Chapter 5.60 CABLE COMMUNICATION OR CABLE TELEVISION SYSTEMS

The City finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the people of the City. Because of the complex and rapidly changing technology associated with cable television, the City further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such persons as the City designates. It is the intent of the ordinance codified in this chapter and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise agreement issued pursuant to this chapter shall be deemed to include this finding as an integral part thereof. (Ord. 298 § 1, 1989; Ord. 129 § 1, 1984)

5.60.007 Election to terminate City franchise – Digital Infrastructure and Video Competition Act of 2006.

Beginning January 1, 2007, any grantee of a City franchise that elects to terminate the City franchise and replace it with a State franchise pursuant to the Digital Infrastructure and Video Competition Act of 2006 (Division 2.5 of the Public Utilities Code, commencing at Section 5800) will no longer be governed by this chapter, but instead will be governed by Chapter 5.61 PMC. (Ord. 660 § 1, 2007)

5.60.010 Short title.

The ordinance codified in this chapter shall be known and may be cited as the “City of Poway Cable Television Franchise Ordinance.” (Ord. 129 § 2, 1984)

5.60.015 Definitions.

For the purpose of this chapter the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word “shall” is mandatory and “may” is permissive. Words not defined shall be given their common and ordinary meaning.

1. “Additional subscriber service” means any service not included in “basic television service,” or “basic subscriber radio service” or “institutional service,” including, but not limited to, “pay-cable.”

2. “Agency subscriber” means a subscriber who receives a service in a government or public agency, school or nonprofit corporation as specified in the franchise agreement.

3. “Basic subscriber radio service” means the provision to all subscribers of such audio programs as the retransmission of broadcast FM radio signals, the retransmission of shortwave, weather, news, time and other similar audio information and the transmission of cablecast audio signals, all provided to subscribers at a monthly rate.

4. “Basic service” means the total of all of the following:

a. The transmission to all subscribers of all broadcast television channel signals authorized by the FCC and provided for in a franchise agreement;

b. The cablecasting to all subscribers of local origination programming and public, education and government access programming;

c. The transmission to all subscribers of all other cablecasting open-channel signals.

Basic service may be offered to subscribers in one or more tiers or combination of programs.

5. “Broadcast signal” or “signal” means a television or radio signal that is transmitted over the air to a wide geographic audience and is received by a cable communications system off-the-air or by microwave.

6. “Cable communications systems” or “system,” also referred to as “cable television system,” “CATV system,” or “broadband communications network,” means a system of antennas, cables, amplifiers, towers, microwave links, cablecasting studios, and other conductors, converters, equipment or facilities, designed and constructed for the primary purpose of distributing video programming to home subscribers, and the secondary purpose of producing, receiving, amplifying, storing, processing, or distributing audio, video, digital, or other forms of electronic or electrical signals.

7. “Cablecast signal” means a nonbroadcast signal that originates within the facilities of the cable communications system.

8. “Cable-mile” means a linear mile of cable bearing strand as measured on the street or easement from pole to pole or pedestal to pedestal.

9. “Channel” means a frequency band, which is capable of carrying either one standard television or video signal, a number of audio, digital or other nonvideo signals, or some combination of such signals.

10. “Class IV channel” means a signaling path provided by a cable communications system to transmit signals of any type from a subscriber terminal to another point in the cable television system.

11. “Closed-circuit” or “institutional service” means such video, audio, data and other services provided to institutional users on an individual requirement, private channel basis. These may include, but not be limited to, two-way video, audio or digital signals among institutions, or from institutions to residential subscribers.

12. “Commence construction” means that time and date when construction of the cable communications system is considered to have commenced, which shall be when the first connection is physically made to a utility pole, or undergrounding of cables is initiated, construction does not include preliminary engineering (strand mapping) nor obtaining necessary permits and authorizations.

13. “Commence operation” means that time and date when operation of the cable communications system is considered to have commenced which shall be when sufficient distribution facilities have been installed so as to permit the offering of full service to at least 10 percent of the dwelling units located within the service area.

14. “Commercial subscriber” means a subscriber who receives a service in a place of business, where the service may be utilized in connection with a business, trade, or profession.

15. “Converter” means an electronic device which converts signal carries from one form to another.

16. “Council” means the governing body of the City of Poway.

17. “Education channel” or “education access channel” means any channel where educational institutions are the primary designated programmers.

18. “FCC” means the Federal Communications Commission and any legally appointed or elected successor.

19. “Franchise” means the nonexclusive rights granted pursuant to this chapter to construct and operate a cable communications system along the public way within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of this City.

20. “Franchise agreement” means a franchise awarded ordinance, or a contractual agreement, containing the specific provisions of the franchise granted, including referenced specifications, franchise applications, franchise requirements, ordinances and other related materials.

21. “Franchise fee” means the fee paid by the grantee to the grantor in consideration of the use of the public streets and rights-of-way.

22. “Government channel” or “government access channel” means any channel where local government agencies are the primary designated programmers.

23. “Grantee” means any “person” receiving a franchise pursuant to this chapter and under the granting franchise ordinance, and its lawful successor, transferee or assignee.

24. “Grantor” or “City” means the City of Poway as represented by the City Council or any delegate acting within the scope of its jurisdiction.

25. “Gross annual revenues” means the annual gross revenues received by the grantee from all sources of operations of the cable communications system as further defined in the franchise agreement.

26. “Initial service area” means the area of the City which will receive service initially, as set forth in the franchise agreement.

27. “Installation” means the connection of the system from the feeder cable to subscribers’ terminals, and the provision of service.

28. “Leased channel” or “leased access channel” means any channel or portion of a channel available for lease and programming by persons or entities other than the grantee.

29. “Local origination channel” means any channel where the grantee is the primary designated programmer, and provides video programs to subscribers.

30. “Monitoring” means observing a communication signal, or the absence of a signal, where the observer is neither the subscriber nor the programmer, whether the signal is observed by visual or electronic means, for any purpose whatsoever. Monitoring shall not include systemwide, nonindividually addressed sweeps of the system for purposes of verifying system integrity, controlling return paths transmissions, billing for pay-cable, verifying compliance with FCC rules, or detecting unauthorized connections to the cable communications system.

31. “Nonbroadcast signal” means a signal that is transmitted by a cable communications system and that is not involved in an over-the-air broadcast transmission path.

32. “Pay-cable” or “pay-television” means the delivery to subscribers, over the cable communications system, of television signals for a fee or charge to subscribers over and above the charge for basic service, or a per program, per channel, or other subscription basis.

33. “Penetration” means the result expressed in the percentage obtained by dividing the total number of potential subscribers in the franchise area into the number of subscribers receiving service.

34. “Person” means an individual, partnership, association, corporation or any lawful successor, transferee or assignee of said individual, partnership, association, organization or corporation.

35. “Private channel,” or “closed-circuit channel” means any channel which is available only to subscribers who are provided with special converter or terminal equipment to receive signals on that channel.

36. “Programmer” means a person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital, or other signals, either live or from recorded tapes or other storage media, to subscribers, by means of the cable communications system.

37. “Public access channel” or “community access channel” means any channel where any member of the general public or any noncommercial organization may be a programmer, without charge, on a first-come, first served, nondiscriminatory basis, in accordance with the terms of the franchise agreement.

38. “Reasonable notice” shall be written notice addressed to the grantee at its principal office or such other office as the grantee has designated to the grantor as the address to which notice should be transmitted to it, which notice shall be certified and postmarked not less than seven days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. In computing said seven days, Saturdays, Sundays and holidays recognized by the grantor shall be excluded.

39. “Reasonable order” means written orders not excessive or extreme as to costs or time to comply, governed by sound thinking.

40. “Resident” means any person residing in the City as otherwise defined by applicable law.

41. “Residential subscriber” means a subscriber who receives a service in an individual dwelling unit, where the service is not to be utilized in connection with a business, trade, or profession.

42. “Sale” shall include any sale, exchange, barter or offer for sale.

43. “School” means any nonprofit educational institution including primary and secondary schools, colleges and universities, both public and private.

44. “Section” means any section, subsection, or provision of this chapter.

45. “Service area” or “franchise area” means the designated geographic area in which the grantee is authorized or obligated to construct a cable system as provided in the franchise agreement.

46. “State” means the State of California.

47. “Street” includes each of the following which have been dedicated to the public or hereafter dedicated to the public and maintained under public authority or by others and located within the City limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas that the grantor shall permit to be included within the definition of street from time to time.

48. “Subscriber” or “customer” means any person, firm, corporation, or other entity who or which elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connection with the cable communications system.

49. “Substantially completed” means that sufficient distribution facilities have been installed by the grantee so as to permit the offering of full network service to at least 90 percent of the potential subscribers in the service area which have not already been served by another franchised cable operator. (Ord. 298 § 1, 1989; Ord. 129 § 3, 1984)

Article II. Grant of Franchise

5.60.020 Grant.

A. In the event that the grantor shall grant to the grantee a nonexclusive, revocable franchise to construct, operate, maintain, and reconstruct, a cable communications system within the franchise area, said franchise shall constitute both a right and an obligation to provide the services of a cable communications system as required by the provisions of this chapter and the franchise agreement.

B. The franchise agreement shall include those provisions of the grantee’s “Application for Franchise” that are finally negotiated and accepted by the grantor and grantee.

C. Any franchise granted under the terms and conditions contained herein shall be consistent with general law and/or statutory requirements, which are incorporated by this reference as if fully set forth herein.

D. In the event of conflict between the terms and conditions of the franchise and the terms and conditions on which the grantor can grant a franchise, the general law and/or statutory requirements, shall, without exception, control.

E. Any franchise granted is hereby made subject to the general ordinance provisions now in effect or hereafter made effective.

F. Nothing in the franchise shall be deemed to waive the requirements of the various codes and ordinances of the grantor regarding permits, fees to be paid or manner of construction; provided, however, that in the event of any conflict between the terms of this chapter and the franchise, the terms of the franchise shall control. (Ord. 298 § 1, 1989; Ord. 129 § 4.1, 1984)

5.60.025 Franchise territory.

The grantor may grant a franchise for all or any defined portion of the City. The service area shall be the entire territory defined in the franchise agreement. The initial service area shall be that portion of the service area scheduled to receive initial service, as stated in the franchise agreement. (Ord. 298 § 1, 1989; Ord. 129 § 4.2, 1984)

5.60.030 Use of public streets and ways.

For the purpose of operating and maintaining a cable communications system in the franchise area, and subject to the provisions of PMC 5.60.290, the grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the public streets and ways within the franchise area such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the cable communications system. Prior to construction or alteration, however, the grantee shall in each case file plans with the appropriate grantor agencies and local utility companies, and receive written approval before proceeding. (Ord. 298 § 1, 1989; Ord. 129 § 4.3, 1984)

5.60.035 Duration.

The term of any franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be as specified in the franchise agreement unless terminated sooner as hereinafter provided. The effective date of the franchise shall be the date of adoption of the resolution by the grantor approving the franchise agreement. (Ord. 298 § 1, 1989; Ord. 129 § 4.4, 1984)

5.60.040 Franchise nonexclusive.

Any franchise granted shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable communications system as it deems appropriate. (Ord. 129 § 4.5, 1984)

5.60.045 Transfer of ownership or control – Transfer of franchise.

Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. The franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to, by forced or voluntary sale, merger, consolidation, receivership, or other means without the prior consent of the grantor, and then only under such conditions as the grantor may establish. Such consent as required by the grantor shall, however, not be unreasonably withheld. (Ord. 298 § 1, 1989; Ord. 129 § 6(a), 1984)

5.60.050 Transfer of ownership or control – Ownership or control.

A. The grantee shall promptly notify the grantor of any proposed change in, or transfer of, or acquisition by any other party of, control of the grantee. The word “control” as used in this chapter is not limited to major stockholders but includes actual working control in whatever manner exercised.

B. Every change, transfer, or acquisition of control of the grantee shall make the franchise subject to cancellation unless and until the grantor shall have consented thereto, which consent will not be unreasonably withheld.

C. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the grantor may inquire into the qualifications of the prospective controlling party, and the grantee shall assist the grantor in any such inquiry.

D. In seeking the grantor’s consent to any change in ownership or control, the grantee shall have the responsibility:

1. To show to the satisfaction of the grantor whether the proposed purchaser, transferee, or assignee (the “proposed transferee”), which in the case of a corporation, shall include all officers, directors, employees and all persons having a legal or equitable interest in five percent or more of its voting stock, or any of the proposed transferee’s principals:

a. Has ever been convicted or held liable for acts involving moral turpitude including, but not limited to any violation of Federal, State or local law or regulations, or is presently under an indictment, investigation or complaint charging such acts,

b. Has ever had a judgment in an action for fraud, deceit or misrepresentation entered against it, her, him, or them by any court of competent jurisdiction, or

c. Has pending any legal claim, lawsuit or administrative proceeding arising out of or involving a cable system;

2. To establish, to the satisfaction of the grantor, the financial solvency of the proposed transferee by submitting all current financial data for the proposed transferee which the grantee was required to submit in its franchise application, and such other data as the grantor may request. Financial statements shall be audited, certified and qualified by an independent certified public accountant.

3. To establish to the satisfaction of the grantor that the financial and technical capability of the proposed transferee is such as shall enable it to maintain and operate the system for the remaining term of the franchise under the existing franchise terms:

a. Any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the grantor that it or its designee satisfactory to the grantor will take control and operate the cable communications system, in the event of a grantee default in its financial obligations. Further, said financial institution shall also submit a plan for such operation that will ensure continued service and compliance with all franchise requirements during the term. The financial institution shall not exercise control over the system for a period exceeding one year unless extended by the grantor in its discretion and during said period of time it shall have the right to petition the grantor to transfer the franchise to another grantee. If the grantor finds that such transfer after considering the legal, financial, character, technical and other public interest qualities of the applicant are satisfactory, the grantor will transfer and assign the rights and obligations of such franchise as in the public interest. The consent of the grantor to such transfer shall not be unreasonably withheld.

b. The consent or approval of the grantor to any transfer of the grantee shall not constitute a waiver or release of the rights of the grantor in and to the streets, and any transfer shall by its terms, be expressly subordinate to the terms and conditions of any franchise.

c. In the absence of extraordinary circumstances, the grantor will not approve any transfer or assignment of the franchise until the system is substantially completed.

d. In no event shall a transfer of ownership of control be approved without the successor in interest becoming a signatory to the franchise agreement and otherwise obligated thereto to the satisfaction of the grantor. (Ord. 298 § 1, 1989; Ord. 129 § 4.6(b), 1984)

5.60.055 Franchise renewal – Generally.

A. Nothing in any franchise agreement shall require renewal by the grantor after the term of the franchise has expired, nor shall renewal be presumed as a matter of vested interest, except to the extent specified in the Cable Communications Policy Act of 1984 (“Cable Act”).

B. The renewal term of any franchise shall not be greater than the initial term. (Ord. 298 § 1, 1989; Ord. 129 § 4.7(a), 1984)

5.60.060 Franchise renewal – Renewal procedure.

A. Not later than 18 nor earlier than 24 months prior to the expiration of any franchise, a grantee may submit an application for renewal of such franchise, on forms approved by the grantor, with a nonrefundable application fee established by the grantor in an amount not to exceed the reasonable cost of processing the application. The application shall set forth in detail the franchisee’s legal, character, financial and other pertinent qualifications sufficient to make a determination to renew or terminate such franchise.

B. The application when filed shall be available for public inspection at places designated by the grantor. No later than 90 days after filing, a public hearing shall be held on the application. A decision shall be made by the grantor not later than 90 days after such hearing based upon the application, the hearing, the grantee’s record of compliance with the franchise requirements, its record of satisfactory service, and the terms and conditions proposed for the franchise renewal period.

C. Based on the above criteria, the grantor may decide to renew the franchise under appropriate terms and conditions, or not to renew the franchise.

D. If the grantor’s decision is not to renew the franchise, the grantor may initiate public solicitations for applications for a new franchise. The original grantee shall not be precluded from submitting such an application.

E. In any renewal or public solicitation, the grantor may require additional services, system upgrade or any other conditions it deems feasible and appropriate in the light of the accepted and proven state-of-the-art of the cable communications industry at that time. (Ord. 129 § 4.7(b), 1984)

5.60.065 Police powers.

A. In accepting a franchise, the grantee acknowledges that its rights thereunder are subject to the police power of the grantor to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the grantor pursuant to such power.

B. Any conflict between the provisions of this chapter and any other present or future lawful exercise of the grantor’s police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to any grantee or cable communications systems which contains provisions inconsistent with this chapter shall prevail only if upon such exercise, the grantor finds any emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law. (Ord. 298 § 1, 1989; Ord. 129 § 4.8, 1984)

5.60.070 Franchise fee – Annual franchise payment.

A. A grantee of a franchise hereunder shall pay to the grantor an annual fee in an amount as designated in the franchise agreement.

B. Such payment shall be in addition to any other payments due the grantor and commence as of the effective date of the franchise.

C. In the event of a dispute, the grantor, if it so requests shall be furnished a statement, by a certified public accountant, reflecting the total amounts of gross annual revenues and all payments, deductions and computations for the period covered by the payment. (Ord. 298 § 1, 1989; Ord. 129 § 4.9(a), 1984)

5.60.075 Franchise fee – Acceptance by grantor.

No acceptance of any payment by the grantor shall be construed as a release or as an accord and satisfaction of any claim the grantor may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of the grantee. (Ord. 129 § 4.9(b), 1984)

5.60.080 Franchise fee – Failure to make required payment – Payment requirements.

In the event that any franchise payment or recomputed amount is not made on or before the dates specified in this chapter, the grantee shall pay as additional compensation:

A. An interest charge, computed from such due date, at the annual rate equal to the commercial prime interest rate in effect upon the due date.

B. A sum of money equal to five percent of the amount due in order to defray those additional expenses and costs incurred by the grantor by reason of delinquent payment.

C. An estimated quarterly payment shall be made for the first three quarters of the calendar year based upon the grantee’s operation, as of March 31st, June 30th, and September 30th. Each of these payments shall be due and payable no later than 30 days after the end of the quarter. Each payment shall be accompanied by a brief report showing the basis for the estimated payment and such other relevant facts as may be required by the grantor. The payment for the quarter ending December 31st shall be due and payable no later than 90 days after the end of the quarter. The payment shall reflect the actual payment due the grantor from the previous quarter plus an adjustment for any underpayment or overpayment made during the previous three quarters. The payment shall be accompanied by a report showing the quarterly gross revenues, the total annual revenues, the basis of the computation and such other relevant facts as may be required by the grantor.

D. Following the issuance and acceptance of the franchise, the grantee shall initiate franchise fee payments to the grantor at the minimum rate specified in the franchise agreement. These initial payments shall be credited against payments due in later years of the franchise in as much as they exceed the actual franchise payments due during any year. (Ord. 129 § 4.9(c – e), 1984)

5.60.085 Forfeiture or revocation – Grounds for revocation.

The grantor reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default and breach under this chapter and the franchise grant:

A. If the grantee should default in the performance of any of its significant and material obligations under this chapter or under such documents, agreements and other terms and provisions entered into by and between the grantor and the grantee and not cure such default within a reasonable time after notice to grantee;

B. If the grantee should fail to provide or maintain in full force and effect, the liability and indemnification coverages or the security fund or bonds as required in this chapter;

C. If any court of competent jurisdiction, or any Federal or State regulatory body by rules, decisions or other action determines that any provision of the franchise documents, including this chapter, is invalid or unenforceable prior to the commencement of system construction;

D. If the grantee should wilfully violate any orders or rulings of any regulatory body having jurisdiction over the grantee relative to this franchise unless such orders or rulings are being contested by the grantee before an appropriate regulatory body or agency or in a court of competent jurisdiction;

E. If the grantee ceases to provide services for a significant period of time for any reason within the control of the grantee over the cable communications system. The grantee shall not be declared at fault or be subject to any sanction under any provision of this chapter in any case in which performance of any such provision is prevented for reasons beyond the grantee’s control. A default shall not be deemed to be beyond the grantee’s control if committed by a corporation or other business entity in which the grantee holds a controlling interest, whether held directly or indirectly;

F. If the grantee evades any of the provisions of this chapter or the franchise agreement or practices any fraud or deceit upon the grantor;

G. If the grantee’s construction schedule is delayed for more than 18 months later than the schedule contained in the franchise agreement and the grantor finds that the delay was not excusable;

H. If the grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt. (Ord. 298 § 1, 1989; Ord. 129 § 4.10(a), 1984)

5.60.090 Forfeiture or revocation – Procedure prior to revocation.

A. To initiate revocation of a franchise, grantor shall make written demand that the grantee comply with any such requirement, limitation, term, conditions, rule or regulation or correct any action deemed cause for revocation. If the failure, refusal or neglect of the grantee continues for a period of 30 days following such written demand, the grantor may place its request for termination of the franchise upon a regular Council meeting agenda. The grantor shall cause to be served upon such grantee, at least 10 days prior to the date of such meeting, a written notice of this intent to request such termination, and the time and place of the meeting, notice of which shall be published at least once, 10 days before such meeting in a newspaper of general circulation within the franchise area.

B. The grantor shall hear any persons interested therein, and shall determine, in its discretion, whether or not any failure, refusal or neglect by the grantee was with just cause.

C. If such failure, refusal or neglect by the grantee was with just cause, the grantor shall direct the grantee to comply within such time and manner and upon such terms and conditions as are reasonable.

D. If the grantor determines such failure, refusal or neglect by the grantee was without just cause, then the grantor may, by resolution, declare that the franchise of such grantee shall be terminated and security fund and bonds forfeited unless there be compliance by the grantee within such period as the grantor may fix.

E. The decision of the grantor shall be in writing the reasons stated therefor set forth with findings supported by evidence within the record of proceedings. (Ord. 298 § 1, 1989; Ord. 129 § 4.10(b), 1984)

5.60.095 Procedures in the event of termination or expiration – Disposition of facilities.

In the event a franchise expires, is revoked, or otherwise terminated, the grantor may order the removal of the system facilities from the franchise area within a reasonable period of time as determined by the grantor or may allow the underground system facilities to be abandoned in place or require the original grantee to maintain and operate its network until a subsequent grantee is selected and a subsequent or modified cable system becomes operational. (Ord. 129 § 4.11(a), 1984)

5.60.100 Procedures in the event of termination or expiration – Restoration of property.

A. In removing its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the grantee’s removal of its equipment and appliances without affecting the electrical or telephone cable wires, or attachments.

B. The grantor shall inspect and approve the condition of the public ways and public places; and cables, wires, attachments and poles after removal.

C. The liability, indemnity and insurance, and the security fund and bonds provided for therein shall continue in full force and effect during the period of removal and until full compliance by the grantee with the terms and conditions of this chapter. (Ord. 298 § 1, 1989; Ord. 129 § 4.11(b), 1984)

5.60.105 Procedures in the event of termination or expiration – Restoration by grantor, reimbursement of costs.

A. In the event of a failure by the grantee to complete any work required by PMC 5.60.095 and/or 5.60.100, or any other work required by the grantor by law or ordinance within the time as may be established and to the satisfaction of the grantor, and after seven days notice, the grantor may cause such work to be done and the grantee shall reimburse the grantor the cost thereof within 30 days after receipt of an itemized list of such costs or the grantor may recover such costs through the security fund or bonds provided by the grantee. The grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this chapter. (Ord. 298 § 1, 1989; Ord. 129 § 4.11(c), 1984)

5.60.110 Procedures in the event of termination or expiration – Extended operation.

A. Upon either the expiration or revocation of a franchise, the grantor may extend the term of such franchise and may require the grantee to continue to operate the cable communications system for a defined period of time not to exceed 24 months from the date of such expiration or revocation.

B. The grantee shall, as trustee for its successor in interest, continue to operate the cable communications system under the terms and conditions of this chapter and the franchise agreement and to provide the regular subscriber service and any and all of the services that may be provided at that time.

C. The grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this chapter. (Ord. 298 § 1, 1989; Ord. 129 § 4.11(d), 1984)

5.60.115 Procedures in the event of termination or expiration – Grantor’s right not affected.

The termination and forfeiture of any franchise shall in no way affect any of the rights of the grantor under the franchise or any provision of law. (Ord. 129 § 4.11(e), 1984)

5.60.120 Receivership and foreclosure.

A. Any franchise granted pursuant hereto shall, at the option of the grantor, cease and terminate 120 days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:

1. Such receivers or trustees shall have, within 120 days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise granted pursuant hereto, and the receivers or trustees within the 120 days shall have remedied all defaults under the franchise; and

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

B. In the case of a foreclosure or other judicial sale of the plant, property and equipment of the grantee, or any part thereof, the grantor may serve notice of termination upon the grantee and the successful bidder at such sale, in which event the franchise and all rights and privileges of the grantee hereunder shall cease and terminate 30 days after service of such notice, unless:

1. The grantor shall have approved the transfer of the franchise, as and in the manner provided in this chapter; and

2. Such successful bidder shall have covenanted and agreed with the grantor to assume and be bound by all the terms and conditions of the franchise agreement. (Ord. 298 § 1, 1989; Ord. 129 § 4.12, 1984)

5.60.125 Franchise required.

No cable communications system shall be allowed to occupy or use the streets in the City or be allowed to operate without a franchise in accordance with the provisions of this chapter. (Ord. 298 § 1, 1989; Ord. 129 § 4.13, 1984)

5.60.130 Establishment of franchise requirements.

The grantor may establish appropriate requirements for new franchises or franchise renewals, and may modify these requirements from time to time to reflect changing conditions and state-of-the-art in the cable television industry. Such requirements shall not be retroactive to franchises then in effect. (Ord. 129 § 4.14, 1984)

Article III. Regulation of Franchise

5.60.135 Regulatory authority.

The grantor shall exercise appropriate regulatory authority under the provisions of this chapter and applicable law. (Ord. 298 § 1, 1989; Ord. 129 § 5.1, 1984)

5.60.140 Regulatory responsibility.

The grantor, acting alone or acting jointly with other grantors, may exercise or delegate the following regulatory responsibility:

A. Administering and enforcing the provisions of the cable communications system franchise(s);

B. Coordinating the operation of government and educational channels;

C. Providing technical, programming and operational support to public agency users, such as government departments, schools and public health care institutions;

D. Establishing procedures and standards for use of channels dedicated to public use and sharing of public facilities, if provided for in any franchise agreement;

E. Planning expansion and growth of public benefit cable services;

F. Analyzing the possibility of integrating cable communications with other local, State or Federal telecommunications networks;

G. Formulating and recommending long-range telecommunication policy. (Ord. 129 § 5.2, 1984)

5.60.145 Public usage of the system.

If so specified in the franchise agreement, the grantor may utilize a portion of the cable communications system capacity, and associated facilities and resources, to develop and provide cable services that will be in the public interest. In furtherance of this purpose, the grantor may establish a commission, public corporation, or other entity to receive and allocate facilities, support funds and other considerations provided by the grantee, and/or others. Such an entity, if established, may be delegated the following responsibilities:

A. Receive and utilize or reallocate for utilization, channel capacity, facilities, funding and other support provided specifically for public usage of the cable communications system;

B. Review the status and progress of each service developed for public benefit;

C. Reallocate resources on a periodic basis to conform with changing priorities and public needs;

D. Report to the grantor annually on the utilization of resources, the new public services developed and the benefits achieved for the City and its residents. (Ord. 129 § 5.3, 1984)

5.60.150 Reservation by grantor.

The grantor reserves the right, at its discretion, from time to time, to determine if the entity described in PMC 5.60.145 is performing its purposes in a manner satisfactory to the grantor, and if it is not, the grantor may receive and allocate all or a portion of the channel capacity, operations, and capital appropriation, including any facilities and equipment purchased previously with such appropriation, to another entity. A new entity shall be required to comply in all respects with the legal responsibilities described in PMC 5.60.145. (Ord. 129 § 5.4, 1984)

5.60.155 Initial rates.

A. The grantee shall establish initial rates that must be applied fairly and uniformly to all subscribers in the franchise area for its services except as provided below.

B. In the event that grantee’s franchise area, or any portion thereof, is actually overbuilt by another franchised or licensed cable operator, or other person or entity who provides the equivalent of cable television services, grantee may, but shall not be required to, reduce its rate schedule for those subscribers within the overbuild area without being required to reduce its rate(s) throughout the entirety of its service area; provided, however, grantee’s published rates shall constitute the maximum rate which can be charged to any subscriber within grantee’s service area irrespective of the presence of overbuild competition or the lack thereof.

C. Grantee may, but shall not be required to, adopt promotional policies which reduce rates upon all or a portion of the services offered by grantee. Grantee shall give notice of the promotional policies to the grantor. Grantee’s promotional policies may be implemented or changed by grantee from time to time without the consent of the grantor; provided, however, grantee’s promotional policies, until changed, shall be applied uniformly throughout an identifiable portion of the grantee’s entire service area. (Ord. 298 § 1, 1989; Ord. 129 § 5.5, 1984)

5.60.160 Rate change procedure.

A. The grantee may establish its own rates and charges for services rendered to subscribers under this chapter.

B. The grantor may recapture its rate-making authority at any time as is allowed by applicable law.

C. When the grantee elects to increase its rates it shall notify, in writing, the grantor, a minimum of 45 calendar days before the increase is scheduled to take effect.

D. Within 60 days following the notification to the grantee that the grantor wishes to challenge the rate increase, the grantor shall hold a public hearing to consider the proposed rate change, at which hearing all persons desiring to be heard, including the grantee, shall be heard on any matter including, but not limited to, the performance of its franchise, the grantee’s service, and the proposed new rates.

E. Upon notice of any public hearing as provided above, the grantee shall notify its subscribers of the time, place, and subject matter of the public hearing by announcement on at least two channels of its system between the hours of 7:00 p.m. and 9:00 p.m., for at least five consecutive days prior to the hearing or by such suitable means and messages as may be approved by the grantor.

F. Within 90 days after said hearing, the grantor shall render a written decision on the grantee’s petition, either accepting, rejecting, modifying or deferring the same and reciting the basis for its decision. The grantor shall consider, but not be limited to, the following factors in approving or disapproving the petition:

1. Grantee’s fulfillment of all requirements of the franchise;

2. Quality of service, as indicated by the number and type of service complaints, grantee’s response to complaints, and the result of periodic system performance tests and the annual reviews specified in PMC 5.60.195;

3. Prevailing rates for comparable services in other cable systems of similar size and complexity;

4. Rate of return on grantee’s equity, as compared to businesses of equivalent risk; for the purposes of this chapter, the rate of return on equity shall be defined as the net, after tax profit divided by the equity portion of grantee’s investment in tangible assets; the investment shall be defined as the cumulative cost of tangible assets such as plant, property and equipment, less the cumulative depreciation charges, plus working capital, which shall be defined as equivalent to three months total operating expenses; the rate of return shall be calculated on a cumulative basis for all system revenues and costs including services such as pay-cable that may be exempt from local rate regulation; upon request of the grantor, grantee shall promptly provide, from the grantee, its parent company and any subsidiary company, all information as shall be reasonably necessary to determine system revenues and costs;

5. Performance of grantee in introducing new services and expanding the cable system’s capability, as compared to other systems of similar size and complexity, and as evaluated by the system and services review specified in PMC 5.60.195;

6. Tax benefits received by grantee, its partners or share holders, as the result of their investment in the system;

7. Cash flow derived from system services; the grantor shall not consider any valuation based upon the franchise or the grantee’s goodwill and these items of value shall neither be amortized as an expense nor shall a return be paid on them.

G. If the grantor fails to render a written decision either accepting, rejecting, modifying, or deferring grantee’s petition within 180 days of the grantee’s petition pursuant to this chapter, the grantee shall thereafter be entitled to put its proposed new rates into effect;

H. The grantee’s request for a rate increase shall at the request of the grantor, include, but not be limited to, the following financial reports, which shall reflect the operations of the system:

1. Balance sheet;

2. Income sheet;

3. Statement of sources and applications of funds;

4. Detailed supporting schedules of expenses, income, assets, depreciation and other items as may be required;

5. Statement of current and projected subscribers and penetration.

The grantee’s accounting records applicable to the system shall be available for inspection by the grantor at all reasonable times. The grantor shall have access to records of financial transactions for the purpose of verifying burden rates or other indirect costs prorated to the operation. The documents listed above shall include sufficient detail and/or footnotes as may be necessary to provide the grantor with the information needed to make accurate determinations as to the financial condition of the system. All financial statements shall be certified as accurate by a certified public accountant or officer of grantee. (Ord. 298 § 1, 1989; Ord. 129 § 5.6(a – h), 1984)

5.60.165 Rate charge procedure – Schedule of rates.

The grantee shall maintain and file with the grantor, a complete schedule of subscriber rates including all fees and charges for services not subject to regulation or approval by the grantor. (Ord. 129 § 5.6(i), 1984)

5.60.170 Rate charge procedure – Disconnections.

There shall be no charge for disconnection from the system. However, if a subscriber has failed to pay properly due monthly fees or if a subscriber disconnects for seasonal periods, the grantee may require, in addition to full payment of any delinquent fees, a reasonable fee for reconnection. (Ord. 129 § 5.6(j), 1984)

5.60.175 Rate charge procedure – No consideration beyond schedule.

The grantee shall receive no consideration whatsoever for or in connection with its provision of service to its subscribers other than as filed with the grantor. (Ord. 298 § 1, 1989; Ord. 129 § 5.6(k), 1984)

5.60.180 Rate charge procedure – Submission of rate increase requests.

The grantee shall not submit a request for rate increases earlier than 12 months after a prior request. (Ord. 129 § 5.6(l), 1984)

5.60.185 Rate charge procedure – Rate increase notice.

The grantee shall give notice to subscribers at least 30 days in advance of the implementation of a rate increase, and no part of the increase shall be applicable to any bills for service which have already been sent to subscribers. (Ord. 129 § 5.6(m), 1984)

5.60.190 Annual review of performance.

At the grantor’s sole option, within 90 days of the first anniversary of the effective date of each franchise, and each year thereafter throughout the term of the franchise, the grantor and grantee shall meet publicly to review the performance, quality of service and rates of the cable communications system. The reports required in Article VII of this chapter regarding subscriber complaints, the records of performance tests and the opinion survey report shall be utilized as the basis for review. In addition, any subscriber may submit complaints during the review meetings, either orally or in writing, and these shall be considered.

A. Within 30 days after the conclusion of the system performance review meetings, the grantor shall issue findings with respect to the adequacy of system performance and quality of service. If inadequacies are found, the grantor may direct grantee to correct the inadequacies within a reasonable period of time.

B. Failure of grantee, after due notice, to correct the inadequacies shall be considered a material breach of the franchise, and the grantor may, at its sole discretion, exercise any remedy within the scope of this chapter or State law considered appropriate. (Ord. 129 § 5.7, 1984)

5.60.195 System and services review.

To provide for technological, economic, and regulatory changes in the proven and accepted state-of-the-art of cable communications, to facilitate renewal procedures, to promote the maximum degree of flexibility in the cable system, and to achieve a continuing, advanced modern system, the grantor and the grantee shall comply with the following system and services review provisions and the franchise agreement:

A. At the grantor’s sole option, the grantor and grantee shall hold a system and services review session; however, the grantor shall not require such sessions more frequently than every three years;

B. Sixty days prior to the scheduled system and services review session, grantee shall submit a report to the grantor indicating the following:

1. All cable system services referred to above that are known to be in large metropolitan areas;

2. A plan for provision of such services, or justification indicating why such services are not feasible for the franchise area;

C. Topics for discussion and review at the system and services review sessions shall include but shall not be limited to, services provided, rate structure, free or discounted services, application of new technologies, system performance, programming, subscriber complaints, user complaints, rights of privacy, amendments to the franchise, undergrounding processes, developments in the law, and regulatory constraints;

D. Either the grantor or the grantee may select additional topics for discussion at any review session;

E. Not later than 60 days after the conclusion of each system and services review session, the grantor shall issue findings, including specifically a listing of any cable services not then being provided to the grantor that are considered technically and economically feasible. The grantor may direct grantee to provide such services within a reasonable time, under reasonable rates and conditions. Failure to provide such direct services may be considered a breach of the franchise, subject to remedies as provided in this chapter. (Ord. 129 § 5.8, 1984)

5.60.200 Access channel management – Intent.

It is the intent of the grantor to ensure that public access channels provided for in any franchise agreement, shall be managed in the best public interest, so that programming on such channels will be free of censorship, open to all residents, and available for all forms of public expression, community information and debate of public issues. Pursuant to these objectives, the grantor may delegate the responsibility for nonregionally oriented public access channel management to a nonprofit entity which may include, but not be limited to, any of the following:

A. A nonprofit public corporation;

B. An access management commission or committee, appointed by the grantor, and representing a broad spectrum of the community;

C. An established nonprofit entity with special cablecasting capability, such as a local or regional community college. (Ord. 298 § 1, 1989; Ord. 129 § 5.9(a), 1984)

5.60.205 Access channel management – Functions.

The entity designated to manage the access channels shall have the following functions:

A. Responsibility for program production for and management of the public access channel. Public access channels may include government and educational access channels, as designated in the franchise agreement;

B. To assure that the public access channels are made available to all residents of the franchise area on a nondiscriminatory, first-come, first-served basis;

C. To assure that no censorship or control over program content of the public access channels exist, except as necessary to comply with FCC prohibition of material that is obscene, or to prevent commercial advertising, or conduct a lottery;

D. To devise, establish, and administer all rules, regulations, and procedures pertaining to the use and scheduling of the public education, and government channels;

E. To prepare, in conjunction with the grantee, such regular or special reports as may be required or desirable;

F. To hire and supervise staff;

G. To make all purchases of materials and equipment that may be required;

H. To develop additional sources of funding, such as foundation or Federal or State grants, to further community programming;

I. To perform such other functions relevant to the public access channels as may be appropriate;

J. To establish budgets on an annual basis, and utilize funds and resources received from the grantor or the public usage entity designated in PMC 5.60.145, for the purpose of access programming.

K. To solicit and receive grantee’s input in regard to these functions. (Ord. 298 § 1, 1989; Ord. 129 § 5.9(b), 1984)

5.60.210 Access channel management – Access rules.

The access management entity shall complete a set of rules for the use of the public access channels which shall be promptly forwarded to the grantor. The rules shall be prepared in cooperation with the grantee, and confirmed by a contractual agreement between the access management entity and the grantee. The rules shall, at a minimum, provide for:

A. Access on a first-come, first-served, nondiscriminatory basis for all residents of the franchise area;

B. Prohibition of advertising for commercial or political purposes, as defined by the FCC;

C. Prohibition of any presentation of lottery information, or obscene or indecent material;

D. Public inspection of the log of producers, which shall be retained by the grantee for a period of two years;

E. Procedures by which individuals or groups who violate any rule may be prevented from further access to the channel;

F. Free use of such reasonable amounts of channel time, cablecasting facilities, and technical support as are provided for in the agreement between the access management entity and the grantee. (Ord. 298 § 1, 1989; Ord. 129 § 5.6(c), 1984)

5.60.215 Access channel management – Access management entity reports to grantor.

The access management entity shall provide a report to the grantor, at least annually, indicating achievements in community-based programming and services, and also shall provide a special report each time the grantee requests an increase in rates, indicating the level and quality of grantee’s support during the period elapsed since any previous rare increase was implemented. (Ord. 129 § 5.9(d), 1984)

Article IV. General Financial and Insurance Provisions

5.60.220 General provisions.

The grantee shall be subject to the financial and insurance provisions described in this chapter; provided, however, that inconsistent provisions of the franchise agreement shall control. (Ord. 298 § 1, 1989; Ord. 129 § 6.1, 1984)

5.60.225 Performance bond.

A. The grantee shall, at least 30 days prior to the commencement of construction or reconstruction, file with the grantor a performance bond in the amount specified in the franchise agreement in favor of the grantor and any other person who may be entitled to damages as a result of any occurrence in the operation or termination of the cable communications system operated under the franchise agreement, and including the payments required to be made to the grantor hereunder.

B. Such bond as contemplated herein shall be in the form and with a company approved by the grantor and shall among other matters cover the cost of removal of any properties installed by the grantee in the event said grantee shall default in the performance of its franchise obligation.

C. In no event shall the amount of the bond be construed to limit the liability of the grantee for damages.

D. Grantor, at its sole option, may waive this requirement, or permit consolidation of the construction bond with the performance bond and security fund specified in PMC 5.60.230. (Ord. 298 § 1, 1989; Ord. 129 § 6.2, 1984)

5.60.230 Security fund.

A. Within 30 days after the effective date of the franchise, the grantee shall deposit into a bank account, established by the grantor and maintain on deposit through the term of the franchise, or establish an irrevocable letter of credit, the sum specified in the franchise agreement, as security for the faithful performance by it of all the provisions of the franchise, and compliance with all orders, permits and directions of any agency of the grantor having jurisdiction over its act or defaults under this chapter, and the payment by the grantee of any claims, liens and taxes due the grantor which arise by reason of the construction, operation or maintenance of the system. The security funds or letter of credit funds may be assessed by the grantor for purposes including, but not limited to the following:

1. Failure of grantee to pay the grantor sums due under the terms of the franchise;

2. Reimbursement of costs borne by the grantor to correct franchise violations not corrected by grantee, after due notice;

3. Monetary remedies or penalties assessed against grantee due to default or violation of franchise requirements.

B. At the grantor’s sole option, some portion of the security fund may be provided in the acceptable form of an irrevocable letter of credit, in lieu of a cash deposit.

C. Within 30 days after notice to it that any amount has been withdrawn by the grantor from the security fund pursuant to subsection A of this section, the grantee shall deposit a sum of money sufficient to restore such security fund to the original amount or increase the letter of credit to accomplish the same.

D. If the grantee fails, after 10 days’ notice to pay to the grantor any franchise fee or taxes due and unpaid; or, fails to pay to the grantor within such 10 days, any damages, costs or expenses which the grantor shall be compelled to pay by reason of any act or default of the grantee in connection with the franchise; or fails, after 30 days’ notice of such failure by the grantor to comply with any provision of the franchise which the grantor reasonably determines can be remedied by an expenditure of the security fund, the grantor may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the grantor shall notify the grantee of the amount and date thereof.

E. The grantee shall be entitled to the return of such security fund, or portion thereof, as remains on deposit or release the letter of credit, as appropriate, no later than 90 days after the expiration of the term of the franchise; provided, that there is then no outstanding default on the part of the grantee.

F. The rights reserved to the grantor with respect to the security fund are in addition to all other rights of the grantor whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the grantor may have. (Ord. 298 § 1, 1989; Ord. 129 § 6.3, 1984)

5.60.235 Indemnification.

A. The grantee shall by acceptance of the franchise, agree to indemnify, defend and hold harmless the grantor, its officers, boards, commissions, agents, and employees from any and all claims, suits, judgments for damages in any way arising out of or through or alleged to arise out of or through:

1. The act of the grantor in granting the franchise; and

2. The acts or omissions of grantee, its servants, employees, or agents, except for acts of negligence of the grantor. Both such indemnifications shall cover such claims arising in tort, contracts, violations of statutes, ordinances or regulations or otherwise.

B. In the event any such claims shall arise, the grantor shall tender the defense thereof to the grantee; provided, however, that the grantor in its sole discretion may participate in the defense of such claims at its expense. (Ord. 129 § 6.4, 1984)

5.60.240 Insurance.

A. The grantee shall maintain throughout the term of the franchise insurance in amounts at least as follows:

1. Worker’s Compensation Insurance. In such coverage as may be required by the worker’s compensation insurance and safety laws of the State of California and amendments thereto.

2. Comprehensive General Liability. Comprehensive automobile liability including, but not limited to, nonownership and hired car coverage as well as owned vehicles with coverage for bodily injury and property damage shall be maintained at the sum(s) specified in the franchise agreement.

B. The grantee shall furnish the grantor with certificates of insurance.

C. Such insurance certificates provided for in this chapter shall name the grantor, its officers, boards, commissions, agents, and employees as additional insureds and shall contain the following endorsement:

It is hereby understood and agreed that this insurance policy may not be cancelled by the surety or the intention not to renew be stated by the surety until thirty (30) days after receipt by the City by registered mail written notice of such intention to cancel or not renew.

D. The minimum amounts set forth in the franchise agreement for such insurance shall not be construed to limit the liability of the grantee to the grantor under the franchise issued to the amounts of such insurance. (Ord. 129 § 6.5, 1984)

Article V. Design and Construction Provisions

5.60.245 System design.

The cable communications system shall be constructed in accordance with the design requirements contained in the franchise agreement. (Ord. 298 § 1, 1989; Ord. 129 § 7.1, 1984)

5.60.250 Geographical coverage.

The grantee shall design and construct the system in such a manner as to have the eventual capability to pass by every single-family dwelling unit, multiple-family dwelling unit, school and public agency within the service area of the franchise. Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in the franchise agreement. System construction and provision of service shall be nondiscriminatory, and the grantee shall not delay or defer service to any section of the franchise area on the grounds of economic preference. (Ord. 298 § 1, 1989; Ord. 129 § 7.2, 1984)

5.60.255 Cablecasting facilities.

The grantee shall provide cablecasting facilities in accordance with the requirements of the franchise agreement. (Ord. 129 § 7.3, 1984)

5.60.260 System construction schedule.

A. The grantee shall comply with the requirements of the system construction schedule contained in the franchise agreement.

B. The grantee shall provide a detailed construction plan indicating progress schedule, area construction maps, test plan, and projected dates for offering service to any new area or for reconstructing the cable system. In addition, the grantee shall update this information on an annual basis. (Ord. 298 § 1, 1989; Ord. 129 § 7.4, 1984)

5.60.265 Remedies for delay in construction.

The grantor may at its sole option, apply any or all of the following remedies in the event of material and substantial delays in system construction or reconstruction:

A. Reduction in the duration of the franchise on a month-for-month basis for each month of delay exceeding six months;

B. Forfeiture of construction bonds and/or assessment of monetary damages up to the maximum limit specified in the franchise agreement, levied against the security fund for delays exceeding one year;

C. Termination of the franchise within one year after award of the franchise if the grantee has failed to initiate system construction or reconstruction;

D. Termination of the franchise for other material and substantial delays in completing system construction exceeding 18 months. Any remedies applied shall be in accordance with the procedures contained in PMC 5.60.430 through 5.60.445. (Ord. 298 § 1, 1989; Ord. 129 § 7.5, 1984)

5.60.270 Provision of service.

After service has been established by activating trunk cables for any area, the grantee shall provide service to any requesting subscriber within that area within 30 days from the date of request. (Ord. 129 § 7.6, 1984)

5.60.275 Undergrounding of cable.

The undergrounding of cable is encouraged. In any event, cables shall be installed underground at grantee’s cost where existing utilities are already underground. Previously installed aerial cable shall be undergrounded and relocated in concert, and on a cost-sharing basis, with other utilities, when such other utilities may convert from aerial to underground construction. (Ord. 129 § 7.7, 1984)

5.60.280 New development undergrounding.

In cases of new construction or property development where utilities are to be placed underground, upon request by the grantee, the developer or property owner shall give grantee reasonable notice of the particular date on which open trenching will be available for grantee’s installation of conduit, pedestals and/or vaults, and laterals to be provided at the grantee’s expense. The grantee shall also provide specifications as needed for trenching. Cost of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if grantee fails to install its conduit, pedestals and/or vaults, and laterals within five working days of the date the trenches are available, as designated in the notice given by the developer or property owner, then should the trenches be closed after the five-day period, the cost of new trenching is to be borne by grantee. (Ord. 129 § 7.8, 1984)

5.60.285 Underground at multiple dwelling units.

In cases of multiple dwelling units serviced by aerial utilities, the grantee shall make every reasonable effort to minimize the number of individual aerial drop cables giving preference to undergrounding of multiple drop cables between the pole and the dwelling unit. The burden of proof shall be upon the grantee to demonstrate why undergrounding of drop cables is technically or economically unfeasible. (Ord. 298 § 1, 1989; Ord. 129 § 7.9, 1984)

5.60.290 Street occupancy.

A. The grantee shall utilize existing poles, conduits and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately owned property until a permit or the written approval of the grantor is obtained. However, no location of any pole or wire holding structure of the grantee shall be a vested interest and such poles or structures shall be removed or modified by the grantee at its own expense whenever the grantor determines that the public convenience would be enhanced thereby whether the grantor is acting in its governmental or proprietary capacity.

B. The grantee shall notify the grantor at least 10 days prior to the intention of the grantee to commence any construction in any streets except in case of a bona fide emergency. The grantor shall cooperate with the grantee in granting any permits required, providing such grant and subsequent construction by the grantee shall not unduly interfere with the use of such right-of-way and that proposed construction shall be done in accordance with the pertinent provisions of the ordinances of the grantor.

C. All transmission lines, equipment and structures shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and at all times, shall be kept and maintained in a safe, adequate and substantial condition, and in good order and repair. The grantee shall, at all times, employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights, flares or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures placed in any public right-of-way by the grantee shall be placed in such a manner as not to interfere with the usual travel on such public right-of way.

D. Grantee shall, at its own expense, and in a manner approved by the grantor, restore to its previously existing condition any public right-of-way which is damaged or disturbed as a result of its operations or construction on its behalf.

E. Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the grantor to remove any of the grantee’s facilities, no charge shall be made by the grantee against the grantor for restoration and repair.

F. The grantee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and direction of the grantor. Trimming of trees on private property shall require written consent of the property owner.

G. The grantee at its expense shall protect, support, temporarily disconnect, relocate, or remove any property of the grantee when, in the opinion of the grantor the same is required by reason of traffic conditions, public safety, street vacation, freeway or street grade, installation of sewers, drains, waterpipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements by governmental agencies, or any other structure or public improvement, including but not limited to movement of buildings, redevelopment, or any general program under which the grantor shall undertake to cause any such properties to be located beneath the surface of the ground. Nothing under this chapter shall be deemed a taking of the property of the grantee and the grantee shall be entitled to no surcharge by reason of anything under this chapter.

H. Upon failure of the grantee to commence, pursue or complete any work required by law or by the provisions of this chapter to be done in any street, within the time prescribed and to the satisfaction of the grantor, the grantor may, at its option, cause such work to be done and the grantee shall pay to the grantor the cost thereof in the itemized amounts reported by the grantor to the grantee within 30 days after receipt of such itemized report.

I. The grantee shall make no paving cuts or curb cuts unless absolutely necessary, and only after written permission has been given by the grantor.

J. The grantor reserves the right to require conduit for underground cabling as determined by the superintendent of streets. (Ord. 298 § 1, 1989; Ord. 129 § 7.10, 1984)

5.60.295 Construction and technical standards – Generally.

A. Construction Standards.

1. Compliance with Safety Codes. All construction practices shall be in accordance with all applicable sections of the Occupational Safety and Health Act of 1970 and any amendments thereto as well as all State and local codes where applicable.

2. Compliance with Electrical Codes. All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the National Electrical Code as amended, and all applicable State and local codes.

3. Antennas and Towers. Antenna supporting structures (towers) shall be designed for the proper loading as specified in Electronics Industry Association’s R.S.-222-A specifications.

4. Compliance with Aviation Requirements. Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable State or local codes and regulations.

5. Construction Standards and Requirements. All of the grantee’s plant and equipment, including but not limited to the antenna site, head-end and distribution system towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements the grantor may deem reasonably proper to make, or to interfere in any manner with the reasonable rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or vehicular traffic.

6. Safety and Nuisance Requirements. The grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public.

B. Technical Standards. The cable communications system shall meet all technical and performance standards contained in the franchise agreement.

C. Test and Compliance Procedure.

1. Frequency of Testing. Grantee shall test the system monthly, on a calendar basis, with no longer than six weeks, nor less than three weeks between monthly tests.

2. Equipment Calibration. All frequency and/or signal level sensitive pieces of test equipment used to perform the monthly tests described herein shall be calibrated, as evidenced by a current certificate of calibration issued by a competent independent calibration facility with traceability of calibration for each piece of equipment to the National Bureau of Standards. In lieu of the requirement of independent calibration, grantee may at its option, certify that its equipment is calibrated and, at the grantor’s request, provide records to demonstrate the traceability of such calibration for each piece of equipment to the National Bureau of Standards.

3. Test Location.

a. The monthly tests shall be made at the output of the (electrically) furthest subscriber tap on any distribution leg checked.

b. The specific test points checked shall be rotated from month to month so that no test point shall be revisited during a monthly test check until all other distribution end-of-lines have been checked, except as provided for below.

c. The output of the subscriber tap shall be connected to the input of the measurement equipment via a 100-foot RG-6 jumper to simulate a typical subscriber drop, and the signal levels measured, recorded, and reported to the grantor prior to making any corrective actions at the subject test location, or on the trunk and distribution legs feeding the subject test location.

4. Tests to be Performed. The following tests shall be performed at five test locations of the outside plant system within the City of Poway. (For the purposes of the following subsections, a channel shall be considered as being “activated” if grantee carries on that channel programming of any nature which is normally available to one or more subscribers within the system.)

a. Video carrier levels on all activated channels. Unit of reporting assessment shall be dBmV.

b. Aural carrier levels on all activated channels. Unit of measurement shall be dBmV.

c. Carrier-to-noise measurement on no less than one activated channel. Unit of reporting measurement shall be a positive number, expressed in dB relative to the reference carrier.

d. Low frequency distortion (“Hum”) measurement on no less than one activated channel with modulation removed, or a substitute unmodulated carrier of equal level to regular video channels. Unit of reporting measurement shall be the percentage of Hum relative to the reference unmodulated carrier.

e. Composite distortion measurement on no less than one activated channel made by measuring the difference between the normal video carrier level, and the highest level distortion product(s) falling within the video bandwidth with the normal video carrier removed, if any. Unit of reporting measurement shall be a negative number, expressed in dB relative to the reference video carrier.

5. Report Scope. The report required by subsection (C)(6) of this section shall contain clear and sufficient information so that the specific test point location may be accurately determined from the report. At a minimum, the test report for each location shall include the following:

a. Tap value and number of ports;

b. Grantee map page and grid, or Thomas Brother’s map page and grid;

c. Trunk and line extender cascade count;

d. Street address (or other suitable physical description);

e. Date of testing;

f. Time of testing;

g. List of all frequency and/or signal level sensitive equipment by manufacturer, model number, and serial number;

h. A statement indicating that all of the equipment generally described in subsection (C)(5)(h) of this section meets the calibration requirements of subsection (C)(2) of this section;

i. Name (printed), and signature of person actually performing the tests described above, for the purpose of certifying the accuracy of the test point report.

6. Report Submission to Grantor. The test point reports shall be submitted to the grantor (either in person, or via prepaid U.S. first class mail), at a location designated by the grantor from time to time, no later than 14 calendar days after the tests are made.

7. Special Retesting of Test Point Locations. In the event that a test point fails to meet any of the technical parameters described elsewhere (in the body of the franchise), shall, in a timely manner, correct the deficiency causing the test point to fail upon initial inspection. Within six weeks after corrections are completed, grantee shall demonstrate to the grantor that, at a minimum all parameters described in subsection A of this section above meet the technical parameters described elsewhere in the franchise agreement. Compliance shall be evidenced by retesting the subject test location in accordance with the test procedures listed above, and by submitting to the grantor a special retest report containing the information described in subsection (C)(5) of this section.

D. Special Tests. At any time after commencement of service to subscribers the grantor may require additional tests, full or partial repeat tests, different test procedures, or tests involving a specific subscriber’s terminal. Requests for such additional tests will be made on the basis of complaints received or other evidence indicating an unresolved controversy or significant noncompliance, and such tests shall be limited to the particular matter in controversy. The grantor shall endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to the grantee or to the subscriber. (Ord. 298 § 1, 1989; Ord. 129 § 7.11, 1984)

5.60.300 Construction and technical standards – Areawide interconnection.

A. Interconnection Required. If required by the franchise agreement, the grantee shall interconnect access channels of the cable communications system with any or all other systems operated pursuant to franchises in contiguous areas within the City, upon the directive of the grantor. Interconnection of systems shall permit interactive transmission and reception of program material, and may be done by direct cable connection, microwave link, satellite, or other appropriate method.

B. Interconnection Procedure. Upon receiving the directive of the grantor to interconnect, and if feasible, the grantee shall immediately initiate negotiations with the other affected system or systems. The cost shall be borne by both or all grantees, in the proportion of number of channels received to total number of channels transmitted and received, under the assumption that benefits accrue primarily through receipt of additional channels.

C. Relief. The grantee may be granted reasonable extensions of time to interconnect or the grantor may rescind its order to interconnect upon petition by the grantee to the grantor. The grantor may grant said request if it finds that the grantee has negotiated in good faith and has failed to obtain an approval from the system or systems of the proposed interconnection, or that the cost of the interconnection would cause an unreasonable or unacceptable increase in subscriber rates.

D. Initial Technical Requirements to Assure Future Interconnection Capability.

1. All cable communications systems receiving franchises to operate within the City shall use the same frequency allocations for commonly provided television signals so far as is technically and economically feasible.

2. The grantee shall provide local origination and access equipment that is compatible throughout the area so that videocassettes or videotapes can be shared by various systems. (Ord. 298 § 1, 1989; Ord. 129 § 7.12, 1984)

Article VI. Service Provisions

5.60.305 Services to be provided.

The grantee shall provide, as a minimum, the general category of services listed in the franchise agreement. Services shall not be reduced without prior approval of the grantor. (Ord. 298 § 1, 1989; Ord. 129 § 8.1, 1984)

5.60.310 Basic television service (BTS).

The “basic television service” shall include the local broadcast signals, distant television broadcast signals, the imported nonbroadcast signals, and the provision of all other cablecast open-channel signals as specified in the franchise agreement. This service shall be provided to all subscribers at the established BTS monthly subscription rates. (Ord. 298 § 1, 1989; Ord. 129 § 8.2, 1984)

5.60.315 Basic subscriber radio service (BSRS).

The “basic subscriber radio service” shall include the provision of all audio services designated in the franchise agreement, including broadcast FM radio, and cablecast FM signals. This service shall be provided to all subscribers at the established BSRS monthly subscription rates. (Ord. 129 § 8.3, 1984)

5.60.320 Institutional service (IS).

If specified in the franchise agreement, the “institutional service” shall include the provision of transmission and/or reception services to institutional users, on a leased channel basis at established IS rates. Services may include the distribution of video or nonvideo signals. (Ord. 129 § 8.4, 1984)

5.60.325 Additional subscriber services.

“Additional subscriber services,” not included in the BTS and BSRS services specified above, may be provided, either within the basic subscription rates, or on a premium basis, subject to applicable FCC regulations. (Ord. 298 § 1, 1989; Ord. 129 § 8.5, 1984)

5.60.330 Local origination channel(s).

The grantee shall operate the cablecasting studios on a high-quality, professional basis for the purpose of providing cablecast programming responsive to local needs and interests. The emphasis for the local origination channel(s) shall be on providing programming that is unavailable to viewers on broadcast television channels. (Ord. 298 § 1, 1989; Ord. 129 § 8.6, 1984)

5.60.335 Government access channel(s).

The grantee shall provide the number of channels specified in the franchise agreement, including all necessary interface equipment and cabling to permit operation, for the use of the grantor at no charge to the grantor. The grantee shall make every effort to provide advice and technical expertise to aid in the utilization of these channels. (Ord. 129 § 8.7, 1984)

5.60.340 Education access channel(s).

The grantee shall provide the number of channels specified in the franchise agreement including all necessary interface equipment and cabling to permit operation, for the use of the local educational institutions at no charge. The grantee shall make every effort to provide advice and technical expertise to aid in the utilization of these channels. (Ord. 129 § 8.8, 1984)

5.60.345 Public access channel(s).

The grantee shall provide the number of channels specified in the franchise agreement including all necessary interface equipment and cabling to permit operation, to be available to the public at no charge. The public access channel(s) shall be managed and operated by the access management entity, as described in Article III of this chapter. The grantee shall make available for programmers of the public access channel the facilities and support listed in the franchise agreement. (Ord. 129 § 8.9, 1984)

5.60.350 Public access(es) (closed-circuit).

If the cable communications system includes a closed-circuit institutional network, and if required by the franchise agreement, the grantee shall make at least three two-way channels available for local government programs, educational programs, and public service programs use at no charge. The public access two-way channels shall be managed and operated by the access management entity. (Ord. 298 § 1, 1989; Ord. 129 § 8.10, 1984)

5.60.355 Leased access channel.

The grantee shall make available leased access channels, on a nondiscriminatory basis as required by law. All leased channel service revenues shall be included in gross annual revenues subject to the franchise fee. (Ord. 298 § 1, 1989; Ord. 129 § 8.11, 1984)

5.60.360 Universal connection.

The grantor may require that all dwelling units within the franchise area, where it is economically feasible, to be connected physically to the cable system by the grantee by means of drop cables terminating at each dwelling unit, whether or not the dwelling unit’s occupants desire to subscribe to cable service. The cost and charges shall be determined by the grantor at the time such connection is required. The grantee shall be entitled to recover the incremental cost of providing a universal connection. (Ord. 129 § 8.12, 1984)

Article VII. Operation and Maintenance

5.60.365 Open books and records.

The grantor shall have the right to inspect at any time during normal business hours, all books, records, maps, plans, financial statements, service complaint logs, performance test results and other like materials of the grantee which reasonably relate to the operation of the franchise and the regulatory function of the grantor in question, and are maintained at the office within the franchise area. If any of such books or records are not kept in the local office, or upon reasonable request made available to the grantor, and if the grantor shall determine that an examination of such records is necessary or appropriate to the performance of any of the grantor’s duties, then all reasonable travel and maintenance expense necessarily incurred in making such examination shall be paid by the grantee. (Ord. 298 § 1, 1989; Ord. 129 § 9.1, 1984)

5.60.370 Records required.

A. In any event the grantee shall at all times maintain:

1. A record of all complaints received and interruptions or degradation of service experienced for the preceding three years;

2. A full and complete set of plans, records and “as-builts” maps showing the exact location of all cable communications system equipment installed or in use in the franchise area, exclusive of subscriber service drops. (Ord. 298 § 1, 1989; Ord. 129 § 9.2, 1984)

5.60.375 Maintenance and complaints.

A. The grantee shall maintain an office in the service area or at other location as specified to be approved by grantor in the franchise agreement which shall be open during all usual business hours, have a publicly listed toll-free telephone, and be so operated to receive subscriber complaints and requests for repairs or adjustments on a 24-hour a day basis. A written log shall be maintained listing all complaints and their disposition.

B. The grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during period of minimum use of the system. A written log shall be maintained for all service interruptions.

C. The grantee shall maintain a repair force of technicians capable of responding to subscriber complaints or requests for service within 24 hours after receipt of the complaint or request. No charge shall be made to the subscriber for this service if the complaint is the result of subscriber negligence or equipment misuse.

D. The grantee shall furnish each subscriber at the time service is installed, written instructions that clearly set forth procedures, furnish information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed, and furnish information concerning the grantor’s office responsible for administration of the franchise with the address and telephone number of the office. (Ord. 298 § 1, 1989; Ord. 129 § 9.3, 1984)

5.60.380 Rights of individuals.

A. Subject to applicable law, the grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, age or sex. The grantee shall comply at all times with all other applicable Federal, State and local laws and regulations, and all applicable executive and administrative orders relating to nondiscrimination which are hereby incorporated and made part of this chapter by reference.

B. Grantee shall strictly adhere to the applicable equal employment opportunity requirements of the FCC, State and local regulations, and as amended from time to time.

C. No signals of a Class IV cable communications channel shall be transmitted from a subscriber terminal for purposes of monitoring individual viewing patterns or practices without the express written permission of the subscriber. The request for such permission shall be contained in a separate document with a prominent statement that the subscriber is authorizing the permission in full knowledge of its provisions. Such written permission shall be for a limited period of time not to exceed one year, which shall be renewable at the option of the subscriber. No penalty shall be invoked for a subscriber’s failure to provide or renew such an authorization. The authorization shall be revocable at any time by the subscriber without penalty of any kind whatsoever. Such authorization is required for each type or classification of Class IV cable television activity planned; provided, however, that the grantee shall be entitled to conduct system-wide or individually addressed “sweeps” for the purpose of verifying system integrity, controlling return-path transmission, ensuring technical standards compliance, securing the cable system, verifying basic service customers or billing for pay services.

D. The grantee and its agents or employees shall comply with Section 631 of the Cable Act.

E. Fairness of Accessibility. The entire system of the grantee shall be operated in a manner consistent with the principle of fairness and equal accessibility of its facilities, equipment, channels, studios and other services to all citizens, businesses, public agencies and other entities having a legitimate use for the network, and no one shall be arbitrarily excluded from its use. Allocation of use of said facilities shall be made according to the rules or decisions of the grantee and any regulatory agencies affecting the same. (Ord. 298 § 1, 1989; Ord. 129 § 9.4, 1984)

5.60.381 Subscriber rights.

A. Discriminatory Practices Prohibited. The franchisee shall not deny cable television service or otherwise discriminate against subscribers, or others on the basis of race, color, religion, physical handicap, marital status, national origin, sex, or age. The franchisee shall strictly adhere to the equal employment opportunity requirements of Federal, State or local governments and shall comply with all applicable laws and executive and administrative orders relating to nondiscrimination.

B. Television Sets. The franchisee shall not directly or indirectly do any of the following acts in the jurisdiction of City:

1. Engage in the business of selling, leasing, renting, repairing or servicing of television sets or radios;

2. Solicit, refer or cause or permit the solicitation or referral of any subscriber to persons engaged in any business herein prohibited to be engaged in by franchisee, provided, however, that the above provisions of subsection (B)(1) of this section shall not apply to modifications made to permit two-way communications.

C. Tapping and Monitoring. The franchisee shall not tap or monitor or permit any other person controlled by or under contract with franchisee to tap or monitor any cable, line, signal input device, or subscriber outlet, or receiver for any purpose whatsoever without the express written consent of the subscriber or a court order therefor; provided, however, that the franchisee shall be entitled to conduct system-wide or individually addressed “sweeps” for the purpose of verifying system integrity, controlling return path transmission, or checking for unauthorized connections to the cable television system or service levels or billing for pay services.

D. Data Collection.

1. Except for its own internal use, the franchisee shall not permit its system to be used for data collection purposes, nor shall it otherwise collect data which would reveal the commercial product or other preferences or opinions of individual subscribers, members of their families, or their guests, licensees or employees, unless authorized in writing by the City Manager. If City Manager shall in any case give such consent, he may establish reasonable conditions thereof.

2. In any event, the franchisee shall not reveal or permit the release or sale of data on individual subscribers; but may reveal or permit the release or sale of aggregate data only. Any aggregate data released or sold must be provided to the City at no charge.

E. Revealing Subscriber Preferences.

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

2. Such written consent, if given, shall be limited to a period of time not to exceed one year.

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

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

F. Revealing Subscriber Lists. The franchisee shall not reveal, or sell, or permit the release or sale of its subscriber list unless authorized in writing by the City Manager, and if such consent is given, City Manager may place reasonable conditions thereon; provided that franchisee may use its subscriber list as necessary for the construction, marketing, and maintenance of the franchisee’s services and facilities authorized by a franchise, and the concomitant billing of subscribers for such services; and further, provided that consistent with applicable law, City may use franchisee’s subscribers list for the purpose of communication with subscribers in connection with matters relating to operation, management and maintenance of the cable system.

G. Other Persons Affected. The prohibitions contained in this chapter shall extend and apply to all of the foregoing as well as the franchisee.

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

2. General and limited partners of the franchisee;

3. Any person or combination of persons owning, holding or controlling five percent or more of any corporate stock or other ownership interest of the franchisee;

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

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

H. Subscriber Bill of Rights. Franchisee shall provide, at the time of initial connection and annually thereafter to all subscribers a notice, in a form approved in advance by the City Manager. If the City Manager fails to deny consent within 15 days of franchisee submission, consent shall be deemed given, delineating and describing, in clear and understandable language, the consumer rights granted herein.

I. Notice to New Subscribers. Before providing cable television service to any subscriber, franchisee shall provide a written notice to the subscriber substantially as follows:

Subscriber is hereby notified that services provided make use of public rights-of-way whose continued use is not guaranteed. If use is denied for any reason, Franchisee will make every reasonable effort to continue service. But, by accepting service, subscriber agrees to make no claim or undertake any action against the City, its officers, commissions, employees, or agents if service is interrupted or discontinued. In the event of unresolved disputes between subscriber and Franchisee, subscriber may register a complaint with the City Manager or City Council.

J. Complaint Advise. City Manager may require that franchisee advise each subscriber that the City’s representative is the official to whom complaints of poor service should be made if such complaints of poor service are not resolved by franchisee to the satisfaction of each subscriber. (Ord. 419, 1993)

5.60.385 Continuity of service mandatory.

A. It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the grantee are honored. In the event that the grantee elects to overbuild, rebuild, modify, or sell the system, or the grantor gives notice of intent to terminate or fails to renew the franchise, the grantee shall act so as to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances. In the event of a change of grantee, or in the event a new operator acquires the system, the grantee shall cooperate with the grantor, new grantee or operator in maintaining continuity of service to all subscribers. During such period, the grantee shall be entitled to the revenues for any period during which it operates the system, and shall be entitled to reasonable costs for its services when it no longer operates the system.

B. In the event the grantee fails to operate the system for seven consecutive days without prior approval of the grantor or without just cause, the grantor may, at its option, operate the system or designate an operator until such time as the grantee restores service under conditions acceptable to the grantor or a permanent operator is selected. If the grantor is required to fulfill this obligation for the grantee, the grantee shall reimburse the grantor for all reasonable costs or damages in excess of revenues from the system received by the grantor that are the result of the grantee’s failure to perform. (Ord. 298 § 1, 1989; Ord. 129 § 9.5, 1984)

5.60.390 Grantee rules and regulations.

The grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the grantee to exercise its rights and perform its obligations under the franchise, or this chapter, and to assure an uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions of this chapter or applicable State and Federal laws, rules and regulations. (Ord. 298 § 1, 1989; Ord. 129 § 9.6, 1984)

5.60.395 Tenant rights.

The grantee shall be required to provide service to tenants in individual units of a multiple housing facility (unless such facility is served under a bulk billing agreement providing for alternate tiers of services) with all services offered to other dwelling units within the franchise area, so long as the owner of the facility consents in writing, if requested by the grantee, to the following:

A. To grantee’s providing of the service to units of the facility without payment to such owner;

B. To reasonable conditions and times for installation, maintenance, and inspection of the system on the facility premises;

C. To reasonable conditions promulgated by the grantee to protect the grantee’s equipment and to encourage widespread use of the system; and

D. To not discriminate in rental charges, or otherwise, between tenants who receive cable service and those who do not. (Ord. 298 § 1, 1989; Ord. 129 § 9.7, 1984)

Article VIII. Rights Reserved to the Grantor

5.60.400 Rights to purchase the system.

The grantor may, if and to the extent permitted by applicable laws and regulations, in any lawful manner and upon the payment of compensation as required and determined by applicable law, lawfully purchase, condemn, acquire, and take over and hold the franchise, the property and plant of the grantee in whole or in part; provided, however, that nothing in this section shall create or be construed to create any such rights in grantor (including any right of first refusal) in addition to or different from those, if any, created by applicable laws and regulations. (Ord. 298 § 1, 1989; Ord. 129 § 10.1, 1984)

5.60.405 Right of inspection of records.

The grantee shall provide such information which shall show the following in such form as may be required by the grantor.

A. The true and entire cost of construction equipment, of maintenance and of the administration and operation thereof; the amount of stock issued, if any; the amount of cash paid in, the number of par value of shares, the amount and character of indebtedness, if any; the rate of taxes, the dividends declared; the character and amount of all fixed charges; the allowance, if any, for interest, for wear and tear or depreciation; all amounts and sources of income.

B. The amount collected annually from the grantor treasury and the character and extent of the service rendered therefor to the grantor.

C. The amount collected annually from other users of service and the character and extent of the service rendered therefor to them.

D. The grantor shall have the right to inspect all books, records, maps, plans, financial statements, and other like materials of the grantee during normal business hours which are reasonably related to the grantor’s regulating powers and functions hereunder. The grantor may inspect all such records required in this section at the offices of the grantee and the grantee shall make the records mentioned in this chapter available to the grantor. If the grantor needs copies of such information in order to complete its examination of the grantee’s operation, the grantee may make available such copies of the books and reports that the grantor is requesting in order to complete the grantor’s examination of the grantee’s operation. Immediately upon completion of such review, the grantor shall return all such materials to the grantee. (Ord. 298 § 1, 1989; Ord. 129 § 10.2, 1984)

5.60.410 Right of inspection of construction.

The grantor shall have the right to inspect all construction or installation work performed subject to the provisions of the franchise and to make such tests as it shall find necessary to ensure compliance with the terms of the chapter and other pertinent provisions of law. (Ord. 298 § 1, 1989; Ord. 129 § 10.3, 1984)

5.60.415 Right of intervention.

The grantor shall have the right of intervention in any suit or proceeding to which the grantee is party, and to which the outcome might materially affect cable service in the City, and the grantee shall not oppose such intervention by the grantor. (Ord. 129 § 10.4, 1984)

5.60.420 Right to require removal of property.

At the expiration of the term for which the franchise is granted, or upon its revocation or expiration, as provided for herein, the grantor shall have the right to require the grantee to remove, at its own expense, all portions of the cable communications system from all streets and public ways within the franchise area. (Ord. 298 § 1, 1989; Ord. 129 § 10.5, 1984)

Article IX. Rights Reserved to the Grantee

5.60.425 Right of grantee.

In any material dispute, the grantee may pursue such other remedies as are available, including the bringing of action in any court of competent jurisdiction. (Ord. 129 § 11.1, 1984)

Article X. Franchise Violations

5.60.430 Remedies for franchise violations.

If the grantee fails to perform any significant and material obligation under the franchise, or fails to do so in a timely manner, the grantor may at its option, and in its sole discretion:

A. Assess against the grantee monetary damages up to the limits established in the franchise agreement or this chapter for material franchise violations, which the grantee agrees to pay, said assessment to be levied against the security fund, hereinabove provided and collected by the grantor immediately upon said assessment. Such assessment shall not constitute a waiver by the grantor of any other right or remedy it may have under the franchise or under applicable law, including without limitation, its right to recover from the grantee such damages, losses, costs and expenses, including reasonable attorney fees actually incurred, as may have been suffered or incurred by the grantor by reason of or arising out of such breach of the franchise. This provision for assessment of damages is intended by the parties to be separate and apart from the grantor’s right to enforce the provisions of the construction and performance bonds provided for in Article IV of this chapter, and is intended to provide compensation to the grantor for actual damages.

B. For violations considered by the grantor to have degraded the quality of service, order and direct the grantee to issue rebates or reduce its rates and/or charges to subscribers, in amounts specified in this chapter or the franchise agreement to provide monetary relief substantially equal to the reduced quality of service resulting from the grantee’s failure to perform.

C. Terminate or shorten the franchise period, for any of the causes stated in Article II of this chapter, above or otherwise contained within this chapter or the franchise agreement.

D. No remedy shall be imposed by the grantor against the grantee for any violation of the franchise without the grantee being afforded due process of law, as provided for in PMC 5.60.435. The grantor may, in its sole judgment and discretion, impose any of all of the above enumerated measures against the grantee, which shall be in addition to any and all other legal or equitable remedies it has under this chapter or under any applicable law. (Ord. 298 § 1, 1989; Ord. 129 § 12.1, 1984)

5.60.435 Procedures for remedying franchise violations.

In the event that the grantor determines that the grantee has violated any provision of the franchise, any rule or regulation promulgated hereto or any applicable Federal, State, or local law, the grantor may make a written demand on the grantee that it remedy such violation. If the violation, breach, failure, refusal, or neglect is not remedied to the satisfaction of the grantor within 30 days following such demand, the grantor shall determine whether or not such violation, breach, failure, refusal, or neglect by the grantee was excusable or inexcusable, in accordance with the following procedure:

A. A public hearing shall be held and the grantee shall be provided with an opportunity to be heard upon 30 days’ written notice to the grantee of the time and the place of the hearing provided and the allegations of franchise violations.

B. If, after notice is given and, at the grantee’s option, a full public proceeding is held, the grantor determines that such violation, breach, failure, refusal, or neglect by the grantee was excusable as provided in PMC 5.60.440, the grantor shall direct the grantee to correct or remedy the same within such additional time, in such manner and upon such terms and conditions as the grantor may direct.

C. If, after notice is given and, at the grantee’s option, a full public proceeding is held, the grantor determines that such violation, breach, failure, refusal or neglect was inexcusable, then the grantor may assess a penalty or remedy in accordance with PMC 5.60.430 and 5.60.440. (Ord. 129 § 12.2, 1984)

5.60.440 Force majeure – Grantee’s inability to perform.

In the event the grantee’s performance of any of the terms, conditions, obligations, or requirements of the franchise is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be excused as a result thereof, provided the grantee has notified the grantor in writing within 30 days of its discovery of the occurrence of such an event. Such causes beyond the grantee’s reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God and civil emergencies. (Ord. 298 § 1, 1989; Ord. 129 § 12.3, 1984)

5.60.445 Findings and conclusions.

Any conclusion by the grantor, pursuant to this section shall be made in writing and supported by written findings supported by evidence within the record of said proceedings. (Ord. 129 § 12.4, 1984)

Article XI. Reports

5.60.450 Periodic reports.

A. Grantee shall submit to the appropriate City department (as designated by the City) on a quarterly basis, by March 31st, June 30th, September 30th, and December 31st of each year, throughout the term of this agreement:

B. Grantee shall submit to the appropriate City department (as designated by the City) on an annual basis by March 31st of each year, throughout the term of the franchise, a progress report and map indicating in detail the location of completed extensions, existing construction, and system expansion and severe enhancements for the forthcoming year, and a statistical summary of the operations of the system. Such information shall include at a minimum, the number of dwelling units passed, the number of basic service subscribers, and the rate of penetration.

C. Grantee shall submit upon request a copy of all communications between grantee and the FCC, or any Federal or State regulatory agency having jurisdiction over grantee’s system, to the City Manager.

D. Grantee shall permit examination by any duly authorized representative of grantor during all business hours of any and all maps and other such records kept or maintained by grantee or under its control concerning the operation, affairs, transactions or property of grantee at the local office as limited by PMC 5.60.405.

E. Grantee shall keep and preserve, for a period of three years, all the records necessary to determine the amount of such franchise fee, including but not limited to all business records, bank statements and copies of Federal and State income tax returns filed by the grantee.

F. Grantee shall conduct annual proof-of-performance tests of the system and shall submit the results to such tests to the City’s community services department within 30 days after the completion of such tests.

G. The grantor may prepare a questionnaire; such questionnaire shall elicit responses from subscribers on matters such as their appraisal of the service they receive and their needs and interests related to cable TV services. Within 30 days after receipt thereof, the grantee shall mail to those subscribers designated by the City Manager, a copy of a questionnaire provided to the grantee by the City unless the grantee submits an appeal to the City Manager and/or the City Council. The costs associated with such questionnaires shall be borne by the City, and responses should be addressed to the City’s community services department. The department may require such questionnaire from time to time, as may be necessary, but in no event more than once each year.

H. The reports and information mentioned in this section shall be made available to the grantor at the offices of the grantee as requested by the grantor. Such information shall be available for review by the grantor during normal business hours. However, if additional information and research may be needed, the grantor may request and the grantee shall provide copies of any of the information mentioned in this chapter for use in its review of the grantee’s compliance with its franchise and shall return it to the grantee at the earliest possible moment after the review has been completed. (Ord. 298 § 1, 1989; Ord. 129 § 13.1, 1984)

5.60.455 Plant survey report.

At the grantor’s sole option, the grantee shall submit to the grantor an annual plant survey report which shall be a complete survey of the grantee’s plant and a full report thereon. Said report shall include, but not be limited to, a description and “as-built” maps of the portions of the franchisee area that have been cabled and have all services available, an appropriate engineering evaluation including suitable electronic measurements conducted in conformity with such requirements, including supervision, as the grantor may prescribe. The report shall contain sufficient detail to enable the grantor to ascertain that the service requirements and technical standards of the FCC and/or the franchise are achieved and maintained. (Ord. 298 § 1, 1989; Ord. 129 § 13.2, 1984)

5.60.460 Copies of Federal and State reports.

The grantee shall submit to the grantor copies of all initial pleadings, applications, reports, submitted by the grantee to any Federal, State and regulatory agencies and other government bodies materially relating to its cable television operations within the franchise area. The grantee shall submit such documents to the grantor simultaneously with their submission to such courts, agencies and bodies. (Ord. 129 § 13.3, 1984)

5.60.465 Public reports.

A copy of each of the grantee’s annual and other periodic public reports and those of its parent, subsidiary and affiliated corporations and other entities, as the grantor requests and is reasonably appropriate, shall be submitted to the grantor within five days of its issuance. (Ord. 129 § 13.4, 1984)

5.60.470 Complaint file and reports.

An accurate and comprehensive file shall be kept by the grantee of any and all complaints regarding the cable system. A procedure shall be established by the grantee by the time of installation of the cable system to remedy complaints quickly and reasonably to the satisfaction of the grantor. Complete records of the grantee’s actions in response to all complaints shall be kept. These files and records shall remain open to the public during normal business hours. A summary of complaints, identifying the number and nature of complaints and their disposition, in a form approved by the grantor, shall, upon request of the grantor, be completed for each month and submitted to the grantor by the tenth day of the succeeding month. (Ord. 298 § 1, 1989; Ord. 129 § 13.5, 1984)

5.60.475 Miscellaneous reports.

The grantee shall submit to the grantor such other information or reports in such forms and at such times as the grantor may reasonably request or require. (Ord. 129 § 13.6, 1984)

5.60.480 Income tax returns.

If not incorporated with parent company returns, the grantee shall submit to the grantor copies of all income tax returns and reports which are filed with the local, State or Federal governments pertaining to its cable system in the franchise area within five days of the date on which such reports are filed. (Ord. 129 § 13.7, 1984)

5.60.485 Inspection of facilities.

The grantee shall allow the grantor to make inspections of any of the grantee’s facilities and equipment at any time upon reasonable notice, or, in case of emergency, upon demand without prior notice, to allow the grantee to verify the accuracy of any submitted report. (Ord. 129 § 13.8, 1984)

5.60.490 Business office and files.

The grantee shall maintain an office within the franchise area. The grantee shall keep complete and accurate books and records. The grantor shall have the right to inspect at any time during normal business hours all books, records, maps, plans, income tax returns, financial statements, service complaint logs, performance test results and other like materials of the grantee which relate to the operation of the cable system. Access to the aforementioned records shall not be denied by the grantee on the basis that the records contain confidential, privileged, or proprietary information. (Ord. 129 § 13.9, 1984)

5.60.495 Public inspection.

All reports subject to public disclosure shall be available for public inspection at a designated grantor office during normal business hours. (Ord. 129 § 13.10, 1984)

5.60.500 Failure to report.

The refusal, failure, or neglect of the grantee to file any of the reports required, or such other reports as the grantor reasonably may request, after notice from grantor to grantee, shall be deemed a material breach of franchise, and shall subject the grantee to all remedies, legal or equitable, which are available to the grantor under the franchise or otherwise, unless grantee submits in writing to grantor reasonable explanations for such refusal, failure or neglect. (Ord. 298 § 1, 1989; Ord. 129 § 13.11, 1984)

5.60.505 False statements.

Any materially false or misleading statement or representation made knowingly by the grantee in any report required under the franchise, shall subject the grantee to all remedies, legal or equitable, which are available to the grantor under the franchise or otherwise. (Ord. 129 § 13.12, 1984)

5.60.510 Cost of reports.

All reports and records required under this or any other section shall be furnished at the sole expense of the grantee. (Ord. 298 § 1, 1989; Ord. 129 § 13.13, 1984)

Article XII. Miscellaneous Provisions

5.60.515 Compliance with State and Federal laws.

Notwithstanding any other provisions of the franchise to the contrary, the grantee shall at all times comply with all applicable laws and regulations of the State and Federal government or any administrative agencies thereof; provided, however, if any such State or Federal law or regulation shall require the grantee to perform any service, or shall permit the grantee to perform any service, or shall prohibit the grantee from performing any service, in conflict with the terms of the franchise or any law or regulation of the grantor, then as soon as possible following knowledge thereof, the grantee shall notify the grantor of the point of conflict believed to exist between such regulation or law and the laws or regulations of the grantor or the franchise. (Ord. 298 § 1, 1989; Ord. 129 § 14.1, 1984)

5.60.520 Separability – Nonmaterial provisions.

A. If any provision of this chapter or any related agreements is held by any court or by any Federal, State, or local agency of competent jurisdiction to be invalid as conflicting with any Federal, State, or local law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, and if said provision is considered nonmaterial by the grantor, said provision shall be considered a separate, distinct and independent part of this chapter, and such holding shall not affect the validity and enforceability of all other provisions of this chapter.

B. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof or thereof which has been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect and shall thereafter be binding on the parties to the franchise agreement; provided, that the grantor gives the grantee 30 days’ written notice of such change before requiring compliance with said provision. (Ord. 298 § 1, 1989; Ord. 129 § 14.2, 1984)

5.60.525 Separability – Material provisions.

A. If any material section of this chapter or related franchise agreement is held to be invalid or preempted by Federal, State or County regulations or laws, the grantor shall negotiate with the grantee appropriate modifications to the franchise to provide reasonable relief from such invalidity or preemption, including the payment of compensating moneys to either party.

B. If the parties are unable to reach agreement on such modifications, then the dispute shall be submitted to a mutually agreeable arbitrator, in accordance with State law, who shall determine what modifications and/or compensating moneys are appropriate.

C. The arbitrator’s decision shall be binding on the parties; provided, that no decision of the arbitrator shall require the grantor or the grantee to be in violation of any Federal or State law or regulation.

D. If an arbitrator cannot be agreed upon, then each party shall select an arbitrator of his choice and each selected arbitrator shall agree upon a third.

E. Said panel of three arbitrators shall render a majority decision therein. (Ord. 298 § 1, 1989; Ord. 129 § 14.3, 1984)

5.60.530 Notices.

A. The grantee shall maintain within the franchise area or in the County throughout the term of the franchise, an address for service of notices by mail.

B. The grantee shall also maintain within the franchise area, a local office telephone number or toll free number for the conduct of matters related to the franchise during normal business hours. (Ord. 129 § 14.4, 1984)

5.60.532 Captions.

The captions to sections throughout this chapter are intended solely to facilitate reading and reference. Such captions shall not affect the meaning or interpretation of this chapter. (Ord. 298 § 1, 1989)

5.60.535 No recourse against the grantor.

The grantee shall have no recourse whatsoever against the grantor or its officials, boards, commissions, agents, or employees for any loss, costs, expense, or damage arising out of any provision or requirement of the franchise or because of the enforcement of the franchise except any tortious acts. (Ord. 298 § 1, 1989; Ord. 129 § 14.6, 1984)

5.60.540 Nonenforcement by the grantor.

The grantee shall not be relieved of its obligation to comply with any of the provisions of this chapter by reason of any failure of the grantor to enforce prompt compliance. (Ord. 129 § 14.7, 1984)

5.60.545 Acknowledgments.

A. Except as expressly provided in the franchise, the grantee herein shall have no recourse whatsoever against the grantor for any loss, cost, or expense, for damage arising out of the provisions or requirements of the franchise or because of the enforcement thereof by the grantor, nor for the failure of the grantor to have the authority to grant all or any part of the franchise excepting any tortious acts.

B. The grantee by its acceptance of the franchise, acknowledges that it does so voluntarily and in reliance upon its own investigation and understanding of the power and authority of the grantor to grant the franchise.

C. The grantee by acceptance of the franchise acknowledges that it has not been induced to enter into the franchise by any understanding or promise, or other statement, whether verbal or written, by or on behalf of the grantor or by any other third person concerning any term or condition of the franchise not expressed herein.

D. The grantee acknowledges that it was not coerced or unlawfully induced into accepting the franchise and that any offers which it made for services or benefits under the franchise were made as a matter of its own volition without any coercion from the grantor or any agent thereof.

E. The grantee, by its acceptance of the franchise, acknowledges that it has carefully read the terms and conditions hereof and is willing to and does accept all the risks of the meaning of such terms and conditions and agrees that, in the event of any ambiguity therein or in the event of any other dispute over the meaning thereof, the same shall be construed strictly against the grantee and in favor of the grantor. (Ord. 298 § 1, 1989; Ord. 129 § 14.8, 1984)

Article XIII. Franchise Applications

5.60.550 General requirements.

Applicants for a franchise shall submit to the grantor written applications utilizing the standardized format provided by the grantor, at the time and place designated by the grantor for accepting applications, and including the designated application fee. (Ord. 129 § 15.1, 1984)