Chapter 14.04 GENERAL

2. Promote the availability of diverse, multimedia information resources to the community; enhance educational opportunities throughout the community and build a stronger community;

3. Encourage the provision of advanced and competitive cable or open video system services on the widest possible basis to the businesses, institutions and residents of the city;

4. Encourage economic development while preserving aesthetic and other community values and prevent proliferation of above-ground facilities; and

5. Encourage universal access to video programming services for all residents and businesses. (Ord. 04-646 § 1).

14.04.010 Definitions.

For the purposes of this title, the following terms, phrases, words, and abbreviations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. The words “shall” and “will” are mandatory, and “may” is permissive. Words not defined in this title shall have the same meaning as in Title VI of the Communications Act of 1934, as amended, 47 USC Section 521 et seq., and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

“Access,” “PEG access,” or “PEG use” refers to the availability of a cable system or open video system for public, education or government use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals, including the city of Fortuna and its designated access providers, to acquire, create, and distribute programming not under a franchisee’s editorial control, including, but not limited to:

1. “Public access” or “public use” means access where organizations, groups, or individual members of the general public, on a non-discriminatory basis, are the primary or designated programmers or users having editorial control over their communications;

2. “Education access” or “education use” means access where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications;

3. “Government access” or “government use” means access where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications;

“Affiliate” means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person.

“Basic service” means any service tier regularly provided to all subscribers which includes the retransmission of local television broadcast signals.

“Cable Act” means the Cable Communications Policy Act of 1984, 47 U.S.C. Sections 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time.

“Cable communications system” refers to open video systems (OVS) and cable systems.

“Cable service” means:

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

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

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

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

2. A facility that serves subscribers without using, or connecting to a facility that uses, any public right-of-way within the city of Fortuna;

3. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system (other than for purposes of 47 U.S.C. Section 541(c)) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

4. Any facilities of any electric utility used solely for operating its electric utility systems; or

5. An OVS that is certified by the FCC.

Any reference to a cable system includes the cable system as a whole, or any part thereof, including all facilities, pedestals, equipment cabinets, electronic equipment and devices appurtenant to the system.

“Channel” means a portion of the electromagnetic frequency spectrum which is used in a cable system or OVS and which is capable of delivering a television signal whether in an analog or digital format. The definition does not restrict the use of any channel to the transmission of analog television signals or one-way transmission.

“City” means the city of Fortuna in its present incorporated form and all departments, divisions, and agencies thereof, or any later reorganized, consolidated, enlarged, or reincorporated form.

“City manager” means the city manager or the city manager’s designee.

“Construction, operation or repair” and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.

“Downstream channel” means a channel designed and activated to carry a transmission from the headend to other points on a cable communications system, including interconnections.

“FCC” means the Federal Communications Commission.

“Franchise” refers to an authorization granted by the city to the operator of a cable communications giving the operator the non-exclusive right to occupy the space, or use facilities upon, across, beneath, or over public rights-of-way in the city, to provide specified services within a franchise area.

“Franchise area” means the area of the city that a franchisee is authorized to serve by the terms of its franchise or by operation of law.

“Franchisee or grantee” refers to a person holding a cable communications system franchise granted by the city.

“Franchise fee.” In consideration of the grant and exercise of a franchise to construct, install, operate, or provide services using a cable communications system in the public rights-of-way, a grantee shall pay to the city a franchise fee expressed as a percentage of gross revenues. The franchise shall specify the fee to be paid, and the gross revenues to be included in the fee calculation. If a franchise granted pursuant to this title specifies a franchise fee established as the result of limiting applicable law, the city shall have the option to renegotiate the amount of the franchise fee upon a change in applicable law. Nothing herein requires a person to pay amounts in excess of any limits that may be established by state or federal law.

“Gross revenues” means all cash, credits, property, or other consideration of any kind or nature received directly or indirectly by a grantee or its affiliates, from any source whatsoever, arising from, attributable to, or in any way derived from a grantee’s operation of a cable system within the franchise area. Gross revenues include, but are not limited to, fees charged to subscribers for basic service; fees charged to subscribers for any optional, premium, per-channel, or per-program service; monthly fees charged to subscribers for any tier of service other than basic service; installation, disconnection, re-connection, and change-in-service fees; leased channel fees; fees, payments, or other payment received as consideration from programmers for carriage of programming on the cable system; converter rentals or sales; studio rental, production equipment, and personnel fees; advertising revenues, including a per capita share of advertising revenues for advertising carried on more than one cable system; revenues from home shopping channels; sales of programming guides; and such other revenue sources as may now exist or hereafter develop. The definition shall be interpreted in a manner which permits the city to collect the maximum franchise fee permitted by law, irrespective of the source of revenue. Gross revenues, however, shall not include any bad debt (defined as unpaid subscriber or advertiser accounts), any taxes on services furnished to a grantee and imposed directly upon any subscriber or user by the state, city, or other governmental unit and collected by a grantee on behalf of said governmental unit. The amount paid as a franchise fee shall not be deducted from gross revenues unless required to be deducted under federal law.

“License” refers to the legal authorization, terminable at will, to use a particular, discrete, and limited portion of the public rights-of-way to construct, operate, or repair a communications facility.

“Operator,” when used with reference to a system, refers to a person or group of persons (a) who provides service over a cable communications system and directly or through one or more affiliates owns a significant interest in such cable communication system; or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable communication system facility.

“OVS” means an open video system within the meaning of federal law. A reference to an OVS includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the OVS, or installed in conjunction with the OVS.

“Person” includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the city.

“Public property” means any property that is owned or under the control of the city that is not a public right-of-way, including, for purposes of this title, but not limited to, buildings, parks, poles, structures in the public rights-of-way such as utility poles and light poles, or similar facilities or property owned by or leased to the city.

“Public rights-of-way” means the surface of and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, or right-of-way or easement dedicated for compatible uses, now or hereafter existing within the city which may be properly used for the purpose of installing, maintaining, and operating a cable communications system; and any other property that a franchisee is entitled by state or federal law to use by virtue of the grant of a franchise.

“Revocation” means the city’s affirmative act of terminating a franchise.

“School” means any accredited primary school, secondary school, college, and university.

“Subscriber” means the city or any person who is lawfully receiving, for any purpose or reason, any cable service via a cable communications system, whether or not a fee is paid for such service.

“Termination” means the conclusion of a franchise by any means, including, but not limited to, by expiration of its term, abandonment, or revocation.

“Transfer” means any transaction in which: (1) all or a portion of any cable communication system or any rights to use or operate facilities located in the public rights-of-way are sold, conveyed, transferred, assigned, encumbered (except as set forth herein) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise; or (2) there is any change, acquisition, or transfer in the identity of the person in control of the grantee, or any person that controls the grantee, including, without limitation, forced or voluntary sale, merger, consolidation, or receivership; or (3) the rights or obligations under the franchise are sold, conveyed, transferred, assigned, encumbered (except as set forth herein) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise. It will be presumed, for purposes of clause (2) above, that any transfer or cumulative transfer of a voting interest by a person or group of persons acting in concert of 10 percent or more of the grantee, or person that controls the grantee, or any change in the managing general partners of a grantee is a change of control. “Transfer” does not include: (1) a lease of channel capacity pursuant to 47 U.S.C. Sections 532 or 573; (2) the transmission of a commodity or electronic signal using facilities on a common carrier basis; (3) a lease or other right to use the cable communications system mandated pursuant to 47 U.S.C. Section 224; or (4) a pledge in trust, mortgage or other encumbrance against the cable communications system, or any portion thereof, given to a bona fide institutional lender in connection with a loan or other financing required to secure the construction, operation, or repair of the cable communications system (“loan”) provided that such loan is subject to the rights and powers of the city pursuant to the franchise and applicable law, including, without limitation, the right of the city to approve any transfer upon foreclosure. “Transferring” and “transferee” shall have correlative meanings.

“Upstream channel” means a channel designed and activated to carry transmissions from a point on the cable communications system, other than the headend, to the headend or another point on the cable communications system.

“User” means a person or the city utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber. (Ord. 04-646 § 1 (1.1)).

14.04.020 Franchise required.

No person may construct or operate a cable communications system in the city without first obtaining a grant of a franchise from the city. (Ord. 04-646 § 1 (1.2)).

14.04.030 Exceptions to franchise requirement.

The following persons or entities shall not be required to obtain a franchise under this title:

A. The city of Fortuna;

B. A UVPP (unaffiliated video program provider) that is only delivering cable service or other communications service (as that term is used in 47 U.S.C. Section 542(h)) to subscribers. (Ord. 04-646 § 1 (1.3)).

14.04.040 Failure to obtain a franchise.

Consistent with the requirements of due process, a person’s failure to obtain a franchise as required by this title may, in the city’s discretion, result in:

A. Forfeiture, by operation of law, of the person’s cable communication system located in the public rights-of-way that is not authorized by an existing franchise; and/or

B. A requirement that the cable communication system be removed, and that penalties and damages be paid. (Ord. 04-646 § 1 (1.4)).

14.04.050 Existing franchises.

Grantees of franchises existing as of the effective date of this title shall, in addition to all the obligations and duties prescribed by the terms of their existing franchises, be subject to the substantive and procedural requirements herein, except as prohibited by applicable law. Nothing herein is intended to invalidate a lawful, existing franchise or to waive any obligations imposed by such a franchise. Notwithstanding the foregoing, provisions of this title that expressly refer to a “franchise granted pursuant to this title” shall not apply to franchises initially granted prior to the effective date of this title. (Ord. 04-646 § 1 (1.5)).

14.04.060 Form of franchise.

A franchise shall be issued in the form of written agreement, approved by resolution of the city council, and must be accepted by the franchisee to become effective. (Ord. 04-646 § 1 (1.6)).

14.04.070 Filing an application.

A person seeking to (1) obtain a franchise, (2) transfer a franchise, (3) extend the term of an existing franchise, (4) renew a franchise, or (5) modify an existing franchise to add new services that are required to be authorized by a franchise pursuant to this title, shall submit a signed original of its application and six copies to the city manager. The city manager shall make a proposal available for public inspection. The application must conform to all of the requirements of this title. Requests for other types of franchise modifications may be processed by the city without an application, and submitted for approval. However, nothing herein shall prevent the city from requiring an application in the event the city determines, based on the nature of the requested modification, that the public interest would best be served by the submission of an application pursuant to this title. (Ord. 04-646 § 1 (1.7)).

14.04.080 Application fee.

A. Reasonable Costs. An applicant shall pay all reasonable costs incurred by the city related to the processing of any application. Processing costs shall include, but not be limited to, the costs of services rendered by any city employee, agent or representative, including consultants and attorneys.

B. The initial deposit of the application fee for the consideration of an application for issuance, renewal, transfer, or modification of a franchise shall be in the amount of $5,000, or for a license in the amount of $1,000, which deposit shall be submitted with the application. The city of Fortuna may, as costs are incurred, draw upon the deposit to recover its administrative costs, including, but not limited to, the reasonable cost of outside consultants retained by the city related to the city’s consideration and processing of a franchise or license. The city manager, at any time, may require the applicant to deposit additional sums if it appears that the initial deposit or subsequent deposits will be exhausted prior to the final action by the city relating to the consideration by the city of an application for issuance, renewal, transfer, or modification of a franchise or license. The applicant will not be entitled to further consideration by the city of Fortuna of its requested action until such time as the additional deposit required by the city manager has been deposited with the city. In the event the amount of the deposit of an applicant is in excess of the amount of the administrative expenses of the city related to the action requested, then the applicant shall be entitled to a return of any such excess amount. In addition, an applicant that is awarded a franchise or a license shall pay the city a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise or license. Such payment shall be made to the auditor-controller of the city within 30 days after the city furnishes the franchisee or licensee with a statement of such expenses. (Ord. 04-646 § 1 (1.8)).

14.04.090 Nature of franchise.

A. Scope. A franchise granted pursuant to this title shall authorize and permit a franchisee to construct, operate, maintain and repair a cable system, or an OVS (as applicable) to provide cable service in the city, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain facilities appurtenant to such system in, on, over, under, upon, across, and along the public rights-of-way, and along such other public property that the city may authorize a franchisee to use.

B. Nothing Passes by Implication. A franchise shall not convey rights other than as specified in this title, or in a franchise agreement; no rights shall pass by implication.

C. Franchise Not in Lieu of Other Authorizations. A franchise shall not include, or be a substitute for:

1. Compliance with requirements for the privilege of transacting and carrying on a business within the city, including, but not limited to, complying with the conditions the city may establish before constructing facilities for, or providing, non-cable services;

2. Any permit, agreement or authorization required in connection with operations on or in public rights-of-way or public property, including by way of example and not limitation, encroachment permits for street construction;

3. Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the franchise.

D. Franchisee Must Comply with Other Laws. A franchise does not relieve a franchisee of its duty to comply with all the city ordinances and regulations, and every franchisee must comply with the same. Likewise, the rights granted under a franchise are subject to the exercise of police and other powers the city now has or may later obtain, including but not limited to the power of eminent domain. Every franchise shall be deemed to incorporate all the requirements of the city charter.

E. Franchise Not a Grant of Property Rights. A franchise does not convey title, equitable or legal, in the public rights-of-way. Rights granted may not be subdivided or subleased.

F. Franchise Nonexclusive. No franchise shall be exclusive, or prevent the city from issuing other franchises or authorizations, or prevent the city from itself constructing, operating, or repairing its own cable communications system with or without a franchise.

G. Franchise Term. Every franchise shall be for a term of years, which term shall be eight years, unless a franchise specifies otherwise.

H. Costs Borne by Franchisee. Unless otherwise specifically stated in a franchise, or is required or permitted by law, all acts which a franchisee is required to perform under the franchise or applicable law must be performed at the franchisee’s expense.

I. Failures to Perform. If a cable communications system operator fails to perform work that it is required to perform within the time provided for performance, the city may perform the work and bill the operator therefor. The operator shall pay the amounts billed within 30 days. (Ord. 04-646 § 1 (1.9)).

14.04.100 Administration of ordinance – Adoption of regulations.

A. Adoption of Regulations. The city of Fortuna may from time to time adopt regulations to implement the provisions of the ordinance codified in this title. The ordinance codified in this title, and any regulations adopted pursuant to the ordinance codified in this title, are not contracts with any franchisee, and may be amended at any time. Nothing in this section shall affect a franchisee’s right to challenge the lawfulness or applicability of a future exercise of the police or legislative power of the city.

B. Delegation. The city of Fortuna city manager or their designee(s) are hereby authorized to administer the provisions of the ordinance codified in this title and any franchise issued pursuant thereto, and to provide any notices (including noncompliance notices) and to take any action on the city’s behalf that may be required hereunder or under applicable law.

C. No Waiver. The failure of the city, upon one or more occasions, to exercise a right or to require compliance or performance under a franchise or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing.

D. Administration of Public, Educational and Government Access. The city may designate one or more entities, including itself, to control and manage the use of public, educational and government access channels, facilities and equipment. (Ord. 04-646 § 1 (1.10)).

14.04.110 Transfers.

A. Prior Approval Required. Every franchise shall be deemed to be held in trust, and to be personal to the franchisee. Any transfer that is made without the prior approval of the city shall be deemed invalid.

B. Exception for Mortgages. Notwithstanding any other provision of this title, pledges in trust or mortgages of the assets of a cable communications system to secure the construction, operation, or repair of the system may be made without application and without the city’s prior consent. However, no such arrangement may be made without the city’s prior consent if it would in any respect, under any condition: (1) prevent the cable communications system operator or any successor from complying with the franchise or applicable law; or (2) permit a third party to succeed to the interest of the operator, or to own or control the system, without the prior consent of the city. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the city under any franchise, this title, or other applicable law. (Ord. 04-646 § 1 (1.11)).

14.04.120 General conditions upon construction, operation and repair.

A. Franchisee Must Follow Local Rules. The construction, operation, and repair of cable communications systems shall be performed in compliance with all lawful and applicable laws, ordinances, departmental rules, regulations, and practices affecting such system. By way of example, and not limitation, this includes zoning and safety codes, construction standards, regulations for providing notice to persons that may be affected by system construction, and directives governing the time, place and manner in which facilities may be installed in the public rights-of-way. Persons engaged in the construction, operation, or repair of communications facilities shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.

B. No Permit Without Franchise. A franchise is required before a permit may be issued for work associated with the construction of a cable communications system. Any permit issued for such work to, or on behalf of, a person that does not hold a franchise shall vest no rights in the permittee; the permit may be revoked at will, and the permittee shall remove all facilities installed under the permit upon the city’s demand.

C. Permits Must Be Obtained. Construction, operation, or repair of a cable communications system shall not commence until all required permits have been obtained from the proper city officials and all required fees have been paid. All work performed will be performed in strict accordance with the conditions of the permit. Upon order of the city, any work and/or construction undertaken that is not completed in compliance with the city’s requirements, or which is installed without obtaining necessary permits and approvals shall be removed.

D. No Interference. Interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems, must be minimized. The city may require a person using the public rights-of-way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the public rights-of-way.

E. Plans For and Publicizing Work. Work shall be publicized as the city may direct from time to time. The publication of work may be used to notify the public and operators of other communications systems, of the impending work, in order to minimize inconvenience and disruption to the public.

1. Each cable communications system operator shall provide the city a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected.

2. The city may from time to time, when the city receives application for a permit to use a particular route, or upon its own initiative, designate by published order a route or proposed route for installation of communications facilities and may (1) require all persons who wish to emplace underground facilities along that route or any part thereof to install them during a specified period and (2) otherwise prohibit emplacement of such facilities along the route or any part thereof for 24 months or after such other, longer period as is necessary to protect the public interest.

F. Existing Poles to Be Used. To the extent possible, operators of cable communications systems shall use existing poles and conduit. Additional poles may not be installed in the right-of-way, nor may pole capacity be increased by vertical or horizontal extenders, without the permission of the city.

1. To minimize disruption of public passage or infrastructure, to forestall or relieve exhaustion of public rights-of-way capacity, or to protect environmentally sensitive areas, the city may require as a condition of issuing any public rights-of-way permit for erection of new poles or construction of underground conduit, the installation of which requires excavation of or along any traveled way, that the franchisee, licensee, or holder of the rights-of-way permit emplace pole space or empty conduits in excess of its own present and reasonably foreseeable requirements for the purpose of accommodating the city and/or other franchisees and licensees.

G. Undergrounding.

1. Whenever all existing utilities are located underground in an area in the city, every cable communications system operator in the same area must locate its cable communications system underground

2. Whenever the owner of a pole locates or relocates underground within an area of the city, every cable communications system operator in the same area shall concurrently relocate its facilities underground.

3. The city of Fortuna city manager may, for good cause shown, exempt a particular system or facility or group of facilities from the obligation to locate or relocate facilities underground, where relocation is impractical, where ordinary engineering practices making undergrounding impractical, or where the city and the subscriber’s interest can be protected in another manner. Nothing in this section prevents the city from ordering communications facilities to be located or relocated underground under other provisions of the city code.

H. Prompt Repairs. Any and all public rights-of-way, other public property, or private property that is disturbed or damaged during the construction, operation, maintenance or repair of a cable communications system shall be promptly repaired by the operator. Public property and public rights-of-way must be restored to the satisfaction of the city and to a condition as good or better than before the disturbance or damage occurred. No tree trimming shall be performed without the permission of the city and other affected authorities, and any tree trimming must be performed in strict accordance with the city code.

I. Movement of Facilities for Government.

1. A cable communications system operator shall, within a reasonable period of time specified by the city, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the city by reason of traffic conditions; public safety; public right-of-way construction and repair (including regrading, resurfacing or widening); public right-of-way vacation; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned system or utility, public work, public facility, or improvement; or for any other purpose where the work involved would be aided by the removal or relocation of the cable communications system. Collectively, such matters are referred to below as the “public work.”

2. The city shall provide written notice describing where the public work is to be performed as far in advance as reasonably possible but in any event at least one week prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities. Such action on the part of the franchisee shall be undertaken at no cost to the city. Provided that, in an emergency where a cable communications system creates or is contributing to an imminent danger to health, safety, or property, the city need not provide one week’s written notice but should make an effort to contact the franchisee by telephone to enable the franchisee to take prompt action. After such effort on the part of the city to contact the franchisee by telephone, the city may protect, support, temporarily disconnect, remove, or relocate any or all parts of the cable communications system without further notice, and charge the cable communications system operator for costs incurred.

J. Movement for Others.

1. To accommodate the construction, operation, or repair of the facilities of another person authorized to use the public rights-of-way or public property, a franchisee shall, by a reasonable time specified by such person, protect, support, temporarily disconnect, temporarily relocate or temporarily remove its facilities. The franchisee must be given written notice describing where the construction, operation or repair is to be performed at least 15 days prior to the time by which its work must be completed.

2. A cable communications system operator shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires by a time specified to permit the moving of buildings or other objects. A cable communications system operator shall be given not less than seven days’ advance notice to arrange for such temporary wire changes. The reasonable costs associated with of such temporary removal, relaying, relocation, or raising or lowering of wires shall be paid in advance by the person requesting the same.

K. Abandonment in Place.

1. A cable communications system operator may abandon any property in place in the public rights-of-way upon written notice to the city. However, if, within 90 days of the receipt of written notice of abandonment, the city determines that the safety, appearance, functioning or use of the public right-of-way and facilities in the public right-of-way will be adversely affected, the property must be removed by a date specified by the city.

2. A cable communications system operator that abandons its property must, upon request, transfer ownership of the properties to the city at no cost, and execute necessary quitclaim deeds and indemnify the city against future costs associated with mitigating or eliminating any environmental hazard associated with the abandoned property.

L. System Subject to Inspection. Every cable communications system facility shall be subject to inspection and testing by the city upon reasonable prior notice and conditions. Each operator must respond to requests for information regarding its system and plans for the system as the city may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired.

M. Underground Services Alert. Each operator of a cable communications system that places facilities underground shall be a member of the regional notification center for subsurface installations (underground services alert) and shall field mark the locations of its underground communications facilities upon request. The operator shall identify the location of its cable communication system for the city at no charge

N. Plan for Construction. Every franchise shall specify for the city a construction schedule that will apply to any required construction, upgrade, or rebuild of the cable communications system. The schedule shall provide for the prompt completion of the project, shall show its timetable for construction of each phase of the project, with benchmarks for deliverables and the areas of the city that will be affected. The city shall have the right to impose penalties on the operator for a failure to meet the accepted timetable and benchmarks.

O. Use of Facilities by the City of Fortuna. The city shall have the right to install and maintain, free of charge upon any poles or in any conduit owned by a franchisee, any wire and pole fixtures that do not unreasonably interfere with the cable service operations of the franchisee. (Ord. 04-646 § 1 (1.12)).

14.04.130 Protection of the city of Fortuna and residents.

A. Indemnity Required. No franchise shall be valid or effective until and unless the city obtains an adequate indemnity from the franchisee. The indemnity must:

1. Release the city from and against any and all loss, damage, expense, cost (without limitation, the cost of litigation), liability and responsibility in or arising out of the construction, operation or maintenance of the cable communications system. Each cable communications system operator must further agree not to sue or seek any money or damages from the city in connection with the above mentioned matters.

2. Indemnify, hold harmless, and defend the city, its elected and appointed officers, agents, and employees, from and against any and all liability, loss, damage, cost, claims, demands, or causes of action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys’ fees, liabilities, damages, orders, judgments, or decrees sustained by the city or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the cable communications system operator, or its agents, independent contractors or employees related to or in any way arising out of the construction, operation or repair of the system.

3. Provide that the covenants and representations relating to the release, indemnification, and hold harmless provision shall survive the term of the franchise or other authorization and continue in full force and effect as to the party’s responsibility to indemnify.

B. Insurance Required. A franchisee (or those acting on its behalf) shall not commence construction or operation of the system without obtaining insurance in amounts and of a type reasonably satisfactory to the city. The required insurance must be obtained and maintained for the entire period the franchisee has facilities in the public rights-of-way. If the franchisee, its contractors, or subcontractors do not have the required insurance, the city may order such entities to stop operations until the insurance is obtained and approved.

C. Proof. Certificates of insurance and endorsements, reflecting evidence of the required insurance and naming the city as an additional insured, and other proofs as the city may find reasonably necessary, shall be filed with the city. For persons issued franchises after the effective date of the ordinance codified in this title, certificates and other required proofs shall be filed within 30 days of the issuance of a franchise, prior to the commencement of construction, once a year thereafter, and whenever there is any change in coverage. For entities that have facilities in the public rights-of-way as of the effective date of this title, the certificate and endorsements shall be filed within 60 days of the effective date of this title, annually thereafter, and whenever there is any change in coverage, unless a pre-existing franchise provides for filing of certificates and/or endorsements in a different manner. In the event that the insurance certificate and/or endorsements provided indicates that the insurance shall terminate or lapse during the term of the franchise or license, then in that event, the cable communications system operator shall furnish, at least 30 days prior to the expiration date of such insurance, a renewed certificate of insurance and endorsement as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the franchise or license under which the cable communications system operates.

D. Certificate Contents. All certificates and/or endorsements shall contain a provision that coverages afforded under these policies will not be canceled until at least 30 days’ prior written notice has been given to the city. Policies shall be issued by companies authorized to do business under the laws of the state of California. Financial ratings of the insurer shall be no less than “A” VII or better in the latest edition of “Bests Key Rating Guide,” published by A.M. Best Guide.

E. Insurance Amounts. A cable communications system operator (and those acting on its behalf to construct or operate the system) shall maintain the following minimum insurance. The city shall be named as an additional insured by endorsement on the general liability and automotive policies; those insurance policies shall be primary and contain a cross-liability clause.

1. Comprehensive general liability insurance to cover liability, bodily injury, and property damage. Exposures to be covered are: premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability:


Bodily Injury
1. Each Occurrence	$1,000,000
2. Annual Aggregate	$3,000,000
Property Damage
1. Each Occurrence	$1,000,000
2. Annual Aggregate	$3,000,000
Personal Injury
Annual Aggregate	$3,000,000

Completed operations and products liability shall be maintained for two years after the termination of the franchise or license (in the case of the cable communications system owner or operator) or completion of the work for the cable communications system owner or operator (in the case of a contractor or subcontractor).

Property damage liability insurance shall include coverage for the following hazards: X – explosion, C – collapse, U – underground.

2. Workers’ compensation insurance shall be maintained during the life of this contract to comply with statutory limits for all employees, and in the case any work is sublet, each cable communications system operator shall require the subcontractors similarly to provide workers’ compensation insurance for all the latter’s employees unless such employees are covered by the protection afforded by each cable communications system operator. Each cable communications system operator and its contractors and subcontractors shall maintain during the life of this policy employers liability insurance. Workers’ compensation insurance shall include a waiver of subrogation clause in favor of the city. The following minimum limits must be maintained:


Workers’ Compensation	Statutory
Employer’s Liability	$500,000 per occurrence

3. Comprehensive auto liability:


Bodily Injury
1. Each Occurrence	$1,000,000
2. Annual Aggregate	$3,000,000
Property Damage
1. Each Occurrence	$1,000,000
2. Annual Aggregate	$3,000,000

Coverage shall include owned, hired, and non-owned vehicles. In every franchise or license agreement the city shall reserve the right to require any other insurance coverage it deems necessary depending upon exposures.

F. Performance Bond. Every operator of a cable communications system shall obtain and maintain a performance bond to ensure the faithful performance of its responsibilities under this title and any franchise. The amount of the performance bonds shall be set by the city franchise, but shall not be less than 10 percent of the estimated cost of constructing or (in the case of existing systems) upgrading the system, and shall include a sufficient amount to cover the removal of facilities and/or restoration of city facilities within the right-of-way. The bond is not in lieu of any additional bonds that may be required through the permitting process. The bond shall be in a form reasonably acceptable to the city attorney and risk manager. Bonds must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.

G. Security Fund. Every cable communications system operator shall establish and maintain a cash security fund or provide the city an irrevocable letter of credit in the amount of $100,000 to secure the payment of fees owed, to secure any other performance promised in a franchise, and to pay any taxes, fees, penalties or liens owed to the city. The letter of credit shall be in a form and with an institution acceptable to the city. Should the city draw upon the cash security fund or letter of credit, the cable communications system operator shall, within 14 days, restore the fund or the letter of credit to the full required amount. This security fund/letter of credit may be waived or reduced by the city for a franchisee where the city determines in its discretion that a particular franchisee’s operations are sufficiently limited that a security fund/letter of credit is not necessary to secure the required performance. The city may from time to time require a franchisee to change the amount of the required security fund/letter of credit to reflect changed risks to the city and to the public, including delinquencies in taxes or other payments to the city. The cash security fund or letter of credit must be obtained prior to the effective date of any franchise, license, transfer or franchise renewal, unless a franchise specifically provides otherwise. (Ord. 04-646 § 1 (1.13)).

14.04.140 Enforcement and remedies.

A. Franchise Violation – Notice and Procedures. Before revoking a franchise or issuing an order to assess liquidated damages, the city shall follow the procedures set forth below:

1. The city shall notify a cable communications system operator in writing of any alleged violation (“violation notice”) of a franchise or the ordinance codified in this title. The violation notice shall: (a) identify the violation; (b) direct the cable communications system operator to cure the violation or show cause why the violation cannot or should not be cured; and (c) state the time for the cable communications system operator’s response, which shall be at minimum 30 days from the date of issuance of the violation notice, except for violations that present a danger to public health, safety or welfare, in which case the time for response may be shortened.

2. Within the time period designated for response, the cable communications system operator shall respond in writing to the city indicating that: (a) the cable communications system operator intends to contest the violation notice and describing all facts relevant to its claim; or (b) the cable communications system operator has completely cured the violation, in which case the cable communications system operator shall provide documentation demonstrating that the violation has been completely cured; or (c) the cable communications system operator has begun to correct the violation, however, the violation cannot be corrected immediately despite the cable communications system operator’s continued due diligence, in which case the operator shall describe in detail the steps already taken and the operator’s proposed plan and time schedule for completely curing the violation. Correction of the violation is not complete until all damages and penalties owed are paid in full.

3. If the cable communications system operator contests the violation notice or the city determines that the cable communications system operator has failed to completely cure the violation, to submit an acceptable plan to cure the violation, or to work diligently to cure the violation, the city shall schedule a hearing before the city council (“violation hearing”). The city shall provide the cable communications system operator written notice of the violation hearing at least 20 days prior to the hearing (“hearing notice”).

4. The hearing notice shall indicate: (a) the time and place of the violation hearing; (b) the nature of the violation; and (c) the cable communications system operator’s right to present oral and written testimony at an open and public meeting.

5. At the violation hearing, the board of supervisors shall hear and consider evidence from the cable communications system operator, city staff and members of the public regarding the alleged violation. The cable communications system operator shall be given an opportunity to present any and all evidence relating to the alleged violation.

6. If, based upon the evidence presented at the violation hearing, the city council finds that the cable communications system operator has violated a franchise, the ordinance codified in this title, or any applicable state or federal law, the board of supervisors may issue an order assessing liquidated damages if provided for by the cable communications system operator’s franchise, or, subject to subsection (B) of this section and the terms of the cable communications system operator’s franchise, revoke or shorten the franchise.

B. Revocation and Termination. The city council may revoke a franchise or reduce the term of a franchise if it finds, after complying with procedures set forth above, that a cable communications system operator has violated this title or its franchise or license; has defrauded or attempted to defraud the city or subscriber; or has attempted to evade the requirements of this title or its franchise or license. Except as to violations that are impossible to cure, and as provided in subsections (C) and (D) of this section, the franchise may only be revoked if the franchisee (1) was given notice of the default; and (2) was given 30 days to cure the default; and (3) the franchisee failed to cure the default, or to propose a schedule for curing the default acceptable to the city where it is impossible to cure the default in 30 days.

C. Exception for Certain Acts. No opportunity to cure is required for repeated violations, and fraud and attempted fraud shall be deemed incurable. Further, the city may declare a franchise forfeited without opportunity to cure where a franchisee (1) voluntarily stops providing service it is required to provide; or (2) transfers the franchise without the prior consent of the city.

D. Exception for Bankruptcy. A franchise will terminate automatically by force of law 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the franchise may be reinstated within that 120-day period, if: (1) such assignment, receivership or trusteeship has been vacated; or (2) such assignee, receiver or trustee has fully complied with the terms and conditions of this title and the franchise, and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this title and the franchise. In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the city may revoke the franchise following a public hearing before the city council by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges thereunder will be revoked and will terminate 30 calendar days after serving such notice, unless: (1) the city has approved the transfer of the franchise to the successful bidder; and (2) the successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the franchise and this title.

E. Effect of Termination or Forfeiture. Upon termination or forfeiture of a franchise, whether by action of the city as provided above, or if a franchise expires and is not renewed, the franchisee must stop using the cable communications system for the purposes authorized by the franchise. The city may take possession of some or all of franchisee’s facilities, or require the franchisee or its bonding company to remove some or all of the franchisee’s facilities from the city’s property, and restore affected property to its same or better condition. This provision does not permit the city to remove facilities that are used to provide another service for which the franchisee holds a valid franchise issued by the city or if franchisee’s facilities are otherwise lawfully located on the city property pursuant to applicable local, state or federal law.

F. Remedies Cumulative. Remedies provided for under this title or under a franchise shall be cumulative. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, does not limit a franchisee’s duty to indemnify the city; or relieve a franchisee of its franchise obligations or limit the amounts owed to the city.

G. Liquidated Damages Required in Franchise. A franchise granted pursuant to this title shall require liquidated damages, in an amount to be specified in the franchise, for specified breaches of the franchise including, but not limited to, failure to commence construction, failure to meet construction plan benchmarks, failure to comply with rebuild plan benchmarks, failure to commence service, and material breach of franchise obligation(s). The franchise shall also provide that the city may withdraw liquidated damages owed from the grantee’s security deposit, after complying with the procedures set forth in subsection (A) of this section. Liquidated damages shall commence on that date that performance was due and/or failed, and continue until the grantee demonstrates to the satisfaction of the city that the grantee has fully performed its obligations giving rise to the payment of liquidated damages. Any obligation to pay liquidated damages does not in any way affect the grantee’s obligation to pay franchise fees or perform other franchise obligations and such liquidated damages do not constitute franchise fees and are not subject to any limitations on franchise fees contained in 47 U.S.C. Section 542(b). Grantee acknowledges that any obligation to pay liquidated damages are not costs of satisfying franchise requirements as provided in 47 C.F.R. Section 76.925. Grantee agrees it will not pass the cost of any liquidated damages to subscribers through subscriber rates or itemize or otherwise identify on subscriber bills any obligation grantee may have to pay liquidated damages.

H. Penalties, Fines and Other Monetary Sanctions.

1. Penalties. In addition to any other remedies provided for in this title or otherwise available by law, the city shall have the power to impose monetary penalties in the event a grantee violates any provision of this title, a franchise, or any regulation lawfully adopted thereunder. The amounts of such penalties shall be specified in the franchise and shall be based on the following principles:

a. Penalties shall exceed the financial benefits to a grantee delaying or failing to comply with the applicable requirement;

b. Even where such benefits are not easily discernible, the penalties shall be high enough to have a significant deterrent effect on a grantee; and

c. Penalties shall be sufficient to protect the city and other affected parties against loss of revenues resulting from violations.

2. Other Monetary Sanctions. A franchise shall also provide for fines, liquidated damages and other monetary sanctions, the amounts of which shall also reflect the foregoing principals.

3. Private Suit Against Grantee.

a. Any person or organization adversely affected by a violation, or by a pattern and practice of violations, shall have the right to sue a grantee in a court of competent jurisdiction for damages and for injunctive and other relief to require enforcement of the franchise. Organizations shall be entitled to sue on behalf of themselves or their members.

b. The remedy herein provided shall be in addition to any remedies provided by law.

c. Except in emergency situations in which immediate relief is required, private litigants shall notify the city attorney not fewer than 10 days prior to filing suit. However, suit by the city shall not preempt the private litigant’s right to proceed.

4. Except as otherwise provided herein, any person who violates any provisions of this title shall be subject to a fine not to exceed $500.00 for each offense; each day of said violation shall constitute a separate offense. (Ord. 04-646 § 1 (1.14)).

14.04.150 Books and records.

A. Generally. Each cable communications system operator shall provide the city access to books and records related in whole or in part to the construction, operation, or repair of the cable communications system, or a group of systems of which the system is a part, so that the city may inspect and copy these books and records. The records include, but are not limited to revenue records, and other records related to compliance with any provision of this title or a franchise. A franchisee is responsible for obtaining or maintaining the necessary possession or control of all such books and records, so that it can produce the documents upon request. Books and records must be maintained for a period of five years, except that a franchise may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials. The phrase “books and records” shall be read expansively to include information in whatever format stored.

B. Production. Books and records requested shall be produced to the city by a time and at a location in the city designated by the city manager. However, if the requested books and records are too voluminous, or for security reasons cannot be copied and moved, then the franchisee may request that the inspection take place at some other location mutually agreed to by the city and the franchisee, provided that (1) the franchisee must make necessary arrangements for copying documents selected by the city after its review; and (2) the franchisee must pay all travel and additional copying expenses incurred by the city (above those that would have been incurred had the documents been produced in the city) in inspecting those documents or having those documents inspected by its designee. (Ord. 04-646 § 1 (1.15)).

14.04.160 Reports.

A. Obligation to Submit. The city manager may from time to time direct a franchisee to prepare reports and to submit those reports by a date certain, in a format prescribed by the city manager, in addition to those required by this title for the purpose of ensuring compliance with the provisions of the ordinance codified in this title and the franchise.

B. Quarterly Reports. Unless an exemption is granted by the city manager, within 45 days of the end of each calendar quarter, a franchisee shall submit a report to the city containing the following information:

1. The number of service calls (calls requiring a truck roll) received during the prior quarter and the percentage of service calls compared to the subscriber base; and

2. The total estimated hours of known outages as a percentage of total hours of operation. An outage is a loss of sound or video on any signal, or a significant deterioration of any signal affecting two or more subscribers.

C. Annual Reports. Unless an exemption is granted by the city manager, no later than 120 days after the end of its fiscal year a franchisee shall submit the following information:

1. A revenue report from the previous calendar year for the cable communications system, certified by an officer of the franchisee and a similarly certified statement setting forth the computation of gross revenues used to calculate the franchise fee for the preceding year and a detailed explanation of the method of computation showing (i) gross revenues by category (e.g., basic, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); and (ii) what, if any, deductions were made from gross revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction.

2. A report showing, for each applicable customer service standard, the franchisee’s performance with respect to that standard for each quarter of the preceding year. In each case where franchisee concludes it did not comply fully, the franchisee will describe the corrective actions it is taking to assure future compliance. In addition, the report should identify the number and nature of all the customer service complaints received and an explanation of their dispositions.

3. An ownership report, indicating all persons who at the time of filing control or own an interest in the franchisee of 10 percent or more.

D. Contemporaneous Reports. Within 10 days of their receipt or (in the case of documents created by the operator or its affiliate) filing, a franchisee shall provide the city:

1. Notices of deficiency or forfeiture related to the operation of the system; and

2. Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly. (Ord. 04-646 § 1 (1.16)).

14.04.170 Maps required.

Each franchisee shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the public rights-of-way and any power supply sources (including voltages and connections). Maps shall be based upon post-construction inspection to verify location. Each franchisee shall provide a map to the city showing the location of its facilities, in such detail and scale as may be directed by the city public works director and update the map at least annually, and whenever the facility expands or is relocated. Copies of maps shall be provided in hard copy and on disk, in a commercially available electronic format specified by the city public works director. Any disk provided to the city shall be returned to the franchisee after information contained therein is entered into the city’s electronic mapping or other similar such system. (Ord. 04-646 § 1 (1.17)).

14.04.180 Other records required.

Unless the city manager waives the requirement, a franchisee shall at all times maintain:

A. Complaint Records. Records of all complaints received, their nature and resolution. The term “complaints” refers to complaints about any aspect of the franchisee’s operations or customer service.

B. Outage Records. Records of outages known to the franchisee, their cause and duration.

C. Complaint Response. Records of service calls for repair and maintenance indicating the date and time service was requested, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved.

D. Installation Records. Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended.

E. Customer Service. Records sufficient to show whether the franchisee has complied with each customer service standard that applies to it. (Ord. 04-646 § 1 (1.18)).

14.04.190 Exemptions.

The city manager may temporarily exempt any franchisee from its obligations under FMC 14.04.150 through 14.04.180 if the manager determines that the requirement would be unduly burdensome or unnecessary, and that the city and subscriber interests may be adequately protected in some other manner. (Ord. 04-646 § 1 (1.19)).

14.04.200 Privacy.

A franchisee shall take all reasonable steps required so that it is able to provide reports, books and records to the city, including by providing appropriate subscriber privacy notices. Each franchisee shall be responsible for redacting data that applicable law prevents it from providing to the city. Nothing in this section shall be read to require a franchisee to violate state or federal subscriber privacy laws. (Ord. 04-646 § 1 (1.20)).

14.04.210 Procedures for paying franchise fees and fees in lieu of franchise fees.

A. Fees Paid Quarterly. The franchise fee paid pursuant to Chapter 14.08 FMC, or fee in lieu of franchise fee paid pursuant to Chapter 14.12 FMC shall be paid quarterly unless otherwise specified in a franchise. Payment for each quarter shall be made to the city not later than 45 days after the end of each calendar quarter.

B. Quarterly Statement. Unless a franchise provides otherwise, a franchisee or other entity subject to a fee under Chapters 14.08 or 14.12 FMC shall file with the city within 45 days of the end of each calendar quarter a statement showing gross revenues during the preceding quarter and the number of subscribers served.

C. Acceptance of Payment Not a Release. No acceptance by the city of Fortuna of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such payment be construed as a release of any claim the city may have for additional sums payable.

D. Fee Not in Lieu of Taxes. Neither the franchise fee under Chapter 14.08 FMC, nor the fee paid in lieu of the franchise fee under Chapter 14.12 FMC, is a payment in lieu of any tax, fee or other assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and cable operators or their services, but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscriber(s).

E. Failure to Pay Franchise Fee. In the event that a fee payment is not received by the city on or before the due date set forth in this section or in a franchise, or the fee owed is not fully paid, the person subject to the fee will be charged interest from the due date at an interest rate equal to three percent above the rate for three-month Federal Treasury Bills at the most recent United States Treasury Department sale of such Treasury Bills occurring prior to the due date of the franchise fee payment.

F. Final Statement of Gross Revenues. Within 90 days of the date a franchisee ceases operations under a franchise (whether because of franchise termination, transfer, bankruptcy or for any other reason), the franchisee shall file a final statement of gross revenues covering the period from the beginning of the calendar year in which the operations ceased to the date operations ceased. The statement shall contain the information and be certified as required by FMC 14.04.160(C)(1). (Ord. 04-646 § 1 (1.21)).