Chapter 5.25 CABLE COMMUNICATIONS

This chapter may be referred to and cited as the “Fremont cable communications customer service standards and franchise compliance ordinance.” (Ord. 2063 § 1, 2-8-94. 1990 Code § 5-7100.)

5.25.020 Authority.

(a) This chapter is enacted pursuant to the authority provided in the federal Cable Communications Policy Act of 1984, the federal Cable Television Consumer Protection and Competition Act of 1992, the federal Telecommunications Act of 1996, and the California Video Customer Services Act of 1992 (Cal. Gov’t Code §§ 53066 et seq.) as such legislation may hereafter be amended and may be supplemented by regulations published thereunder.

(b) Any and all franchises granted by the city shall be subject to the requirements, standards and provisions of this chapter. However, the holder of any existing franchise shall implement and be subject to all requirements, standards and provisions of this chapter commencing 60 days after the effective date of this chapter. In the event that a direct and specific conflict may exist between the terms of this chapter and the terms of any franchise, the terms of such franchise shall prevail. (Ord. 2063 § 1, 2-8-94; Ord. 2360 § 1, 10-26-99. 1990 Code § 5-7105.)

5.25.030 Definitions.

Application and interpretation of this chapter shall be based upon the definition of terms as set forth in the existing CATV Ord. No. 615; provided, that at such time that the council shall adopt a new cable communications ordinance, all definitions therein shall apply to the interpretation of this chapter. (Ord. 2063 § 1, 2-8-94. 1990 Code § 5-7110.)

5.25.040 Local office business hours.

(a) Each grantee’s local office shall be centrally located within Fremont and shall remain open during normal business hours, which shall consist of at least nine hours per day each weekday, two additional evening hours on at least one weekday each week and at least four hours on each Saturday.

(b) Such office shall contain sufficient staff to be capable of accepting subscriber payments for all types of service, and of responding to service requests, inquiries and complaints in compliance with the standards set forth herein, and within the grantee’s franchise. Such office shall include local, toll-free telephone service for customer information, service requests, inquiries and complaints and TDD/TTY or other such telephone service for communicating with persons with hearing impairment. (Ord. 2063 § 1, 2-8-94; Ord. 2360 § 2, 10-26-99. 1990 Code § 5-7115.)

5.25.050 Service sales and installations.

(a) Service Standards.

(1) A grantee shall maintain a staff which is sufficient and capable of complying with the standards set forth in subsection (a)(2) of this section.

(2) A grantee shall conform to the following minimum standards with respect to not less than 95 percent of the following requests received within any three-month period:

(A) Connection of a new subscriber to the system and commencement of service within the service area shall be achieved within seven days after grantee receives the request for such service.

(B) With respect to any existing subscriber, a grantee shall commence a requested additional service within seven days after the grantee received the request for such service.

(3) In no event shall the time to install or commence service exceed 14 days from the date of grantee’s receipt of a request for any such service; provided, that no violation of subsection (a)(2) of this section shall be deemed to have occurred if to meet such standard is caused by any of the following reasons:

(A) Access to the subscriber’s property is denied by the subscriber or any other person whose permission is required for installation of the requested service; or

(B) The subscriber requests a connection date which would exceed the standard set forth in subsection (a)(2) of this section;

(4) A grantee shall maintain a log showing the date and type of each request described in subsection (a)(2) of this section. In addition, such log shall set forth the address of the person submitting each such request and the date upon which the response to such request was completed.

(b) Required Notice.

(1) Upon commencement of service and at least annually thereafter and, in addition, at least 30 days prior to making any change in the required information, the grantee shall provide each subscriber with a written notice containing the information set forth in subsection (b)(2) of this section.

(2) The written notice required by this section shall contain the following information:

(A) All equipment and services currently available (including parental lock-out devices) and all rates and charges which apply therefor;

(B) The amount and criteria for any deposit required by the grantee, if applicable, and the manner in which such deposit will be refunded;

(C) The grantee’s policies and procedures by which complaints and inquiries will be addressed, as well as the availability of the remedies provided by this chapter and its franchise;

(D) The toll-free telephone number and address of the grantee’s office to which service requests, repair calls, complaints and inquiries may be submitted;

(E) The grantee’s methods and procedures for protecting against invasions of subscriber privacy;

(F) The required notice set forth in Section 5.25.060(d); and

(G) The grantee’s policies regarding nondiscrimination in the provision of services in conformance with Section 5.25.110. (Ord. 2063 § 1, 2-8-94. 1990 Code § 5-7120.)

5.25.060 Response to requests for service and resolution of service problems.

(a) Receipt of Repair Requests and Complaints.

(1) Each grantee shall maintain a system by which subscribers and the general public can contact the grantee on a 24-hours-per-day, seven-days-per-week basis for the purpose of reporting reception or other service problems, to request service and to make general inquiries or complaints.

(2) After normal business hours, as established pursuant to Section 5.25.040, an answering service may be used to receive telephone calls, but such answering service shall be capable of initiating response to service problems within the time limitations of this chapter and the franchise.

(3) Grantee shall provide an electronic mail address that subscribers can use to report service problems, request service, and make general inquiries or complaints. Grantee shall make reasonable efforts to publicize this electronic mail address.

(4) The grantee shall acknowledge any telephone message by telephone response within 24 hours after its receipt or prior to the end of the next business day, whichever is earlier.

(5) The grantee shall acknowledge written subscriber service requests, inquiries or complaints, including those submitted using electronic mail, by telephone within five days after receipt or by written response within 10 days after receipt of any such request, inquiry or complaint.

(b) Response to Repair Requests and Service Complaints.

(1) The grantee shall respond competently and expeditiously to all subscriber requests for resolution of service problems in conformance with the standards set forth in this section. Percentage standards shall be measured as an average during any three-month period; provided, that time periods used in connection with this section shall not include incidents where a grantee was unable to accomplish repair due to an act of God as defined in Section 5.25.170(a)(2)(A).

(2) Grantee shall comply with the following standards for not less than 95 percent of instances in which a subscriber experiences the loss or degradation of signal on some, but not all, channels or types of service problems which do not require on-premises work:

(A) Where such loss or degradation affects fewer than 25 subscribers, repairs shall be completed within 24 hours.

(B) Where such loss or degradation affects 25 or more subscribers, repairs shall be commenced within two hours and pursued diligently to completion within 24 hours.

(3) Grantee shall comply with the following standards for not less than 95 percent of instances in which a subscriber experiences the loss or degradation of signal on all channels simultaneously:

(A) Where such loss or degradation affects fewer than 25 subscribers, repair shall be commenced within two hours and pursued diligently to completion within 24 hours.

(B) Where such loss or degradation affects 25 or more subscribers, repair shall be commenced within two hours and shall be pursued diligently to completion within 12 hours.

(4) Scheduled service interruptions for preventative maintenance or other reason shall be preceded by reasonable notice to subscribers and the city not less than 24 hours prior to such service interruption and shall occur during the period of minimum use of the system, preferably between midnight and 6:00 a.m.

(5) Except for scheduled service interruptions as provided for in subsection (b)(4) of this section, upon a subscriber’s request the grantee shall provide any affected subscriber with a pro-rated 24-hour credit to the subscriber’s account for any period exceeding eight hours during which such subscriber experienced an outage or substantial impairment of service. Such credit shall be applied to the account of the requesting subscriber within 30 days after the grantee receives a written or oral request from any such subscriber. At its option, a grantee may provide the requesting subscriber with additional compensation.

(6) No charge may be imposed upon any subscribers for repair of any equipment which is provided to the subscriber by the grantee but for which the grantee retains ownership; unless the cause of the repair is entirely beyond the control of the grantee, such as for documented cases of repeated subscriber negligence or abuse of the grantee’s equipment.

(1) When in contact with Fremont residents and subscribers, all representatives of a grantee shall maintain a professional and courteous demeanor. All representatives of a grantee, including contractors and subcontractors, shall wear photo-identification badges, prominently displayed, when acting on behalf of the grantee in the city.

(2) Each grantee shall conduct a routine follow-up system in order to measure subscriber and resident satisfaction with the grantee’s response to service requests and resolution of complaints. Each grantee shall annually contact by telephone or postcard at least 10 percent of all residents who recently received repair or installation services, residents upon whose property the grantee conducted construction activities and persons submitting service complaints, in order to determine the level of satisfaction or dissatisfaction with the services rendered by the grantee. Responses to such follow-up contacts shall be logged by the grantee. A grantee shall provide the city with access to such logs upon request. A grantee shall make every effort to correct all deficiencies in cable plant or system maintenance practices which are revealed by this follow-up policy which are feasible to correct.

(d) Required Notice.

(1) Each grantee shall annually send written notice to all subscribers describing the manner by which the grantee shall respond to and resolve complaints or inquiries. Such notification may be included with a billing statement, and shall consist of language approved by the city manager.

(2) The notice required by subsection (d)(1) of this section shall be printed in large boldface type and shall also be posted in a conspicuous place within all grantee’s offices where customer service transactions are conducted. (Ord. 2063 § 1, 2-8-94; Ord. 2360 § 3, 10-26-99. 1990 Code § 5-7125.)

5.25.070 Installation and repair appointments.

(a) Scheduling of Appointments.

(1) A grantee shall make every reasonable effort to ensure that appointments for installation, repair and other services are scheduled at convenient times for the customer.

(2) A grantee shall cooperate with customers by scheduling any installation, repair or other appointments at an agreed-upon time, consisting of either a specific appointment time or a predesignated block of time not exceeding four hours on a weekday or Saturday.

(3) If a grantee is unable to keep an appointment, the grantee shall ensure that the customer is advised of such cancellation at the earliest possible time, and the grantee shall immediately reschedule the appointment on a priority basis at the subscriber’s convenience within a specific two-hour period during the grantee’s normal working hours, Mondays through Saturdays, excepting federal holidays.

(4) If, in conducting a service call, a grantee’s representative finds no one at the site of the appointment, a call to the dispatch operator shall be made. The dispatch operator shall thereupon attempt to contact the customer by telephone. If the dispatch operator is unable to reach the customer, the grantee’s representative shall proceed to carry out the purpose of the appointment as thoroughly as possible without entering the involved structure and, if practicable, correct any problems from outside the structure. The grantee’s representative shall leave at the site of the appointment a door-hanger or other appropriate notice which identifies the grantee’s representative, states the grantee’s telephone number and address, describes any problem that was found and how it was corrected (if repair was possible) and asks the customer to make a service appointment if the problem continues to exist.

(5) If the customer is at the site at the time of the appointment, the grantee’s representative shall introduce himself/herself, discuss the service problem with the customer, determine the cause of the problem and correct the problem, if the problem lies in the system. All grantee’s representatives shall be properly equipped to locate and correct service problems which originate within the system. (Ord. 2063 § 1, 2-8-94. 1990 Code § 5-7130.)

5.25.080 Service disconnection.

(a) Cause for Disconnection.

(1) A grantee may disconnect a subscriber from one or more services for delinquent payment if at least 30 days have elapsed after the due date for payment for any such service.

(2) A grantee may disconnect a subscriber from one or more services if grantee in good faith determines that the subscriber has tampered with or abused the grantee’s equipment or is engaged in theft of services. When disconnecting service in such instances, the grantee shall leave a door-hanger or other notice at the site where service is received, stating the grantee’s telephone number, address and business hours.

(3) A grantee shall promptly disconnect any subscriber who requests to be disconnected from any service. Unless specifically authorized by federal regulation, a grantee may not impose a charge for disconnection of any service. A grantee may not impose the requirement of any period of advance notice upon a subscriber’s request for voluntary disconnection. A grantee may not impose a fee for disconnection of all services to the subscriber by the grantee nor for any service provided after the date on which the subscriber requested disconnection.

(b) Procedures for Disconnection.

(1) Each grantee shall follow the procedures set forth in this section in obtaining the involuntary disconnection of services.

(2) Each grantee shall provide any customer whose account is at least 30 days past due with at least 30 days’ advance written notice of a prospective disconnection of service. Such notice may consist of a special notice in or on the monthly billing statement of those subscribers who are more than 30 days past due. A general statement to the effect that all accounts which are 30 days past due are delinquent and subject to disconnection, which is contained on the billing statement of all subscribers, will not suffice as the specific notification required by this subsection.

(3) In cases of disconnection for delinquent payment, in addition to the notification provided pursuant to subsection (b)(2) of this section, the grantee shall attempt to contact the subscriber by telephone on the evening prior to dispatching a representative to disconnect service; and, immediately prior to disconnection, the grantee’s representative shall attempt to make direct contact with the subscriber at the site to offer the subscriber the opportunity to correct the delinquency at that time. If at the time of disconnection the subscriber has not received notice by telephone contact, telephone answering service or by personal contact at the site, the grantee’s representative shall leave a door-hanger or other notice at the site indicating that an attempt had been made to reach the subscriber by telephone prior to the disconnection and listing the grantee’s customer service telephone number, address and business hours.

(1) If a grantee disconnects any subscriber from service without cause as defined in subsection (a) of this section, the grantee shall immediately offer such person free reconnection and one month of free service of the type which the subscriber received prior to disconnection. The grantee shall also provide the subscriber with a thorough explanation of the grantee’s billing procedures.

(2) If, for reasons of delinquency in payments, a grantee disconnects any subscriber whose service has never before been disconnected for delinquent payment and there is a reasonable disagreement between the grantee and the subscriber as to the facts of the situation, the grantee shall give the subscriber the “benefit of the doubt” and shall immediately offer such person free reconnection.

(3) In the event of a billing dispute, a grantee shall waive any late fee during the period until a final resolution of the dispute is reached, and during such period, the grantee shall not disconnect such subscriber based upon the subscriber’s failure to pay any disputed amount in the bill.

(d) Refunds. Grantee shall return to a subscriber the amount of any deposit being held by the grantee on such subscriber’s account not later than the following time limitations:

(1) The end of the next billing cycle following resolution of the request or 30 days, whichever is earlier; or

(2) The return of the equipment supplied by grantee, in cases where service has been terminated. (Ord. 2063 § 1, 2-8-94. 1990 Code § 5-7135.)

5.25.090 Customer service and complaint records.

(a) Maintenance of Records.

(1) Each grantee shall continuously maintain records which separately list the following information with regard to each service request, report of service problem and complaint received by the grantee:

(A) The date on which the grantee received such request, report or complaint;

(B) The name of the subscriber and the address at which the related service is provided;

(D) The action taken by the grantee in response thereto and the date on which such response by the grantee was completed. In cases where the action taken by grantee was to refer the request, report or complaint to an entity outside of grantee’s control, such referral shall be specifically noted.

(2) Such records shall be maintained at the grantee’s local office and shall be available for inspection during normal business hours, upon 72 hours’ advance notice, by an authorized representative of the city manager. If required for the investigation of a matter related to the grantee’s performance under this chapter or its franchise, the city manager may also request and obtain copies of the grantee’s records regarding individual subscriber requests, reports or complaints.

(3) Each individual information record shall remain on file for a period of at least two years.

(b) Summaries of Records. At three-month intervals during the franchise, at the request of the city manager, a grantee shall provide the city with a summary report of the information entered into the records in accordance with subsection (a) of this section during the prior three-month period. Such summary reports shall include, at a minimum, the total number of service requests, reports of service problems and complaints received and, in addition, a disaggregation of such total number by major type of request, report and complaint and by geographical area of the city. (Ord. 2063 § 1, 2-8-94; Ord. 2360 § 4, 10-26-99. 1990 Code § 5-7140.)

5.25.100 Service notices and billings.

(a) Entrance Upon Utility Easements.

(1) Except in emergency situations where the problem is of such magnitude as to warrant an immediate response, at least seven days in advance of entering upon a public utility easement, a grantee shall provide written notice to owners and residents of any private property upon which such easement is located.

(2) If the property owner or resident must be present to allow access to such property, the owner or resident shall be contacted in advance to schedule an appointment within a four-hour period at the owner’s or resident’s convenience. In the event that a grantee requires access to private property on which there is no public utility easement, the grantee must first obtain specific permission from the property’s owner or resident and schedule the visit within a four-hour window at the owner’s or resident’s convenience.

(3) Nothing provided in this section shall be construed as directing, authorizing, permitting or suffering any grantee to enter upon any easement or private property for any reason whatsoever. In any action or proceeding against the city arising from a grantee’s entry upon any easement or private property for any purpose, such grantee shall defend, indemnify and hold the city harmless from all damages, losses and costs of litigation including attorneys’ fees.

(b) Notice of Service Changes and Fees.

(1) A grantee shall provide the subscribers and the city with at least 30 days’ advance written notice of any deletions of or changes in services; increases or changes in rates, costs or charges to subscribers; and of any channel repositioning within the control of the grantee. For those circumstances in which such changes are not within a grantee’s control, the grantee shall provide such notice at the earliest possible time.

(2) Where price information is listed in any manner on any promotional materials, announcements or advertising issued by a grantee to the subscribers or the general public, such material shall clearly and accurately disclose price terms. This requirement shall apply regardless of whether such information shall be disseminated in writing, by means of the system or by telephone or other telecommunication device. Specifically, in the case of orders which a grantee shall receive in person or by telephone or other telecommunication device, the grantee shall take appropriate steps to ensure that the grantee’s customer service representatives clearly and accurately disclose price terms to potential customers in advance of taking the order.

(3) A grantee’s bills to each subscriber shall accurately and separately identify the fee relating to each category of service, type of equipment or other applicable basis, and shall clearly state the charge therefor. If a grantee chooses to itemize the franchise fee or franchise costs or any other costs on its bills, it must do so in an accurate and nonmisleading manner.

(4) Grantee shall allow customers the option of payment by credit card, check, or cash for all cable services. (Ord. 2063 § 1, 2-8-94; Ord. 2360 § 5, 10-26-99. 1990 Code § 5-7145.)

5.25.110 Nondiscrimination.

(a) Discrimination Prohibited. No grantee shall unlawfully discriminate against any person in the provision of any cable communication service on the basis of race, color, religion, national origin, gender, sexual preference, age, disability, income or the area in which a person lives.

(b) Mobility Limitations.

(1) A grantee shall use its best efforts to assure maximum practical availability of grantee’s services and facilities to all city residents, regardless of disability.

(2) To accommodate the needs of customers who are prevented from obtaining services due to significant impairment of mobility, upon such customer’s request grantee shall, without charge, provide for pick-up and/or replacement of converters or other grantee equipment during the grantee’s normal business hours.

(1) To accommodate the needs of customers with significant hearing impairments, a grantee shall provide information concerning the cost and availability of equipment to facilitate the reception by persons with hearing impairment of basic cable service and all extended basic tiers of service.

(2) Each grantee shall operate TDD/TTY or equivalent equipment on any telephone numbers intended for general use and for the receipt of service requests, reports of service problems, and complaints. (Ord. 2063 § 1, 2-8-94. 1990 Code § 5-7150.)

5.25.120 Customer service representatives, telephone lines and reporting.

(a) Customer Service Representatives.

(1) Each grantee shall provide sufficient customer service representatives and toll-free telephone lines to conform to the standards set forth in subsection (a)(2) of this section.

(2) Each grantee shall conform to the following standards, as measured during any three-month period, in responding to persons attempting to contact the grantee by telephone:

(A) For a minimum of 90 percent of callers, no more than 30 seconds, including wait and hold time, will pass between the time when a call is placed and a connection is made to a live service representative; and

(B) Less than three percent of telephone calls will receive a busy signal.

(b) Reporting Requirements.

(1) At three-month intervals during the franchise term, each grantee shall provide the city with the following information:

(A) Current total number of subscribers;

(B) Current number of full-time and part-time customer service representatives and technicians; and

(2) Each grantee shall provide the following information with respect to the operation of the system during the three months preceding the date of the report required by subsection (b)(1) of this section:

(A) The number of telephone calls answered by the telephone system sequencer;

(B) Percentage of the total number of telephone calls received that were answered by a customer service representative within 30 seconds;

(D) Percentage of calls referred to a separate corporate entity;

(E) Total number of requests for service connection or service modification;

(F) Total number of service connections or modifications that were not accomplished within seven days after the grantee received the request for such service;

(G) Total number of service connections or modifications that were not accomplished within 14 days after the grantee received the request for such service, subject to the exceptions set forth in Section 5.25.050(a)(3);

(c) Reports to Encompass All Services Provided. Reports shall encompass all services provided by grantee. However, at the city’s request, grantee shall also provide data broken down by type of service, such as cable modem service. (Ord. 2063 § 1, 2-8-94; Ord. 2360 § 6, 10-26-99. 1990 Code § 5-7155.)

5.25.130 Restitution of customer losses and resolution of disputes.

(a) Recovery of Losses.

(1) A grantee shall meet in good faith with customers and shall attempt to resolve disputes between the grantee and subscribers or potential subscribers in a manner which is fair, expeditious and without undue inconvenience to such persons.

(2) Any person who has suffered a loss due to the operation of the system by a grantee may recover any such losses by action in the courts of competent jurisdiction in the state of California.

(b) Amount of Recovery.

(1) Each grantee shall establish by agreement with the city a schedule stating the reasonable amount of liquidated damages which would be suffered by a subscriber or potential subscriber due to foreseeable events in the operation of the system by the grantee.

(2) A grantee shall utilize such schedule of liquidated damages as a basis for resolving complaints asserted by subscribers, potential subscribers and the city pursuant to subsection (a) of this section; provided, however, that such liquidated damages shall not preclude any aggrieved person from setting forth evidence of and proving a greater amount of damage if such person suffered unusual or unforeseeable losses.

(3) The cost of recovery and inconvenience suffered by a subscriber or potential subscriber in asserting a claim for loss due to a grantee’s operation of its system shall also be included in any award of damages either by the grantee in the voluntary resolution of disputes or by judicial award.

(c) Additional Penalties. The assessment of damages as against a grantee shall in no way diminish the right of the city to assess fines, liquidated damages or other remedies specified in Sections 5.25.150 and 5.25.160 or as set forth in the franchise and Fremont cable communications ordinance. (Ord. 2063 § 1, 2-8-94. 1990 Code § 5-7160.)

5.25.140 Compliance monitoring and enforcement.

(a) Monitoring of Grantee’s Performance.

(1) The city manager shall regularly make reasonable efforts to inform subscribers, the media and members of the general public of the customer service standards and enforcement provisions of this chapter and the respective franchise.

(2) The city manager shall possess the authority to review and monitor all complaints about a grantee’s service and its compliance with the requirements, standards and provisions of this chapter and its respective franchise. The city manager may impose reasonable requirements that a grantee provide the city with reports and other information relevant to the operations of a grantee to enable the city manager to determine whether a condition of noncompliance or default exists with respect to this chapter, the respective franchise or other requirement of local, state or federal law.

(b) Corrective Action.

(1) If the city manager shall determine that a grantee is failing to comply with this chapter, its respective franchise or other requirement of local, state or federal law, the city manager shall so notify such grantee. Not later than 30 days after the city manager’s notice, the grantee shall provide the city manager with a written statement containing satisfactory evidence of compliance or describing the corrective action and time schedule for correcting the condition of noncompliance.

(2) Upon receipt of the grantee’s statement or upon the grantee’s failure to provide the statement required by subsection (b)(1) of this section, the city manager shall submit a report regarding the matter to the council.

(3) Upon receipt of the city manager’s report, the council may take any of the following actions if it finds that the grantee has failed to comply with any provision of this chapter, its franchise, the Fremont cable communications ordinance or requirement of local, state or federal law:

(A) Determine that the grantee has taken all necessary steps to obtain correction of such condition;

(B) Require that the grantee take specific steps within a specified period of time to correct all conditions of noncompliance;

(C) Impose appropriate sanctions, as set forth in Sections 5.25.150 and 5.25.160, the respective franchise or other requirement of local, state or federal law; and

(D) Any other remedy available to the city at law or equity. (Ord. 2063 § 1, 2-8-94. 1990 Code § 5-7165.)

5.25.150 Enforcement remedies.

(a) Additional Remedies.

(1) In addition to any other available legal or equitable remedies, the city may impose any one or combination of the following remedies in the event that a grantee fails to comply with any provision of this chapter, its respective franchise, the Fremont cable communications ordinance or any other applicable local, state or federal law:

(A) Assess liquidated damages in such amount, whether on a per-diem, per-incident or other measure of violation, as provided in the grantee’s franchise. Payment of liquidated damages by a grantee will not relieve the grantee of its obligation to correct the condition of noncompliance.

(B) Impose fines on the grantee or require the grantee to provide increased customer service support on such basis as the city determines is reasonable pursuant to the procedures specified in this chapter or in the grantee’s franchise.

(C) Terminate the franchise pursuant to the procedures set forth in the Fremont cable communications ordinance and the grantee’s franchise.

(2) In addition to or instead of any other remedy, the city may seek legal or equitable relief from any court of competent jurisdiction.

(3) In determining which remedy or remedies are appropriate, the city shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further violation, whether and to what extent a grantee is taking good faith steps to remedy or cure such violation and such other matters as the city determines are appropriate to the public interest.

(b) Waiver. Failure of the city to enforce any requirements of this chapter, the franchise, the Fremont cable communications ordinance or any other applicable ordinance or law shall not constitute a waiver of the city’s right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies. (Ord. 2063 § 1, 2-8-94. 1990 Code § 5-7170.)

5.25.160 Fines and increased customer service support.

(a) Fines.

(1) Except as to matters wherein a state or federal authority exercises exclusive jurisdiction to impose a penalty, the city may levy fines as specified in this chapter or the respective franchise for each instance of a grantee’s noncompliance with any provision of this chapter, the grantee’s franchise or other applicable ordinance or state or federal law, and the grantee shall pay to the city such fines within 30 days of receipt of notification of such levy pursuant to the hearing required by subsection (a)(2) of this section. In relation to matters wherein the city and another governmental authority may exercise concurrent authority with the city, any fine imposed by the city pursuant to this subsection (a)(1) shall be reduced by the amount of a fine actually imposed by such other governmental authority for the same condition of noncompliance as cited by the city.

(2) No fine established by this chapter may be imposed without a hearing before the council, if and when such hearing is requested by grantee. No fine established by this chapter may be imposed for a delay in correcting a demonstrated instance of noncompliance where such delay is the result of causes beyond the control and without fault or negligence of the grantee as reasonably determined by the city. A grantee shall be entitled to an extension of time if correction of an instance of noncompliance is suspended or delayed by the city or where unusual weather, acts of God (e.g., earthquakes, floods, etc.), extraordinary acts of third parties or other circumstances which are beyond the control of the grantee delay correction of such noncompliance; provided, that the grantee is not at fault and is not negligent under the terms of this chapter or its respective franchise. The degree of fault and/or negligence, and extension of time allowed, shall be reasonably determined by the city. The extension of time in any case shall not be less than the actual no-fault/negligence delay experienced by the grantee.

(b) Schedule of Fines.

(1) The following is the schedule of fines which the city may levy against a grantee as a consequence of the grantee’s failure to conform to standards which are a condition of the Fremont cable communications ordinance, its respective franchise or this chapter:

(A) Failure to comply with time limits for initiating or completing the installation or addition of service, as set forth in Section 5.25.050(a)(2): $9,000 for each three-month period during which a grantee fails to comply with the relevant standard.

(B) Failure to maintain and/or provide data or documents required by this chapter or the respective franchise: $1,000 per day beginning with the deadline established in the city manager’s corrective order.

(C) Failure to maintain a system by which subscribers and the public can contact the grantee in accordance with the standard set forth in Section 5.25.060(a) or the respective franchise: $1,000 per day of noncompliance beginning with the deadline established in the city manager’s corrective order.

(D) Failure to comply with the time limits for restoring service, as set forth in Section 5.25.060(b)(2) and (3): $9,000 for each three-month period during which the grantee fails to comply with the relevant standard.

(E) Failure to provide notice, as set forth in Section 5.25.060(b)(4): $1,000 per incident.

(F) Failure to provide credit as required by Section 5.25.060(b)(5): $2,500 per incident beginning with the third reported incidence of noncompliance in any calendar year.

(G) Failure to conduct a survey in accordance with the requirements set forth in Section 5.25.060(c)(2) or as required by the franchise in relation to periodic review: $500.00 per day beginning with the deadline established in the city manager’s corrective order.

(H) Failure to provide notice to subscribers as required by Sections 5.25.050(b), 5.25.060(d) or 5.25.100(b): $500.00 per day of noncompliance beginning with the deadline established in the city manager’s corrective order.

(I) Failure to comply with the telephone response standards as set forth in Section 5.25.120(a)(2): $9,000 for each three-month period during which the grantee fails to comply with the relevant standard.

(J) Failure of employees or a grantee’s contractors or subcontractors to wear identifiable uniforms and contractors to wear picture identification cards more than 10 times in any three-month period: $2,500.

(2) For any condition of noncompliance not specified herein, the council may impose a maximum fine of $250.00 per incidence of noncompliance.

(3) Beginning with the third assessment of fine pursuant to any part of subsection (b)(1) or (2) of this section in any calendar year, the council may assess a fine at double the amount set forth in subsection (b)(1) and (2) of this section for each subsequent violation during the next 12-month period.

(c) Increased Customer Service Support. Notwithstanding the provisions of Section 5.25.160(b), if the telephone answering standards set forth in Section 5.25.120 are not met within any contiguous three-month period, the city, at its discretion, may, as an alternative to the levying of fines, require a grantee to immediately employ and maintain additional staff and install and maintain additional telephone line capacity. (Ord. 2063 § 1, 2-8-94. 1990 Code § 5-7175.)

5.25.170 General terms and conditions.

(a) Excuse for Nonperformance.

(1) The requirements, standards and provisions of this chapter and the franchise shall be strictly enforced against grantee.

(2) Notwithstanding the provisions of subsection (a)(1) of this section, the following conditions shall constitute an excuse for nonperformance of a grantee:

(A) A grantee shall not be held in default or in noncompliance pursuant to this chapter, nor shall a grantee suffer any enforcement or penalty relating thereto, where such alleged default or condition of noncompliance is caused by an act of God or other event reasonably beyond such grantee’s control; provided, that the grantee has exercised all due care in the prevention of such default or condition of noncompliance; and provided further, that, in the event that such occurrence affects only part of a grantee’s capacity to perform, the grantee shall perform to the extent that it is capable of so doing. As a condition of this section, a grantee shall notify the city of any such occurrence within 15 days after the date upon which the grantee learns or should have learned of its occurrence.

(B) Increases in the cost of performance, changes in economic circumstances or nonperformance or malperformance by a grantee’s employees, agents or contractors shall not excuse any failure by the grantee to comply with provisions of this chapter or its respective franchise.

(b) Severability. If any section, subsection, sentence, clause or phrase of this chapter is, for any reason, held illegal, invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. The council hereby declares that it would adopt this chapter and each section, subsection, sentence, clause and phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared illegal, invalid or unconstitutional. The invalidity of any portion of this chapter shall not abate, reduce or otherwise affect any consideration or other obligation required of a grantee.

(c) Delivery of Notices. Every direction, notice or order to be served upon a grantee shall be hand-delivered or sent by certified mail to the grantee’s local office. Every notice to be served upon the city shall be hand-delivered or sent by certified mail to the city clerk at City of Fremont, 3300 Capitol Avenue, Fremont, California 94538, or such other address that the city may specify. Delivery of such notice shall be deemed to have been at the time of delivery if by certified mail or seven days after mailing of such notice. (Ord. 2063 § 1, 2-8-94. 1990 Code § 5-7180.)

Article II. Basic Service Tier Rate Regulations

5.25.180 Citation of article.

This article may be referred to and cited as the “Fremont cable communications basic service tier rate regulations ordinance.” (Ord. 2051 § 1, 10-26-93. 1990 Code § 5-9100.)

5.25.190 Definitions.

For the purpose of this article, the following words and phrases shall have the meanings respectively ascribed to them by this section:

“AICPA” means American Institute of Certified Public Accountants.

“Cable Act of 1992” means the Cable Television Consumer Protection and Competition Act of 1992 (47 U.S.C. Sections 521 et seq.).

“Citation” may be cited as the “basic service tier rate regulations.”

“City manager” means the city manager of the city of Fremont or designee thereof.

“Company,” as used herein, means any “franchisee” under the cable communications ordinance, or any other ordinance establishing the procedures and requirements for the operation of cable television franchise.

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

“Customer,” as used herein, means any person or entity utilizing or desiring to utilize cable television services provided by the company for consideration. “Customer” also means “customer(s)” and/or “subscriber(s)” as those terms are used in the Cable Act of 1992 and the FCC rules and regulations adopted thereunder.

“Effective date” means the date the basic service rate regulations become effective as provided for in 47 CFR Section 76.910.

“FCC” means the Federal Communications Commission. (Ord. 2051 § 1, 10-26-93. 1990 Code § 5-9105.)

5.25.200 Incorporation of the Cable Act of 1992 and FCC regulations pursuant thereto.

(a) Incorporation of the Cable Act of 1992. The council hereby incorporates by reference the provisions of the Cable Act of 1992 as part of these regulations. Amendments to the Cable Act of 1992 made subsequent to the effective date of these regulations shall also be incorporated by reference as part of these regulations without further action on the part of the council.

(b) Incorporation of FCC Rules and Regulations. The council hereby incorporates by reference the FCC rules and regulations implementing the Cable Act of 1992 as part of these regulations, including but not limited to those rules and regulations regarding subscriber rate regulation as set forth in 47 CFR Sections 76.900 through 76.985. Amendments to FCC rules and regulations implementing the Cable Act of 1992 made subsequent to the effective date of these regulations shall also be incorporated by reference as part of these regulations without further action on the part of the council.

(c) Compliance with the Cable Act of 1992 and FCC Rules and Regulations. These regulations shall at all times fully comply with the Cable Act of 1992, as amended, and then-current FCC rules and regulations implementing the Cable Act of 1992. In the event any provision of these regulations shall be invalidated for any reason or cause, any remaining portions shall be deemed severed therefrom and thereupon remain in full force and effect thereafter. (Ord. 2051 § 1, 10-26-93. 1990 Code § 5-9110.)

5.25.210 Determination of maximum initial permitted rates for regulated cable services and actual cost of regulated equipment.

(a) Materials to Be Submitted by Company to the City Manager. In connection with the submission of a completed FCC Form 393, or such other similar form as may be hereafter utilized by the FCC for the determination of maximum initial permitted rates for regulated cable services and actual cost of regulated equipment, and/or any other materials required by the Cable Act of 1992 and FCC rules and regulations implementing the Cable Act of 1992, the company shall submit therewith to the city manager an unqualified opinion of an independent certified public accounting firm meeting the standards and requirements of subsection (b) of this section (“auditor’s opinion”).

(b) Scheduling of Review by Council. Upon the submission by company of a complete submittal, pursuant to subsection (a) of this section, the city manager shall schedule review of the company’s submittal at the next available meeting of the council; provided, that a complete submittal shall be deemed submitted for the purpose of 47 CFR Section 76.933 on the date such submittal is received by the city manager. In the event there is no available council meeting date within the 30 days of submittal, the city manager is authorized on behalf of the council to toll the 30-day period pursuant to 47 CFR Section 76.933.

(c) Audit Requirements. The auditor’s opinion described in subsection (a) of this section shall be made by an independent certified public accounting firm at the sole cost and expense of the company. The auditor’s opinion shall contain, at a minimum, the following items:

(1) A certification that the data as set forth on FCC Form 393, or such similar form required by the FCC, truly and accurately reflect the actual costs of regulated equipment and other costs reported therein as determined by the auditor in accordance with generally accepted auditing standards, including without limitation AU Sections 801 et seq. of the AICPA Professional Standards, and that the financial information contained therein is reported in compliance with FCC rules and regulations implementing the Cable Act of 1992, including without limitation 47 CFR Sections 76.924 and 76.925;

(2) A detailed explanation of the source data examined, tested and utilized by the auditor in formulating the auditor’s opinion;

(3) A list of documents furnished by the company to the auditor and utilized by the auditor in formulating the auditor’s opinion;

(4) A detailed explanation of the auditing methodology utilized by the auditor in formulating the auditor’s opinion; and

(5) A detailed explanation of the assumptions utilized by the auditor in formulating the auditor’s opinion.

(d) Auditor’s Working Papers. Upon the request of the city manager, the auditor shall provide to the city manager a copy of the audit working papers utilized in formulating the auditor’s opinion described in subsections (a) and (b) of this section within five days of such request. These working papers shall be kept confidential by the city manager and council, pursuant to Cal. Gov’t Code § 6254(n), as records exempt from the disclosure requirements of the Public Records Act.

(e) Submission of Incomplete Form 393 by the Company to the City Manager. In the event the company submits FCC Form 393, or any similar form required by the FCC, to the city manager without attaching the auditor’s opinion described in subsections (a) and (b) of this section, the city manager may in his/her sole discretion deem the company’s Form 393, or any similar form required by the FCC, as incomplete and the city manager shall return such incomplete form to the company within five days of receipt of such form. In the event such form is returned by the city manager to the company, the company shall be deemed as not yet having filed its schedule of rates for the basic service tier and associated regulated equipment as provided by 47 CFR Section 76.930.

(f) Council’s Power to Audit Company. Nothing contained in these regulations shall abrogate the council’s powers under the cable communications ordinance, the cable communications franchise ordinance, or any other ordinance related to the franchising of cable television services to conduct its own audit of the financial records of the company, or to require such audit to be performed.

(g) Comment by Interested Parties. The council shall hold a public hearing providing for the comment of interested parties on any proposed determination or order of the council pursuant to these regulations; provided, that no public hearing shall be required where the proposed action before the council is to receive information and refer to the city manager for further report, or to toll the review period pursuant to 47 CFR Section 76.933, and the council makes no order with regard to the setting of rates, refunds or the imposition of enforcement sanctions on the company. (Ord. 2051 § 1, 10-26-93; amended during 2012 reformat. 1990 Code § 5-9115.)

5.25.220 Refunds to customers.

(a) Refunds to Customers. All refunds owing by company to customers pursuant to 47 CFR Section 76.942 shall be paid by the company to customers by direct payment or credited to the customer’s bill pursuant to 47 CFR Section 76.942(d)(1) or (2) within 90 days from the date of the implementation of a prospective rate reduction pursuant to 47 CFR Section 76.942(c)(1) or (2).

(b) Trust Account. If, after reasonable and diligent efforts to make payments of moneys refundable to customers, the company is unable to effectuate such payments for any reason, the company shall establish a trust account and deposit to it the actual payment of moneys refundable to customers who cannot be located and payment effectuated. Any interest received on such moneys shall be credited to the trust account.

(c) Distribution from Trust Account. Moneys from the trust account shall be used only for improvements to equipment used for the production of public access programming, with such expenditures approved in advance by the city manager. These expenditures are in addition to any which may be required of the company under the terms of any franchise agreement. (Ord. 2051 § 1, 10-26-93. 1990 Code § 5-9120.)

5.25.230 Enforcement.

(a) Informal Resolution. In the event that the company shall fail, refuse or neglect to comply fully with the requirements of these regulations, the city manager shall, except in instances in which time is of the essence in obtaining the company’s compliance and/or the city manager determines that such efforts would be futile, attempt informal resolution and rectification of the company’s noncompliance by informal meeting and/or telephone conference between the company and the city manager. Said informal resolution efforts shall be initiated by the city manager’s general statement of the alleged violations under investigation and the general nature of the evidence then known to the city manager. Notwithstanding the foregoing, the nature and extent of evidence which may be presented by the city manager in any subsequent enforcement hearing pursuant to subsection (d) of this section shall not be limited or abridged by reason of the presentment or nonpresentment or recitation or nonrecitation of such evidence in the course of the informal resolution efforts.

(b) Council Preference for Cure. To the extent reasonably consistent with the goal of obtaining compliance with the regulations, it shall be the policy of the council to notify the company of a possible or alleged violation and, if said violation is then curable, allow a reasonable time for the company to cure the possible or alleged violation. If the company does so cure, in the absence of aggravating circumstances, it shall be the preference of the council to abstain from further enforcement action.

(c) Determination of Probable Cause for Enforcement Hearing. In the event that the informal efforts at resolution are ineffective or otherwise inappropriate:

(1) The city manager may notice the company to meet with the city manager on not less than 10 days’ notice to determine whether or not probable cause exists to believe that the company has failed, neglected or refused to comply with the provisions of these regulations; or

(2) In the sole discretion of the city manager, the city manager may notice the company to appear before the council on not less than 10 days’ notice to determine whether or not probable cause exists to believe that the company has failed, neglected or refused to comply with the provisions of these regulations.

In either event, the probable cause determination shall be initiated by the city manager’s general statement of the alleged violations under investigation and the general nature of the evidence then known to the city manager and/or the council. Notwithstanding the foregoing, the nature and extent of evidence which may be presented by the city manager in any subsequent enforcement hearing pursuant to subsection (d) of this section shall not be limited or abridged by reason of the presentment or nonpresentment or recitation or nonrecitation of such evidence in the course of the probable cause determination.

(d) Enforcement Hearing. Upon a determination of the city manager pursuant to subsection (c)(1) of this section, or of the council pursuant to subsection (c)(2) of this section, that probable cause exists to believe that the company has failed, neglected or refused to comply with the provisions of these regulations, the council may hold such hearings, conduct such procedures and impose such remedies as are authorized by these regulations.

(e) Conduct of Enforcement Hearing. The hearing may be conducted either by the council or, at the sole discretion of the council, by a hearing officer appointed by the city manager to conduct the hearing; provided, that, in the event that the cumulative monetary sanction(s) sought for any alleged violation(s) equal or exceed $15,000 in any single proceeding, the company shall have the option to require the hearing be conducted by a hearing officer.

(f) Selection of Hearing Officer. If the matter shall be referred to a hearing officer, the city manager and the company shall each exchange to the other party, not later than 10 business days after said order of referral by the council, the names of three qualified, neutral and unaffiliated potential hearing officers. Thereupon, each party shall have 10 business days to strike two of the other party’s named potential hearing officers and the hearing officer shall be thereafter determined, as between the two remaining names, by lot. Any such hearing officer shall be an attorney licensed to practice under the laws of the state of California. The cost of providing quarters for the hearing, the compensation for the hearing officer, if any, and the per diem cost of any reporter retained to record the proceedings shall be borne equally by the company and the city and the city manager is hereby authorized to withdraw the company’s share of such costs from the company’s security deposit with the city. The costs incurred by the parties for attorneys’ fees, expert witness fees and other expenses shall be borne solely by the party incurring the costs.

(g) Burden of Proof at Enforcement Hearing. At any hearing conducted pursuant to subsection (e) of this section, the city manager shall have the burden of establishing the violation of these regulations to the satisfaction of the council or the hearing officer by a preponderance of the evidence. The company may present such evidence, consistent with subsection (h) of this section, as it may desire.

(h) Conduct of the Enforcement Hearing. All witnesses testifying at the hearing shall be sworn. Witnesses shall be subject to direct and cross-examination. However, formal rules of evidence applicable to the trial of civil or criminal proceedings in the trial courts of this state shall apply to evidence adduced at the hearing only to the extent that such rules are reasonably necessary to the preservation of the probative nature of the evidence proffered. The provisions of the Administrative Procedure Act, commencing at the Cal. Gov’t Code § 11500, or any successor legislative enactment, shall not be applicable to any such hearing. The hearing may be continued from time to time.

(i) Recommended Decision of Hearing Officer. If the hearing is conducted by a hearing officer, the officer shall, upon conclusion of the hearing, prepare a recommended decision which includes findings of fact and conclusions. The recommended decision shall be filed with the city clerk and mailed to the parties not later than 30 calendar days after conclusion of the hearing. Upon receipt of such a recommended decision, the city council may either:

(1) Adopt the recommended decision, including findings of fact and conclusion submitted by the hearing officer;

(2) Adopt the findings of fact and conclusions contained in the recommended decision or modify the decision, and adopt the recommended decision as so revised;

(3) Based upon the record of the hearing, modify the findings of fact, conclusions or decision, and adopt the recommended decision as so revised; or

(4) Reject the recommended decision and conduct a new hearing before a hearing officer provided at city’s expense.

If the council shall act under either subsection (i)(2), (3) or (4) of this section, the council shall set forth clearly its rationale and reasoning for so doing.

(j) Findings by Council. If the hearing is conducted by the council, upon conclusion of the hearing, the council shall adopt a decision which includes findings of fact and conclusions.

(k) Monetary Sanctions as Remedies. Remedies which may be imposed for a violation of an order of the council issued pursuant to these regulations shall include but not be limited to the monetary sanctions established by these regulations and shall be construed as liquidated damages as such are established pursuant to the cable communications franchise ordinance. (Ord. 2051 § 1, 10-26-93. 1990 Code § 5-9125.)

5.25.240 Remedies.

(a) Monetary Sanctions. Monetary sanctions may be imposed by the council upon a finding that the company has not complied with one or more provisions of these regulations. The council may impose monetary sanctions for a violation of an order of the council issued pursuant to these regulations at the conclusion of a noticed hearing pursuant to Section 5.25.230(d) as to each violation so found, not to exceed the amount(s) set forth for the violations of the applicable violation(s) as set forth below.

(b) Conscious Violation. A conscious violation is any failure, neglect or refusal of the company to materially comply with any order issued pursuant to these regulations, under such circumstances as to indicate:

(1) A conscious policy of noncompliance with the requirements thereof; or

(2) A conscious lack of a policy of compliance with the requirements thereof.

A prior finding of a violation under subsection (c) or (d) of this section for substantially the same or similar conduct shall create a rebuttable presumption of conscious action or inaction on the part of the company. For each such violation, the council may impose a monetary sanction in an amount not to exceed $50,000 and in an additional like sum for each month or portion thereof during which the company shall fail, neglect or refuse to rectify said violation beginning 30 days after written notice thereof from the council to the company.

(c) Inadvertent Subscriber Violation. An inadvertent violation is any failure, neglect or refusal of the company to comply with the requirements of an order issued under these regulations as to its obligations hereunder in relation to one or more subscribers, including but not limited to refunding or crediting moneys to subscribers pursuant to Section 5.25.220(a) and/or 47 CFR Section 76.942(d)(1) or (2), under such circumstances as do not indicate a pattern of behavior by the company in derogation of the referenced requirement. For each such violation, the council may impose a monetary sanction:

(1) In an amount not to exceed $100.00 for each such subscriber and $5,000 in cumulation of the violations as to all such subscribers resulting from any substantially continuous behavior, act or omission; and

(2) In an additional like sum for each month or portion thereof during which the company shall fail, neglect or refuse to rectify said violation beginning 30 days after written notice thereof from the council to the company.

(d) Inadvertent Company Violation. An inadvertent company violation is any failure, neglect or refusal of the company to materially comply with the requirements of an order issued under these regulations with respect to the company in relation to the council. For each such violation, the council may impose a monetary sanction in an amount not to exceed $5,000 and in an additional like sum for each month or portion thereof during which the company shall fail, neglect or refuse to rectify said violation beginning 30 days after written notice thereof from the council to the company.

(e) Repeated Violation Enhancements. The maximum amount specified in subsection (b) of this section shall be doubled for the second violation under that subsection for substantially the same or similar conduct occurring within any given 24-month period and shall be quintupled for the third violation under that subsection for substantially the same or similar conduct within any given 24-month period.

(f) Alternative Remedies. Neither monetary sanctions imposed hereunder nor any order issued by the council related hereto shall be deemed to bar or otherwise limit the right of the council to obtain judicial enforcement of the company’s obligations by means of specific performance, injunctive relief, mandate or other remedies at law or in equity, other than monetary damages.

(g) Temporary Stay of Remedies. Application of the remedies provided herein shall be stayed for the period of time during which any order of the council pursuant to these regulations is under appeal by the company to the FCC, pursuant to 47 CFR Section 76.944. (Ord. 2051 § 1, 10-26-93. 1990 Code § 5-9130.)