberations. Based on the evidence presented at the hearing, the City Council shall determine in its discretion whether or not a material breach occurred and whether to terminate the franchise or take other appropriate action.

B. Should the City Council find that there has been a material breach of the franchise, but that termination of the franchise is inappropriate, then the Council may assess and levy or impose any other relief as the Council deems appropriate.

C. The City shall cause grantee to be served with written notice of any action taken by the City Council following the public hearing. The decision of the City Council as to those matters shall be final but may be challenged by grantee in a court of competent jurisdiction.

D. Nothing herein is intended to limit the City Council’s right to make other determinations which are reasonably related to the franchise, or to seek any other appropriate relief to which the City may be entitled, at law or equity, as a result of any breach by grantee of its obligations under the franchise.

(Ord. 838, passed -- 2003)

4.04.210 HEARING OFFICER PROCEDURES.

A. The City Manager may, at his or her sole discretion, refer to a hearing officer any controversy or claim arising out of or relating to the franchise or its existence, construction, interpretation, performance, enforcement, operation, breach, continuance, or termination. The hearing proceedings shall be initiated by the City Manager by written notice to grantee.

B. Within 90 days of referral of a controversy or claim, the hearing officer shall commence a hearing, unless the parties and the hearing officer otherwise agree in writing.

C. The hearing officer shall be vested with quasi judicial authority, and shall be authorized to order grantee to undertake remedial action to cure any breach of its obligations under its franchise, assess liquidated damages and/or levy a penalty upon grantee in accordance with the terms of this chapter and the franchise agreement, determine that grantee has not violated any of its obligations under its franchise, and/or terminate the franchise. The hearing officer shall make findings in support of his or her determinations which must be supported by substantial evidence.

D. Except as may be apportioned between the parties by the hearing officer in his or her discretion, each party shall bear one-half of the fees and expenses of the hearing officer. Each party shall bear its own witness and attorneys’ fees or other expenses.

E. Failure of grantee to fully and promptly comply with an order of a hearing officer shall be deemed a material breach of the franchise.

F. The decision of the hearing officer shall be final and subject to judicial review pursuant to Cal. Code of Civil Procedure § 1094.5.

(Ord. 838, passed -- 2003)

4.04.220 PENALTIES FOR BREACH OF THE FRANCHISE.

The City Council or hearing officer may impose the following penalties for any breach of the franchise, including any breach of subscriber service standards:

A. Up to $1,000 for each day of each material breach, or such other amount provided in the franchise agreement;

B. For a second material breach of the same nature occurring within 12 months where a fine or penalty was previously assessed, up to twice the maximum penalty allowed for the first such breach; and

C. For a third or further material breach of the same nature occurring within 12 months of the first such breach, where a fine or penalty was previously assessed, up to four (4) times the maximum penalty allowed for the first such breach.

(Ord. 838, passed -- 2003)

4.04.230 ALTERNATIVE REMEDIES.

The remedies provided in this chapter are cumulative and in addition to all other rights the City may have at law or equity or under the franchise agreement, including but not limited to liquidated damages, which remedies may be exercised at any time. In no event shall the amount of any bond or letter of credit be construed to limit grantee’s liability for damages.

(Ord. 838, passed -- 2003)

4.04.240 REMOVAL AND ABANDONMENT - PURCHASE OF SYSTEM.

A. Subject to applicable law, in the event that a franchise is terminated, revoked, or is not renewed upon expiration, then grantee shall, upon demand of the City, and at its sole expense, promptly remove all or any portion of its cable system. In removing its cable system, grantee shall restore all streets to the City’s standard specifications and repair any damage to utilities or other infrastructure caused by the removal. The liability, indemnity, insurance, security fund, and bonds required under the franchise shall continue in full force and effect until the removal is accepted as complete by the City.

B. Subject to applicable law, in the event that a franchise is not renewed and the City acquires ownership of a cable system or effects a transfer of ownership of a cable system to another person, any such acquisition or transfer shall be at fair market value, determined on the basis of the cable system valued as a going concern, but with no value allocated to the franchise itself. If a franchise is revoked for cause and the City acquires ownership of the cable system or effects a transfer of ownership of the cable system to another person, any such acquisition or transfer shall be at an equitable price. The value of a cable system (fair market value or equitable price) shall be determined by an appraisal committee consisting of three (3) disinterested appraisers. The City and grantee shall each select one (1) appraiser, and the two (2) selected appraisers shall agree upon and appoint a third appraiser.

C. If a grantee’s plant, or a portion thereof, is deactivated for a continuous period of 30 days, except for reasons beyond the grantee’s control, and without prior written notice to and approval by City, then the grantee must, at City’s option and demand, and at the sole expense of the grantee, promptly remove all of the grantee’s property from any streets or other public rights-of-way. The grantee must promptly restore the streets or other public areas from which its property, including distribution facilities, has been removed to the condition existing prior to the grantee’s use.

D. The City may, upon written application by a grantee, approve the abandonment in place by a grantee of any property, under the terms and conditions as City may approve. Upon City approved abandonment in place of any property, the grantee must cause to be executed such instruments as the City may prescribe in order to transfer and convey ownership of the abandoned property to the City.

(Ord. 838, passed -- 2003)

4.04.250 RECEIVERSHIP AND FORECLOSURE.

A. Subject to applicable provisions of the United States Bankruptcy Code, any franchise shall, at the option of the City, cease and terminate 120 days after the appointment of a receiver or trustee to take over and conduct the business of grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless the receivership or trusteeship shall have been vacated prior to the expiration of the 120 days, or unless:

1. The receiver or trustee shall have, within 120 days after his or her election or appointment, fully complied with all terms of the franchise and remedied all breaches of the franchise or provided a plan for the remedy of the breaches which is approved in writing by the City; and

2. The receiver or trustee shall, within the 120 days, execute an agreement duly approved by the court having jurisdiction, under which the receiver or trustee agrees to be bound by each and every term, provision and limitation of the franchise.

B. Upon the foreclosure or other judicial sale of all or a substantial part of a cable system, grantee shall notify the City of the fact, and the notification shall be treated as a notification that a change in ownership of grantee has taken place and the provisions of this chapter governing the changes shall apply.

(Ord. 838, passed -- 2003)

III. DESIGN AND CONSTRUCTION

4.04.260 UNDERGROUNDING.

A. At no time shall grantee place cable underground without appropriate conduit.

B. The cable system shall be placed underground in all portions of the franchise area where either telephone or electric lines are underground. Whenever the poles on which the cable system is constructed are eliminated, grantee shall concurrently replace its aerial facilities with underground facilities. At no time shall the cable system be the only aerial facility in any given area.

C. Where the cable system is installed underground, line extenders, amplifiers, taps, power supplies, traps and related electronic equipment and components may be placed in appropriate housings above the surface of the ground to the extent that the method employed is compliant with any and all applicable City, state, federal or other regulations, and consistent with any other generally applicable guidelines, policies or procedures which may from time to time be adopted by the City or other applicable government agency. Grantee shall provide a procedure for undergrounding taps and pedestals, the cost of which the subscriber will bear, and relocating the taps and pedestals within the technical constraints of the cable system.

(Ord. 838, passed -- 2003)

4.04.270 USE OF POLES.

Grantee shall be authorized to utilize existing poles, conduit, and other facilities of a public utility, but shall not be authorized to construct or install any new, different, or additional poles in any City streets without prior written approval by the City.

(Ord. 838, passed -- 2003)

4.04.280 CONSTRUCTION STANDARDS.

Grantee shall install and maintain its wires, cables, fixtures, and other equipment in accordance with applicable California Public Utilities Commission pole attachment standards, electrical codes and industry standards of the cable television industry generally applicable to the type of cable system which grantee has constructed, owns or operates any applicable pole agreements, and all franchise agreement requirements. Grantee shall adhere to all building and zoning regulations currently in force or hereafter enacted. Grantee shall repair and restore any cuts and/or trenching in the roadway or sidewalks to City standards. Grantee shall locate and maintain its lines, cables, and other appurtenances, on public property, in such a manner as to cause no unreasonable interference with the use of the public property by any person.

(Ord. 838, passed -- 2003)

4.04.290 APPROVALS.

The City Engineer shall be authorized to approve the location and method of construction of all underground facilities and equipment located on public rights-of-way (including any above grade portion of the facilities and equipment). The City Engineer also shall approve the location and installation of all new aerial facilities. All construction shall be subject to City permit and inspection fees as may be required by other applicable laws or regulations.

(Ord. 838, passed -- 2003)

4.04.300 SUBMISSION OF DRAWINGS.

Grantee shall file with the City “as built” drawings of the entire cable system, excluding technical specifications. Additionally, within 30 days after completion of any material modification of the cable system (e.g., a system rebuild or distribution facility replacement), grantee shall file with the City “as built” drawings, excluding technical specifications, of the modified cable system. The City may require that the “as built” drawings be submitted in an electronic format specified by the City.

(Ord. 838, passed -- 2003)

4.04.310 RELOCATION OF FACILITIES AND EQUIPMENT.

A. Grantee shall remove or relocate at its sole cost any facilities installed, used or maintained in connection with the franchise if and when the removal or relocation is made necessary by any project. For purposes of this section, the word “project” means any change of grade, alignment or width of any public street, way, alley or place, including, but not limited to, the construction of any subway or viaduct, that the City may initiate, either by or through itself or any redevelopment agency, community facility district, assessment district, underground district, reimbursement agreement or generally applicable impact fee program.

B. In the event that the removal or relocation is required, grantee shall commence physical fieldwork on the removal or relocation on or before 120 days after written notice of the requirement is provided by the City Manager. If, despite its reasonable efforts, grantee is unable to commence removal or relocation within the period, grantee shall provide the City Manager with written notice explaining in detail the reasons for the delay and a date certain upon which the removal or relocation is expected to commence. Grantee shall diligently proceed and promptly complete all the removal or relocation after it is commenced.

(Ord. 838, passed -- 2003)

4.04.320 MAINTENANCE.

Should grantee fail, refuse, or neglect to properly perform any maintenance or construction work required by the franchise following due notice from the City and a reasonable opportunity to cure as provided for under this chapter, or should grantee fail to commence performance of the work within the required period of time, or fail to diligently proceed and promptly complete the work thereafter, the City Manager may, upon five (5) days prior written notice to grantee (except in cases of emergency), cause the work or other act to be completed in whole or in part by the City forces or others, and upon so doing shall submit to grantee an itemized statement of the costs thereof. Grantee shall pay to the City the entire amount due, without offset or deduction, within 30 days from the date of the statement.

(Ord. 838, passed -- 2003)

IV. MINIMUM CUSTOMER SERVICE STANDARDS

4.04.330 SUBSCRIBER SERVICE STANDARDS.

Grantee shall comply with the FCC customer service standards set forth at 47 C.F.R. § 76.309, and the additional standards that may be imposed by ordinance or the franchise agreement, and each of the following requirements:

A. The grantee shall maintain a local, toll free or collect call telephone access line (“Access Line”) which will be available to its subscribers 24 hours a day, seven (7) days a week;

B. Trained, knowledgeable, and qualified customer service representatives will be available to respond to customer telephone inquiries during normal business hours. Normal business hours shall be a minimum of 59 hours weekly, from 7:00 a.m. to 6:00 p.m., Monday through Friday, and at least 4 additional hours 1 evening per week or on Saturdays (or such other times as are approved in writing by the City Manager);

C. During nonbusiness hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received during the hours must be responded to by a trained company representative during the next business day;

D. A business and service office located within the City shall be open Monday through Friday from 7:00 a.m. to 6:00 p.m., and adequately staffed to accept subscriber payments and respond to service requests and complaints. Additionally, grantee will staff the business and service office at least 4 additional hours 1 evening per week or on Saturdays. Other locations and hours are permissible if approved in writing by the City Manager;

E. Telephone answer time by grantee’s customer service representatives, including waiting time, shall not exceed 30 seconds after a connection is made, and a busy signal shall not be obtained more than 3% of the time. If the call needs to be transferred, transfer time shall not exceed 30 seconds. These standards shall be met no less than 90% of the time under Normal Operating Conditions, measured on a quarterly basis;

F. Grantee shall provide and maintain an emergency system maintenance and repair staff, capable of responding to and repairing major system malfunctions on a 24 hour basis;

G. Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system, preferably between midnight and 6:00 a.m.;

H. Under normal operating conditions, grantee shall respond to the following subscriber complaints or requests for service, within the time frame specified below, no less than 95% of the time (measured on a quarterly basis):

1. System outages. Within two (2) hours, including weekend days, of receiving subscriber calls reporting a system outage which, by number of calls, identify a cable system outage of sound or picture of one (1) or more channels, or a loss of any other cable service, affecting 5% or more of the subscribers of the cable system;

2. Service interruptions. Within 24 hours, excluding Sundays and holidays, after the interruption becomes known; and

3. Inferior reception quality. Within 48 hours after receiving a request for service identifying a problem concerning picture or sound quality.

I. Grantee shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives at the service location, if necessary, or otherwise begins work on the problem. In the case of a subscriber not being home when the technician arrives, response shall be deemed to have taken place if the technician leaves written notification of arrival;

J. The appointment window alternatives for installations, service calls, and other installation activities offered to a subscriber will be either a specific time or, at a maximum, a four (4) hour time block during normal business hours. A grantee may schedule service calls and other installation activities outside of normal business hours or outside the parameters of response time outlined above for the express convenience of the subscriber. Further, the following additional requirements shall apply to service appointments.

1. A grantee shall, in accordance with Cal. Civil Code § 1722(b), inform subscribers of their right to service connection or repair within a 4 hour period, if the presence of the subscriber is required, by offering the 4 hour period at the time the subscriber calls for service connection or repair. Grantee also agrees to notify all subscribers by mail of their rights under Cal. Civil Code § 1722(b) at least annually during each year of the franchise.

2. If the service connection or repair is not commenced within the specified 4 hour period, except for delays caused by unforeseen or unavoidable occurrences beyond the control of a grantee, the subscriber shall receive one (1) month of free service at the service level subscribed to by the affected subscriber.

K. Standard installations will be performed within seven (7) business days after an order has been placed. Standard installations are those that are located up to 150 feet from the existing distribution system.

1. If the grantee cannot perform the standard installation within seven (7) business days of request by a subscriber, the subscriber shall receive one (1) month of free service at the service tier subscribed to by the affected subscriber.

2. In the event that any services to any subscriber are interrupted for 48 or more hours in any 7 day period, except for acts of God or other circumstances beyond grantee’s control and outside the cable system, and except in circumstances for which the prior approval of the interruption is obtained from the City Manager, grantee shall provide a 20% rebate of the monthly fees to affected subscribers.

L. Grantee shall have equipment and perform surveys to measure compliance with the telephone answering standards set forth in this section. The results of the surveys shall be submitted to the City quarterly. After one (1) year of submitting telephone answering surveys to the City, grantee may request that it be relieved of the requirement of submitting the surveys. The City Manager may relieve grantee of the survey requirement if he or she finds, based on the surveys and the level of customer complaints, that grantee is in full compliance with telephone answering standards. City reserves the right to reinstitute the survey reporting requirement if the City receives three (3) complaints in any 12 month period of grantee failing to meet these telephone answering standards.

(Ord. 838, passed -- 2003)

4.04.340 IDENTIFICATION REQUIRED.

All personnel, agents, and representatives of grantee who have contact with subscribers and/or the public, including subcontractors, shall wear photo identification badges. Upon request by the City, grantee shall provide a list of current employees, contractors, and subcontractors performing work in the City.

(Ord. 838, passed -- 2003)

4.04.350 NOTIFICATION TO SUBSCRIBERS.

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

A. Products and services offered;

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

C. Installation and service maintenance policies;

D. Instructions on how to use the cable service;

E. Cable channel positions and identification;

F. Customer service telephone number and office hours;

G. Billing and complaint procedures, including how to resolve subscriber billing disputes;

H. Credit procedures;

I. Employee identifications;

J. Service call response time scheduling;

K. Time allowed to pay outstanding bills;

L. Grounds for termination of service;

M. Steps grantee must take before disconnecting or terminating service, and the steps necessary to have service reconnected after involuntary termination;

N. The subscriber’s right to speak with a supervisor and, if none is then available, that a supervisor shall return the subscriber’s call within one (1) working day;

O. The appropriate regulatory authority with whom to register a complaint, including any rate complaint, and how to contact the authority;

P. Instructions on the channel compatibility problems that occur when using a set top channel converter to view scrambled or encrypted programming, including that subscribers may not be able to use special features and functions of their TV receivers and videocassette recorders; and

Q. Instructions regarding the availability of remote control equipment from other sources, such as retail outlets, and a list of the models of remote control units currently available from retailers that are compatible with grantee’s converters.

(Ord. 838, passed -- 2003)

4.04.360 VERIFICATION OF SUBSCRIBER SERVICE STANDARDS.

A. Grantee shall demonstrate compliance within the City with all of the standards contained in (or referenced by) § 4.04.330 by providing quarterly customer service reports to the City, unless otherwise provided by its franchise agreement. The reports shall provide the following information:

1. Volume of telephone calls received by the customer service department;

2. Percentage of time trunk lines were busy, and the abandonment rate;

3. Average time to complete out of service calls, and all other service calls;

4. Average time to complete new installations; and

5. Detailed customer complaint and outage reports.

B. Grantee shall maintain a written log or an equivalent stored in computer memory and capable of access and reproduction, for three years indicating the time and date of all service interruptions, requests for cable service or repairs, and responses to request for cable service or repairs.

(Ord. 838, passed -- 2003)

4.04.370 SUBSCRIBER COMPLAINTS.

A. Grantee’s complaint handling procedures shall be designed to accomplish the following:

1. Receive and acknowledge any complaint made in person or by telephone within 15 minutes, regardless of the time the complaint is made;

2. Acknowledge any complaint received by mail within three (3) business days of the date the complaint is received;

3. Complaints not resolved within 24 hours of receipt shall be listed in a log of “Delayed Action on Complaints” which shall give the detailed reasons for nonresolution within the 24 hour period;

4. Provide the complainant access to the grantee’s management or supervisory personnel on a basis convenient to the complainant in the event resolution is not immediately obtained by grantee’s personnel normally assigned to handling complaints; and

5. Provide complete information to the complainant regarding his or her ability to take the complaint to the grantor’s representative if it is not resolved by the grantee.

B. Grantee shall establish procedures for receiving, acting upon, and resolving subscriber complaints and shall submit the procedures to the City Manager for review and approval. The grantee shall furnish a notice of the procedures to each subscriber at the time of initial subscription to the system.

C. Grantee shall maintain a written record or “log” listing date and time of customer complaints, identifying the subscriber, and describing the nature of the complaints and when and what action was taken by the grantee in response thereto. The record shall be kept at grantee’s local office, reflecting the operations to date for a period of at least three (3) years, and shall be available for inspection during regular business hours without further notice or demand by the City Manager.

D. As subscribers are connected or reconnected to the cable system, the grantee shall, by appropriate means such as a card or brochure, furnish information concerning the procedures for making inquiries or complaints, including the name, address, and local telephone number of grantee’s employee or agent to whom the inquiries or complaints are to be addressed and furnish information concerning the City office responsible for administration of the franchise with the address and telephone number of the office.

E. Grantee shall provide written notice to each subscriber at intervals not to exceed one (1) year of the procedure for reporting and resolving subscriber complaints, including the subscriber’s right to complain in writing to the City of grantee’s failure to resolve a service complaint. The proper address of the City and grantee to which complaints may be directed shall be included in the notice.

(Ord. 838, passed -- 2003)

4.04.380 COMPATIBILITY WITH CONSUMER ELECTRONICS EQUIPMENT.

A. The grantee shall not scramble or otherwise encrypt signals carried on the basic service tier. Requests for waivers of this prohibition must demonstrate either a substantial problem with theft of basic tier service or a strong need to scramble basic signals for other reasons.

B. The grantee shall comply with equipment compatibility rules and commercial availability of navigation equipment rules of the FCC.

C. The grantee shall offer subscribers the option to receive an A/B switch at the time of initial cable service installation and shall provide subscribers with written information as to how to use such a switch. The grantee may charge a reasonable price for the switch. Upon subscriber request, the grantee shall provide an A/B switch after the initial installation of cable service. If the subscriber requests installation of such a switch (to receive broadcast television without cable hookup), the grantee may charge reasonable fees for the installation and equipment.

(Ord. 838, passed -- 2003)

V. RATES

4.04.390 RATE REGULATION.

The City may regulate a grantee’s rates, charges, and prices to the maximum extent permitted by law now or at a future time.

A. Filing of rates and charges. Throughout the term of any franchise agreement entered into pursuant to this chapter, grantee shall maintain on file with the City a complete schedule of all rates and charges related to providing cable services under the franchise, in a form satisfactory to the City.

B. Changes in rates and charges. Grantee shall provide written notice to the City and subscribers at least 30 days in advance of any proposed changes in rates and charges within the control of grantee. The notice shall be provided in the subscriber’s bill.

C. Regulation of equipment for hearing impaired. To the extent authorized by law, the City reserves the right to require and regulate the installation or rental of equipment which facilitates the reception of cable service by hearing impaired individuals.

(Ord. 838, passed -- 2003)

4.04.400 BILLING PROCEDURES.

Billing procedures shall be as follows:

A. Bills will be clear, concise, and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including:

1. A list of each service or package received for that billing period;

2. The rate or charge for each service or package received;

3. The period of time over which the services are billed;

4. The total charges due for the monthly period, separate from any previous balance due;

5. Credits posted during the month: credits for service will be issued no later than the subscriber’s next billing cycle following the determination that a credit is warranted.

6. A specific date by which payment is required; and

7. The customer service telephone number to which billing inquiries or complaints can be directed.

B. A grantee’s first billing statement after a new installation or service change shall be prorated as appropriate and shall reflect any security deposit.

C. A grantee’s billing statement must show a specific payment due date, and no late payment fee may be imposed on a subscriber earlier than 30 calendar days from the due date on the billing statement. Any balance not received within 30 calendar days of the due date may be assessed a late fee consistent with this chapter. Any late fee assessed must appear on the following month’s billing statement.

D. A grantee must notify the subscriber that he or she can remit payment in person at the grantee’s office located in or near the City and inform the subscriber of the address of that office.

E. Every customer who pays his or her bill directly shall have at least 15 days from the date of the bill for services is mailed to pay the listed charges. Customer payments shall be posted promptly. The grantee shall not terminate any residential service for nonpayment of a delinquent account without 15 days prior written notice. The notice shall not be mailed until after the sixteenth day from the time the bill for services was mailed to the customer. The grantee may not assess a late charge earlier than the twenty second day from the time the bill for services has been mailed.

F. In case of a billing dispute, the grantee must respond to a written complaint from a subscriber within 30 days.

G. At the time of the initial complaint, grantee shall provide written or verbal notice to customers that in the event of a billing dispute, the grantee, upon resolution of the dispute when grantee is at fault, shall waive a late fee.

H. Subscribers shall not be charged a late fee or otherwise penalized for any failure by the grantee, its employees, or contractors, including failure to timely or correctly bill the subscriber, or failure to properly credit the subscribers for a payment made in a timely manner.

I. Every notice of termination of service shall include: name and address of subscriber whose account is delinquent; the amount of the delinquency; the date by which payment is required in order to avoid termination of service; the telephone number of the grantee for additional information and/or to handle complaints or initiate an investigation concerning service and charges in question.

J. Service may only be terminated on days and at times in which the subscriber can reach a customer service representative of the grantee either in person or by telephone.

K. The grantee shall afford each subscriber of the cable system with a right to rescind the subscriber’s ordering of service within three (3) days after ordering, provided that the right of rescission shall end upon activation of the service ordered.

L. The grantee will not pass through franchise fees to subscribers which exceed 5.25% of the amount shown on the bill for cable services and equipment.

M. The grantee shall assess any late fees in accordance with California law. In no event shall a late fee exceed the maximum amount permissible under California law.

N. Any franchise agreement entered into pursuant to this chapter may contain provisions for a discount on basic and cable programming tiers or any other cable services for persons with specific income and disability qualifications.

O. Grantee will set rates for equipment deposits no higher than the actual replacement value of the equipment for which the deposit is applied. Equipment deposits shall be promptly returned to subscribers upon the return in good working condition to the grantee of the equipment for which the deposit was required.

(Ord. 838, passed -- 2003)

4.04.410 REFUNDS.

A. Refund checks will be issued promptly, but no later than either:

1. The subscriber’s next billing cycle following resolution of the request or 30 days, whichever is earlier; or

2. In cases involving the return of the equipment supplied by the grantee if service is terminated for any reason, by the subscriber’s next billing cycle following resolution of the request or 30 days, whichever is earlier.

B. If the grantee does not mail a check for a refund to any subscriber disconnecting service with an outstanding credit within the next billing cycle or 30 days, whichever is earlier, the subscriber may request and is entitled to receive a $10 payment.

(Ord. 838, passed -- 2003)

4.04.420 NOTICE OF RATE INCREASES.

Grantee shall provide written notice to the City and subscribers at least 30 days in advance of the implementation of changes in any of its rates and charges which are not subject to regulation by the City. (Ord. 838, passed -- 2003)

4.04.430 NONDISCRIMINATION AND CUSTOMER PRIVACY.

A. Service availability.

1. No person, firm, or corporation in the existing service area of a grantee shall be arbitrarily refused service; provided, however, that the grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or monthly service charge hereby authorized. A grantee shall not deny any cable service or otherwise discriminate against subscribers or others on the basis of race, color, religion, national origin, sex, age or sexual preference.

2. A grantee shall strictly adhere to the equal employment opportunity requirements of federal, state or local governments and shall comply with all applicable laws and executive and administrative orders relating to nondiscrimination.

3. A grantee may not require the subscription to any tier other than the basic service tier as a condition of access to video programming offered on a per channel or per program basis. A grantee may not discriminate between subscribers to the basic service tier and other subscribers with regard to the rates charged for video programming offered on a per channel or per program basis.

4. A grantee will abide by all customer privacy requirements of federal and state law. At least annually, a grantee shall provide notice in the form of a separate, written statement to each subscriber, which clearly and conspicuously informs the subscriber of:

a. The nature of personally identifiable information collected or to be collected with respect to the subscriber and the nature of the use of the information;

b. The nature, frequency, and purpose of any disclosure, which may be made of the information, including the identification of the types of persons to whom the disclosure may be made;

c. The period during which the information will be maintained by the grantee;

d. The times and place at which the subscriber may have access to the information in accordance with federal and state law; and

e. The limitations provided in federal and state law with respect to the collection and disclosure of information by a grantee and the right of the subscriber under law.

B. Data collection. A grantee’s data collection and dissemination practices regarding subscribers shall be in compliance with the Cable Act (including § 631) and this chapter.

C. Revealing subscriber preferences.

1. A grantee shall not reveal individual subscriber preferences, viewing habits, beliefs, philosophy, creeds or religious beliefs to any third person, firm, agency, governmental unit or investigating agency without court authority or prior written consent of the subscriber.

2. The written consent, if given, shall be limited to a period of time not to exceed one (1) year or a term agreed upon by the grantee and subscriber.

3. A grantee shall not condition the delivery or receipt of cable services to any subscriber on any such consent.

4. The subscriber may revoke without penalty or cost any consent previously made by delivering to the grantee in writing a substantial indication of his or her intent to so revoke.

D. Revealing subscriber lists. A grantee shall not reveal, or sell, or permit the release or sale of its subscriber list without the prior affirmative written consent of each subscriber, provided that the grantee may use its subscriber list as necessary for the construction, marketing, and maintenance of the grantee’s services and facilities authorized by its franchise, and the related billing of subscribers for cable services. Consistent with applicable law, City may use grantee’s subscribers list for the purpose of communication with subscribers in connection with matters relating to operation, management, and maintenance of the cable system.

E. Other persons affected. This section shall apply to all of the following as well as to any grantee:

1. Officers, directors, employees, and agents of the grantee;

2. General and limited partners of the grantee;

3. Any person or combination of persons owning holding or controlling 5% or more of any corporate stock or other ownership interest of the grantee;

4. Any affiliated or subsidiary entity owned or controlled by the grantee, or in which any officer, director, stockholder, general or limited partner or person or group of persons owning, holding or controlling any ownership interest in the grantee, shall own, hold or control 5% or more of any corporate stock or other ownership interest; and

5. Any person, firm, or corporation acting or serving in the capability of holding or controlling company of the grantee.

(Ord. 838, passed -- 2003)

4.04.440 WRITTEN OR ORAL NOTICE TO ENTER PROPERTY.

Under normal operating conditions, grantee shall provide written or oral notice, in light of circumstances, prior to entering any private property.

(Ord. 838, passed -- 2003)

4.04.450 NOTICE REGARDING CHANNEL SCRAMBLING.

Subscribers shall be given at least 30 days written notice of any scrambling of a channel, and any descrambling of a channel(s) containing R rated or stronger programming. Subscribers do not need to be notified of blackout periods required of the grantee by programmers.

(Ord. 838, passed -- 2003)

VI. SERVICE PROVISIONS

4.04.460 TENANT RIGHTS.

A. It is the City’s intent that tenants not be discriminated against in the ability to subscribe to cable services.

B. Grantee shall be required to provide service to tenants in individual units of a multiple housing facility with all services offered to other dwelling units within the franchise area, so long as the owner of the facility consents in writing, if requested by grantee, to the following:

1. Grantee’s providing the service to units of the facility on the terms and conditions as are reasonable, provided that the owner of the facility shall not seek to charge grantee any fee or consideration for access to the facility or for the right of providing cable service to the dwelling units within the facility, grantee shall not seek to charge the owner of the facility any fee or consideration for installing the service other than its actual costs as provided for herein, and the terms and conditions shall be in compliance with applicable law;

2. Reasonable access to the premises by grantee for installation, maintenance, and inspection of the system on the premises;

3. Reasonable conditions promulgated by grantee to protect grantee’s equipment and to encourage widespread use of the system;

4. The owner shall not discriminate in rental charges, or otherwise, between tenants who receive cable service and those who do not; and

5. The owner shall provide all easements, rights-of-way, and other rights of access deemed reasonably necessary or appropriate by grantee for purposes of providing cable television service to the facility.

(Ord. 838, passed -- 2003)

4.04.470 CONTINUITY OF SERVICE MANDATORY.

A. Subscribers shall have the right to continue to receive service so long as their financial and other obligations to grantee are honored. Grantee shall at all times, and under all conditions, to the greatest extent economically and technically possible, maintain continuity of service. In the event of an assignment of the cable system, the assignor shall cooperate with the City and the assignee in order to maintain continuity of service to all subscribers.

B. In the event grantee willfully fails to operate the cable system for a period of five (5) consecutive days without prior approval of the City, the City may, in its sole discretion, elect to operate the cable system or designate an operator until grantee restores service under conditions acceptable to the City, or until the City selects a permanent operator. During the entire period while the City operates the cable system on behalf of grantee, or causes another party to do so, the City shall be entitled to collect any and all revenues from the operation of the cable system, and grantee shall reimburse the City for all reasonable costs or damages in excess of the revenues collected by the City that are caused by grantee’s failure to perform.

(Ord. 838, passed -- 2003)

VII. OPEN VIDEO SYSTEMS

4.04.480 APPLICABILITY.

The provisions of this chapter apply to an open video system operator that intends to deliver video programming to consumers in the City over an open video system.

(Ord. 838, passed -- 2003)

4.04.490 APPLICATION REQUIRED.

A. Before commencing the delivery of video programming services to consumers in the City over an open video system, the open video system operator must file an application with the City. That application must include or be accompanied by the following, as applicable:

1. The identity of the applicant, including all affiliates of the applicant;

2. Copies of FCC Form 1275, all “Notices of Intent” filed under 47 C.F.R. § 76.1503(b)(1), and the order of the FCC, all of which relate to certification of the applicant to operate an open video system in accordance with § 653(a)(1) of the Communications Act (47 U.S.C. § 573) and the FCC’s rules;

3. The area or areas of the City that the applicant desires to serve;

4. A description of the open video system services that will be offered by the applicant over its existing or proposed facilities;

5. A description of the transmission medium that will be used by the applicant to deliver the open video system services;

6. Information in sufficient detail to establish the applicant’s technical qualifications, experience, and expertise regarding the ownership and operation of the open video system described in the application;

7. Financial statements prepared in accordance with generally accepted accounting principles that demonstrate the applicant’s financial ability to:

a. Construct, operate, maintain, and remove any new physical plant that is proposed to be constructed in the City;

b. Comply with the City’s public, educational, and government access channel requirements as specified below in § 4.04.510 B(4); and

c. Comply with the City’s requirement that gross revenue fees be paid in the sum of 5%, as specified below in § 4.04.510 (B)(2).

8. An accurate map showing the location of any existing telecommunications facilities in the City that the applicant intends to use, to purchase, or to lease;

9. If the applicant’s operation of the open video system will require the construction of new physical plant in the City, the following additional information must be provided:

a. A preliminary construction schedule and completion dates;

b. Preliminary engineering plans, specifications, and a network map of any new facilities to be constructed in the City, in sufficient detail to identify:

i. The location and route requested for the applicant’s proposed facilities;

ii. The locations, if any, for interconnection with the facilities of other telecommunications service providers; and

iii. The specific structures, improvements, facilities, and obstructions, if any, that the applicant proposes to remove or relocate on a temporary or permanent basis.

c. The applicant’s statement that, in constructing any new physical plant, the applicant will comply with all applicable ordinances, rules, and regulations of the City, including the payment of all required permit and processing fees.

10. The information and documentation that is required to be submitted to the City by a video provider, as specified below in paragraph (B) of § 4.04.530;

11. Any additional information as may be requested by the City Manager; and

12. A nonrefundable filing fee in an amount established by resolution of the City Council.

B. If any item of information specified above in paragraph (A) is determined under paramount federal or state law to be unlawful, the City Manager is authorized to waive the requirement that the information be included in the application.

(Ord. 838, passed -- 2003)

4.04.500 REVIEW OF APPLICATION.

Within 30 days after receipt of an application filed under § 4.04.490 that is deemed to be complete, the City Manager will give written notice to the applicant of the City’s intent to negotiate an agreement setting forth the terms and conditions under which the operation of the proposed open video system will be authorized by the City. The commencement of those negotiations will be on a date that is mutually acceptable to the City and to the applicant.

(Ord. 838, passed -- 2003)

4.04.510 AGREEMENT REQUIRED.

A. No video programming services may be provided in the City by an open video system operator unless the operator and the City have executed a written agreement, which may be designated as a franchise, setting forth the terms and conditions under which the operation of the proposed open video system will be authorized by the City.

B. The agreement between the City and the open video system operator may contain terms and conditions that relate to the following subject matters, to the extent that the terms, conditions, and subject matters are not preempted by federal statute or regulations:

1. The nature, scope, and duration of the agreement, including provisions for its renewal or extension;

2. The obligation of the open video system operator to pay to the City, at specified times, fees on the gross revenue received by the operator, as authorized by 47 C.F.R. § 76.1511, in accordance with the following standards and procedures.

a. The amount of the fees on the gross revenue will be 5%, and will be paid in lieu of the franchise fees authorized under § 622 of the Communications Act, (47 U.S.C. § 542).

b. The term OVS GROSS REVENUE means all gross revenue received by an open video system operator or its Affiliates, including all revenue received from subscribers and all carriage revenue received from unaffiliated video programming providers; and all advertising revenue received by the operator or its Affiliates in connection with the provision of video programming, where the revenue is included in the calculation of the cable franchise fee paid to the City by the franchised cable operator. The term OVS GROSS REVENUE does not include revenue, such as subscriber or advertising revenue, collected by unaffiliated video programming providers.

3. The obligation of the open video system operator to comply with requirements relating to information collection and recordkeeping, accounting procedures, reporting, periodic audits, and inspection of records in order to ensure the accuracy of the fees on the OVS Gross Revenue that are required to be paid as specified above in paragraph B)(2).

4. The obligation of the open video system operator to meet the City’s requirements with respect to Public, Educational, and Governmental Access Channel capacity, services, facilities, and equipment, as provided for in 47 C.F.R. § 76.1505. In this regard, the following standards and procedures are applicable.

a. The open video system operator is subject to the same public, educational, and governmental access channel requirements that apply within the cable television franchise service area with which its system overlaps.

b. The open video system operator must ensure that all subscribers receive all public, educational, and government access channels within the franchise service area in which the City’s subscribers are located.

c. The open video system operator may negotiate with the City to establish the operator’s obligations with respect to public, educational, and government access channel capacity, services, facilities, and equipment. These negotiations may include the City’s franchised cable operator if the City, the open video system operator, and the franchised cable operator so desire.

d. If the open video system operator and the City are unable to reach an agreement regarding the operator’s obligations with respect to public, educational, and government access channel capacity, services, facilities, and equipment within the City’s jurisdiction, then the following obligations will be imposed.

i. The open video system operator must satisfy the same public, educational, and government access channel obligations as the City’s franchised cable operator by providing the same amount of channel capacity for public, educational, and governmental access and by matching the City’s franchised cable operator’s annual financial contributions in support of public, educational, and government access services, facilities, and equipment that are actually used by the City. For in kind contributions, such as cameras or production studios, the open video system operator may satisfy its statutory obligation by negotiating mutually agreeable terms with the City’s franchised cable operator, so that public, educational, and governmental access services to the City are improved or increased. If the terms cannot be agreed upon, the open video system operator must pay to the City the monetary equivalent of the franchised cable operator’s depreciated in kind contribution, or, in the case of facilities, the annual amortization value. Any matching contributions provided by the open video system operator must be used to fund activities arising under § 611 of the Communications Act (47 U.S.C. § 531).

ii. The City will impose upon the open video system operator the same rules and procedures that it imposes upon the franchised cable operator with regard to the open video system operator’s use of channel capacity designated for public, educational, and government access channel use when that capacity is not being used for the purposes.

e. The City’s franchised cable operator is required under federal law to permit the open video system operator to connect with its public, educational, and government access channel feeds. The open video system operator and the franchised cable operator may decide how to accomplish this connection, taking into consideration the physical and technical characteristics of the cable and the open video systems involved. If the franchised cable operator and the open video system operator cannot agree on how to accomplish the connection, the City has the right to decide. The City may require that the connection occur on City-owned property or on public rights-of-way.

f. All costs of connection to the franchised cable operator’s public, educational, and government access channel feed must be borne by the open video system operator. These costs will be counted towards the open video system operator’s matching financial contributions set forth above in subparagraph (d)(i).

g. The City will not impose upon the open video system operator any public, educational, or government access channel obligations that are greater than those imposed upon the franchised cable operator.

h. If there is no existing franchised cable operator, the provisions of 47 C.F.R. § 76.1505(d)(6) will be applicable in determining the obligations of the open video system operator.

i. The open video system operator must adjust its system to comply with new public, education, and access channel obligations imposed on the City’s franchised cable operator following a renewal of the cable television franchise; provided, however, that the open video system operator will not be required to displace other programmers using its open video system to accommodate public, educational, and government access channels. The open video system operator must comply with the new public, educational, and government access channel obligations whenever additional capacity is or becomes available, whether it is due to increased channel capacity or to decreased demand for channel capacity.

5. If the City and the open video system operator cannot agree on the application of the FCC’s rules regarding the open video system operator’s obligations to provide public, educational, and government access channel under the provisions of subsection (4) set forth above, then either party may file a complaint with the FCC in accordance with the dispute resolution procedures set forth in 47 C.F.R. § 76.1513. No agreement will be executed by the City until the dispute has been finally resolved.

6. If the open video system operator intends to maintain an institutional network, as defined in § 611(f) of the Communications Act, the City will require that educational and government access channels be designated on that institutional network to the same extent that those channels are designated on the institutional network of the City’s franchised cable operator. In addition, to the extent authorized by federal law, the open video system operator may be required by the City to satisfy the same financial obligations and other requirements that are imposed upon the franchised cable operator to support data transmission and related services that are provided by the institutional network.

7. The authority of an open video system provider to exercise editorial control over any public, educational, or government use of channel capacity will be restricted in accordance with the provisions of 47 C.F.R. § 76.1505(f).

8. The obligation of the open video system operator to comply with all applicable federal, state, and local statutes, ordinances, and regulations relating to customer service standards, including the Cable Television and Video Customer Service and Information Act (Cal. Government Code §§ 53054 et seq.) and the Video Customer Service Act (Cal. Government Code §§ 53088 et seq.).

9. If a new physical plant is proposed to be constructed within the City, the obligation of the open video system operator to comply with the following rights-of-way use and management responsibilities that are also imposed by the City upon other telecommunications service providers in a nondiscriminatory and competitively neutral manner:

a. Compliance with all applicable City codes, including applications for excavation, encroachment, and construction permits and the payment of all required permit and inspection fees;

b. The coordination of construction activities;

c. Compliance with established standards and procedures for constructing lines across private property;

d. Compliance with all applicable insurance and indemnification requirements;

e. The repair and resurfacing of construction damaged streets; and

f. Compliance with all public safety requirements that are applicable to telecommunications service providers using public property or public rights-of-way.

10. Acts or omissions constituting breaches or defaults of the agreement, and the applicable penalties, liquidated damages, and other remedies, including fines or the suspension, revocation, or termination of the agreement;

11. Requirements relating to the sale, assignment, or transfer of the open video system;

12. Requirements relating to the open video system operator’s compliance with and implementation of state and federal laws, rules, and regulations pertaining to the operation of the open video system; and

13. Any additional requirements, conditions, terms, policies, and procedures as may be mutually agreed upon by the City and the open video system operator and that will, in the judgment of the City Council, best serve the public interest and protect the public health, welfare, and safety.

(Ord. 838, passed -- 2003)

VIII. OTHER VIDEO AND TELECOMMUNICATIONS SERVICES AND SYSTEMS

4.04.520 OTHER MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTORS.

A. The term CABLE SYSTEM, does not include a facility that serves subscribers without using any public rights-of-way. Consequently, the categories of multichannel video programming distributors identified below are not deemed to be “cable systems” and are therefore exempt from the City’s franchise requirements and from certain other local regulatory provisions authorized by federal law, provided that their distribution or transmission facilities do not involve the use of the City’s public rights-of-way.

B. Multichannel multipoint distribution service (“MMDS”), also known as “wireless cable,” which typically involves the transmission by an FCC licensed operator of numerous broadcast stations from a central location using line of sight technology.

C. Local multipoint distribution service (“LMDS”), another form of over the air wireless video service for which licenses are auctioned by the FCC, and which offers video programming, telephone, and data networking services.

D. Direct broadcast satellite (“DBS”), also referred to as “direct to home satellite services,” which involves the distribution or broadcasting of programming or services by satellite directly to the subscriber’s premises without the use of ground receiving or distribution equipment, except at the subscriber’s premises or in the uplink process to the satellite. Local regulation of direct to home satellite services is further proscribed by the following federal statutory provisions.

1. 47 U.S.C. § 303(v) confers upon the FCC exclusive jurisdiction to regulate the provision of direct to home satellite services.

2. Section 602 of the Communications Act states that a provider of direct to home satellite service is exempt from the collection or remittance, or both, of any tax or fee imposed by any local taxing jurisdiction on direct to home satellite service. The terms “tax” and “fee” are defined by federal statute to mean any local sales tax, local use tax, local intangible tax, local income tax, business license tax, utility tax, privilege tax, gross receipts tax, excise tax, franchise fees, local telecommunications tax, or any other tax, license, or fee that is imposed for the privilege of doing business, regulating, or raising revenue for a local taxing jurisdiction.

(Ord. 838, passed -- 2003)

4.04.530 VIDEO PROVIDERS - REGISTRATION - CUSTOMER SERVICE STANDARDS.

A. Unless the customer protection and customer service obligations of a video provider are specified in a franchise, with the City, a video provider must comply with all applicable provisions of the following state statutes:

1. The Cable Television and Video Customer Service and Information Act (Cal. Government Code §§ 53054 et seq.); and

2. The Video Customer Service Act (Cal. Government Code §§ 53088 et seq.).

B. All video providers that are operating in the City on the effective date of this title, or that intend to operate in the City after the effective date of this title, and are not required under applicable law to operate under a franchise, license, lease, or similar written agreement with the City, must register with the City. The registration form must include or be accompanied by the following:

1. The video provider’s name, address, and local telephone numbers;

2. The names of the officers of the video provider;

3. A copy of the video provider’s written policies and procedures relating to customer service standards and the handling of customer complaints, as required by Cal. Government Code §§ 53054 et seq. These customer service standards must include, without limitation, standards regarding the following:

a. Installation, disconnection, service and repair obligations, employee identification, and service call response time and scheduling;

b. Customer telephone and office hours;

c. Procedures for billing, charges, refunds, and credits;

d. Procedures for termination of service;

e. Notice of the deletion of a programming service, the changing of channel assignments, or an increase in rates;

f. Complaint procedures and procedures for bill dispute resolution;

g. The video provider’s written acknowledgment of its obligation under Cal. Government Code § 53055.1 to provide to new customers a notice describing the customer service standards specified above in subparagraphs (a) through (f) at the time of installation or when service is initiated. The notice must also include, in addition to all of the information described above in subparagraphs (a) through (f), all of the following:

i. A listing of the services offered by the video provider that clearly describes all levels of service and the rates for each level of service;

ii. The telephone number or numbers through which customers may subscribe to, change, or terminate service, request customer service, or seek general or billing information; and

iii. A description of the rights and remedies that the video provider may make available to its customers if the video provider does not materially meet its customer service standards.

h. The video provider’s written commitment to distribute annually to its employees and customers, and to the City, a notice describing the customer service standards specified above in subparagraphs (a) through (f). This annual notice must include the report of the video provider on its performance in meeting its customer service standards, as required by Cal. Government Code § 53055.2.

4. Unless a video provider is exempt under federal law from its payment, a registration fee in an amount established by resolution of the City Council to cover the reasonable costs incurred by the City in reviewing and processing the registration form; and

5. In addition to the registration fee specified above in subsection (4), the written commitment of the video provider to pay to the City, when due, all costs and expenses reasonably incurred by the City in resolving any disputes between the video provider and its subscribers, which dispute resolution is mandated by Cal. Government Code § 53088.2(p).

C. The customer service obligations imposed upon video providers by the Video Customer Service Act (Cal. Government Code §§ 53088 et seq.) consist of the following.

1. Every video provider must render reasonably efficient service, make repairs promptly, and interrupt service only as necessary.

2. All video provider personnel contacting subscribers or potential subscribers outside the office of the provider must be clearly identified as associated with the video provider.

3. At the time of installation, and annually thereafter, all video providers must provide to all customers a written notice of the programming offered, the prices for that programming, the provider’s installation and customer service policies, and the name, address, and telephone number of the City’s office that is designated for receiving complaints.

4. All video providers must have knowledgeable, qualified company representatives available to respond to customer telephone inquiries Monday through Friday, excluding holidays, during normal business hours.

5. All video providers must provide to customers a toll free or local telephone number for installation, service, and complaint calls. These calls must be answered promptly by the video providers.

6. All video providers must render bills that are accurate and understandable.

7. All video providers must respond promptly to a complete outage in a customer’s service. The response must occur within 24 hours of the reporting of the outage to the provider, except in those situations beyond the reasonable control of the video provider. A video provider will be deemed to respond to a complete outage when a company representative arrives at the outage location within 24 hours and begins to resolve the problem.

8. All video providers must provide a minimum of 30 days’ written notice before increasing rates or deleting channels. All video providers must make every reasonable effort to submit the notice to the City in advance of the distribution to customers. The 30-day notice is waived if the increases in rates or deletion of channels are outside the control of the video provider. In those cases, the video provider must make reasonable efforts to provide customers with as much notice as possible.

9. Every video provider must allow every residential customer who pays his or her bill directly to the video provider at least 15 days from the date the bill for services is mailed to the customer, to pay the listed charges unless otherwise agreed to pursuant to a residential rental agreement establishing tenancy. Customer payments must be posted promptly. No video provider may terminate residential service for nonpayment of a delinquent account unless the video provider furnishes notice of the delinquency and impending termination at least 15 days prior to the proposed termination. The notice must be mailed, postage prepaid, to the customer to whom the service is billed. Notice must not be mailed until the sixteenth day after the date the bill for services was mailed to the customer. The notice of delinquency and impending termination may be part of a billing statement. No video provider may assess a late fee any earlier than the twenty second day after the bill for service has been mailed.

10. Every notice of termination of service pursuant to the preceding subsection (9) must include all of the following information:

a. The name and address of the customer whose account is delinquent;

b. The amount of the delinquency;

c. The date by which payment is required in order to avoid termination of service; and

d. The telephone number of a representative of the video provider who can provide additional information and handle complaints or initiate an investigation concerning the service and charges in question. Service may only be terminated on days in which the customer can reach a representative of the video provider either in person or by telephone.

11. Any service terminated without good cause must be restored without charge for the service restoration. Good cause includes, but is not limited to, failure to pay, payment by check for which there are insufficient funds, theft of service, abuse of equipment or system personnel, or other similar subscriber actions.

12. All video providers must issue requested refund checks promptly, but no later than 45 days following the resolution of any dispute, and following the return of the equipment supplied by the video provider, if service is terminated.

13. All video providers must issue security or customer deposit refund checks promptly, but no later than 45 days following the termination of service, less any deductions permitted by law.

14. Video providers must not disclose the name and address of a subscriber for commercial gain to be used in mailing lists or for other commercial purposes not reasonably related to the conduct of the businesses of the video providers or their affiliates, unless the video providers have provided to the subscriber a notice, separate or included in any other customer notice, that clearly and conspicuously describes the subscriber’s ability to prohibit the disclosure. Video providers must provide an address and telephone number for a local subscriber to use without toll charge to prevent disclosure of the subscriber’s name and address.

D. As authorized by Cal. Government Code § 53088(r), the following schedule of penalties is adopted. These penalties may be imposed for the material breach by a video provider of the consumer protection and service standards that are set forth above in paragraph (C), provided that the breach is within the reasonable control of the video provider. These penalties are in addition to any other remedies authorized by this chapter or by any other law, and the City has discretion to elect the remedy that it will apply. The imposition of penalties authorized by this paragraph (D) will not prevent the City or any other affected party from exercising any other remedy to the extent permitted by law, including but not limited to any judicial remedy as provided below by subsection (2).

1. Schedule of penalties.

a. For a first material breach: the maximum penalty is $200 for each day of material breach, but not to exceed a cumulative total of $600 for each occurrence of material breach, irrespective of the number of customers affected.

b. For a second material breach of the same nature for which a monetary penalty was previously assessed within the preceding 12 month period: the maximum penalty is $400 per day, not to exceed a cumulative total of $1,200 for each occurrence of the material breach, irrespective of the number of customers affected.

c. For a third or further material breach of the same nature for which a monetary penalty was previously assessed within the preceding 12 month period: the maximum penalty is $1,000 per day, not to exceed a cumulative total of $3,000 for each occurrence of the material breach, irrespective of the number of customers affected.

d. For the failure of a video provider to distribute the annual notice required by Cal. Government Code § 53055.1: the maximum penalty is $500 for each year in which the notice is not distributed as required by state statute.

e. The maximum penalties referenced above may be increased by any additional amount authorized by state law.

2. Judicial remedies not affected. The imposition of penalties in accordance with the provisions of subsection (1) above does not preclude any affected party from pursuing any judicial remedy that is available to that party.

3. Administration, notice, and appeal.

a. The City Manager or the City Manager’s designee is authorized to administer this paragraph (D). Decisions by the City Manager to assess penalties against a video provider must be in writing and must contain findings supporting the decisions. Decisions by the City Manager are final, unless appealed to the City Council.

b. If the video provider or any interested person is aggrieved by a decision of the City Manager, the aggrieved party may, within ten (10) days of the written decision, appeal that decision in writing to the City Council. The appeal letter must be accompanied by the fee established by the City Council for processing the appeal. The City Council may affirm, modify, or reverse the decision of the City Manager.

c. The imposition of monetary penalties under subsection (1) above is subject to the following requirements and limitations.

i. The City must give the video provider written notice of any alleged material breach and must allow the video provider at least 30 days from receipt of that notice to remedy the breach.

ii. For the purpose of assessing monetary penalties, a material breach will be deemed to have occurred for each day, following the expiration of the period for cure specified in subparagraph (i) above, that the material breach has not been remedied by the video provider, irrespective of the number of customers affected.

(Ord. 838, passed -- 2003)

4.04.540 TELECOMMUNICATIONS SERVICE PROVIDED BY TELEPHONE CORPORATIONS.

A. The City Council finds and determines as follows.

1. The Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long distance telephone service.

2. The California Public Utilities Commission (“CPUC”) is primarily responsible for the implementation of local telephone competition, and it issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations.

3. Cal. Public Utilities Code § 234(a) defines a “telephone corporation” as “every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state.”

4. Cal. Public Utilities Code § 616 provides that a telephone corporation “may condemn any property necessary for the construction and maintenance of its telephone line.”

5. Cal. Public Utilities Code § 2902 authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets.

6. Cal. Public Utilities Code § 7901 authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in the manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.

7. Cal. Public Utilities Code § 7901.1 confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees.

8. Cal. Government Code § 50030 provides that any permit fee imposed by a City for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes.

B. In recognition of and in compliance with the statutory authorizations and requirements set forth above in paragraph A, the following regulatory provisions are applicable to a telephone corporation that desires to provide telecommunications service by means of facilities that are proposed to be constructed within the City’s public rights-of-way.

1. The telephone corporation must apply for and obtain, as may be applicable, an excavation permit, an encroachment permit, or a building permit (“ministerial permit.”)

2. In addition to the information required by this code in connection with an application for a ministerial permit, a telephone corporation must submit to the City the following supplemental information.

a. A copy of the certificate of public convenience and necessity issued by the CPUC to the applicant, and a copy of the CPUC decision that authorizes the applicant to provide the telecommunications service for which the facilities are proposed to be constructed in the City’s public rights-of-way.

b. If the applicant has obtained from the CPUC a certificate of public convenience to operate as a “competitive local carrier,” the following additional requirements are applicable.

i. As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has filed with the City in a timely manner a quarterly report that describes the type of construction and the location of each construction project proposed to be undertaken in the City during the calendar quarter in which the application is filed, which information is sufficient to enable the City to coordinate multiple projects, as may be necessary.

ii. If the applicant’s proposed construction project will extend beyond the utility rights-of-way into undisturbed areas or other rights-of-way, the applicant must establish that it has filed a petition with the CPUC to amend its certificate of public convenience and necessity and that the proposed construction project has been subjected to a full scale environmental analysis by the CPUC, as required by Decision No. 95-12-057 of the CPUC.

iii. The applicant must inform the City whether its proposed construction project will be subject to any of the mitigation measures specified in the Negative Declaration [“Competitive Local Carriers (CLCs) Projects for Local Exchange Communication Service throughout California”] or to the Mitigation Monitoring Plan adopted in connection with Decision No. 95-12-057 of the CPUC. The City’s issuance of a Ministerial Permit will be conditioned upon the applicant’s compliance with all applicable mitigation measures and monitoring requirements imposed by the CPUC upon telephone corporations that are designated as “competitive local carriers.”

C. In recognition of the fact that numerous excavations in the public rights-of-way diminish the useful life of the surface pavement, and for the purpose of mitigating the adverse impacts of numerous excavations on the quality and longevity of public street maintenance within the City, the following policies and procedures are adopted.

1. The City Manager is directed to ensure that all public utilities, including telephone corporations, comply with all local design, construction, maintenance and safety standards that are contained within, or are related to, a ministerial permit that authorizes the construction of facilities within the public rights-of-way.

2. The City Manager is directed to coordinate the construction and installation of facilities by public utilities, including telephone corporations, in order to minimize the number of excavations in the public rights-of-way. In this regard, based upon projected plans for street construction or renovation projects, the City Manager is authorized to establish on a quarterly basis one or more construction time periods or “windows” for the installation of facilities within the public rights-of-way. Telephone corporations and other public utilities that submit applications for ministerial permits to construct facilities after a predetermined date may be required to delay the construction until the next quarterly “window” that is established by the City.

(Ord. 838, passed -- 2003)