Chapter 5.50 CABLE TELEVISION ORDINANCE

2. Establishing a regulatory framework for the administration of franchises in order to ensure that the potential recreational, educational, social, economic and other advantages of cable television will in fact inure to the benefit of the Sacramento community and the citizens thereof;

3. To provide for the unified administration of cable television franchises in order to reduce the danger that the nature and extent of services received and benefit derived therefrom will be dependent upon the jurisdiction in which a citizen of the Sacramento community resides; and

4. Regulate the operations of franchisees for the purpose of protecting and promoting the public health, peace, safety and welfare.

B. The provisions of this section shall not be deemed to confer any right upon a franchisee which is not otherwise conferred by another express provision of this chapter. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1, 1981].

5.50.012 Definitions.

As used in this chapter, the following terms, phrases, and words shall be ascribed the following meanings, unless the context indicates otherwise. The word “shall” is mandatory, and the word “may” is permissive. Words not defined herein shall be given their common and ordinary meanings, consistent with the context in which such words are used and the purposes of this chapter.

“Basic service” shall mean:

1. A single tier of service provided in connection with each residential hook-up for a uniform monthly charge, if any, which includes the following:

a. Reception of all local television broadcasting stations as prescribed by applicable FCC regulations (47 CFR 76.51 through 76.67, inclusive) as said regulations exist on March 1, 1981;

b. Any additional stations which may be required by FCC regulations enacted subsequent to March 1, 1981;

c. With respect to the initial CATV franchise, one of the channels made available to KVIE (in addition to the preexisting channel operated by KVIE otherwise required to be carried), as “KVIE” is defined by the request for proposals, if the franchisee has proposed commitment of one or more channels to KVIE in its application for the franchise;

d. With respect to the initial CATV franchise, one of the channels made available to the educational consortium, as the “educational consortium” is defined by the request for proposals, if the franchisee has proposed commitment of one or more channels to the educational consortium in its application for the franchise;

e. With respect to the initial CATV franchise, one access channel, if an access channel is made available by a franchisee pursuant to the provisions of RCMC 5.50.336; and

f. Any other or additional cable television services proposed by a franchisee in its application to be included within basic service.

2. If proposed in the application submitted by a franchisee and prescribed by the resolution offering the franchise, one or more tiers of service which consist of less television reception services than prescribed by subsection (1) of this definition provided in connection with each residential hook-up for a uniform monthly charge, if any.

“Cable television commission” or “commission” shall mean the Sacramento metropolitan cable television commission created pursuant to the provisions of Article II of this chapter, or any successor in interest thereof established by the county and cities.

“Cable television system” shall mean a system of antennas, cables, wires, lines, towers, waveguides, or other conductors, converters, amplifiers, headend equipment, master controls, earth stations, equipment and facilities designed and constructed for the purpose of producing, receiving, transmitting, and distributing audio, video and other forms of electronic or electrical signals within the Sacramento community, including both subscriber networks and institutional networks.

A “cable television system” shall not include any facility which serves or will serve exclusively only subscribers in one or more multiple-unit dwellings under common ownership, control or management, one or more condominiums, a mobile home park, or a residential subdivision with private roads, which is not installed in and does not use streets and other public and utility rights-of-way.

“Cities” shall mean the city of Sacramento, the city of Folsom, the city of Rancho Cordova and the city of Galt, each of which enacted the provisions of this chapter in identical form and did not adopt a resolution disapproving selection of the franchisee under the initial CATV franchise pursuant to RCMC 5.50.212, and any city in Sacramento County incorporated after the date that the initial franchise was issued, which enacts this chapter in identical form, as this chapter exists on the date of enactment, and executes the agreement contained in RCMC 5.50.112.

“Community use,” “community use programming,” and “community use channels” shall mean use, programming or channels for purposes of noncommercial cablecasts presented by or in behalf of a franchisee, the county or cities, individuals and local community nonprofit organizations, which consist of topics of special interest to the Sacramento community or elements thereof, including matters of a political, governmental, sociological, religious, educational, cultural, artistic, health-oriented, ethnic, economic, recreational, charitable and philanthropic nature, a significant part of such programming having been locally produced. “Noncommercial” means: (1) the content of such programming shall not be for the purpose of either directly or indirectly selling any product or service for private gain; and (2) that the programming shall not be associated with or interrupted during presentation by commercial advertising or announcements presented for the purpose of selling products or services for private gain.

“Converter” shall mean an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and by an appropriate channel selector also permits a subscriber to view all signals delivered at designated converter dial locations.

“County” shall mean the county of Sacramento.

“FCC” shall mean the Federal Communications Commission and any legally appointed, designated or elected agent or successor thereof.

“Franchise documents” shall mean, with respect to a franchise for a cable television system issued pursuant to the provisions of this chapter, the provisions of this chapter, the map defining any imposed service area for the franchise as adopted by resolution, the provisions of any request for proposals issued pursuant to the provisions of this chapter in connection with that franchise, the provisions of the application for the franchise submitted by the franchisee, the provisions of the resolution offering the franchise, and the provisions of the certificate of acceptance by the franchisee of the franchise. Any amended and restated resolution regarding a franchise issued to any franchisee, adopted subsequent to the issuance of such franchise, shall be considered one of the franchise documents in lieu of the resolution offering the franchise to that franchisee.

“Franchisee” shall mean the party to whom a franchise to operate a cable television system is issued pursuant to the provisions of this chapter.

“Governing body” shall mean the board of supervisors with respect to the county, and each city council with respect to the cities.

“Gross revenues” shall mean all cash, credits, property of any kind or nature or other consideration derived directly or indirectly by a franchisee, its affiliates, subsidiaries, parent, and any other person or entity in which the franchisee has a financial interest or which has a financial interest in the franchisee, arising from or attributable to operation of the cable television system, including, but not limited to: (1) revenue from all charges for those services provided on the subscriber network and institutional network (including leased access fees); (2) revenue from all charges for the insertion of commercial advertisements upon the system; (3) revenue from all charges for the leased use of studios; (4) revenue from all charges for the installation, connection and reinstatement of equipment necessary for the utilization of the system and the provision of subscriber and other services; and (5) the sale, exchange or use or cablecast of any programming developed for community use or institutional users. “Gross revenues” shall include, valued at retail price levels, the value of any goods, services or other remuneration in nonmonetary form received by the franchisee or others described above in consideration for performance by the franchisee or others described above of any advertising or other service in connection with the cable television system.

“Gross revenues” shall not include:

1. Any taxes on services furnished by the franchisee which are imposed directly upon any subscriber or user by the United States, state of California or local agency and collected by the franchisee on behalf of the government;

2. Revenue received directly from the franchisee by an affiliate, subsidiary or parent of the franchisee or any other person or entity in which the franchisee has a financial interest or which has a financial interest in the franchisee, when the revenue received has already been included in reported gross revenue as received by the franchisee; and

3. Revenue received by such an affiliate, subsidiary, parent, person or entity when the revenue received is from the sale of national advertising shown on programs distributed on a national basis by the affiliate, subsidiary, parent, person or entity and, but for this exception, that portion of the revenue attributable to broadcasts through the cable television system would be treated as gross revenues.

“Initial CATV franchise” shall mean the first franchise for a cable television system issued pursuant to the provisions of this chapter.

“Institutional network” shall mean a cable communications network used exclusively for the provision of services to businesses, schools, public agencies or other nonprofit agencies in connection with the ongoing operations of such enterprises.

“Interactive services” shall mean services provided to subscribers or users where the subscriber either:

1. Both receives information consisting of either television or other signals and transmits signals generated by the subscriber or user or equipment under his control for the purpose of selecting what information shall be transmitted to the subscriber or user for any other purpose; or

2. Transmits signals to any other location for any purpose.

“Leased access” shall mean use on a fee-for-service basis of the subscriber network or institutional network by business enterprises (whether profit, nonprofit or governmental) to render services within the Sacramento community.

“Monitoring” shall mean observing a communications signal, or the absence of a signal, where the observer is not the subscriber, whether the signal is observed by visual or electronic means, for any purpose whatsoever; provided, that “monitoring” shall not include systemwide, nonindividually addressed sweeps of the cable television system for purposes of verifying system integrity, controlling return path transmissions, or billing for pay services.

“Sacramento community” shall mean the entire geographical territory within the unincorporated area of the county and the corporate limits of the cities.

“Streets” shall mean the surface of and the space above and below any street, road, highway, freeway, utility right-of-way or any other easement which now or hereafter exists for the provision of public or quasi-public services to residential or other properties, and in which the county or cities are expressly or impliedly authorized or empowered to permit use for installation and operation of a cable television system.

“Subscriber” shall mean a lawful recipient of service from a cable television system.

“Subscriber network” shall mean a cable communications network which carries television entertainment channels and community use channels (including basic service) and may carry channels providing commercial or other nonentertainment services and leased access channels.

“Tier of service” shall mean a grouping of program services on the subscriber network which is marketed by a franchisee to subscribers for a single monthly or other charge. Subsection (1) of the definition of “basic service” in this section shall constitute a single tier of service. Subsection (2) of the definition of “basic service” in this section shall constitute a separate and distinct tier of service.

“User” shall mean a party utilizing a cable television system channel for purposes of production or transmission of material to subscribers, as contrasted with receipt thereof in a subscriber capacity. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 1095 § 1, 1997; SCC 717 § 1, 1988; SCC 565 § 1, 1983; SCC 499 § 1, 1982; SCC 488 § 1 (part), 1981].

5.50.014 Franchise required.

Except as otherwise provided by this chapter, streets within the Sacramento community shall not be occupied by or used for a cable television system except under a franchise issued pursuant to the provisions of this chapter or under a license issued pursuant to the provisions of Chapter 5.75 RCMC. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 690 § 2, 1987; SCC 488 § 1 (part), 1981].

5.50.016 General characteristics of franchise issued.

A. Any franchise issued pursuant to the provisions of this chapter shall be deemed to:

1. Authorize utilization of the streets for the public or quasi-public purpose of installing cables, wires, lines, and other facilities in order to operate a cable television system;

2. Be nonexclusive, and neither expressly nor impliedly be deemed to preclude the issuance of subsequent franchises to operate cable television systems within the Sacramento community; and

3. Be for a term prescribed by the issuing authority which shall not extend beyond December 31, 2007.

B. Such a franchise shall not be deemed to authorize or either expressly or impliedly permit the franchisee, except with the consent of the owners, to provide cable television system service to, or install antennas, cables, wires, lines, towers, waveguides, other conductors, converters, or any other equipment or facilities upon, private property, including, but not limited to, apartment complexes, condominiums, mobile home parks and residential subdivision developments with private roads. The purpose of this subsection is to require owner consent for the provision of service. This subsection shall not be construed to prohibit a franchisee from entering or utilizing private property as an incident to its use of the streets to the extent entry or use is expressly or impliedly authorized by the right conferred by this section to occupy the streets. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 604 § 1, 1984; SCC 488 § 1 (part), 1981].

5.50.018 Franchise as contract.

A. A franchise issued pursuant to the provisions of this chapter shall be deemed to constitute a contract between the franchisee and the cable television commission. Each franchisee shall be deemed to have contractually committed itself to comply with the terms, conditions and provisions of the franchise documents, and with all rules, orders, regulations, and determinations applicable to the franchise which are issued, promulgated or made pursuant to the provisions of this chapter. The regulatory authority conferred by the provisions of this chapter, including the power to amend the provisions of this chapter as reserved under RCMC 5.50.038, shall constitute a reserved authority under the contract.

B. All terms, conditions and provisions of the contract shall be deemed to be embodied in the franchise documents, and conflicts in terms, conditions or provisions of the franchise documents shall be resolved as follows:

1. The express terms of this chapter shall prevail over conflicting or inconsistent provisions in any other franchise document;

2. The express terms of any amended and restated resolution regarding a franchise issued to any franchisee shall prevail over conflicting or inconsistent provisions in any other franchise document (including any prior amended and restated resolution), except the express terms of this chapter;

3. The express terms of the resolution offering the franchise shall prevail over conflicting or inconsistent provisions in any other franchise document, except the express terms of this chapter and any subsequently adopted, amended and restated resolution regarding the franchise;

4. The express terms of the request for proposals shall prevail over conflicting or inconsistent provisions in either the application for the franchise or the certificate or acceptance of the franchise; and

5. The express terms of the application for the franchise shall prevail over inconsistent or conflicting provisions in the certificate of acceptance of the franchise.

C. The provisions of the franchise documents shall be liberally construed in order to effectuate the purposes and objects thereof. Prior to the initial enactment of this chapter, the provisions of this chapter were developed pursuant to numerous public hearings conducted for the purpose of receiving comments from the citizenry, operators interested in applying for a franchise in meetings with staff and through the submission by the operators of public oral and written comments, and the submission of independent staff recommendations. Operators interested in applying for a franchise have either directly or indirectly made it clear that any ordinance must contain minimum terms satisfactory to the operators in order to induce their interest in applying for a franchise, and innumerable changes have been made in drafts of this chapter at the request of operators. The franchise documents shall not be construed to constitute a contract of adhesion. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 717 § 2 1988; SCC 488 § 1 (part), 1981].

5.50.020 Franchise areas.

The initial CATV franchise shall permit the operation of the cable television system throughout the geographic area of the entire Sacramento community pursuant to the provisions of this chapter as the franchise area.

The franchise area for any franchise subsequently issued under the provisions of this chapter shall be defined by the board of directors of the cable television commission.

No franchisee shall be authorized by the provisions of this chapter to construct, install or operate a cable television system outside its designated franchise area.

Installation and extensions of and additions to cable television systems and service are mandated within franchise areas pursuant to the terms, conditions and requirements set forth in Article IVb of this chapter. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.022 Utility poles.

No franchise issued pursuant to the provisions of this chapter shall be deemed to expressly or impliedly authorize the franchisee to utilize poles owned by the Pacific Gas and Electric Company, Pacific Telephone, the municipal utility district or any other public or private utility which are located within streets, without the express consent of the utility. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.024 Notices.

All notices and other writings authorized or prescribed by this chapter to be mailed shall be deemed to have been given and served when deposited in the United States Mail, postage prepaid, and addressed, with respect to a franchisee to any office maintained by the franchisee within the Sacramento community, and with respect to other parties to the last known address of such party.

Any notice or other writing authorized or required by this chapter to be filed shall be deemed filed when received in the business office of the party with whom such notice or writing is authorized or required to be filed.

Whenever a provision of this chapter requires a public hearing to be conducted by the board of directors of the cable television commission, notice of the time, date, place and purpose of the hearing shall be published at least once not later than 10 calendar days in advance of the date of commencement of the hearing in a newspaper of general circulation which is published within the Sacramento community. Each franchisee who is interested in the hearing and who is providing service on the subscriber network shall also, at its sole cost and expense, announce the time, date, place and purpose of the hearing on at least two channels which are included in basic service between the hours of 7:00 p.m. and 9:00 p.m. for five consecutive days prior to the hearing. The failure of a franchisee to announce a public hearing in the manner herein prescribed shall not invalidate such hearing or any action taken as a result thereof or subsequent to the conduct thereof. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.026 Leases.

Any franchisee or parent, subsidiary or affiliated company or agent thereof who leases either real property situated within the Sacramento community or personal property to be located within the Sacramento community for use in connection with the provision of services under a franchise issued pursuant to the provisions of this chapter shall ensure that each such lease contains a clause which either: (A) authorizes that lessee to assign the lease to the cable commission or its assignee without the consent of the lessor or payment of additional compensation by virtue of the assignment; or (B) authorizes such lessee to so assign such lease without payment of additional compensation by virtue of the assignment and prohibits the lessor from unreasonably withholding consent to such assignment. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.028 Authority.

With respect to the county and chartered cities enacting this chapter, it is declared that this chapter is enacted pursuant to the authority conferred by their charters. With respect to the county and cities it is also enacted pursuant to the police powers conferred by Article XI, Section 7 of the California Constitution for the promotion and protection of the peace, health, safety and general welfare of the citizens within their respective jurisdictions. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.030 Future incorporations.

It is hereby declared that the unified process for the administration of franchises issued pursuant to the provisions of this chapter is necessary for protection and promotion of the convenience and welfare of all of the citizens of the Sacramento community, and that fragmentation in administration or right to administer such franchises resulting from the future incorporation of cities within the unincorporated area of the county would be detrimental to the convenience and welfare and the purposes of this chapter.

Therefore, the incorporation of any city within the unincorporated area of the county during the initial term of any franchise issued pursuant to the provisions of this chapter shall not operate to either divest the franchisee of its authority to install or provide services through its cable television system within the newly incorporated area or vest the newly created city with any administrative or other authority respecting operations by the franchisee under the franchise except to the extent that the city becomes a member of the commission. Until the newly incorporated area becomes a member of the commission during the initial term of the franchise, the county and cable television commission shall continue to administer the provisions of this chapter for the benefit of the inhabitants of a newly incorporated area in the same manner as if the area had not been incorporated.

Upon expiration of the initial term of a franchise, the provisions of this chapter shall cease to be applicable to that portion of the cable television system and the operations by the franchisee thereof within the municipal limits of any city which is incorporated subsequent to the commencement of the initial term and which does not become a member of the commission. The Sacramento community shall not be deemed to include any area within the limits of a city incorporated after the date this chapter becomes effective and prior to the filing of the certificate of acceptance of any franchise unless said city becomes a member of the commission. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 1095 § 2, 1997; SCC 488 § 1 (part), 1981].

5.50.032 Annexations.

The annexation of unincorporated area of the county by a city which has either not enacted this chapter or is not a member of the cable television commission during the initial term of any franchise issued pursuant to the provisions of this chapter shall not operate to either divest the franchisee of its authority to install or provide services through its cable television system within the annexed area or vest the city with any administrative or other authority whatsoever respecting operations by the franchisee under the franchise. During the initial term, the county, cities and cable television commission shall continue to administer the provisions of this chapter for the benefit of the inhabitants of the annexed area in the same manner as if the area had not been annexed.

Upon expiration of the initial term of a franchise, the provisions of this chapter shall cease to be applicable to that portion of the cable television system and the operations by the franchise thereof within any area which has been annexed by a city that is not a member of the commission. The Sacramento community shall not be deemed to include any area annexed by such a municipality subsequent to the date this chapter becomes effective and prior to the filing of the certificate of acceptance of any franchise. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 1095 § 3, 1997; SCC 488 § 1 (part), 1981].

5.50.034 Ordinances – Police powers.

All zoning and other land use ordinances, building, electrical, plumbing and mechanical codes, business license ordinances and all other ordinances of general application now in existence or hereafter enacted by the governing bodies of the county and cities shall be fully applicable to the exercise of any franchise issued pursuant to the provisions of this chapter, and the franchisee shall comply therewith. In the event of a conflict between the provisions of this chapter and those of such an ordinance of general application, the provisions of such ordinance of general application shall prevail. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.036 Operability – Amendments.

The provisions of this chapter shall not become effective or operable unless said provisions are enacted in identical form by both the governing body of the county and the governing body of the city of Sacramento. The provisions of this chapter shall become applicable within the geographic boundaries of the other cities upon the enactment of the provisions of this chapter in identical form by the governing body of each such city.

From and after the date on which the certificate of acceptance for the initial CATV franchise is filed pursuant to the provisions of RCMC 5.50.220, no addition to, deletion from, alteration of the provisions of, repeal or other amendment of this chapter shall become effective unless such amendment or repeal is enacted by the governing body of the county and the governing body of the city of Sacramento. After enactment of the provisions of this chapter by the governing bodies of the cities, no addition to, deletion from, alteration of the provisions of, repeal or other amendment of this chapter enacted by the governing bodies of the county and city of Sacramento shall become effective within the boundaries of any of said cities which are members of the commission unless such amendment is enacted by the governing body of the particular city. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 1095 § 4, 1997; SCC 488 § 1 (part), 1981].

5.50.038 Right to amend.

Except as hereinafter provided, any franchise issued pursuant to the provisions of this chapter shall be subject and subordinate during its term to exercise of the police powers for protection and promotion of the public health, safety and welfare through amendment of this chapter as authorized by RCMC 5.50.036. In the absence of an emergency, and without the consent of the franchisee, the following provisions of this chapter shall not be altered or repealed as applied to a franchise for which a certificate of acceptance has been filed in compliance with the provisions of RCMC 5.50.220 in advance of the effective date of the alteration or repeal:

A. The definitions of “basic service,” “gross revenues” and “streets” in RCMC 5.50.012 and RCMC 5.50.016, 5.50.018, 5.50.034, 5.50.036, 5.50.038 and 5.50.050;

B. The right to receive compensation for acquisition by the cable television commission or its assignee of any of a franchisee’s property utilized in the performance of services under the franchise in accordance with the valuation standards prescribed by RCMC 5.50.246 and 5.50.248;

C. The provisions relating to requirements of the cable television system prescribed by RCMC 5.50.300 through 5.50.312, and the provisions relating to prevailing rates prescribed by RCMC 5.50.316 through 5.50.326;

D. The provisions, standards, procedures and remedies relating to construction, completion and service prescribed by RCMC 5.50.400 through 5.50.446, inclusive;

E. The provisions relating to cable television services contained in RCMC 5.50.504, 5.50.506, and 5.50.510;

F. The provisions and procedures relating to the amount of, payment of, and increases in franchise fees prescribed by RCMC 5.50.600 through 5.50.606 and 5.50.610 through 5.50.614;

G. The provisions relating to security, surety, indemnification and insurance prescribed by RCMC 5.50.700 through 5.50.708, inclusive;

H. The provisions relating to transfers and assignments prescribed by RCMC 5.50.750 through 5.50.758 and 5.50.762; or

I. The provisions relating to remedies prescribed by RCMC 5.50.804 through 5.50.826 and 5.50.830 through 5.50.840. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.040 Franchisor.

Any franchise issued pursuant to the provisions of this chapter shall be in the name of the cable television commission as the franchisor. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.042 Reservation of rights.

The provisions of this chapter shall not be so construed as to in any manner restrict or impair the power or authority of the governing bodies of the county or the cities to issue cable television franchises and/or licenses within their jurisdictional boundaries. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 690 § 3, 1987; SCC 488 § 1 (part), 1981].

5.50.044 Communications with regulatory agencies.

Copies of all petitions, applications, communications, and reports submitted by a franchisee to the FCC, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting construction or operation of a cable television system or services provided through the system also shall be filed simultaneously with the clerk of the board of directors of the cable television commission. Copies of responses or any other communications from the regulatory agencies to a franchisee likewise shall be filed immediately on receipt with said clerk. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.046 Right of intervention.

The cable television commission shall have the right of intervention in any suit or proceedings to which a franchisee is a party, and the franchisee shall not oppose such intervention by the commission. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.048 Limitations of actions.

Except as otherwise expressly provided by this chapter, any judicial proceeding, whether for the recovery of damages or otherwise, brought for the purpose of adjudicating the validity of any provision of this chapter or amendments thereof or any provision of the other franchise documents shall be commenced not later than 30 calendar days following the latter of: (A) the effective date of the provisions; or (B) the accrual of the cause of action. Any such judicial proceeding brought for the purpose of adjudicating the validity of any rule, order, regulation, determination or arbitration award which purports to have been made pursuant to the provisions of this chapter or of any of the other franchise documents shall be commenced not later than 30 calendar days following date of adoption, issuance or making of such rule, order, regulation, determination or arbitration award or, as to the franchisee, not later than 30 calendar days following the giving and serving of notice of said adoption, issuance or making of such rule, regulation, determination or award pursuant to the provisions of RCMC 5.50.024. No judicial proceeding shall be commenced in violation of the limitations prescribed by this section.

The provisions of this section shall not be applicable to any judicial proceeding, whether for the recovery of damages or otherwise, commenced by the cable television commission, county or cities for breach or enforcement of the provisions of this chapter or any regulation, determination or arbitration award purporting to have been issued thereunder. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 2, 1983; SCC 499 § 2, 1982; SCC 488 § 1 (part), 1981].

5.50.050 Changes in law.

Should the state of California or any agency thereof, the United States or any federal agency, or any state or federal court require either the cable television commission, county, cities or a franchisee to act in a manner which is inconsistent with any provisions of the franchise documents, the board of directors of the cable television commission shall be authorized to determine whether a material provision of the franchise documents is affected in relation to the rights and benefits conferred by the franchise documents upon the commission, county, cities or the public. Upon such determination, the franchise documents shall be subject to modification or amendment to such extent as may be reasonably necessary to carry out the full intent and purposes thereof in relation to the rights and benefits of the commission, county, cities or the public and in relation to such state, federal or judicial requirement. The board of directors of the cable television commission may terminate a franchise issued pursuant to the provisions of this chapter if it determines after consultation with the franchisee that substantial and material compliance with the franchise documents in relation to the rights or benefits of the commission, county, cities or the public has been frustrated by such a state, federal or judicial requirement. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 3, 1983; SCC 488 § 1 (part), 1981].

5.50.052 Illegal tapping.

It shall be unlawful for any person to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a cable television system for which a franchise has been issued pursuant to the provisions of this chapter for the purpose of taking or receiving or enabling himself or others to receive or use any television signals, radio signals, picture, program or sound, without payment to the owner of said system.

It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove, injure or vandalize any part of such a cable television system including any cables, wires, or equipment used for distribution of television signals, radio signals, pictures, programs or sound. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.054 Severability.

The provisions of RCMC 1.01.150 shall not be applicable to the provisions of this chapter. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.056 Exclusion of Folsom, Isleton or Galt.

Notwithstanding any provision in this chapter to the contrary, if any of the municipalities of Folsom, Isleton or Galt fail to enact the provisions of this chapter on or before December 9, 1981, the geographical territory within the limits of any such municipality shall be deemed to be excluded from any franchise area and service area established by or under this chapter, there shall be no opportunity to offer Galt as a proposed service area as otherwise authorized by RCMC 5.50.404 should Galt fail to enact this chapter by December 9, 1981, and any and all other provisions of this chapter which impose or confer a right, privilege, duty or limitation upon any such municipality per se or as included within the definition of “cities” shall be deemed to be ineffective and null and void. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

Article II. Cable Television Commission

5.50.100 Establishment of commission.

Pursuant to the provisions of Title 1, Division 7, Chapter 5 (commencing with Section 6500) of the Government Code there shall be established a separate and distinct public agency to be known as the Sacramento metropolitan cable television commission (herein referred to as the “cable television commission” or “commission”). [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.102 Membership.

The cable television commission shall be formed by and consist of, as members, the county and the cities. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.104 Board of directors.

The powers and authority of the Sacramento metropolitan cable television commission shall be vested in a board of directors which shall consist of a minimum of the following members:

A. Five members of the board of directors shall be members of the governing body of the county.

B. One member of the board of directors shall be a member of the governing body of one of the cities within the county of Sacramento that is a member of the commission and whose population is less than 80,000 people. The member shall be appointed by and serve at the pleasure of the governing bodies of the appointing cities. All member cities whose populations are each less than 80,000 shall be represented by this member of the board of directors.

C. So long as a city with a population less than 80,000 is a member of the commission, three members of the board of directors shall be members of, appointed by and serve at the pleasure of the governing body of the city of Sacramento.

In the event that no city with a population less than 80,000 people is a member of the commission, four members of the board of directors shall be members of, appointed by and serve at the pleasure of the governing body of the city of Sacramento.

D. One member of the board of directors for each city, other than the city of Sacramento, that is a member of the commission and whose population is equal to or greater than 80,000 people. Each member of the board of directors who represents such a member city shall be a member of the governing board of that city and shall be appointed by, and serve at the pleasure of, the governing board of that city.

E. Each member of the board of directors shall be authorized to appoint a personal representative to attend meetings of the board in the absence of the member, and, during such meetings, vote and exercise all other powers of the member. Such an appointment shall be effective when the member files with the clerk of the board of directors a written notice executed by the member which identifies by name and residential address the personal representative who has been appointed. Personal representatives shall serve at the pleasure of the members who appoint them, and such appointments may be revoked by the filing of written notice of revocation with the clerk of the board of directors signed by the member and reciting revocation of the appointment of a designated representative. In the event of removal from the board of directors of a member who serves at the pleasure of a governing body, such removal shall automatically effect removal of any personal representative which that member has appointed.

F. For purposes of this section, a city’s population shall be as estimated by the California Department of Finance as of January 1st of each year for the preceding year. Modifications to board membership based on population changes shall be made on July 1st, or as soon thereafter as is feasible, following the January 1st estimates provided by the Department of Finance. [Ord. 29-2022 § 2; Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 1095 § 5, 1997; SCC 488 § 1 (part), 1981].

5.50.105 Resignation of members of board of directors.

Any member of the board of directors may resign by giving written notice filed with the clerk of the board of directors.

If the resigning member is a member of the governing body of the county, the successor to that member shall be selected by and shall serve at the pleasure of the governing body of the county. Said successor need not be a member of the governing body of the county.

If the resigning member is a member of the governing body of the city of Sacramento, the successor to that member shall be selected by and serve at the pleasure of the governing body of the city of Sacramento. Said successor need not be a member of the governing body of the city of Sacramento if no member of said governing body is willing to serve on the board of directors.

If the resigning member is a member of the governing body of one of the member cities whose population is less than 80,000, the successor to that member shall be appointed by and serve at the pleasure of the governing bodies of the cities represented by this member. Said successor need not be a member of the governing bodies of one of these cities if no member of the governing bodies is willing to serve on the board of directors.

If the resigning member is a member of the governing body of a member city whose population is equal to or greater than 80,000, the successor to that member shall be appointed by and serve at the pleasure of the governing body of the city represented by this member. Said successor need not be a member of the governing body of this city if no member of the governing body is willing to serve on the board of directors. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 1095 § 6, 1997; SCC 603 § 1, 1984].

5.50.106 Existence.

The cable television commission shall become operable and be fully competent to exercise the powers and authority vested therein 31 calendar days following the date of selection of the franchisee for the initial CATV franchise pursuant to the provisions of RCMC 5.50.210. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.108 Purposes.

The purposes of the cable television commission shall be as follows:

A. To administer, pursuant to the terms and conditions of the franchise documents, the initial CATV franchise and any franchise subsequently issued pursuant to the provisions of this chapter;

B. To exercise any and all other powers conferred by the franchise documents;

C. To administer and enforce the Digital Infrastructure and Video Competition Act of 2006, California Public Utilities Code Sections 5800 et seq. [Ord. 2-2009 § 1; Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.110 Delegation of powers.

The board of directors of the cable television commission shall be authorized to form and appoint advisory and other committees of citizens, officials or representatives of concerned interests, and delegate to each committee such powers and authority vested in it by the terms of this chapter as it deems appropriate; provided, that the board of directors shall reserve the right and authority, by means of appeal or otherwise, to make the final decision upon any matter relating to issuance or termination of a franchise issued pursuant to the provisions of this chapter or the administration thereof upon which a discretionary determination is authorized or required by the provisions of this chapter. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.112 Agreement of formation.

The Sacramento metropolitan cable television commission was previously created by the county and cities. Enactment of this chapter and amendments thereto constitute approval by the governing bodies of the county and cities of the terms of the amended and restated agreement of formation.

Amended and Restated Agreement of Formation

Sacramento Metropolitan Cable Television Commission

THIS AMENDED AND RESTATED AGREEMENT is made and entered into pursuant to the provisions of Section 6500 et seq. of the Government Code of the State of California by and between the County of Sacramento, herein referred to as “County”; and the City of Sacramento and cities of Citrus Heights, Elk Grove, Folsom, Galt, and Rancho Cordova, herein referred to as “Cities”; who do hereby mutually agree as follows:

1. Establishment. There is hereby created an organization known and denominated as the Sacramento Metropolitan Cable Television Commission, which shall be a public entity, separate and apart from the County and Cities. The Sacramento Metropolitan Cable Television Commission (hereinafter referred to as “Commission”) shall be governed by the terms of this Agreement, the terms of an ordinance enacted by each agency which enters into this Agreement which is entitled “Cable Television Ordinance”, and is hereinafter referred to as the “Ordinance”, and by such rules as are duly passed and adopted by the Board of Directors of the Commission.

2. Board of Directors. The Commission shall be governed by and the powers of the Commission vested in a Board of Directors. The number of members of the Board of Directors, composition thereof, and tenure of Directors shall be prescribed by Sub-Chapter 2 of the Ordinance.

a. Meetings of the Board of Directors and/or such advisory or other committees as the Board may appoint, shall be government by the provisions of the Ralph M. Brown Act (Government Code Section 54950 et seq.). The Board of Directors shall establish a time and place for its regular meetings, which shall be held not less frequently than once per year.

b. A majority of the members of the Board of Directors shall constitute a quorum for the purpose of transacting business.

c. No action taken by the Board of Directors shall be effective except by duly adopted motion receiving the votes of a majority of the Directors of the Board.

d. The Board of Directors shall annually elect its Chairperson and Vice-Chairperson.

e. The Clerk of the Board of Supervisors of the County or other person retained by the Board shall serve as Clerk to the Board of Directors, shall be responsible for recordation of the official actions by the Board, and shall be the official custodian of all records of the Board of Directors.

The County may determine reasonable charges to be made against the Commission for the services of the Clerk and the Commission shall pay such charges.

3. Powers. The Board of Directors of the Commission shall be vested with the following powers:

a. To employ or retain in the name of the Commission an Executive Director and such other personnel as the Board of Directors deems appropriate. The Executive Director shall be appointed by and serve at the pleasure of the Board of Directors;

b. To make and enter into contracts in the name of the Commission as authorized by or in order to carry out the objects or purposes of this Agreement or the Ordinance, including, but not limited to, contracts with the County providing for provision by County personnel of services for the Commission and reimbursement of the County by the Commission of the costs thereof;

c. To acquire in the name of the Commission, take title to, hold and dispose of real and personal property;

d. To incur in the name of the Commission debts, liabilities and obligations, which shall not constitute debts, obligations or liabilities of any of the member agencies;

e. To accept in the name of the Commission grants, gifts and donations in the public interest to carry out the purposes and functions of the Commission;

f. To establish and provide for the payment of reasonable compensation to its members or their personal representatives for performance of the duties of office; and

g. To exercise such other powers as are expressly conferred by the provisions of this Agreement or the Ordinance.

The Board of Directors shall also be authorized to sue in the name of the Commission. The Commission shall be subject to suit in its name.

4. Limitations. Pursuant to the provisions of Government Code section 6509, “the powers of the Commission are subject to the restrictions upon the manner of exercising such powers of one of the designated member agencies.” For such purposes, the City of Sacramento is hereby designated.

5. Budget. Prior to July 1st of each fiscal year, the Board of Directors shall adopt a preliminary budget. Prior to September 1st of each fiscal year, said Board shall adopt a final budget.

6. Payments. Not later than the first day of August of each year during the term of this Agreement, the Commission shall distribute to the County and Cities who are members of the Commission the difference between: (i) the revenue required to finance the costs of operations incurred in accordance with the Commission’s Budget (including a reserve for contingencies) for the fiscal year ending on the prior June 30; and (ii) the revenues from franchise fees actually received by the Commission for the same fiscal year. Revenues from sources other than franchise fees shall be utilized and distributed as required by the source of the funds.

The franchise fees shall be paid to the County and Cities who are members of the Commission in the same proportion as the ratios which the population of the unincorporated area of the County and incorporated area of the Cities bear to the total population of Sacramento County, excluding the City of Isleton, as disclosed by the most recent Federal Decennial Census and as updated by the California Department of Finance January 1st of each calendar year.

7. Treasurer. The Treasurer of the County shall be the depository of funds of the Commission, and said Treasurer shall be the ex officio Treasurer of the Commission.

The Treasurer shall receive and have custody of and disburse Commission funds on the warrant of the Auditor and shall make disbursements authorized by this Agreement. The Treasurer shall invest Commission funds in accordance with the general law. All interest collected on Commission funds shall be accounted for and posted to the account of said funds.

The County may determine reasonable charges to be made against the Commission for the Services of the Treasurer, and the Commission shall pay such charges.

8. Auditing. The Auditor of the County shall be the ex officio Auditor of the Commission, and shall draw warrants against the funds of the Commission when the demands are approved by the Executive Director or his designee. At the close of each fiscal year, as provided in Government Code section 6505, the Directors may contract with a public accountant or certified public accountant to make an audit of the accounts and report of the Commission.

The Auditor shall establish and maintain such funds and accounts as are deemed necessary to account for and report on receipts and disbursements. The Commission shall keep such additional records and accounts which are deemed necessary to account for and report on sources of funds, expenditures, grants and programs as may be required by good accounting practices. The books and records of the Commission shall be open to inspection at all reasonable times by representatives of the member agencies.

The County may determine reasonable charges to be made against the Commission for the services of the Auditor, and the Commission shall pay such charges.

9. Term. Except as hereinafter provided, this Agreement shall terminate and the Commission shall be deemed dissolved upon a two-thirds vote of the member agencies. Notwithstanding the foregoing, a member agency may withdraw from the Commission with at least one year’s prior written notice. Upon withdrawal, the member agency shall be liable for its proportional share of Commission liabilities, including any retirement benefits obligations, in the same proportion as distributions to member agencies have most recently been made pursuant to the provisions of Paragraph 6, above. Such member agency shall not receive or have any right to any share of Commission assets.

10. Disposition of Assets. Upon dissolution of the Commission, its remaining assets, after satisfying all liabilities, including any retirement benefits obligations, shall be distributed to member agencies in the same proportion as distributions to member agencies have most recently been made pursuant to the provisions of Paragraph 6, above unless the member agencies agree to a different distribution. Any real property owned by the Commission shall, in advance of dissolution, be conveyed by the Board of Directors to member agencies as tenants in common with proportional interests equal to the proportion of distributions most recently made pursuant to the provisions of said Paragraph 6 unless the member agencies agree to a different distribution.

11. Debts. Except to the extent provided by law, the debts, liabilities and obligations of the Commission shall not constitute any debts, liabilities or obligations either jointly or severally of the County or any city.

Amendment. This Agreement may be amended by written contract approved by and executed in behalf of the Governing Bodies of each member agency. No Franchisee or other person or entity shall be deemed to either expressly or impliedly be a party to this Agreement, a third party beneficiary thereof, or to have any interest which precludes amendment of the terms of this Agreement in any manner in which the Governing Bodies of the member agencies, in their discretion, may mutually agree.

[Ord. 29-2022 § 2; Ord. 22-2007 §§ 1, 2; Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 556 § 1, 1983; SCC 488 § 1 (part), 1981].

5.50.113 Cities entering into the agreement of formation after the initial formation of the cable television commission.

Any city within Sacramento County that wishes to become a member of the commission shall:

A. Enact this chapter in a form identical to the form of this chapter as it exists on the date the city enacts this chapter.

B. Adopt or indicate its acknowledgment and agreement to, as applicable, all other applicable ordinances and resolutions including but not limited to the amended and restated franchise resolution, as amended.

C. Execute the agreement of formation as set forth in RCMC 5.50.112, as amended to add the joining city. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 1095 § 7, 1997].

Article III. Issuance and Renewal of Franchises

5.50.200 Request for proposals.

Except with respect to renewal of a preexisting franchisee, no franchise to operate a cable television system shall be issued within the Sacramento community except pursuant to a request for proposals and selection of the franchisee on the basis of any proposals submitted in response to the request. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.202 Issuance of request for proposals.

The request for proposals for the initial CATV franchise shall be approved and issued by the governing bodies of the county and cities. The request for proposals for franchises subsequently issued under the provisions of this chapter shall be approved and issued by the board of directors of the cable television commission. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.204 Contents of request for proposals.

The request for proposals shall identify bidding alternatives vested in applicants by the terms of this chapter, establish the procedure for submission of applications, consideration of applications, selection of the successful applicant and issuance of the franchise, establish fees to be paid by applicants and the franchisee to cover costs of preparation, solicitation, selection and award, and prescribe such terms, conditions and requirements relating to the franchise consistent with the express provisions of this chapter as the issuing authority, in its discretion, may determine. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 1 (part), 1981].

5.50.206 Privacy of proposals.

Applications for a franchise submitted in response to a request for proposals shall be sealed at the time of submission by an applicant. Prior to the deadline for submission of applications, it shall be unlawful for any applicant and any officer, agent, or employee thereof, to, whether directly or indirectly, exchange information concerning proposals, enter into any agreement or understanding, or take any other action for the purpose of reducing or eliminating competition among applicants in the selection process. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.208 Environmental analysis.

For each franchise issued pursuant to the provisions of this chapter, one or more environmental analyses shall be undertaken pursuant to the provisions of the California Environmental Quality Act commencing at Section 21000 of the Public Resources Code. The provisions of this chapter, requests for proposals, and resolution offering the franchise shall be subject to amendment for the purpose of implementing any changes dictated by the environmental analysis. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.210 Tentative selection of initial franchisee.

A. The franchisee for the initial CATV franchise shall be tentatively selected by the governing body of the county and the governing body of the municipality of Sacramento as a combined issuing authority in accordance with the following procedure.

B. A public hearing on one or more dates shall be held by the governing body of the county and the governing body of the municipality of Sacramento sitting jointly for the purpose of receiving presentations by the applicants for the franchise and comments from the public. Notice of the time, date, place and purpose of the hearing shall be given in the manner prescribed by RCMC 5.50.024, and mailed to each applicant.

C. After the conclusion of the public hearing, balloting for selection of the franchisee shall be conducted jointly by the governing bodies of the municipality of Sacramento and county. The joint balloting shall take place either during the meeting at which the public hearing is closed or during a separately scheduled meeting. In any event, the joint balloting shall be conducted solely during a single meeting of the governing bodies meeting jointly. The failure of a member of either governing body to be present during a portion or the entirety of the public hearing shall not be deemed to disqualify that member from voting in the joint balloting.

D. During the joint balloting the applicant who first receives three votes by members of the governing body of the county and during the same balloting five votes by members of the governing body of the municipality of Sacramento shall be deemed to have been selected as the franchisee for the initial CATV franchise.

E. The joint balloting shall be conducted as follows:

1. Each member of the governing bodies present shall simultaneously cast a written, secret ballot which contains the name of the voting member and name of the applicant for whom the vote for selection is cast. The clerk of each governing body shall announce the votes immediately following the balloting. The announcement shall include the name of each voter and identification of the applicant for whom the ballot was cast;

2. If as a result of the first balloting the franchisee is not selected, a second balloting shall be conducted in the same manner as the first, and announced in the same manner as the first;

3. If as a result of the second balloting a franchisee has not been selected, a third balloting shall be conducted in the same manner as the first two, with the following exception. The applicant who received the lowest combined number of votes on the second balloting shall be deemed eliminated from competition, and no vote on the third balloting may be cast for that applicant;

4. If as a result of the third balloting a franchisee has not been selected, a fourth balloting shall be conducted in the same manner as the third, with the following exception. The applicant who received the lowest combined number of votes on the third balloting shall also be deemed eliminated from competition, and no vote on the fourth balloting may be cast either for that applicant or the applicant who was eliminated from the third balloting; and

5. If as a result of the fourth balloting a franchisee has not been selected, a fifth balloting shall be conducted in the same manner as the fourth, with the following exception. The applicant who received the lowest combined number of votes on the fourth balloting shall also be deemed eliminated from competition, and no vote on the fifth balloting may be cast either for that applicant or the applicants who were eliminated from the third and fourth balloting.

F. Any member of the governing bodies shall be authorized to cast a vote of abstention during a particular balloting, and such a vote shall not prevent the member from casting a vote in favor of a particular applicant on any later ballot.

G. If as a result of the fifth balloting a franchisee has not been selected, new balloting shall be conducted in exactly the same manner as prescribed by subsections (E)(1) through (E)(5) of this section, and applicants disqualified from competition during balloting initially conducted pursuant to said subsections shall not be disqualified during the subsequent balloting conducted pursuant to said subsections except in accordance with those subsections during the subsequent balloting.

H. If as a result of the fifth balloting during the subsequent balloting a franchisee has not been selected, further repetitive balloting may be conducted pursuant to the provisions of subsection (E)(1) of this section. Applicants previously eliminated from competition shall not be deemed eliminated during such further balloting pursuant to subsection (E)(1) of this section.

I. The meeting during which the joint balloting occurs shall be subject to periodic recess for periods not exceeding 15 minutes more or less in duration, and shall not be subject to continuance to a later time or date. Either governing body shall be authorized to separately adjourn the meeting by an affirmative vote of a majority of the members of that body. If one or both of the governing bodies adjourn the meeting prior to selection of the franchisee, the vote upon the motion for adjournment shall be deemed to constitute a rejection of all applications, and no franchise shall be issued pursuant to that request for proposals. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.212 Disapproval by other municipalities.

Not later than 30 calendar days after selection of the franchisee for the initial CATV franchise pursuant to the provisions of RCMC 5.50.210 any of the governing bodies of the municipalities of Folsom, Isleton or Galt which have adopted this chapter may disapprove the selection by resolution duly adopted by the disapproving governing body. In the event of adoption of such a resolution the initial CATV franchise shall not be applicable to the geographical area within the boundaries of that municipality, the franchise area shall be deemed to exclude such geographical territory, the municipality shall be deemed to have withdrawn its membership from the cable television commission, and the franchisee shall, in advance of adoption of a resolution offering the franchise, redesign the cable television system proposed in the application to eliminate installation thereof within the disapproving municipality.

In the event such a resolution is not adopted by the governing body of one or more of the three municipalities which have enacted this chapter, the board of directors of the cable television commission shall be deemed fully empowered to issue the initial CATV franchise, and such franchise shall be deemed to be fully applicable within the geographic territory of such municipality. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.214 Tentative and final selection procedures.

The board of directors of the cable television commission shall tentatively select all franchisees for franchises issued pursuant to the provisions of this chapter, except the franchisee for the initial CATV franchise. Prior to tentative selection the board shall conduct a public hearing for the purpose of receiving presentations from the applicants and comments from the public. Notice of the hearing shall be given in the manner prescribed by RCMC 5.50.024, and mailed to the applicants.

Between the date of tentative selection of a franchisee and approval of the resolution offering the franchise, the governing bodies of the county and municipality of Sacramento, or subcommittees thereof, sitting jointly with respect to the initial CATV franchise, and the board of directors of the commission, or a subcommittee thereof, with respect to any other franchise, shall conduct a public hearing for the purpose of receiving comments from proposed recipients of services, resources or benefits in relation to the determinations required by RCMC 5.50.344. Notice of the hearing shall be given in the manner prescribed by RCMC 5.50.024, and mailed to the tentative selectee and all proposed recipients as identified in the application by the tentative selectee and pursuant to the provisions of said RCMC 5.50.344.

With respect to the initial CATV franchise, the tentative selection shall not become final until the governing bodies of the municipality of Sacramento and county have approved identical resolutions offering the franchise. The resolution offering the franchise approved by the governing bodies shall be adopted without change by the board of directors of the commission pursuant to RCMC 5.50.218. The board of directors shall not be authorized to adopt a resolution offering the initial CATV franchise unless such resolution has been approved in advance by said governing bodies.

With respect to any franchise issued pursuant to the provisions of this chapter other than the initial CATV franchise, the tentative selection of the franchisee shall not become final until the board of directors of the commission adopts the resolution offering the franchise pursuant to RCMC 5.50.218.

If a tentative selection has not been made within nine months following the deadline for submission of applications established by a request for proposals, all applications shall be deemed rejected, and no franchise shall be issued pursuant to that request for proposals.

At any time prior to adoption of the resolution offering the franchise pursuant to RCMC 5.50.218, either the governing body of the county or municipality of Sacramento with respect to the initial CATV franchise, or the board of directors of the commission with respect to any other franchise to be issued under this chapter, may reject the tentative selectee.

If the resolution offering the franchise has not been adopted within six months following the date of tentative selection of a franchisee, the tentative selectee shall be deemed to have been rejected.

If for any reason the tentative selectee shall be deemed to have been rejected or the resolution offering the franchise shall be deemed to have been repealed pursuant to provisions of these franchise documents, the governing bodies of the county and the municipality of Sacramento with respect to the initial CATV franchise, or the board of directors of the commission with respect to any other franchise to be issued under this chapter, may select a new tentative selectee pursuant to the procedures set forth in this chapter from among those applications previously submitted and may offer a franchise pursuant to the request for proposals by which the applications were solicited. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 556 § 2, 1983; SCC 537 § 1, 1983; SCC 516 § 1, 1982; SCC 488 § 1 (part), 1981].

5.50.216 Criteria – Rejection.

Determination of whether a request for proposals will be issued shall be vested within the exclusive discretion of the issuing authority. Upon the receipt of applications for a franchise to operate a cable television system, the issuing authority may, in its sole discretion, either award a franchise to the successful applicant or reject all applications. Selection of the successful applicant and party to whom a franchise will be issued shall be vested within the exclusive discretion of the issuing authority, and may be made upon the basis of such factors or criteria as the issuing authority, in its sole discretion, may elect. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.218 Franchise resolution.

Each franchise issued pursuant to the provisions of this chapter shall be issued by and in the name of the board of directors of the cable television commission as the issuing authority. A franchise shall be offered to the successful applicant by resolution duly adopted by the board of directors of the cable television commission. The resolution may prescribe terms, conditions, or requirements respecting the franchise which are in addition to those set forth in this chapter, but which are not inconsistent with the express terms of this chapter. The resolution may also prescribe terms, conditions or requirements respecting the franchise which are in addition to or in conflict with the provisions of the request for proposals and application by the party to whom the resolution offers the franchise. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.220 Acceptance of franchise.

The resolution offering the franchise shall be deemed repealed 30 calendar days after its adoption unless not later than the thirtieth day following adoption of the resolution the party to whom the franchise is offered files a (A) certificate in writing which expressly and unconditionally accepts the franchise in compliance with terms, conditions and requirements of the resolution, application, request for proposals and this chapter. The certification shall be signed by a person duly authorized to act in behalf of the franchisee, shall be notarized, shall have attached thereto a (B) certified copy of an order by the board of directors of the franchisee directing execution and filing of the certification, and shall be (C) accompanied by any fee required by the request for proposals, and (D) the performance bond, (E) security deposit and (F) policy or policies of insurance prescribed by RCMC 5.50.700, 5.50.702, and 5.50.706, respectively, and (G) the documents required by RCMC 5.50.764. The certification and accompaniments shall be filed with the clerk of the board of directors of the cable television commission. A certification which constitutes a qualified acceptance or places other limits or conditions thereon shall be deemed to be a nullity and the resolution shall be deemed to be repealed and all applications rejected. The 30-day period for acceptance prescribed by this section may be extended either prior or subsequent to its expiration by the board of directors of the commission through express action which prescribes the period of extension.

Filing of the certification in the manner and within the time prescribed above shall effect issuance of the initial CATV franchise. With respect to any franchise other than the initial CATV franchise, the procedure prescribed above shall effect issuance of the franchise, unless issuance is disapproved pursuant to the provisions of RCMC 5.50.222. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 556 § 3, 1983; SCC 488 § 1 (part), 1981].

5.50.222 Disapproval of issuance.

Not later than 30 calendar days after certification of acceptance of any franchise other than the initial CATV franchise, issuance of the franchise may be disapproved by resolution adopted by the governing body of any directly affected agency. The county and municipalities of Sacramento, Folsom, Isleton and Galt will be deemed to be directly affected if the franchise area for the franchise would include territory within their jurisdictions.

Adoption of such a resolution shall be deemed to nullify the resolution offering the franchise and certification of acceptance, and all applications shall be deemed rejected. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.224 Term of franchises.

The term of the initial CATV franchise shall be 20 years from the date of filing of the certificate of acceptance pursuant to the provisions of RCMC 5.50.220. The term of any franchise issued pursuant to the provisions of this chapter other than the initial CATV franchise shall be as prescribed by the board of directors of the cable television commission in its sole discretion, and set forth in the request for proposals; provided, that no such franchise shall expire later than December 31, 2007. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 556 § 4, 1983; SCC 488 § 1 (part), 1981].

5.50.226 Authority to renew.

Any franchise issued pursuant to the provisions of this chapter may be renewed by the cable television commission upon such terms, conditions and requirements as the commission, in its discretion, may prescribe for a period which does not exceed the term of the agreement of formation of the commission as prescribed by Paragraph 9 thereof. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.228 Request for renewal.

A franchisee who desires to renew its franchise shall file a written request for renewal with the clerk of the board of directors of the cable television commission not later than 48 calendar months prior to the date of expiration of the franchise. The request for renewal shall include the following:

A. A statement of the period of renewal proposed by the franchisee;

B. A description of any improvements in the cable television system and in services proposed by the franchisee in the event the franchise is renewed;

C. Any changes in the terms, conditions or requirements of the franchise proposed by the franchisee to be applicable during the period of renewal; and

D. Such other and further information as the commission may request. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.230 Public hearing.

The board of directors of the cable television commission shall schedule a public hearing upon the request for renewal to commence not later than 180 calendar days after request is filed. Notice of the hearing shall be given in the manner prescribed by RCMC 5.50.024.

The commission shall be authorized to retain a consultant to provide information and advice respecting any issues raised by the request for renewal. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.232 Decision.

Not later than one year after a request for renewal is filed, the board of directors of the cable television commission shall decide whether renewal of the franchise will be offered to the franchisee. Decision as to whether renewal will be offered to the franchisee shall, except as provided by RCMC 5.50.238, be vested within the sole discretion of the board of directors of the commission, shall be made on the basis of such factors or criteria as the board of directors of the commission may in its discretion elect, and upon such terms, conditions or requirements as the board of directors in its discretion may prescribe.

If the board of directors of the commission fails to decide whether to offer renewal of the franchise to the franchisee within the time prescribed above, the request for renewal shall be deemed denied and the franchise shall terminate at the expiration of its terms. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.234 Renewal resolution.

In the event the board of directors of the cable television commission decides to offer renewal to the franchisee, it shall, not later than one year after the request for renewal is filed, adopt a resolution offering renewal of the franchise to the franchisee. The resolution may prescribe terms, conditions or requirements respecting the franchise which are in addition to those set forth in this chapter, but which are not inconsistent with the express terms of this chapter. The resolution may also prescribe terms, conditions or requirements respecting the franchise which are in addition to or in conflict with the provisions of the request for renewal and original franchise resolution. In the event of a conflict between the provisions of the request for renewal and the provisions of the resolution adopted pursuant to this section, the provisions of the resolution shall prevail. In the event of a conflict between the provisions of the original franchise resolution and the provisions of the resolution adopted pursuant to this section, the provisions of the later resolution shall prevail. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.236 Acceptance of renewal.

The resolution offering renewal shall be deemed repealed and the request for renewal rejected 20 calendar days after its adoption unless not later than the twentieth day following adoption the franchisee files a certification in writing which expressly and unconditionally accepts renewal of the franchise in compliance with the terms, conditions and requirements of the resolution, request for renewal and this chapter. The certification shall be signed by a person duly authorized to act in behalf of the franchisee, shall be notarized, shall have attached thereto a certified copy of an order by the board of directors of the franchisee directing execution and filing of the certification, and shall be accompanied by the performance bond, security deposit and policy or policies of insurance prescribed by RCMC 5.50.700, 5.50.702, and 5.50.706, respectively, and the documents required by RCMC 5.50.764. The certification and accompaniments shall be filed with the clerk of the board of directors of the cable television commission. A certification which constitutes a qualified acceptance or places other limits or conditions thereon shall be deemed to be a nullity and the resolution shall be deemed to be repealed and the request for renewal denied. The 20-day period for acceptance prescribed by this section may be extended either prior or subsequent to its expiration by the board of directors of the commission through express action which prescribes the period of extension.

Filing of the certification in the manner and within the time prescribed above shall renew the franchise, unless renewal is disapproved pursuant to the provisions of RCMC 5.50.238. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.238 Disapproval of renewal.

Not later than 30 calendar days after certification of acceptance of renewal of a franchise, the county and cities shall be authorized to disapprove renewal.

A. If the governing body of either the county or city of Sacramento adopts a resolution disapproving renewal of the franchise within the time prescribed above, the resolution adopted by the board of directors of the cable television commission offering renewal and certification of acceptance thereof by the franchisee shall be deemed null and void, the request for renewal deemed denied, and the franchise shall terminate upon the expiration of its term.

B. If the governing body of any of the municipalities of Folsom, Isleton or Galt adopt a resolution disapproving renewal with the time prescribed above, renewal of the franchise shall nevertheless be effective in all areas of the Sacramento community except within the geographical limits of the municipality so disapproving, upon the expiration of the original term of the franchise the franchisee shall be required to remove that portion of the cable television system which is situated in the streets of the disapproving municipality as, to the extent, and upon such terms and conditions as the governing body of the disapproving municipality may prescribe, the disapproving municipality shall immediately cease to be a member of the cable television commission, the governing body of the disapproving municipality shall thereafter be authorized to issue other franchises to operate cable television systems within its geographical boundaries, and the cable television commission shall not thereafter be authorized to issue or renew within the geographical boundaries of the disapproving municipalities. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.239 Renewal terms.

In consideration of the granting of the initial CATV franchise, the franchisee agrees, by the filing of the certificate of acceptance, that, should the discretion of the cable television commission under RCMC 5.50.226 to prescribe terms, conditions and requirements for any renewal of the initial CATV franchise be affected, restricted, abridged, limited or impaired in any manner whatsoever by any federal or state law, regulation or judicial decision, any renewal, extension or continuation of the initial CATV franchise shall nonetheless be upon not less than the same terms, conditions and requirements as those applicable to the initial CATV franchise; provided, that, in any instance in which the franchise documents require the payment of a fixed monetary amount, said amount shall be increased for such renewal, extension or continuation period by a percentage equal to the percentage increase in the Consumer Price Index for all urban consumers published by the United States Department of Labor for the San Francisco-Oakland Bay Area over a period from the date of the franchisee’s application for the initial CATV franchise to the inception of the renewal, extension or continuation period. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 4, 1983].

5.50.240 Authority to purchase system.

The cable television commission shall have the right to purchase real and personal property as described by RCMC 5.50.242 which is owned or in which an interest is held by the franchisee, any parent company of the franchisee, any subsidiary of the franchisee or any other entity in which the franchisee, its parent company or its subsidiary has a financial interest and which is utilized to provide service under the franchise. Such right shall not arise except and shall be exercisable under the following circumstances:

A. In the event of termination of a franchise in advance of the expiration of its term pursuant to the provisions of RCMC 5.50.818 through 5.50.826;

B. At the expiration of the term of a franchise, if the franchise is not renewed to the franchisee by the commission pursuant to the provisions of RCMC 5.50.226 through 5.50.238. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 5, 1983; SCC 488 § 1 (part), 1981].

5.50.242 Scope of purchase.

A. The property which is subject to purchase by the cable television commission shall consist of the following:

1. The cable television system;

2. Land, buildings and other improvements situated within the Sacramento community and utilized by the franchisee to provide services under the franchise, including studio facilities;

3. Cameras and other studio production equipment; mobile production equipment; vehicles for services and repairs; inventories of materials, supplies and parts; tools; and other personal property utilized within the Sacramento community to provide services under the franchise and which the board of directors determines is peculiarly designed for that purpose; and

4. Books, accounts and records relating to the franchisee’s business, including subscriber lists.

B. There shall be excluded from the purchase any parcel of land and improvements or leasehold space which is utilized exclusively for business office purposes and not, for example, jointly for both business office and studio, warehousing or repair purposes associated with operation of the cable television system.

C. Notwithstanding any provision to the contrary, the board of directors of the commission, in its sole discretion, shall have the right to exclude from the purchase any real property (including improvements thereon) upon which no component of the cable television system is situated and which the board determines is not essential to the system or the provision of services thereunder. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.244 Assignment.

The right to purchase as prescribed by RCMC 5.50.240 may be exercised by the cable television commission for public ownership and use by the commission, in behalf of a third party, or by any party to whom the commission may assign the right. The commission shall have the right to assign the right to purchase to any third party at any time prior to payment for the purchase and transfer of titles. Written notice of any such assignment shall be mailed to the franchisee. Such an assignee shall, subsequent to the date of assignment, be vested with any and all discretion respecting purchase which is vested in the board of directors of the commission. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.246 Valuation definitions.

As used in this section through RCMC 5.50.260, the following terms shall be ascribed the following meanings:

“Book value” shall mean the capital amount at which property is shown on the books of account, consisting of original cost, less reserves for depreciation which for purposes of application of this definition shall be calculated on a straight-line basis for a period of 15 years, plus additions to capital.

“Going concern value” shall mean the benefits that attach to the business as a result of its location within the franchise area, the franchisee’s reputation among subscribers or potential subscribers for dependability and quality of service, and any other circumstances resulting in probable retention of old subscribers or acquisition of new subscribers; provided, that no value shall be assigned to either the franchise itself or any right, privilege or expectancy arising to the franchisee out of the right to transact business under the franchise, and particularly no value shall be allowed for any increase in value arising out of any expectation of revenues from the cable television system beyond the termination date or expiration date of the franchise, whichever is sooner.

“Market value” shall mean the price in terms of money which a property will bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently, knowledgeably, and assuming the price is not affected by undue stimulus.

“Replacement cost” shall mean the direct cost of construction at current prices of an improvement having utility and technological capacity and function equivalent to the improvement being appraised but built with modern materials and according to current standards, design and layout, less depreciation and obsolescence from physical, functional and economic causes.

Except to the extent inconsistent with the express provisions of this section through RCMC 5.50.260, the words in this section shall be ascribed the meanings and the appraisal and valuation standards, methodology, approaches and processes respecting determination of the amount to be paid for property which the cable television commission or its assignee is entitled to purchase shall comply and be consistent with those set forth in that 1975 publication entitled Real Estate Appraisal Terminology, issued by the Center for Real Estate and Urban Economic Studies at the University of Connecticut, compiled and edited by Byrl N. Boyce, Ph.D., sponsored jointly by the American Institute of Real Estate Appraisers and Society of Real Estate Appraisers. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 6, 1983; SCC 488 § 1 (part), 1981].

5.50.248 Valuation limits.

A. The property which is purchased shall be valued as follows:

1. In the event the right to purchase is exercised pursuant to the contingency prescribed by RCMC 5.50.240(A) as a result of termination of a franchise on grounds identified by RCMC 5.50.818, the value of the cable television system, personal property and improvements attached to land to be acquired shall be solely based on the book value of the tangible assets, and the value of land owned by the seller or in which the seller has a leasehold interest with option to purchase shall be based upon the original cost thereof, no other or further value to be assigned for the tangible and intangible assets acquired.

2. In the event the right of purchase is exercised pursuant to any contingency prescribed by this chapter other than those specified in subsection (A)(1) of this section, the value of all tangible assets acquired shall be the replacement cost and the value of intangible assets acquired shall be the going concern value.

B. When real or personal property subject to the purchase is leased, the lease shall be subject to assignment to the cable television commission or its assignee, as prescribed by RCMC 5.50.026, and except as otherwise provided above no value shall be assigned to such property.

C. No value or benefits shall be assigned to the books, accounts or records, including subscriber lists, utilized in connection with the franchisee’s business pursuant to valuation under subsection (A)(1) of this section.

D. A franchisee shall not be entitled to relocation costs, and any right to such costs authorized or prescribed by law shall be deemed to have been waived by filing of the certificate of acceptance of the franchise. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 7, 1983; SCC 556 § 5, 1983; SCC 488 § 1 (part), 1981].

5.50.250 Date of valuation.

The date of valuation for purchase pursuant to the provisions of this chapter shall be the day immediately following the date of expiration or termination of the franchise. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.252 Requests for inventory.

Proceedings for the acquisition by the cable television commission or its assignee under this chapter shall be commenced by written notice mailed to the franchisee of a request by the commission or its assignee for an inventory of the franchisee’s property. Such a notice shall not be mailed earlier than the following dates:

A. The date a determination by the board of directors of the commission to terminate the franchise becomes final under RCMC 5.50.822 or 5.50.824, when the purchase is made pursuant to the contingency prescribed by RCMC 5.50.240(A);

B. The date of a determination made pursuant to the provisions of RCMC 5.50.232 by the board of directors of the commission not to renew the franchise, or the date renewals deemed denied, when the purchase is made pursuant to the contingency prescribed by RCMC 5.50.240(B); or

C. The date of a determination made pursuant to the provisions of RCMC 5.50.758 by the board of directors of the commission to purchase the property, when the purchase is made pursuant to the contingency prescribed by RCMC 5.50.240(C). [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.254 Inventory.

Not later than 30 calendar days after the date of mailing of the notice of request for inventory, the franchisee shall file with the clerk of the board of directors of the cable television commission a written inventory which includes the following:

A. A complete plan, with specifications, of the entire cable television system installed at any time during the term of the franchise;

B. An identification of all real property which is subject to the right of acquisition by the commission or its assignee, showing the address and legal descriptions thereof, and including a description of all buildings (including the square footage thereof) and other improvements thereon;

C. A list of all cameras and other studio production equipment; mobile production equipment; office and other furnishings; vehicles for service and repairs; inventories of materials, supplies and parts; tools; and other personal property utilized within the Sacramento community to provide services under the franchise (such lists shall show the manufacturers, model and serial numbers, dates or manufacture and dates of acquisition of such property); and

D. Copies of all leases, chattel and other mortgages and other instruments evidencing an interest by any third party in any of the property identified by this section. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.256 Demand for arbitration.

Not later than 30 calendar days after the date on which the franchisee files the inventory, the cable television commission or its assignee may mail to the franchisee written notice of its tentative intention to exercise its right to purchase, including a list of all property which the commission or its assignee has tentatively elected to purchase, and a demand for arbitration. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.258 Arbitration of value.

A. The arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by RCMC 5.50.830 through 5.50.840, inclusive. The franchisee shall make its cable television system, other property and books, accounts and other records available, upon request, for inspection by the cable television commission, its assignee or their experts. The discovery provisions of the California Arbitration Act (Section 1280 et seq. of the Code of Civil Procedure) shall be applicable to the arbitration proceeding under this section.

B. The questions which may be submitted to the arbitration panel and jurisdiction of the panel shall be limited to the following:

1. The amount to be paid by the commission or its assignee under the valuation limits prescribed by RCMC 5.50.248; and

2. Interpretation of the provisions of the franchise documents solely in relation to the issues within its jurisdiction.

C. Upon request by the commission or its assignee or the franchisee or upon its own initiative, the arbitration panel shall appoint and retain one or more independent experts for the purpose of providing advice upon the valuation issues to be determined.

D. The arbitration award may be judicially enforced, shall be final, binding and conclusive upon the parties and shall not be subject to judicial review or vacation except on grounds set forth in Section 1286.2 of the Code of Civil Procedure. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.260 Subsequent valuations.

With respect to any proceeding in which the arbitration panel makes valuation determinations in advance of the termination or expiration of the franchise, the same panel shall be available to receive and determine values for any additions to, replacements of or other acquisitions of property tentatively elected to be purchased which have occurred subsequent to the award made pursuant to RCMC 5.50.258. Such determinations shall be initiated by written notice mailed to the arbitration panel by the franchisee and filed with the clerk of the board of directors of the cable television commission, shall be governed by all standards, procedures and other provisions in RCMC 5.50.246 through this section, and written recital thereof shall be mailed to the franchisee, commission and its assignee (if any) not later than 90 calendar days following the date of mailing of the notice initiating the determination. No such notice shall be mailed or filed later than 120 calendar days prior to the date of expiration or termination of the franchise. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.262 Judicial relief.

In the event a franchisee or the cable television commission or its assignee fails to comply with any provision contained in RCMC 5.50.240 through 5.50.264, inclusive, the injured party shall be authorized to either seek judicial relief or relief from the arbitrator during the arbitration proceeding. In the event judicial relief is sought, the provisions of RCMC 5.50.258 and 5.50.260 shall not be deemed to deprive the court of jurisdiction to interpret the provisions of this chapter, and any such interpretation shall be binding upon the arbitrator. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.264 Sale – Transfer of title.

Not later than 30 calendar days following the date of expiration or termination of the franchise, the cable television commission or its assignee shall notify the franchisee of its intention to purchase the property identified in the notice mailed pursuant to the provisions of RCMC 5.50.256. The purchase price shall be the value as determined by the arbitration panel. The election to purchase shall be evidenced by a written notice so stating mailed to the franchisee not later than 30 calendar days following the date of expiration or termination of the franchise. The failure to mail such notice within the time prescribed herein shall be conclusively presumed to constitute an election not to purchase the property pursuant to the provisions of this chapter, and the franchisee shall not be entitled to any compensation for such property or other costs or damages, whether related to conduct of the arbitration proceedings or otherwise. If any notice, memorandum or report required by RCMC 5.50.258 or 5.50.260 has not been received by the date of expiration or termination of the franchise, the notice of election herein need not be mailed until 30 calendar days following the date of receipt of such notice, memorandum or report.

The purchase price shall be deposited into an escrow of a title company named by the commission or its assignee. The title company shall be authorized to pay the purchase price as directed by the franchisee when it can provide for the commission or its assignee grant deeds with respect to real property, bills of sale with respect to personal property or other evidences of title vesting insured title in the commission or its assignee free and clear of all liens and encumbrances except easements and rights-of-way respecting the real property which do not impair its use for the purposes intended, and assignments of leases, if any, with respect to real or personal property which is leased. The seller or sellers shall pay all title insurance, recording, escrow and closing fees and costs. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.266 Negotiated acquisition.

The provisions of this article shall not be deemed to preclude acquisition by the cable television commission or its assignee through a negotiated agreement; provided, that the commencement or existence of such negotiations shall not be deemed to waive or relieve any actions or times therefor prescribed by RCMC 5.50.254 through 5.50.264. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

Article IV. Terms – Conditions – Requirements of Franchises

Article IVa. System Capability and Standards – Prevailing Rates – Community Use

5.50.300 Minimum requirements.

The provisions of RCMC 5.50.302 through 5.50.308 constitute minimum standards for a cable television system installed pursuant to the provisions of this chapter within an imposed service area as defined by RCMC 5.50.402. Higher standards and additional requirements for such a cable television system may be established by the request for proposals, the application and other franchise documents applicable to each franchise.

The provisions of RCMC 5.50.302 through 5.50.308 shall not be applicable to a cable television system or that portion of such a system which is installed pursuant to the provisions of this chapter within a proposed service area, as defined by RCMC 5.50.402. Minimum standards for such a cable television system or portion thereof installed within a proposed service area may be established by the request for proposals, the application and other franchise documents applicable to each franchise. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1982].

5.50.302 General capability.

Each cable television system shall, at minimum:

A. Relay to subscriber terminals those broadcast signals required by the FCC;

B. Distribute in color all television signals which it receives in color;

C. Make available upon request by any subscribers receiving channels showing premium services and pay-per-view events a lockout device which prevents the unauthorized viewing of such channels;

D. Make available to subscribers, upon request, an Rf switch permitting conversion from cable to antenna reception. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.304 Cable – Capacity.

The provisions of this section express the intention and desire of the commission. Applicants shall be authorized, but not required, to include within their applications cable capacities which comport with the provisions of this section. An applicant who chooses to make a cable capacity proposal at variance with the provisions of this section shall not be disqualified from bidding or consideration in selection of the franchisee. It is expressly declared that the factors upon which selection will be based are so numerous and subjective as to make it impossible to know in advance the relative importance of a determination by an applicant to either make or not to make such a proposal in relation to other factors upon which award of a franchise will be based. The cable television system installed pursuant to the initial CATV franchise should consist of not less than two cables for the subscriber network, plus a third cable for the institutional network. Each of the three cables should have a capacity of not less than 35 channels.

The cables for the subscriber network should be installed within the service area and outside thereof in such a manner as to comply with the availability of service requirements established by Article IVb of this chapter. One of the cables for the subscriber network should be fully operational as services are required to be made available pursuant to the provisions of Article IVb of this chapter. The second cable for the subscriber network should be installed at the same time as the other two cables, but may be initially inoperable. The second cable for the subscriber network should become operable by such date or within such time as is prescribed within the application submitted by the franchisee or resolution offering the franchise.

The cable for the institutional network should be fully operational as services are required to be made available pursuant to the provisions of Article IVb of this chapter. The cable for the institutional network may be installed in all areas in which the subscriber network cables are installed. Within service areas applicable to a franchise, the cable for the institutional network should pass such public institutions, facilities and buildings as are prescribed by the request for proposals. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 8, 1983; SCC 488 § 1 (part), 1981].

5.50.306 Standby power.

Each cable television system shall include equipment capable of providing standby powering for headend, transportation and trunk amplifiers for a minimum of two hours. The equipment shall be so constructed as to automatically notify the cable office when it is in operation and to automatically revert to the standby mode when the AC power returns. The system shall incorporate all safeguards necessary to prevent injury to a lineman resulting from a standby generator powering a “dead” utility line. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.308 Override capability.

Each cable television system shall include an “emergency alert capability” which will permit the county and cities, in times of emergency, to override by remote control alternatively the audio and video of all channels simultaneously.

Each cable television system shall include the capability to broadcast from the county’s headquarters for civil defense, disaster and emergency services. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.310 Interconnection.

The interconnection capability of cable television systems with other cable systems within the greater Sacramento metropolitan area and obligations of each franchisee with respect to such interconnection shall be as prescribed by the request for proposals or other franchise documents for each franchise. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.312 Plans and specifications.

Each application for a franchise shall include detailed plans and specifications for the cable television system which is proposed by the applicant. The system shall be constructed and installed by a franchisee in compliance with the plans and specifications contained in the application, except as modified by other franchise documents. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.314 Technical standards.

Each franchisee shall construct, install and maintain its cable television system in a manner consistent and in compliance with all applicable laws, ordinances, construction standards, governmental requirements, FCC technical standards and detailed standards set forth in the franchise documents. Each franchisee shall provide to the cable television commission, upon request, written reports of the franchisee’s annual proof of performance tests conducted pursuant to FCC standards and requirements.

A. Each franchisee shall at all times comply with the National Electrical Safety Code (National Bureau of Standards); National Electrical Code (National Bureau of Fire Underwriters); California Public Utilities Commission General Orders 95, 112-d and 128; applicable FCC and other federal, state and local regulations; and codes and other ordinances of the county and cities.

B. In any event, the cable television system shall not endanger or interfere with the safety of persons or property within the Sacramento community or other areas where the franchisee may have equipment located.

C. All working facilities, conditions, and procedures used or occurring during construction of the cable television system shall comply with the standards of the Occupational Safety and Health Administration.

D. Construction, installation and maintenance of the cable television system shall be performed in an orderly and workmanlike manner, and in close coordination with public and private utilities serving the Sacramento community, following accepted construction procedures and practices and working through existing committees and organizations.

E. All cables and wires shall be installed, where possible, parallel with electric and telephone lines, and multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering consideration.

F. Any antenna structure used in the cable television system shall comply with construction, marking, and lighting of antenna structures required by the United States Department of Transportation.

G. Rf leakage shall be checked at reception locations for emergency radio services to prove no interference signal combinations are possible. Radiation shall be measured adjacent to any proposed aeronautical navigation or communication radio sites to prove no interference to air navigational reception. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.316 Prevailing rate program.

The purposes of this section through RCMC 5.50.326 are to require that workers engaged in the initial construction of cable television systems and in the ongoing installation, maintenance, repair, extension, reconstruction and subsequent construction of such systems are compensated during the term of each franchise at not less than prevailing rates as defined by RCMC 5.50.318, and to establish self-enforcing mechanisms to ensure compliance with such requirements. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.318 Prevailing rate standard.

The compensation for workers engaged in the initial construction of cable television systems and in the installation, maintenance, repair, extension, reconstruction and subsequent construction of such systems shall in each instance be not less than the prevailing rate for comparable service in other employment associated with initial construction, installation, maintenance, repair, extension, reconstruction and subsequent construction of cable systems and other work of a similar nature (excluding work performed by employees of municipally owned public utilities) within the counties of Los Angeles, San Diego, Orange, Alameda, San Bernardino, Santa Clara, Sacramento (other than the franchisee in connection with whom the prevailing rate is to be paid), San Francisco (city and county), Riverside, and Contra Costa, whenever such prevailing rate can be ascertained within such counties.

The provisions of RCMC 5.50.316 through 5.50.326 shall not be applicable to the installation of cable within subdivisions, when the work of installation is undertaken by the owner of the subdivision or a general contractor or subcontractor of the owner, and the cable is installed during the development of the subdivision at the same time as other utilities and public improvements including sewers, storm drains, electrical, gas and telephone lines, and street improvements are being installed, whether the work of installation of the cable is performed pursuant to a contract between the franchisee and the owner of the subdivision or otherwise. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 556 § 6, 1983; SCC 488 § 1 (part), 1981].

5.50.320 Method of determination.

A. Whenever under RCMC 5.50.322 a prevailing rate is required to be ascertained, the board of directors of the cable television commission shall appoint a person or firm to conduct a prevailing rate study and determine the prevailing rates. The person or firm appointed shall not be an officer, agent, employee or representative of the franchisee, the cities, the county, the commission or any labor union or organization, and the board of directors shall be the sole judge of the qualifications of the appointee. All compensation and costs payable to the appointee for services rendered shall be paid by the franchisee. The board of directors may, prior to execution of any contract by which the appointee is retained to render services, require the franchisee to deposit a sum equal to the reasonably estimated cost of compensating the appointee for the services to be rendered.

B. The appointee shall identify the jobs and positions with respect to which the prevailing rate determination will be applicable. The franchisee shall provide all data and information requested by the appointee including, but not limited to, data relating to job titles, job descriptions, work functions, and rates of compensation, and shall, upon request, admit the appointee to the inspection of records and work areas as necessary to allow the appointee to make such personal examination as the appointee desires. The appointee shall conduct a survey of rates of compensation in connection with the initial construction, installation, maintenance, repair, extension, reconstruction and subsequent construction associated with cable systems and other work of a similar nature (excluding work performed by employees of municipally owned public utilities) within the counties identified by RCMC 5.50.318.

C. Not later than 90 calendar days following the date of the contract by which the appointee is retained, the appointee shall arrive at prevailing rate determinations based upon the survey and the appointee’s analysis, without hearings, and shall prepare and file with the clerk of the board of directors of the commission and with the franchisee a written report which contains the following information:

1. The methodology utilized in conducting the survey;

2. The methodology utilized in arriving at prevailing rate determinations;

3. The types of compensation, in addition to salary, considered in arriving at the prevailing rate determinations;

4. With respect to prevailing rate determinations in connection with initial construction, installation, maintenance, repair, extension, reconstruction or subsequent construction of a cable television system to be performed by the franchisee through independent contracts, a list of all crafts and other jobs associated therewith, together with the determined prevailing rates therefor;

5. With respect to prevailing rate determinations in connection with initial construction, installation, maintenance, repair, extension, reconstruction or subsequent construction of a cable television system to be performed by the franchisee through its own personnel, the following:

a. The job titles of the franchisee with respect to which a prevailing rate could not be ascertained within the counties, and the reasons why;

b. The prevailing rate for each job title of the franchisee for which a prevailing rate could be ascertained within the counties;

c. A list of those job titles of the franchisee with respect to which compensation paid by the franchisee equals or exceeds the determined prevailing rate; and

d. A list of those job titles of the franchisee, if any, with respect to which compensation paid by the franchisee is lower than the determined prevailing rate, together with the amount of difference or differences between the determined prevailing rate and the actual compensation paid for each job title.

D. All investigations, analysis and surveys undertaken by an appointee shall be performed independently, and the appointee shall not receive or consider any opinions, argument, claims, suggestions, or other persuasion concerning such matters or the prevailing rate determination from the franchise, interested workers, or labor unions or organizations. All compensation data received by an appointee from the franchisee and others shall be held by the appointee in strict confidence, and shall not be subject to disclosure to either the franchisee, the commission, the cities, the county, interested workers, any labor union or organization, or any member of the public.

E. Any and all determinations made by an appointee, whether or not appearing in the written report, and including, but not limited to, all decisions concerning comparability of services or the absence of comparability, decisions relating to whether a prevailing rate can be ascertained, and decisions concerning the amounts of prevailing rates, shall be final, conclusive, and not subject to judicial review as to the franchisee, the cities, the county, the commission, interested workers, labor unions or organizations or any other interested party; provided, that the function performed by the appointee and determinations made shall not be deemed to constitute an arbitration, nor shall the appointee be deemed to be an arbitrator, within the meaning of the provisions of this chapter. The determinations by the appointee shall be judicially enforceable in the manner prescribed by RCMC 5.50.326. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 556 § 7, 1983; SCC 488 § 1 (part), 1981].

5.50.322 Frequency of determinations.

A report pertaining to prevailing rates respecting initial construction of the cable television system under the initial CATV franchise shall be filed by an appointee with the clerk and the franchisee not later than April 15, 1984. Notwithstanding the provisions of RCMC 5.50.320, the appointee may be appointed and retained by the governing body of the county, and the governing body shall be vested with the same rights, powers and duties connected with the selection, appointment and retention of the appointee as are otherwise vested in the board of directors of the cable television commission, including the right to compensation for the cost of the appointee’s services.

Not later than March 1st in each year thereafter during the term of a franchise, the board of directors of the commission shall select, appoint, and retain an appointee whose responsibility it shall be to analyze, investigate and survey rates of compensation and make prevailing rate determinations in connection with workers engaged in initial construction, installation, maintenance, repair, extension, reconstruction, and subsequent construction of cable television systems, whether such workers are employed by the franchisee or general contractors or subcontractors or other contractors engaged by the franchisee to perform such functions. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 585 § 1, 1984; SCC 488 § 1 (part), 1981].

5.50.324 Prevailing rate obligations.

With respect to each contract issued by a franchisee for work involving the initial construction, installation, maintenance, repair, extension, reconstruction or subsequent construction of the cable television system, the franchisee shall include within the contract prevailing rate data from the latest report filed by an appointee for all workers performing services in connection with such initial construction, installation, maintenance, repair, extension, reconstruction or subsequent construction and require that such workers be compensated in accordance with such data, and in accordance with prevailing rate determinations contained in any subsequent report filed during the term of the contract from and after the date of filing of such report. Any call for bids with respect to such a contract shall contain notice of such requirements. Any such contract shall also include a provision making the contractor and any subcontractor under him liable for the difference between actual compensation paid to the workers and the determined prevailing rates.

Each franchisee shall, from and after the date of filing of each report containing prevailing rate determinations by an appointee, increase the compensation of any of its workers who engage in initial construction, installation, maintenance, repair, extension, reconstruction or subsequent construction of the cable television system by an amount necessary to provide compensation which equals the prevailing rate for the job title shown in the report. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.326 Enforcement.

Any worker who has rendered services in connection with the initial construction, installation, maintenance, repair, extension, reconstruction or subsequent construction of a cable television system and any labor union which represents members who perform services of the same general type as that performed by such workers shall be vested with standing to maintain an action for the recovery of the difference between compensation actually paid for services rendered and prevailing rates stated in a report filed by an appointee.

The franchisee, contractor and subcontractor, if any, shall be jointly and severally liable for any such damages.

Any employee of a franchisee who, subsequent to the filing with the franchisee of a written report by an appointee determining a prevailing rate for that employee, has been compensated by the franchisee in an amount or amounts less than such prevailing rate, and any labor union which represents members performing services of the same general type as such an employee, shall be vested with standing to maintain an action against the franchisee for the recovery of any such difference between amounts of compensation actually paid by the franchisee and the determined prevailing rate. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.332 Community use proposals.

The purpose of this section through RCMC 5.50.340 is to permit applicants for the initial CATV franchise to propose plans and resources for community use programming in order to permit the community to design, produce and present programming of local interest and to promote the educational, recreational and character-building opportunities of the viewing public.

An applicant who chooses not to make such a proposal shall not be disqualified from bidding or consideration in selection of the franchisee. It is expressly declared that the factors upon which selection will be based are so numerous and subjective as to make it impossible to know in advance the relative importance of a determination by an applicant to either make or not to make such a proposal in relation to other factors upon which award of the initial CATV franchise will be based. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.334 Application contents.

A. Applicants for the initial CATV franchise shall be authorized, alternatively, to propose in their applications:

1. No community use programming, by making no reference to community use programming therein;

2. To propose community use programming in the form of and in accordance with alternative No. 1, as described by RCMC 5.50.336; or

3. To propose community use programming in the form of and in accordance with the provisions of alternative Nos. 1 and 2, as described by RCMC 5.50.336 and 5.50.338.

B. An applicant who proposes community use programming in its application shall include in the application the following in relation to the alternative or alternatives proposed:

1. Any standard or criteria which will be utilized in connection with the following matters:

a. The time made available for and community use programming covering candidates for public elective offices during election campaigns;

b. Program quality control;

c. The legality of program content and violation of the legal rights of others;

d. Any and all preconditions of whatever kind or nature relating to use by third parties of studio facilities or production equipment and broadcast of programming presented thereby.

2. The establishment of an independent body proposed by the applicant to administer community use programming. Such a body shall not include any officer or employee of the county, cities, or cable television commission. Nor shall the body include appointees of officers, employees, governing bodies or boards or committees of the county, cities or commission. Once formed or created, the body also shall not include any franchisee nor any appointee by a franchisee or representative of a franchisee. Any such proposal shall specifically identify the following respecting such a body:

a. The legal form of existence;

b. How the body will be established and who will be responsible for establishment;

c. The size, composition and method of selection and appointment of members;

d. The terms of members, and grounds and procedures for removal of members, if any;

e. The specific powers of the body in relation to administration of community use programming and the means by which such powers will be exercised and enforced; and

f. The sources and amounts of funding for support of operation of the body. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.336 Alternative No. 1 – Access use.

A. The type of community use programming envisioned by this alternative constitutes a form of access opportunity to members of the general public to produce programming in separate studio facilities with minimal instructional assistance, direction and control by a franchisee, on a first-come, first-served basis.

B. Applicants desiring to propose this alternative shall include the following within their applications:

1. That one or more (specifying the number) channels on the subscriber network will be made available exclusively for the type of access use programming prescribed by this section;

2. If two or more channels are to be made available for such use, a specification of the tier or tiers of service in which all such channels except the one included in basic service will be placed;

3. A description of the location, nature and extent of separate and independent studio facilities, production equipment, personnel resources and other resources to be provided in connection with such access use and community use programming, designed in such a manner as to permit operation by members of the public with minimal training and supervision;

4. A commitment to make the studio facilities, production equipment, personnel resources, other resources and channel(s) available for use, program production and broadcasts 24 hours per day, seven days per week, during the term of the franchise; the actual number of days per week and hours per day such resources are available for use, program production and broadcasts being subject to regulation from time to time by the independent authority created pursuant to RCMC 5.50.334(B)(2);

5. A commitment to operate and provide the studio facilities, production equipment, personnel resources, other resources, channel(s) broadcast time and programming opportunity at the sole cost of the applicant without any charge whatsoever;

6. A statement of the nature and extent of all training to be offered by the applicant respecting equipment operation and training required as a condition of facility and equipment use and operation by members of the public; and

7. A commitment to allow use of the studio facilities, production equipment, personnel resources, other resources, and channel(s) for the production and broadcast of community use programming by members of the general public, including individuals and local nonprofit community organizations, on a first-come, first-served basis during the term of the franchise. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.338 Alternative No. 2 – Franchisee sponsored programming.

The type of community use programming contemplated by this alternative is that which is produced as a result of an affirmative effort by the franchisee to interest community organizations and groups in program ideas, development and production, is presented on the subscriber network in minimum quantities prescribed by the application, and is distributed among the various tiers of service as prescribed by the application.

A. Schedules showing the number of hours per week new (not previously broadcast or cablecast within the Sacramento community) community use programming will be shown on the subscriber network within each tier of service proposed in the application, categorized according to minimum number of hours per week per tier of service between the hours of 6:00 a.m. and 5:00 p.m., 5:00 p.m. and 11:00 p.m., and 11:00 p.m. and 6:00 a.m., with respect to the following variables:

1. Differences in volumes of hours of community use programming at various times during the term of the franchise, if the applicant proposes different volumes of such programming at various times during the term of the franchise;

2. Volumes of hours of audio-only community use programming, if the applicant proposes both audio-only and audio and visual community use programming;

3. The minimum number of hours respecting community use programming to be produced by the franchisee;

4. The minimum number of hours respecting community use programming to be produced by the county or cities;

5. The minimum numbers of hours respecting community use programming to be produced by local nonprofit community organizations; and

6. Volumes of hours of automated community use programming, as distinguished from regular nonautomated community use programming, if such automated programming is to be shown;

B. A commitment by the applicant to provide during the entire term of the franchise all hours of programming which it has proposed in the schedules identified by subsection (A) of this section;

C. A description of the location, nature and extent of studio facilities, production equipment and personnel and other resources proposed to be made available at the sole cost of the applicant and without any charge whatsoever to produce and assist the county, cities and local nonprofit community organizations in the presentation of community use programming. The applicant shall indicate whether the studio facilities, production equipment, staffing resources and other resources will be exclusively available for community use programming to the county, cities and local nonprofit community organizations, or whether such resources will be shared with the applicant’s operation or others. If shared, specific criteria shall be stated showing how time priorities will be allocated among competing interests to ensure, for example, that studio space and production resources will not be made available to local organizations only at the least desirable times;

D. Specific and detailed affirmative strategies to be utilized by the applicant to solicit and encourage interest by the county, cities and local nonprofit community organizations in planning, producing and presenting community use programming to fulfill the broadcast time commitments proposed; and

E. A statement of all criteria intended to be utilized by the applicant to select between and apportion time among local nonprofit community organizations, the county, and the cities if the demand to produce community use programming exceeds the broadcast time proposed in the schedules identified by subsection (A) of this section.

In addition to the foregoing, and as a part of this alternative, an applicant may, but is not required to, propose in its application a specific number of channels on the subscriber network which it would set aside for the exclusive provision of community use programming on a leased access basis by individuals and local nonprofit community organizations. Such channels, if proposed, shall be subject to lease, in whole or in part, for community use programming. Programming meeting the definition of “community use programming” shall be included in fulfilling the broadcast time proposal contained in subsection (A) of this section. With respect to any such proposal, the application shall contain the following:

1. An itemization of the amounts of fees and charges, if any, to be levied by the applicant at various times during the franchise term for leased access use, the fees and charges, if any, to include all rights and privileges associated with the lease, use of studio facilities, production equipment and personnel and other resources, and broadcast time;

2. Copies of all contract documents to be utilized in connection with such leases; and

3. A statement as to whether identification of parties to whom channels will be leased and apportionment of leased time thereon will be vested within the sole discretion of the applicant, or determined in accordance with standards or criteria, and if so, a statement of all criteria, standards and requirements proposed to be utilized by the applicant in apportioning leased time should the demand therefor exceed the channel supply. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 556 § 8, 1983; SCC 488 § 1 (part), 1981].

5.50.340 Compliance with proposal.

A franchisee under the initial CATV franchise who has included within its application for the franchise a proposal for community use programming under the above sections shall comply during the entire term of the franchise with all such commitments contained in its application and the resolution offering the franchise, including, but not limited to, provision of the specified number of hours of community use programming pursuant to the terms and conditions stated, allocation and use of channels pursuant to the terms and conditions stated, and provision of all studio facilities, production equipment, personnel resources and other resources identified for the uses specified pursuant to the terms and conditions stated. During such term, the franchisee shall keep and maintain all such facilities, equipment and resources in good condition and repair, and replace any and all such facilities, equipment and resources as necessary to fulfill the obligation that the foregoing be provided and maintained during the entire term of the franchise. The failure to comply with the commitments and obligations identified by this subsection shall be deemed to constitute a material violation and breach of the franchise documents.

If a franchisee has included within its application a proposal under both alternative No. 1 as described by RCMC 5.50.336 and alternative No. 2 as described by RCMC 5.50.338, community use programming cablecast on the access channel(s) provided under alternative No. 1, as described by RCMC 5.50.336, shall not count for the purposes of fulfilling the broadcast commitments assumed under alternative No. 2, as described pursuant to RCMC 5.50.338(A). [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.342 Resources for public agencies.

Applicants for a franchise shall be authorized, but not required, to include within their applications proposals for services, resources or benefits to the county or cities, including, but not limited to, free or discounted rates for subscription to services on the subscriber network or institutional network, channels or time thereon on the subscriber network or institutional network, electronic or other equipment, use of the institutional network, staffing resources or other services, resources or benefits for improvement in the delivery of governmental services or efficiency of governmental operations. A franchisee who has proposed the provision of such services, resources or benefits in its application shall comply during the entire term of the franchise with all such commitments contained in its application and the resolution offering the franchise pursuant to the terms and conditions stated therein, and the failure to provide such services, resources or benefits pursuant to the terms and conditions stated shall be deemed to constitute a material violation and breach of the franchise documents.

An applicant who chooses not to make such a proposal shall not be disqualified from bidding or consideration in selection of the franchisee. It is expressly declared that the factors upon which selection will be based are so numerous and subjective as to make it impossible to know in advance the relative importance of a determination by an applicant to either make or not to make such a proposal in relation to other factors upon which award of a franchise will be based. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.344 Resources for others.

A. Applicants for a franchise may, for the purpose of promoting improvement in cable services to the community and influencing the motivation of the awarding authority to select the particular applicant as the franchisee, include within their applications the commitment of services, resources or other benefits (including, but not limited to, ongoing financial support, channels or broadcast time thereon, personnel resources or facilities or equipment) to specifically identified parties other than the county or cities. The application shall contain an identification of any such commitments, including a specific description of the nature and extent of all services, resources or benefits committed, the names and addresses of all parties to whom the commitments are made, all terms and conditions of the commitments, and copies of legal instruments such as contracts, leases, memoranda of understanding or other documents by which the commitments, when accepted and the documents executed by the recipients, would be evidenced. Each such legal instrument shall contain provisions requiring that such services, resources or benefits be utilized exclusively for cultural, educational, scientific, character-building, recreational or public service purposes, and prohibiting the utilization thereof for commercial purposes.

B. During the hearing conducted for the purpose of receiving comments from such recipients pursuant to the provisions of RCMC 5.50.214, the body or bodies conducting the hearing shall:

1. Order such changes in the legal instruments by which the commitment of such services, resources, or benefits are to be evidenced as are found necessary in order to fulfill the objects and purposes of the application submitted by the tentative selectee, without altering the nature or scope of the commitments made; or direct the proposed recipients and tentative selectees to meet separately for the purpose of developing mutually acceptable changes in the legal instruments for later review and approval by the body or bodies conducting the hearing;

2. Approve as to form all legal instruments determined to be sufficient to adequately express the commitments and terms and conditions thereof; and

3. Determine which, if any, of such legal instruments are to be incorporated into the franchise documents and made a part of the terms and conditions of the franchise, and order such incorporation by reference to the instrument in the resolution offering the franchise. Notwithstanding the terms thereof and any other provision of this chapter, any such legal instruments which have been incorporated into the resolution offering the franchise pursuant to this section shall be subject to modification upon the written agreement of the franchisee and the commission without the consent of the recipient, the county or the cities; provided, that any recipient which is adversely affected by such modification shall be entitled to terminate its contract with the franchise.

C. With respect to any legal instrument which is made a part of the franchise documents by reference in the resolution offering the franchise, the violation and breach by the franchisee of the obligations therein shall be deemed to constitute a material violation and breach of the franchise documents. Obligations and prohibitions assumed by the recipient under such legal instruments by either execution of the instruments or acceptance of the services, resources or benefits committed shall be enforceable either by the franchisee or the cable television commission. Violation and breach by the franchisee of any legal instrument which is not made a part of the franchise documents by reference in the resolution offering the franchise shall not be deemed to constitute a violation or breach of the franchise documents. Incorporation of such a legal instrument into the franchise documents by reference in the resolution offering the franchise shall not be deemed to obligate the county, cities or commission to fulfill any promise contained therein. Services, resources or benefits committed to specifically identified parties other than the county or cities which are not evidenced by separate legal instruments included with the application shall not be considered in the selection process.

D. An applicant who chooses not to commit services, resources or benefits as authorized by this section shall not be disqualified from bidding or consideration in selection of the franchisee. It is expressly declared that the factors upon which selection will be based are so numerous and subjective as to make it impossible to know in advance the relative importance of a determination by an applicant to either make or not to make such proposals in relation to other factors upon which award of a franchise will be based. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 615 § 1, 1985; SCC 488 § 1 (part), 1981].

Article IVb. Construction and Extension of System – Use of Streets

5.50.400 Dwelling units.

As used in this chapter, the term “dwelling units” means residential living units as distinguished from temporary lodging facilities such as hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes within mobile home parks, and other multiple-family residential units. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.402 Service areas.

As used in this chapter, the term “imposed service area,” with respect to the initial CATV franchise, means that geographical territory shown on that map which is marked Exhibit A, and which is approved by resolution adopted by the governing bodies on the dates this chapter is enacted or amended. The term “imposed service area” with respect to a franchise issued pursuant to the provisions of this chapter other than the initial CATV franchise means a geographical territory defined by resolution adopted by the board of directors of the cable television commission on or before the date of approval of a request for proposals for that franchise. The boundaries of an imposed service area shall not be subject to amendment or revision during the term of a franchise to which the imposed service area pertains.

As used in this chapter, the term “proposed service areas” refers to geographical units within a franchise area defined by a franchisee in its application for the franchise which are situated outside an imposed service area established for the franchise to which the application is directed. Each applicant shall plan the proposed service area which it offers in such a manner that it can complete construction and provide such services within the entirety of each such service area within the times prescribed herein. Each application for a franchise shall contain a map or maps showing the locations of proposed service areas, together with word descriptions either in the form of metes and bounds or by reference to the names of public roads and highways and parcel lines shown on the county assessor’s parcel maps. Each applicant shall also state the number of dwelling units within each proposed service area, and the number of such dwelling units shall be stated in the resolution offering the franchise.

As used in this chapter, the term “service areas” generically refers to both the imposed service area and proposed service areas, or either of such types of service areas. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 556 § 15, 1983; SCC 488 § 1 (part), 1981].

5.50.404 System coverage – Initial CATV franchise.

The franchisee under the initial CATV franchise shall install the cable television system throughout the entirety of the imposed service area in compliance with the construction standards set forth in Article IVa of this chapter and the applicable standards for the system including, but not limited to, channel capacity, number of cables and other functional and technological features of the system as identified in the franchise documents, and shall make basic service and other services identified pursuant to RCMC 5.50.504 available within the times prescribed by RCMC 5.50.410.

The governing bodies hereby find as follows: (A) that at the current time construction of the cable television system under the initial CATV franchise within areas outside the imposed service area would be uneconomic, even with reduced system design and capability, reduced services and higher rates, because of the sparsity of residential development to support construction costs; (B) that subjecting potential service of areas outside the imposed service area to the competitive selection process could result in issuance of a franchise for service in areas which are not economically justified and threatens imposition of unreasonably high service costs upon subscribers in urban areas in order to underwrite the cost of service in sparsely populated areas; and (C) that permissive proposal of service outside the imposed service area would result in competing applications which variously propose service only within the imposed service area, and within the imposed service area and a potential number of other areas, and would make the applications extremely difficult to compare in relation to such factors as economic feasibility, cross-subsidization, propriety of system design and service levels, and rates with respect to applicants who propose basic service rate restrictions.

Therefore, applicants for the initial CATV franchise shall not be authorized to propose in their applications a proposed service area. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 556 § 16, 1983; SCC 488 § 1 (part), 1981].

5.50.406 System coverage – Other franchises.

If an imposed service area has been adopted for a franchise other than the initial CATV franchise, the cable television system shall be installed throughout the entirety of the imposed service area in compliance with the construction standards set forth in Article IVa of this chapter, and the applicable standards for the system including, but not limited to, channel capacity, number of cables, and other functional and technological features of the system as identified in the franchise documents, and the franchisee shall make basic service and other services identified pursuant to RCMC 5.50.504 available within the times prescribed by RCMC 5.50.410.

Applicants for a franchise other than the initial CATV franchise may be authorized to include within their applications proposed service areas. In the event such a franchise is issued to an applicant who has included proposed service areas within its application, the franchisee shall install the cable television system throughout the entirety of each proposed service area in compliance with the construction standards set forth in Article IVa of this chapter and the applicable standards for the system including, but not limited to, channel capacity, number of cables and other functional and technological features of the system as identified in the franchise documents, and shall make basic service and other services identified pursuant to RCMC 5.50.504 available within the times prescribed by RCMC 5.50.410. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.408 Quantity of dwelling units.

The number of dwelling units within an imposed service area shall be estimated in the request for proposals issued for the franchise to which the imposed service area pertains. The identification of dwelling units in the request for proposals shall be deemed to be an estimate only, shall not constitute a basis for reliance by an applicant, and each applicant shall by means which it chooses ascertain the number of dwelling units within such imposed service areas and state same in its application.

Each applicant for a franchise shall ascertain by means which it chooses the number of dwelling units within any proposed service area which is included within its application, and state such number or numbers in the application.

Each resolution offering a franchise shall state therein the number of dwelling units within the imposed service area and any proposed service area to which it pertains. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.410 Construction schedule.

A. The cable television system shall be constructed and installed in accordance with the construction standards set forth in Article IVa of this chapter within the entirety of each service area and basic service and other services identified pursuant to the provisions of RCMC 5.50.504 shall be made available to all dwelling units within each service area within the times prescribed below, regardless of density, and the standards for line extensions set forth in RCMC 5.50.424 shall not be applicable to territories within service areas. Each franchisee shall:

1. Commence construction of the cable television system in each service area by stringing or laying cable not later than nine months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of RCMC 5.50.220;

2. Make basic service and other services identified pursuant to the provisions of RCMC 5.50.504 available to at least 20 percent of all dwelling units within each service area not later than 23 months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of RCMC 5.50.220;

3. Make basic service and other services identified pursuant to the provisions of RCMC 5.50.504 available to at least 50 percent of all dwelling units within each service area not later than 43 months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of RCMC 5.50.220; and

4. Make basic service and other services identified pursuant to the provisions of RCMC 5.50.504 available to 100 percent of all dwelling units within each service area not later than 63 months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of RCMC 5.50.220.

B. Except as otherwise provided by or pursuant to the franchise documents, any and all studio facilities, equipment, channels and other services, resources or benefits required of a franchisee under any provision of the franchise documents shall be completed and made available, and the provision of any community use programming which the franchisee has proposed pursuant to the provisions of RCMC 5.50.332 through 5.50.340 shall commence not later than 37 months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of RCMC 5.50.220. When other times are prescribed by or pursuant to the franchise documents, such services, resources, benefits and programming shall be completed, made available or commenced, as the case may be, within the times required.

C. The foregoing shall not be construed to prevent an applicant from proposing additional, more stringent completion levels than those set forth above.

D. If the franchisee has proposed more stringent construction completion levels than those set forth above and if said proposal has been incorporated in the franchise documents, the failure of the franchisee to comply with such additional construction levels shall be subject to the provisions of RCMC 5.50.804; provided, that the failure of the franchisee to comply with such additional construction levels shall not constitute a breach of its obligations under the franchise documents unless and until:

1. The franchisee has experienced two consecutive failures to comply with such additional construction levels; or

2. The franchisee has breached any of the provisions of subsections (A) and (B) of this section.

E. Further, provided, that within the first 24 months after the filing of the certificate of acceptance of the franchise pursuant to the provisions of RCMC 5.50.220, no failures of the franchisee to comply with such additional construction levels shall constitute a breach of the franchise documents if:

1. Such failure will not prevent the franchisee from being in substantial compliance with such additional construction levels by the end of 24 months after the filing of said certificate of acceptance; and

2. Franchisee has not breached any of the provisions of subsections (A) and (B) of this section. [Revised during 2008 codification; Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 595 § 1, 1984; SCC 565 § 9, 1983; SCC 556 § 9, 1983; SCC 488 § 1 (part), 1981].

5.50.412 Isolated dwelling exception.

For purposes of determining compliance with the provisions RCMC 5.50.410(A)(4) and of RCMC 5.50.416 and notwithstanding any other provision of this chapter, a franchisee shall be excused from making basic service and such other services available to a particular dwelling unit within a service area if that dwelling unit is situated at least 500 feet from another dwelling unit and making service available to the dwelling unit would require an aerial or underground extension of cable in excess of 500 feet from an otherwise existing aerial or underground trunk cable. The sole purpose of this exception is to relieve a franchisee from providing service to an isolated dwelling unit within a service area under circumstances wherein extension of the system would constitute an excessive burden, and occupants of only one dwelling unit within the area would be deprived of services as a result of the relief.

A franchisee shall not be entitled to relief under this section unless it shows that it would not have been reasonable to have located cable in such a manner as to be within the distance limitation prescribed by this section. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.413 Low density exemption.

A. A franchisee shall be eligible to claim an exemption under this section if, and only if, it shall have filed with its application a map or maps, certified as true and correct by an officer of the franchisee, setting forth clearly and distinctly those portions of the imposed service areas in which:

1. There exist less than 40 dwelling units per street mile or less than five dwelling units within 660 street feet; and

2. The franchisee desires to retain the right to claim a low density exemption under this section at a later date.

B. For purposes of determining compliance of the provisions of RCMC 5.50.410 and notwithstanding any other provision of this chapter, a franchisee shall be excused, upon application therefor to the commission, from making basic service and other services identified pursuant to RCMC 5.50.504 available within the time limits specified in RCMC 5.50.410 to dwelling units within an area meeting both of the following criteria (hereinafter “affected area”):

1. There exist less than 40 dwelling units per street mile or less than five dwelling units within 660 street feet; and

2. The area is shown upon the map submitted pursuant to subsection (A) of this section.

C. Notwithstanding the provisions of subsection (B) of this section, a franchisee shall make available basic service and other services identified pursuant to RCMC 5.50.504 to all dwelling units within an affected area not later than 75 months after the filing of the certificate of acceptance to the franchise.

D. For purposes of determining compliance with the provisions of RCMC 5.50.410(A)(4) and of RCMC 5.50.416 and notwithstanding the provisions of subsection (C) of this section, or any other provision of this chapter, a franchisee shall be excused from making basic service and other services identified pursuant to RCMC 5.50.504 available to dwelling units within an area meeting both of the following criteria (hereinafter “affected area”):

1. There exist less than 40 dwelling units per street mile or less than five dwelling units within 660 street feet; and

2. Each dwelling unit within said area shall have been offered and declined cable service at the low density installation cost, which shall be the lesser of:

a. The franchisee’s actual cost of installation of cable plant in the affected area multiplied by the difference between the total number of dwelling units within the affected area and the number of dwelling units evidencing a desire to contract for cable service, the product thereof divided by the total number of dwelling units within the affected area and the dividend thereof divided by the number of dwelling units within the affected area desiring to contract for cable services; or

b. Fifty percent of the franchisee’s actual cost of installation of cable plant in the affected area divided by the number of dwelling units in the affected area desiring to contract for cable services.

E. If, in response to the offer of service at the low density installation cost required by subsection (D)(2) of this section, one or more dwelling units within the affected area shall contract for service, the franchisee shall have no exemption pursuant to subsection (D) of this section and shall be required to comply with the provisions of subsection (C) of this section.

F. If, pursuant to subsection (E) of this section, one or more dwelling units within an affected area should contract for service and pay the low density installation cost calculated pursuant to subsection (D)(2) of this section, and at any time thereafter, additional dwelling units shall contract for such cable service, the low density installation cost for such subsequent contracting dwelling units shall be recalculated pursuant to the formula set forth in subsection (D)(2) of this section, utilizing the then-existing total number of dwelling units and the then-existing number of dwelling units contracting for cable service, and a refund shall be paid thereupon to any existing subscriber who shall have paid a low density installation cost within the previous three years in an amount equal to the amount by which the low density installation cost for the new subscriber exceeds the low density installation cost charge paid by the existing subscriber.

G. For any affected area in which the franchisee claims an exemption pursuant to subsection (D) of this section, the franchisee shall obtain and retain at all times throughout the term of the franchise evidence in a form satisfactory to the commission of the offer and declination of service by the franchisee to all of the dwelling units within the affected area upon the basis set forth in subsection (D) of this section.

H. For purposes of calculation under this section, the “franchisee’s actual cost of installation of cable plant in the affected area” shall:

1. Include only direct labor expended and plant and equipment physically installed within the affected area;

2. Not include any indirect allocation, assignment or amortization of other costs or equipment;

3. Not include any costs related to any degree whatsoever with the provisions of service to areas other than the affected area, including but not limited to any cable or other equipment used in any part to transmit signals to any area beyond the affected area.

I. If a franchisee should claim an exemption pursuant to subsection (D) of this section, and thereafter during the term of the franchise the density of dwelling units within the affected area should equal or exceed 40 dwelling units per street mile or five dwelling units within 660 street feet, then the franchisee shall, upon the application of one or more dwelling units within said affected area, be obligated to extend the system throughout the affected area and make available basic service and other services identified pursuant to RCMC 5.50.504 within six months after the first request for cable service.

J. If a franchisee shall install cable service within an affected area pursuant to the provisions of subsection (E) of this section, and within five years thereafter, the density of dwelling units within the affected area shall equal or exceed 40 dwelling units per street mile or five dwelling units within 660 street feet, the franchisee shall thereupon refund all low density installation cost charges to the extent that said charges exceeded the normal installation charge in effect at the time of installation for non-low density areas of the system.

K. Notwithstanding any other provision of this section, the system design and architecture shall, at all times during the term of the franchise, be capable of serving the entire imposed service area. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 10, 1983].

5.50.414 Duty to report.

Commencing at the third full calendar quarter following the filing of the certificate of acceptance of a franchise pursuant to the provisions of RCMC 5.50.220, and continuing every calendar quarter thereafter until the date basic service and other services identified pursuant to the provisions of RCMC 5.50.504 are made available to 100 percent of the dwelling units within each service area, the chief executive officer of the franchisee shall file with the clerk of the board of directors of the cable television commission a written declaration identifying the number and percentage of dwelling units in each service area to which such services have been made available as of the last day of the quarter for which the declaration is filed, together with such other information concerning progress by the franchisee in complying with both the 63-month construction schedule prescribed by RCMC 5.50.410 and any more stringent construction schedule proposed by the franchisee and incorporated in the franchise documents. Said declaration shall certify franchisee’s compliance or noncompliance with said construction schedules. Upon request the franchisee shall make available to the commission such maps, documents and other data as were used by the franchisee to compile the aforesaid declaration.

Said quarterly declarations shall be filed not later than the first day of the second calendar month following the end of the quarter for which the report is filed. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 604 § 2, 1984; SCC 488 § 1 (part), 1981].

5.50.416 Completion.

A final order of completion shall be issued by the board of directors of the cable television commission when: (A) construction of the cable television system has been completed within the entirety of each service area in compliance with construction standards set forth in Article IVa of this chapter and the design and other requirements of the franchise documents; (B) basic service and other services identified pursuant to the provisions of RCMC 5.50.504 have been made available to 100 percent of the dwelling units within each service area; (C) any and all studio facilities, equipment, channels and other services, resources or benefits required by the franchise documents have been completed and made available; (D) any community use programming which the franchisee has proposed pursuant to the provisions of RCMC 5.50.332 through 5.50.340 shall have commenced in compliance with the franchise documents; and (E) a notice of completion has been filed by the franchisee as hereinafter provided.

For purposes of RCMC 5.50.410 and this section, basic service and other services identified pursuant to the provisions of RCMC 5.50.504 shall be deemed to be made available when basic service (at rates and charges in amounts proposed within the application for the franchise and as permissibly adjusted pursuant to RCMC 5.50.622 or, if none are included in the application, at rates and charges in amounts customarily offered by the franchisee) and other services identified pursuant to the provisions of RCMC 5.50.504 and in Article IVc of this chapter (at rates and charges in amounts customarily offered by the franchisee) are offered for immediate provision to the owner or legal representative of the owner empowered to consent to use of the property of such individual dwelling units.

For the purpose of determining compliance with the provisions of RCMC 5.50.410(A)(2) and (A)(3), the total number of dwelling units within each service area to which the percentages apply shall be deemed to be the numbers stated in the resolution offering the franchise. For the purpose of determining compliance with the provisions of RCMC 5.50.410(A)(4) and of determining completion under this section, the total number of dwelling units within each service area shall be deemed to be the actual number of units available for occupancy as of a date 45 calendar days in advance of the date of filing by the franchisee of the notice of completion; provided, that the franchisee files the notice of completion with a good faith belief that it has in fact achieved completion as of the date of filing. Otherwise the total number shall be determined as of the date on which the board of directors of the cable television commission makes a final decision as to whether a final order of completion will be adopted.

A franchisee who asserts completion shall file a written notice of completion with the clerk of the board of directors of the commission. The notice of completion shall state the total number of dwelling units available for occupancy within each service area 45 calendar days in advance of the filing of the notice, the total number of dwelling units to which basic service and other services have been made available within each service area as of the date of filing, and shall otherwise certify completion as defined by the first paragraph in this section. Neither the notice of completion nor the statements, assertions or certifications contained therein shall be deemed to be binding upon the board of directors of the commission.

During the period of construction of the cable television system or during the 60-day period following filing of the notice of completion, all elements and components thereof and all equipment and studio facilities required by the franchise documents shall be subject to inspection by the cable television commission, employees or authorized agents or representatives thereof, for the purpose of determining whether the system and related facilities comply with the franchise documents. The franchisee shall authorize such inspection and provide such information and cooperation as is required in order to permit an adequate investigation to determine the existence or nonexistence of such compliance. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.418 Hearing and determination.

Not later than 45 calendar days following the filing of the notice of completion, the board of directors of the cable television commission shall commence a public hearing with respect to the notice of completion. Written notice of the time, date and place of the hearing shall be mailed to the concerned franchisee. Notice of the time, date, place and purpose of the hearing shall be publicized in the manner prescribed by RCMC 5.50.024.

During the hearing, any interested person may appear and comment upon the question of whether completion has occurred and a final order of completion should be issued. The public hearing may be continued from time to time. While the hearing is pending, the board of directors may direct such investigations of issues or questions raised during the hearing as it deems appropriate. During the public hearing, the board of directors may, by resolution, identify specific deficiencies respecting completion and decline to adopt a final order of completion pending correction or elimination of the deficiencies so identified. If at the conclusion of the public hearing a final order of completion is not issued, the board of directors shall, by resolution, identify specific deficiencies respecting completion which must be corrected in advance of issuance of a final order of completion.

The final order of completion shall certify completion in compliance with the terms and conditions of the franchise documents. The order shall also designate the actual date when all elements defined by the first paragraph in RCMC 5.50.416 have been completed. Issuance of such a final order of completion shall constitute a determination of completion which is conclusive for all purposes of this chapter. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.420 Request for arbitration.

A. At any time on or after 120 calendar days following the date of filing by a franchisee of the notice of completion the franchisee may, if a final order of completion has not been adopted by the board of directors of the cable television commission, make a written request for arbitration. If a final order of completion has been issued and the franchisee disagrees with the actual date of completion stated therein, the franchisee may, within 30 calendar days following mailing to the franchisee of the order, make a written request for arbitration. The request shall be in writing, shall state the grounds therefor, and shall be filed with the clerk of the board of directors of the commission.

B. If arbitration is requested, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by RCMC 5.50.830 through 5.50.840, inclusive. The discovery provisions of the California Arbitration Act (Section 1280 et seq. of the Code of Civil Procedure) shall be applicable to arbitration proceedings under this section. The questions which may be submitted to the arbitration panel and jurisdiction of the arbitration panel shall be limited to the following:

1. The interpretation of the provisions of the franchise documents solely in relation to the decision required by subsection (B)(2) of this section; and

2. Whether a final order of completion should be issued and, if so, the actual date of completion; or if an order has been issued, the actual date of completion.

C. The jurisdiction of the arbitration panel shall not include questions of enforcement, breach or remedies, and any such determination concerning enforcement, breach or remedies shall be inadmissible in and without force or effect in relation to proceedings conducted under RCMC 5.50.438 through 5.50.444, inclusive.

D. If ordered by the arbitration panel, the board of directors of the commission shall issue a final order of completion not later than 10 calendar days following receipt of the arbitration award. The arbitration award may be judicially enforced, shall be final, binding and conclusive upon the parties, and shall not be subject to judicial review or vacation except on grounds set forth in Section 1286.2 of the Code of Civil Procedure. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.422 Future developments within service areas.

A franchisee shall, if practical, install its cable television system at the time the public improvements are being installed with respect to any territory within service areas for which an application has been filed by the time the franchise is issued to subdivide the territory into five or more lots for residential purposes. In any event, basic service and other services identified pursuant to the provisions of RCMC 5.50.504 and in Article IVc of this chapter shall be made available to all lots within such territory the subdivision of which has been completed not later than 51 months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of RCMC 5.50.220.

With respect to all territories within service areas for which application for approval of a tentative map for such subdivision is made after issuance of the franchise, the franchisee shall install its cable television system at the time the public improvements for the subdivision are being installed. Basic service and other services identified pursuant to the provisions of RCMC 5.50.504 and in Article IVc of this chapter shall be made available to each lot within such subdivisions not later than the date of occupancy of each dwelling unit, or 51 months following the date of filing of the certificate of acceptance of the franchise pursuant to the provisions of RCMC 5.50.220, whichever occurs later. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.424 Line extensions.

After completion of the construction, installation and service schedule prescribed by RCMC 5.50.410, as that schedule may be modified pursuant to the provisions of RCMC 5.50.438 through 5.50.444, inclusive, each franchisee may, within its franchise area, extend its cable television system beyond the service areas described in the franchise documents, and shall so extend its system pursuant to the following requirements:

A. The franchisee shall extend the cable television system and make basic service and other services identified pursuant to RCMC 5.50.504 and in Article IVc of this chapter available to every dwelling unit within any area reaching the minimum density of at least 40 dwelling units per street mile, or five dwelling units within 660 feet, as measured from the existing system.

B. The franchisee shall extend the cable television system and make basic service and other services identified pursuant to RCMC 5.50.504 available to any isolated resident outside the service area, requesting connection at the standard connection charge, if the connection to the isolated resident would require no more than a standard 150-foot aerial drop line.

With respect to requests for connection requiring an aerial drop line in excess of 150 feet, the franchisee shall extend the cable television system and make available such services to such residents at a connection charge not to exceed the actual installation costs incurred by the franchisee for the distance exceeding 150 feet plus an administrative charge of 10 percent of said amount to cover overhead costs.

C. Whenever the franchisee shall have received written requests for services from at least 15 assured subscribers within 1,300 cable feet of its aerial trunk cable, it shall extend its cable television system to such subscribers solely for the usual connection and service fees for all subscribers; provided, that such extension is technically and economically feasible. The 1,300 cable feet shall be measured in extension length of the franchisee’s cable required for service located within the street and shall not include the length of necessary drop to the subscriber’s house or premises.

When a cable television system is extended from the boundaries of an imposed service area, the standards for the system so extended including, but not limited to, channel capacity, number of cables and other functional and technological features of the system shall be the same as are applicable to the system within the imposed service area, the services provided through the system so extended shall be the same as are provided within the imposed service area, and the rates and charges associated with basic service (if the franchisee has proposed restrictions upon such rates and charges pursuant to the provisions of RCMC 5.50.616 through 5.50.624) shall be the same as rates and charges associated with basic service within the imposed service area. When a cable television system is extended from the boundaries of a proposed service area, the standards for the system so extended including, but not limited to, channel capacity, number of cables and other functional and technological features of the system shall be the same as are applicable to the system within the proposed service area from which extension is made, the services provided through the system so extended shall be the same as are provided within the proposed service area from which extension is made, and the rates and charges associated with basic service (if the franchisee has proposed restrictions upon such rates and charges pursuant to the provisions of RCMC 5.50.616 through 5.50.624) shall be the same as rates and charges associated with basic service within the proposed service area from which extension is made. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.426 Other provisions.

Any applicant for a franchise may propose in its application line extension provisions which are more liberal than prescribed by RCMC 5.50.424. In the event of any inconsistency between the line extension provisions prescribed by RCMC 5.50.424 and the express terms in other franchise documents, the provisions in the other franchise documents shall prevail if the issuing authority has found that the provisions in the other franchise documents will better serve the needs of the public and promote the public interest.

An applicant who chooses not to make a more liberal proposal for line extension shall not be disqualified from bidding or consideration in selection of the franchisee. It is expressly declared that the factors upon which selection will be based are so numerous and subjective as to make it impossible to know in advance the relative importance of a determination by an applicant to either make or not to make such a proposal in relation to other factors upon which award of a franchise will be based. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.428 Time.

Line extensions required pursuant to RCMC 5.50.424 or 5.50.426 shall be made and completed within reasonable periods of time consistent with the relative cost and periods required for planning and construction. A franchisee shall not be deemed to be in breach of said sections until after written notice is mailed to the franchisee by the cable television commission identifying a particular extension which the commission asserts is required. If within 30 calendar days following mailing of such notice the franchisee has not filed with the clerk of the board of directors of the commission a written notice specifying the date of completion of such extension, the franchisee shall be deemed to be in breach, if it has failed to comply with the requirements of said sections, from and after the expiration of the 30-day period. A franchisee’s designation of a completion date shall not be presumed to be reasonable or binding upon the commission. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.430 New subdivisions beyond service areas.

Notwithstanding the provisions of RCMC 5.50.424, with respect to developing territories within a franchise area which are situated outside of a service area, a franchisee shall, at any time, be authorized to install its cable television system at the time public improvements for new subdivisions or units thereof are being installed, if either:

A. The subdivision is adjacent to the boundaries of a service area, or so situated that the density between the boundaries of the subdivision and the boundaries of a service area require extension to the subdivision under the standards set forth in RCMC 5.50.424(A) through (C); or

B. The franchisee has been authorized by the board of directors of the cable television commission to provide cable television service within the subdivision pursuant to a plan approved by the board under the provisions of RCMC 5.50.446. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.432 Complaints.

Any citizen who asserts that there has been a violation of any of the provisions of RCMC 5.50.404 through 5.50.416, 5.50.422 through 5.50.430 or 5.50.446 may file a written complaint asserting such violation with the clerk of the board of directors of the cable television commission. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.434 Excuses for violations.

A. Except as hereinafter provided, violation by a franchisee of any of the provisions set forth in RCMC 5.50.404 through 5.50.408, 5.50.410(A) and (B), 5.50.412 through 5.50.416, 5.50.422 through 5.50.430 or 5.50.466 caused by circumstances beyond the control of the franchisee shall constitute good and sufficient excuse and justification for such violations precluding the franchisee from being in breach of said sections. The following are examples of acts or omissions by a franchisee or circumstances which shall be deemed not to be beyond the control of the franchisee and which shall not constitute excuses or justifications for violations:

1. The failure at any time by a franchisee or its officers, agents or employees to exercise diligence in planning, organizing, arranging for or prosecuting the work of construction and installation, or in taking any other action necessary to permit or facilitate the work of construction and installation;

2. Unanticipated cost increases or insufficiency of capital with which to take actions necessary to comply or facilitate compliance with any of the provisions of RCMC 5.50.404 through 5.50.408, 5.50.410(A) and (B), 5.50.412 through 5.50.416, 5.50.422 through 5.50.430 or 5.50.446;

3. Considerations relating to economy or cost efficiency, as respects acts or omissions by a franchisee;

4. Delays occasioned by the failure of a franchisee to diligently apply for and prosecute any request for a required certificate, approval or consent from the FCC;

5. Delays occasioned by seasonal changes in weather or climatic conditions, such as rain (exclusive of catastrophic conditions in the nature of “acts of God”). (Rain delay shall not constitute an excuse or justification for violation except with respect to measurable precipitation occurring on more than 59 days during any period commencing July 1st and ending the next following June 30th; and only if such is the proximate cause of the violation.);

6. Delays occasioned by the customary and usual time required to obtain approval to attach lines to poles owned by private or public utilities or in the attaching of cable to the poles; provided, that if a franchisee submits all plans and documentation required by private or public utilities in connection with the approval to attach lines to poles, any time consumed by such approval process which is longer than 150 calendar days following the submissions of all necessary plans and documentation shall be deemed to excuse the franchisee from any violations which are proximately caused by such delay in excess of 150 calendar days;

7. Delays occasioned by the customary and usual time required to process and secure approvals under zoning ordinances of the county and cities for the location of components of the cable television system and other installations associated therewith, given the nature of the approval required and magnitude of the project; provided, that if a franchisee submits specific sites and plans for all headends, towers and transmitters to the county and requests the county to perform a single environmental analysis upon all such facilities as the lead agency, any time consumed by such environmental analysis which is longer than 120 calendar days during a period subsequent to the filing of the certificate of acceptance of the franchise pursuant to RCMC 5.50.220 shall be deemed to excuse the franchisee from any violations which are proximately caused by such delay in excess of 120 calendar days.

B. Notwithstanding the provisions of subsections (A)(1) through (A)(6) of this section, inclusive, a franchisee shall not be excused from any violation of the provisions of RCMC 5.50.404 through 5.50.408, 5.50.410(A) and (B), 5.50.412 through 5.50.416, 5.50.422 through 5.50.430 or 5.50.446 except for causes which are beyond the control of the franchisee, and except with respect to violations which have not been contributed to or aggravated by acts or omissions by the franchisee.

C. Except as otherwise provided above, violations caused exclusively by acts or omissions by the county, the cities, the cable television commission or their officers, agents or employees shall constitute an excuse and justification for failure of a franchisee to comply with the provisions of RCMC 5.50.404 through 5.50.416, 5.50.422 through 5.50.430 or 5.50.446, precluding a determination that the franchisee is in breach. However, violations as a result of such exclusive causes shall not be deemed to excuse the franchisee from other violations, shield the franchisee from a determination that it is in breach for violations, or bar any relief for damages or otherwise as a result of such breach. [Revised during 2008 codification; Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 595 § 2, 1984; SCC 565 § 11, 1983; SCC 488 § 1 (part), 1981].

5.50.436 Examples of excuses for violations.

Examples of circumstances beyond the control of a franchisee which excuse a franchisee from violation and being in breach of the provisions of RCMC 5.50.404 through 5.50.416, 5.50.422 through 5.50.430 or 5.50.446 when such violations are caused thereby include the following: strikes; acts of public enemies; orders by military authority; insurrections; riots; epidemics; landslides; lightning; earthquakes; fires; floods; civil disturbances; explosions; and partial or entire failure of utilities. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.437 Excuses for violations of franchisees – More stringent construction levels.

Notwithstanding the provisions of RCMC 5.50.434 or 5.50.436, no failure of the franchisee to comply with more stringent construction completion levels proposed by it and incorporated in the franchise documents shall constitute a breach of its obligations under said franchise documents if such failure results from reasons (including, but not limited to, those disallowed or restricted by RCMC 5.50.434) not within the reasonable control of the franchisee. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 595 § 3, 1984].

5.50.438 Enforcement proceedings.

A. At any time and from time to time proceedings may be commenced by the board of directors of the cable television commission.

B. The purpose of such proceedings shall be, and the powers of the board of directors of the commission shall include, the following:

1. Determination of whether there has been a violation of any of the terms, conditions or requirements set forth in RCMC 5.50.404 through 5.50.416, 5.50.422 through 5.50.430 or 5.50.446 or any requirements in relation thereto established pursuant to previously conducted enforcement proceedings;

2. Establishment of new or revised schedules for compliance with any of the terms, conditions or requirements set forth in RCMC 5.50.404 through 5.50.416, 5.50.422 through 5.50.430 or 5.50.446 or any requirements in relation thereto established pursuant to previously conducted enforcement proceedings, with respect to any such terms, conditions or requirements which are determined to have been violated;

3. Determination of whether the franchisee is in breach of any of the terms, conditions or requirements set forth in RCMC 5.50.404 through 5.50.416, 5.50.422 through 5.50.430 or 5.50.446 or of the franchise documents with respect to the violation of any such terms, conditions or requirements, and, if so, the nature and extent of any such breach; and

4. With respect to any finding of breach, determination of the remedy therefor authorized by RCMC 5.50.804 and 5.50.806.

C. In connection with determinations by the board of directors that there has been a violation of any time limit prescribed by RCMC 5.50.404 through 5.50.416, 5.50.422 through 5.50.430, or 5.50.446, the board shall be authorized to establish new time schedules and time limitations based upon the circumstances, which shall supersede those set forth in said sections. Future enforcement proceedings pursuant to this section and RCMC 5.50.440 and 5.50.442 may be undertaken in relation to time schedules and time limitations established pursuant to prior enforcement proceedings. In the event the board finds that a franchisee has breached any of the time limitations set forth in RCMC 5.50.404 through 5.50.416, 5.50.422 through 5.50.430 or 5.50.446 or established pursuant to prior enforcement proceedings, the board shall be authorized to determine and assess the amount of liquidated damages, if any, which the franchisee shall be required to pay as a result of such breach, and whether, and if so the extent to which the term of the franchise should be reduced with respect to any such breach. Such determinations shall, without appeal to arbitration or as affirmed by arbitration, be self-executing.

D. In the event the board of directors determines that the cable television system fails to comply with any of the requirements of the franchise documents or that the franchisee has failed to provide any of the facilities or services (including those relating to community use) required by the franchise documents, the board may determine the specific deficiencies and order the correction thereof. Such determinations shall, without appeal to arbitration or as affirmed by arbitration, be self-executing. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.440 Commencement of enforcement proceedings.

The board of directors of the commission shall commence enforcement proceedings by scheduling a hearing for the purpose of inquiring into matters specified in RCMC 5.50.438. Written notice of the time, date and place of the hearing shall be mailed to the franchisee and to the franchisee’s surety on the performance bond filed pursuant to RCMC 5.50.700 not later than 30 calendar days in advance of the date of commencement of the hearing. The notice shall state the reasons for the hearing, identify the terms, conditions or requirements alleged to be violated, and generally describe the areas or subject matter with respect to which the violation or violations are alleged to have been committed.

The hearing may be conducted either by the board of directors of the commission or, at the sole discretion of the board, by a hearing officer appointed by the board to conduct the hearing. Any such hearing officer shall be an attorney licensed to practice under the laws of the state of California, who shall not be an officer or employee either of a franchisee, the commission, the county or the cities.

The cost of providing quarters for the hearing, the compensation for the hearing officer, if any, and the per diem cost of any reporter retained to record the proceedings shall be borne by the cable television commission. The cost of preparing a transcript and record of the hearing shall be borne by the franchisee. All costs incurred by the parties for attorneys’ fees, expert witness fees and other expenses shall be borne solely by the party incurring the costs. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.442 Conduct of hearing.

A. All witnesses testifying at the enforcement hearing shall be sworn. Witnesses shall be subject to direct and cross examination. However, formal rules of evidence applicable to the trial of civil or criminal proceedings in the trial courts of this state shall not be applicable to the hearing. The provisions of the Administrative Procedure Act, commencing at Section 11500 of the California Government Code, or any successor legislative enactment, shall not be applicable to any such hearing. The burden of proving violation by the franchisee of the franchise documents shall be borne by the party presenting the charges and the burden of proving excuses from performance shall be borne by the franchisee. The hearing may be continued from time to time.

B. If the hearing is conducted by a hearing officer, the officer shall, upon conclusion of the hearing, prepare a recommended decision which includes findings of fact, conclusions and all determinations authorized by RCMC 5.50.438. The recommended decision shall be filed with the clerk of the board of directors of the commission and mailed to the parties not later than 30 calendar days after conclusion of the hearing. Upon receipt of such a recommended decision, the board of directors may, without a hearing except as otherwise required below, either:

1. Adopt the findings of fact, conclusions and determinations contained in the recommended decision;

2. Adopt the findings of fact and conclusions contained in the recommended decision, modify the determinations, and adopt the recommended decision as so revised;

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

4. Reject the recommended decision and conduct a new hearing.

C. If the hearing is conducted by the board of directors of the commission, upon conclusion of the hearing the board of directors shall adopt a decision which includes findings of fact, conclusions, and determinations authorized by RCMC 5.50.438. Copies of the decision adopted by the board of directors shall be mailed to the parties. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.444 Arbitration of enforcement proceedings.

Not later than 30 calendar days following the date of mailing to the franchisee of the decision by the board of directors, the franchisee shall be authorized to appeal the decision or any portion thereof to arbitration by filing a written notice of appeal with the clerk of the board of directors. The notice of appeal shall specifically identify the determination or determinations from which the appeal is taken, the grounds therefor, and shall be accompanied by a fee equal to the estimate of the clerk of the cost of preparing the transcript and record of the hearing or hearings. In the event the franchisee fails to file the notice of appeal within the time and in compliance with the requirements prescribed above, the determinations by the board of directors shall become final, binding, conclusive and not subject to review or reversal by any authority. Judicial enforcement of such determinations may be sought.

Except as otherwise provided herein, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by RCMC 5.50.830 through 5.50.838, inclusive.

The questions which may be submitted to the arbitration panel and jurisdiction of the panel shall be limited to a decision as to whether the findings of fact by the board are supported by substantial evidence in the record and whether the conclusions by the board are consistent with the provisions of the franchise documents as interpreted by the arbitration panel. The powers of the arbitration panel shall be limited to a conclusion as to whether the decision by the board of directors from which appeal is taken should be affirmed, or reversed and remanded to the board for further determination, and interpretation of the provisions of the franchise documents solely in relation to review of the decision by the board of directors.

The hearing by the arbitration panel shall not be a trial de novo, and the sole function of the panel shall be to review the record of the hearing preceding the decision by the board of directors to decide whether there was substantial evidence in the light of the whole record to support the findings and to interpret the franchise documents in relation to the decision by the board of directors. No new evidence shall be introduced, received or considered by the arbitration panel; provided, that where the panel finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing preceding the arbitration, the panel may remand the matter to the board of directors to be reconsidered in light of such evidence. The determinations by the board of directors shall be sustained by the arbitration panel if it finds that there is substantial evidence in the record to sustain the determinations, and that the conclusions are consistent with the provisions of the franchise documents. The panel shall not substitute its discretion for that of the board with respect to the determinations made by the board, or reweigh or otherwise judge the credibility of the evidence presented at the hearing preceding the board’s decision. If the panel decides that the determinations by the board violate the provisions of the franchise documents it shall remand the matter to the board for further determinations, reserving jurisdiction to review the determinations. Objections by the franchisee to the determinations by the board which were not presented during the hearing preceding the board’s decision shall be deemed to have been waived.

The decision by the board of directors as affirmed by an arbitration award may be judicially enforced, shall be final, binding and conclusive upon the parties, and shall not be subject to judicial review or vacation except on grounds set forth in Section 1286.2 of the Code of Civil Procedure to the extent such grounds are consistent with the express terms of this chapter. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.446 Service in new areas.

A. The purpose of this section is to encourage franchisees to install cable television systems and provide services within geographical locations which are outside of service areas and within which installation of such systems and services is not required under the line extension provisions of RCMC 5.50.424 or 5.50.426, and to establish a flexible framework by which the magnitude of the cable television system, services and rates and charges associated with basic service (if a franchisee has proposed limitations upon such rates and charges pursuant to the provisions of RCMC 5.50.616 through 5.50.624) may be regulated in order to encourage such expansion, and ensure that the uncompensated costs thereof are not so excessive as to impose an unreasonable burden upon subscribers within urbanized areas which are already being served. The provisions of this section shall be applicable to all territory outside of service areas, whether extensions of a cable television system are required by or pursuant to the provisions of RCMC 5.50.424 or 5.50.426 or not.

B. A franchisee shall not be authorized to install its cable television system or provide services within a geographical location outside a service area except pursuant to an application requesting authority for such installation and service which is approved by the board of directors of the cable television commission.

C. An application for such approval shall be filed with the clerk of the board of directors of the commission, shall describe the boundaries of the area proposed to be served, shall describe in detail the standards for the system proposed to be installed including, but not limited to, channel capacity, number of cables and other functional and technological features of the system, shall describe in detail the services proposed to be provided, shall identify the rates and charges associated with basic service (if the franchisee has proposed limitations upon such rates and charges pursuant to the provisions of RCMC 5.50.616 through 5.50.624), shall include a budget of construction costs and a projection of operating revenues and costs, shall identify a proposed time schedule for installation of the system and provision of service, and shall contain such other and further information as the board of directors may require. The board of directors of the commission shall schedule a public hearing upon the application to commence not later than 30 calendar days after the application is filed, notice of which is given in the manner prescribed by RCMC 5.50.024.

D. After the conclusion of the public hearing, the board of directors shall approve the application if it finds that the nature and extent of the system to be installed, services to be provided, time within which installation will be complete and services provided, and rates and charges associated with basic service (if the franchisee has proposed limitations upon such rates and charges pursuant to RCMC 5.50.616 through 5.50.624) will adequately serve the needs of the residents within the geographical location proposed to be served; provided, that notwithstanding such determinations, the board may deny an application if it finds that uncompensated costs of constructing the system or providing service will cause increases in rates or charges paid by subscribers who are already being served by the franchisee. In approving such an application, the board of directors may impose conditions relating to such matters as the following:

1. The standards for the system to be installed, including, but not limited to, channel capacity, number of cables and other functional and technological features of the system;

2. The nature and extent of services to be provided;

3. Interconnection of the system to be installed with the system operated by the franchisee within service areas;

4. The amounts of rates and charges associated with basic service (if the franchisee has proposed limitations upon such rates and charges pursuant to RCMC 5.50.616 through 5.50.624); and

5. The time schedule for installation and completion of the system and delivery of services.

E. A franchisee shall comply with the provisions of an approved application and any terms or conditions of approval. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.448 Use of streets – Interference.

Each cable television system, including wires and appurtenances, shall be located and installed and maintained so that none of the facilities endanger or interfere with the lives or safety of persons, or interfere with any improvements the county, cities or state of California may deem proper to make, or unnecessarily hinder or obstruct the free use of the streets or other public property.

All transmission and distribution structures, lines and equipment erected or installed by a franchisee within the Sacramento community shall be so located as to cause minimum interference with the proper use of streets and other public property, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the streets or other public property. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.450 Permits and approvals.

During the term of each franchise, in advance of occupying, working upon or otherwise utilizing any street, the franchisee shall apply for and obtain any encroachment permit, license, authorization or other approval required by ordinances in force within the county and cities, pay any fees and post any security required by such ordinances, and in the course of construction, installing, replacing, maintaining and repairing the cable television system shall comply with all applicable requirements of such ordinances and any terms or conditions of encroachment permits, licenses, authorizations or approvals issued thereunder.

The county and cities shall be authorized to establish special fees payable by a franchisee to defray the costs incurred by the department of public works of the respective agencies in supervising and regulating the installation of a cable television system within the streets of the respective agencies. The respective directors of public works of the county and cities shall be authorized to formulate reasonable schedules for installation of a cable television system within the streets of the agencies for the purpose of promoting safety, reducing inconvenience to the public, and ensuring adequate restoration and repair of the streets, and a franchisee and its officers, agents, contractors and subcontractors shall comply with any and all such schedules. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.452 Restoration of streets and private property.

All disturbance by a franchisee of pavement, sidewalk, driveways, landscaping or other surfacing of streets shall be restored, repaired or replaced by the franchisee at its sole cost in a manner approved by the director of public works and in compliance with generally applicable ordinances of the agency vested with jurisdiction thereover, and in as good condition as before the disturbance occurred.

To the extent practicable and reasonable, each franchisee shall accommodate the desires of any property owner respecting location within easements or rights-of-way traversing private land of the property owner of aboveground boxes or appurtenances constituting a part of the cable television system. Any disturbance of landscaping, fencing or other improvements upon private property, including private property traversed by easements or rights-of-way utilized by a franchisee, shall, at the sole expense of the franchisee, be promptly repaired or restored (including replacement of such valuables as shrubbery and fencing) to the reasonable satisfaction of the property owner as soon as possible. Each franchisee shall, through authorized representatives, make a reasonable attempt to personally contact the occupants of all private property in advance of entering such property for the purpose of commencing any installation of elements of the system within easements or rights-of-way traversing such property. As used in this paragraph, the terms “easements” and “rights-of-way” do not include easements or rights-of-way for roadway purposes. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.454 Erection of poles.

No franchise shall be deemed to expressly or impliedly authorize the franchisee to construct or install poles or wire-holding structures within streets for the purpose of placing cables, wires, lines or otherwise without the written consent of the county or cities within which the street is situated. Such consent shall be given or withheld in the sole discretion of the governing body, and may be given upon such terms and conditions as the governing body in its sole discretion may prescribe, which shall include a requirement that the franchisee perform, at its sole expense, all tree trimming required to maintain the poles clear of obstructions.

With respect to any poles or wire-holding structures which a franchisee is authorized to construct and install within streets, the county or cities with jurisdiction over the street or a public utility or public utility district serving the county or cities may, if denied the privilege of utilizing such poles or wire-holding structures by the franchisee, apply for such permission to the cable television commission. If the commission finds that such use would enhance the public convenience and would not unduly interfere with the franchisee’s operations, the commission may authorize such use subject to such terms and conditions as it deems appropriate. Such authorization shall include the condition that the county, cities, public utility or public utility district pay to the franchisee any and all actual and necessary costs incurred by the franchisee in permitting such use. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.456 Undergrounding.

Except as hereinafter provided, in all areas of the Sacramento community where the cables, wires and other like facilities of a public utility or public utility district are placed underground, each franchisee shall construct and install its cables, wires and other facilities underground. Amplifier boxes and pedestal-mounted terminal boxes may be placed above ground if existing technology reasonably requires, but shall be of such size and design and shall be so located as not to be unsightly or unsafe. In any area of the Sacramento community where there are certain cables, wires and other like facilities of a public utility or public utility district underground and at least one operable cable wire or like facility of a public utility or public utility district suspended above ground from poles, a franchisee may construct and install its cables, wires and other facilities from the same poles.

With respect to any cables, wires and other like facilities constructed and installed by a franchisee above ground, the franchisee shall, at its sole expense, reconstruct and reinstall such cables, wires or other facilities underground pursuant to any project under which the cables, wires or other like facilities of such utilities are placed underground within an area. The duty of a franchisee to underground shall arise only if all existing aboveground like facilities of such utilities are placed underground. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.458 Relocation.

If during the term of a franchise the county, cities, a public utility district, a public water district, a public sanitation district, a public drainage district or any other similar special public district elects to alter, repair, realign, abandon, improve, vacate, reroute or change the grade of any street or to replace, repair, install, maintain, or otherwise alter any aboveground or underground cable, wire, conduit, pipe, line, pole, wire-holding structure, structure, or other facility utilized for the provision of utility or other services or transportation of drainage, sewage or other liquids, the franchisee shall, except as otherwise hereinafter provided, at its sole expense remove or relocate as necessary its poles, wires, cables, underground conduits, manholes and any other facilities which it has installed. If such removal or relocation is required within a subdivision in which all utility lines, including those for the cable television system, were installed at the same time, the entities may decide among themselves who is to bear the cost of relocation; provided, that neither the cities nor county shall be liable to a franchisee for such costs. Regardless of who bears the costs, a franchisee shall take action to remove or relocate at such time or times as are directed by the agency or company undertaking the work. Reasonable advance written notice shall be mailed to the franchisee advising the franchisee of the date or dates removal or relocation is to be undertaken. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.460 Tree trimming.

The franchisee shall not remove or trim, and shall prohibit any officer, agent, employee, contractor or subcontractor which it retains from removing or trimming, any tree or portion thereof (either above, at or below ground level) which is located within a street without the prior written approval of the director of public works of the county or city in which the street is located. Such consent may be given or withheld upon such terms and conditions as the director of public works deems appropriate. Each franchisee shall be responsible for, shall indemnify, defend and hold harmless the county, cities, cable television commission, and their officers, agents and employees from and against any and all damages arising out of or resulting from the removal, trimming, mutilation of or any injury to any tree or trees proximately caused by the franchisee or its officers, agents, employees, contractors or subcontractors. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.462 Movement of buildings.

Each franchisee shall, upon request by any person holding a building moving permit, license or other approval issued by the county, cities or state of California, temporarily remove, raise or lower its wires to permit the movement of buildings. The expense of such removal, raising or lowering shall be paid by the person requesting same, and a franchisee shall be authorized to require such payment in advance. A franchisee shall be given not less than 48 hours’ oral or written notice to arrange for such temporary wire changes. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.464 Removal.

Upon expiration or termination of a franchise, if the franchise is not renewed and if neither the cable television commission nor an assignee purchase the cable television system, the franchisee may remove any underground cable from the streets when installed in such a manner that it can be removed without trenching or other opening of the streets along the extension of cable to be removed. The franchisee shall not remove any underground cable or conduit which requires trenching or other opening of the streets along the extension of cable to be removed, except as hereinafter provided. The franchisee shall remove, at its sole cost and expense, any undergrounded cable or conduit by trenching or opening of the streets along the extension thereof or otherwise which is ordered to be removed by the board of directors of the cable television commission based upon a determination, in the sole discretion of the board, that removal is required in order to eliminate or prevent a hazardous condition or promote future utilization of the streets for public purposes. Any order by the board of directors to remove cable or conduit shall be mailed to the franchisee not later than 30 calendar days following the date of expiration of the franchise. A franchisee shall file written notice with the clerk of the board of directors not later than 30 calendar days following the date of expiration or termination of the franchise of its intention to remove cable authorized by this paragraph to be removed. The notice shall specify the location of all cable intended to be removed and a schedule for removal by location. The schedule and timing of removal shall be subject to approval and regulation by the director of public works of the county and cities with jurisdiction over the streets from which cable is to be removed. Removal shall be completed not later than 12 months following the date of expiration or termination of the franchise. Underground cable and conduit in the streets which is not removed shall be deemed abandoned and title thereto shall be vested in the cities and county within whose jurisdiction the cable or conduit is situated.

Upon expiration or termination of a franchise, if the franchise is not renewed and if neither the commission nor an assignee purchase the system, the franchisee, at its sole expense, shall, unless relieved of the obligation by the county or cities, remove from the streets all aboveground elements of the cable television system, including, but not limited to, amplifier boxes, pedestal-mounted terminal boxes, and cable attached to or suspended from poles, which are not purchased by the commission or its assignee.

The franchisee shall apply for and obtain such encroachment permits, licenses, authorizations or other approvals and pay such fees and deposit such security as required by applicable ordinance of the county or cities in which the streets are located, shall conduct and complete the work of removal in compliance with all such applicable ordinances, and shall restore the streets to the same condition they were in before the work of removal commenced. The work of removal shall be completed not later than one year following the date of expiration of the franchise. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.466 Enforcement.

Any director of public works of the county or cities who determines that within his or her jurisdiction a franchisee has committed an act or omission in violation of any of the provisions of RCMC 5.50.448 through 5.50.464, inclusive, shall be authorized to mail written notice of the violation to the franchisee.

Not later than seven calendar days following the mailing of such notice the franchisee shall be authorized to file an appeal with the clerk of the governing body of the county or cities by whom the director of public works is employed. The franchisee shall also file a copy of the notice in the office of the director of public works. The governing body shall hear the appeal and shall be authorized to do so at its earliest convenience. The franchisee shall be authorized to present oral and documentary evidence and cross-examine witnesses. Formal rules of evidence shall not be applicable.

If no appeal is filed and within 10 calendar days following mailing of the notice the franchisee has failed to correct the violation, or if an appeal is filed and within five calendar days following mailing to the franchisee of an order by the governing body the franchisee has failed to correct the violation as directed in the order, the director of public works shall be authorized to correct the violation through assignment of such task to his or her subordinate personnel or delegation of authority to take such corrective action to a public utility, public district, contractor or other third party. In such event, the franchisee shall be liable for the full amount of any charges made for such corrective action, any salary and benefit costs of any public employees assigned to take such corrective action, and the costs of material, supplies and goods utilized in taking such corrective action.

The provisions of this section shall not be construed to fix the date of a breach by a franchisee of any of the provisions of RCMC 5.50.448 through 5.50.464, inclusive, at the prescribed period following mailing of the notice of violation, or to prevent a determination that a franchisee has breached any of said sections in advance either of the 10 days following the mailed notice or in advance of mailing of the notice or any communication pursuant to this section to the franchisee. Nor shall the provisions of this section be so construed as to relieve the franchisee from liability for any damages which may arise out of and be proximately caused by breach by a franchisee of any of the provisions of said sections. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

Article IVc. Services

5.50.500 Purposes.

A. It is anticipated that the cost of installing the cable television system under the initial CATV franchise could range from $75,000,000 to $100,000,000. It is also anticipated that annual gross revenues derived by the franchisee after the system has been completed and is fully operable could range as high as $100,000,000. Whereas cable television services have traditionally been limited to television programming primarily for purposes of entertainment, advancing technology permits delivery of a new generation of interactive services which invade nonentertainment commercial fields, and may extend from the provision of burglar alarm services to services which permit the subscriber to shop or bank from his or her home and receive a vast array of professional, technical, educational and other information, to medical, fire protection and other emergency services, and to types of services which are as yet unidentified.

B. Such services promise significant benefit to the community. They also potentially generate regulatory needs the exact nature and scope of which are impossible to predict, and the enforceability of which could be time-consuming and expensive should a franchisee refuse to comply. The need to regulate could extend to:

1. Potentially unfair and unlawful competitive practices by a franchisee in operating and utilizing the cable television system to provide services;

2. Inadequate maintenance or repair by the franchisee of the cable television system;

3. Invasion of the privacy of subscribers;

4. Unethical or unfair business practices in relation to subscribers or others; and

5. A variety of other regulatory measures which are necessary to protect the health, safety or welfare of inhabitants of the Sacramento community.

C. The provisions of this chapter address these issues by, with few exceptions, placing no limit upon the services which a franchisee may provide, mandating few services, prescribing general duties and responsibilities in relation to future public interest issues, and making no attempt, with few exceptions, to limit the services which a franchisee may provide to those which may be listed in the franchisee’s proposal, and reserving broad authority to amend the provisions of this article under RCMC 5.50.038. The purposes of this chapter and this article are to:

1. Reserve and vest broad regulatory authority in the cable television commission in order to enable it to enact future regulations which are tailored to address the problems requiring regulation and to avoid sensitive constitutional issues which may arise in attempts to regulate operation of a cable television system;

2. Establish general regulatory guidelines defining the rights, duties and responsibilities of the franchisee and the cable television commission which may be made more specific, expanded or otherwise modified to meet future regulatory needs by regulations enacted by the commission or amendment of this article. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.502 System ownership.

Legal and equitable title to the cable television system, including any and all studio facilities and production equipment provided for community use, the institutional network, and all channels of whatever kind or nature shall be vested in the franchisee. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.504 Services.

A. Within a service area, services provided by a franchisee through its cable television system upon both the subscriber and institutional networks shall be offered uniformly upon nondiscriminatory terms to subscribers and users, and shall not differ based upon geographical location. The nature, extent and volume of services offered within a proposed service area and, except as provided by RCMC 5.50.424 and 5.50.426, outside of a service area may differ from those offered within an imposed service area, and may differ from one proposed service area to another. Each application for a franchise shall describe in detail the manner, if at all, the nature, extent or volume of services offered within proposed service areas will differ from those offered within an imposed service area, and the manner, if at all, the nature, extent or volume of services offered will differ from one proposed service area to another.

B. Each application for a franchise shall contain schedules of all home educational and entertainment programming proposed to be shown on either the subscriber network or institutional network within each service area throughout the term of the franchise. The applications shall show for each service area:

1. All tiers of service, basic service being the lowest tier;

2. The number of channels within each tier of service offered at the subscription rate applicable to the tier, together with an identification of the tier placement of any channels allocated pursuant to RCMC 5.50.336, 5.50.338(A), 5.50.342 and 5.50.344;

3. A description of all programming from satellite and other sources to be offered on each such channel within each tier of service (including program descriptions) within the times prescribed by RCMC 5.50.410(A)(2), (3) and (4);

4. A statement of the minimum number of hours per day and week programs or types of programming described in subsection (B)(3) of this section will be shown within the times prescribed by RCMC 5.50.410(A)(2), (3) and (4);

5. A statement of the minimum number of hours per day and week each channel within each tier of service will contain home educational and entertainment programming which has not previously been broadcast within the Sacramento community; and

6. A statement of all premium services to be offered within each tier of service, together with program descriptions of each such service, and the minimum number of hours per day and week each such service will be available within each tier of service within the times prescribed by RCMC 5.50.410(A)(2), (3) and (4).

The provisions of subsection (B)(3), (4), (5) and (6) of this section shall not be applicable to channels described by subsections (1)(a) through (1)(e) of the definition of “basic service” in RCMC 5.50.012.

7. Each application for a franchise shall also contain a description of such nonentertainment services (whether or not of an interactive nature) as the applicant offers to provide on either the subscriber network or institutional network within each service area throughout the term of the franchise. For each such service, applications shall show:

a. The nature, scope and extent of each service;

b. For each service, any restrictions relating to the geographical location of delivery, and the class of customer or recipient of service;

c. Schedules of all rates and charges under which each service will be offered to customers or recipients;

d. The names and addresses for each service of the proposed provider or providers of the service, together with a copy of the contract or other legal instrument between the franchisee and the provider(s); and

e. Information by amendment to the application as may be required during the public hearing referred to below.

C. During the public hearings prior to tentative selection of a franchisee conducted pursuant to RCMC 5.50.210 and 5.50.214, the governing bodies of the county and municipality of Sacramento respecting the initial CATV franchise, and the board of directors of the cable television commission respecting any other franchise, may, in their sole discretion, determine which, if any, such nonentertainment services shown in each application the applicant, if selected as the franchisee, would be vested with a contractual right and duty to perform throughout the term of the franchise. Any such identification may be accompanied by such conditions as are determined to be appropriate, including, but not limited to, conditions relating to the nature and extent of service provided, the terms and conditions of provision, and opportunities for use of the cable television system by others, including the circumstances under which leased access for such purposes will be provided. Any services so identified, together with the conditions thereof, shall be prescribed in the resolution offering the franchise to the extent they appear in the application filed by the franchisee. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.506 Nonentertainment service rights and duties.

A. A franchisee’s rights and duties respecting the provision of nonentertainment services (whether or not of an interactive nature) on either the subscriber or institutional networks during the term of the franchise shall be as follows:

1. A franchisee shall be authorized, but not vested with a contractual right or duty, to provide services which either: (a) have been identified in its application but have not been prescribed by the resolution offering the franchise; or (b) have not been described, specified or identified either in the application or resolution offering the franchise. The authorization shall be subject to modification through regulation or revocation (by prohibiting the service) pursuant to RCMC 5.50.508.

2. A franchisee shall be vested with a contractual right and duty to provide services prescribed by the resolution offering the franchise during the entire term of the franchise. Public hearings to receive comment upon such matters shall be conducted pursuant to RCMC 5.50.504(C) prior to tentative selection of a franchisee, or, after notice given in the manner prescribed by RCMC 5.50.024 and mailed to the tentative selectee, between the date of tentative selection and approval of the resolution offering the franchise by the governing bodies of the county and municipality of Sacramento, or subcommittees thereof, sitting jointly with respect to the initial CATV franchise or the board of directors of the commission, or a subcommittee thereof, with respect to any other franchise. In the event the public hearing is conducted between the date of tentative selection of a franchisee and approval of the resolution offering the franchise, the issuing authority shall be vested with the same powers in connection with nonentertainment services by the selectee as are prescribed by RCMC 5.50.504(C). Services prescribed in the resolution offering the franchise shall be provided in compliance with all conditions prescribed by the resolution. Pursuant to RCMC 5.50.508, such services may be regulated and the conditions applicable thereto set forth in the resolution may be modified or expanded; provided, that no such service shall be prohibited.

B. A franchisee providing a nonentertainment service or desiring to offer or provide such a nonentertainment service which has not been identified in the resolution offering the franchise (whether or not the service has been described in the franchisee’s application) may, at any time during the term of the franchise, file with the clerk of the board of directors of the cable television commission a written request for approval of the vesting thereof. The written request for approval shall contain such information as is required by the board of directors of the commission. Not later than 30 calendar days following the date of filing of the request for approval, the board of directors of the commission shall commence a public hearing thereon, notice of which is given in the manner prescribed by RCMC 5.50.024. At the conclusion of the public hearing, the board of directors of the commission may, in its sole discretion, either approve or disapprove the proposed service. If the service is approved, the approval may be granted upon such conditions as are described by RCMC 5.50.504(C). A franchisee, from and after the date of such approval, shall be vested with a contractual right and duty to provide such a service subject to the following limitations. The service shall be provided in compliance with all conditions prescribed by the approval. Pursuant to RCMC 5.50.508 such service may be regulated and the conditions set forth in the approval may be modified or expanded, but no such service may be prohibited. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 516 § 2, 1982; SCC 488 § 1 (part), 1981].

5.50.508 Regulation of nonentertainment services.

A. No nonentertainment service (whether or not of an interactive nature) provided through the cable television system shall be provided or operated in a manner which is detrimental to the public peace, health, safety or welfare.

B. The board of directors of the cable television commission may, from time to time during the term of a franchise, after public hearing notice of which is given in the manner prescribed by RCMC 5.50.024, exercise the following powers:

1. Prohibit or adopt rules or regulations governing the provision or manner of operation or provision of a nonentertainment service which either has been described by the application for the franchise but not identified in the resolution offering the franchise or which has not been described, identified or specified either in the application or resolution offering the franchise, and which has not been approved pursuant to RCMC 5.50.506(B);

2. Adopt rules or regulations governing, or modifying or adding conditions relating to, the provision or manner of operation or provision of a nonentertainment service which has either been identified by the resolution offering the franchise or approved pursuant to RCMC 5.50.506(B); or

3. Adopt regulations relating to opportunities for use of the cable television system by others, in relation to a specific nonentertainment service provided by the franchisee, including the circumstances under which leased access for such purposes will be provided.

C. A franchisee shall comply with any such conditions, rules or regulations; provided, that with respect to any service identified by the resolution offering the franchise or approved pursuant to RCMC 5.50.506(B) a franchisee shall be authorized to terminate the service in lieu of complying with conditions, rules or regulations applicable thereto adopted pursuant to this section.

D. The powers of the board of directors of the commission under this section are coextensive with those which are authorized by laws of the state of California or United States and with those defined by the police power expressed by Article XI, Section 7 of the California Constitution. A franchisee shall not in relation to this section be deemed to have contractually or otherwise waived any constitutional right which would otherwise be applicable to a franchised cable television operator. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.510 Educational and entertainment services.

A. Subject to the provisions of this section and the authority reserved by RCMC 5.50.512, a franchisee shall be deemed to be vested with a contractual right and duty to provide those home educational and entertainment services identified in its application.

B. It is understood that with respect to home educational and entertainment programming on either the subscriber or institutional networks, tier arrangements, premium services, and program selection and content which a franchisee has elected to propose in its application are among the material factors which are considered in selecting the franchisee. The hierarchy of programming arranged within tiers of service and placement of premium programs therein as shown by the application, cost relationships between tiers of service (other than basic service) to the extent an operator includes such rates in its application, and number of channels within tiers and programming thereon also constitute material factors considered in selection.

C. It is also understood that changing circumstances, including marketing strategy, program availability and other factors, will require that programming identified in the franchisee’s application pursuant to RCMC 5.50.504 will be changed from time to time during the term of the franchise.

D. Therefore, a franchisee shall be authorized to alter the allocation of channels to tiers of service and home educational and entertainment programming from time to time during the term of the franchise from that identified in its application and provided at the times defined by RCMC 5.50.410(A)(2), (3) and (4); provided, that no such change shall materially reduce or eliminate programming of the nature, extent, volume or quality identified in the application or provided at the above times or materially alter the hierarchy of program relationships identified by the application or provided at the above times. A franchisee shall be authorized to move particular premium services from one tier of service to another during the term of a franchise if, with respect to a specifically identified premium service, the application clearly shows that the franchisee has placed the premium service in a particular tier only for purposes of illustration, and reserves the right, in its sole discretion, to place the premium service in any tier which it elects from time to time during the term of the franchise.

E. If at any time the board of directors of the cable television commission asserts that a franchisee has violated the provisions of this section it shall be authorized to mail to the franchisee written notice of its demand for arbitration. The notice shall specify the particulars underlying the board’s assertions.

F. If arbitration is requested, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by RCMC 5.50.830 through 5.50.840, inclusive. The discovery provisions of the California Arbitration Act (Section 1280 et seq. of the Code of Civil Procedure) shall be applicable to arbitration proceedings under this section. The questions which may be submitted to the arbitration panel and jurisdiction of the arbitration panel shall be limited to the following:

1. The interpretation of the provisions of the franchise documents solely in relation to the decision required by subsection (F)(2) of this section;

2. Determination of whether the franchisee has materially reduced or eliminated programming of the nature, extent, volume or quality identified in its application or provided at the times defined by RCMC 5.50.410(A)(2), (3) or (4), or materially altered the programming relationships between tiers of service identified by the application or provided at the above times; and

3. In the event of an affirmative determination under subsection (F)(2) of this section, the remedy, which may include, but is not limited to, the reallocation of channels among tiers of service, the reallocation of programming among tiers of service, increases of particular types of programming or reinstatement of terminated programming. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.512 Regulation of educational and entertainment services.

No home educational or entertainment service provided through a cable television system shall be provided or operated in a manner which is detrimental to the public peace, health, safety or welfare. The provisions of this section shall not be self-executing, shall not be deemed to authorize the cable television commission or any other public authority to establish bans upon services in advance of the offering thereof, and may be invoked solely pursuant to the following procedure.

If the board of directors of the cable television commission determines that there is reason to believe that a particular service provided through a cable television system is of a type or is otherwise provided in a manner which is detrimental to the public peace, health, safety or welfare, the board shall schedule a public hearing. Written notice identifying the service or services or method of provision subject to the determination shall be mailed to the franchisee not later than 30 days in advance of the hearing. Notice of the hearing shall be given in the manner prescribed by RCMC 5.50.024. If at the conclusion of the public hearing the board determines that a service is being provided of a type or in a manner which is detrimental to the public peace, health, safety or welfare, the board may enact regulations which prohibit the services or otherwise regulate the manner of the provision thereof, as the case may be, and may enforce the regulation by appropriate action in the courts of this state.

The powers of the board of directors of the commission under this section are coextensive with those which are authorized by laws of the state of California or United States and with those defined by the police power expressed by Article XI, Section 7 of the California Constitution. A franchisee shall not in relation to this section be deemed to have contractually or otherwise waived any constitutional right which would otherwise be applicable to a franchised cable television operator. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.514 Subscriber antennas.

No franchisee shall remove or offer to remove any potential or existing subscriber antenna, or provide any inducement for removal as a condition respecting the provision of service. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.516 Anticompetitive practices.

No franchise issued pursuant to the provisions of this chapter shall be deemed to expressly or impliedly authorize the franchisee to utilize its cable television system to provide any service in such a manner as to unlawfully damage any business competitor or other third party or violate any statutes or regulations of the United States or state of California. Nor shall any franchisee, by act or omission, engage in any anticompetitive practice in violation of any statutes or regulations of the United States or state of California. The provisions of this section shall be enforceable in courts of competent jurisdiction against a franchisee by any party who alleges injury as a result of an alleged violation thereof. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 1096 § 1, 1997; SCC 488 § 1 (part), 1981].

5.50.518 Postfranchise service.

In the event the cable television commission fails to renew a franchise, a franchise is canceled in advance of the expiration of its term, or a new operator succeeds to the franchise by assignment or otherwise, the preceding franchisee shall, without compensation, cooperate with the television commission, new operator or new franchisee in maintaining continuity of service to all subscribers and users. Such cooperation shall include, but not be limited to, making records available for inspection and review, the provision of advice and other assistance as requested.

Upon written notice mailed by the commission to the franchisee for the purpose of ensuring continuity of service to subscribers and users, a franchisee, without compensation or other special consideration, shall operate the cable television system during the period subsequent to the termination of the franchise and shall repair and maintain the system, conduct the business associated with operation of the system, and provide uninterrupted services during the postfranchise period during such time as is requested by the commission pursuant to the terms and conditions of the franchise documents for the franchise which has expired or terminated. During such period, the franchisee shall be entitled to revenues, profits and shall be solely responsible for any operating losses; provided, that franchise fees prescribed pursuant to Article IVd of this chapter shall be payable during said period. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.520 Audio and video quality.

Each franchisee shall furnish to its subscribers, users and other customers all services through a cable television system at the best possible signals available under the circumstances existing at the time, to the satisfaction of the cable television commission, and shall provide quality reception of basic service and other services described pursuant to RCMC 5.50.504 to each subscriber so that both sound and picture are produced free from visible and audible distortion and ghost images on standard television receivers in good repair.

No franchisee shall permit its cable television system to interfere with television reception of persons not served by the franchisee. Nor shall any system interfere with, obstruct or hinder in any manner the operation of the various utilities serving the Sacramento community. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.522 Continuity of quality.

Each franchisee shall continue throughout the term of the franchise to maintain the technical standards and quality of service set forth in the franchise documents for that franchise. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.524 Maintenance and repair.

During the term of each franchise, the franchisee shall maintain its cable television system in good condition and repair, render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.526 Office – Service.

Each franchisee shall maintain at least one business office and repair center within the Sacramento community. The business office shall be open at least during the hours of 9:00 a.m. through 5:00 p.m., Monday through Friday, excepting legal holidays. Staffing shall be maintained to provide repair services at least during the hours of 9:00 a.m. through 5:00 p.m., seven days a week, legal holidays other than Saturdays and Sundays excepted. Capacity shall be maintained to receive and record service calls for maintenance and repairs seven days per week, 24 hours per day, including legal holidays.

The business office and repair center shall be reachable by local toll-free telephone, and the telephone number or numbers shall be listed in all directories published by all telephone companies containing telephone numbers within the Sacramento community.

Each franchisee shall promptly respond to, investigate and resolve complaints. Necessary maintenance or repairs shall be made expeditiously, permitting as little interruption of service as possible. No direct charge shall be made to subscribers for service calls or for repairs which do not result from damage caused by subscribers. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.528 Continuity of service.

Each franchisee shall take such affirmative action as is necessary in order to avoid interruptions of services and minimize unavoidable interruptions of services.

A. If during the term of the franchise, the franchisee determines that it is necessary to significantly interrupt receipt by some or all subscribers or users of services as a result of the need to undertake major repairs or extend, expand, modify or otherwise improve the cable television system, such work shall be planned, designed and scheduled in such a manner as to avoid continuous interruption of service to the maximum extent possible, keep prolonged interruption to a minimum, and restrict interruptions to periods of least viewing intensity. Plans for such interruptions of service shall be subject to approval of the cable television commission in advance of implementation.

B. The board of directors of the cable television commission shall be authorized to enact, and a franchisee shall comply with, rules which excuse subscribers from the payment of rates to a franchisee for services provided through a cable television system during periods transmission or receipt of signals for such services is interrupted as a result of defects in, malfunctions of, periods required for repair of or periods required for expansion, modernization or improvement of the cable television system, or any part or portion thereof. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.530 Records.

Each franchisee shall maintain for a period of five years and make available for inspection and copying by authorized representatives of the cable television commission the following:

A. A permanent service log which shows the name and address of each person requesting maintenance or repair service, the nature of the service requested, the date and time the request was received, and the disposition (including the date on which repair was made or the request otherwise resolved, and method of resolution);

B. A permanent record of each request for subscription to basic service, including the name and address of the person making the request, and the date of the request;

C. A permanent record of each written complaint received by the franchisee pursuant to the provisions of RCMC 5.50.540 together with the name and address of the complainant, the nature of the complaint, and the dates and descriptions of any and all investigatory, corrective or other actions taken as a result thereof. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.532 Reporting.

A. During the term of any franchise issued pursuant to the provisions of this chapter, each franchisee shall, not less frequently than annually, file a written report with the clerk of the board of directors of the cable television commission. The report shall be filed not later than 90 calendar days after the end of the franchisee’s fiscal year. The report shall include the following:

1. A summary of the activities of the franchisee during its previous fiscal year in the development and operation of the cable television system, including, but not limited to: a description of all services provided through the cable television system as of the conclusion of the fiscal year; a description of all such services which were added or terminated during the fiscal year; a statement of the number of subscribers by category of services rendered as of the end of the fiscal year; and a summary of the facilities, channels and resources made available during the fiscal year for community use, including a list of the persons and organizations which have produced, sponsored and broadcast programming upon community use channels, a description of the types of programming provided through such channels, and any recommendations by the franchisee for improvement in community use;

2. A specific and detailed description of all components, elements and extensions of the cable television system which have been installed during the franchisee’s previous fiscal year, showing the locations of all such installations, and including copies of plans, specifications and drawings showing the components, elements and extensions as installed;

3. A statement showing the franchisee’s investments in property within the Sacramento community during the franchisee’s previous fiscal year, including an identification of all real property or interests therein within the Sacramento community acquired or transferred by the franchisee and the amounts which the franchisee paid for the acquisition of said property or interests, a description of all buildings or other improvements which the franchisee constructed upon or added to real property within the Sacramento community together with the cost of such construction or additions, and an itemization by component category of all costs of components, elements and extensions of the cable television system;

4. An audited statement signed by a public or certified accountant of all income received by the franchisee during its previous fiscal year, including an itemization of all services provided through the cable television system, the unit or regular rates or charges for such services, and the amount of income received attributable to each service, and all other income from whatever sources, including an identification of each source and the amount of income attributable thereto; and

5. Audited financial statements for the franchisee’s previous fiscal year signed by a public or certified public accountant, including a balance sheet and profit and loss statement.

B. A franchisee shall prepare and furnish to the board of directors of the cable television commission, at the times and in the form prescribed by the board, such other reports with respect to its operations, affairs, transactions, or property as the board may deem necessary or appropriate to the performance of its functions. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 604 § 3, 1984; SCC 488 § 1 (part), 1981].

5.50.534 Discrimination in service prohibited.

No franchisee shall deny service, deny access or otherwise discriminate against subscribers, channel users or general citizens on the basis of race, color, religion, national origin or sex.

It shall be the right of all subscribers, subject only to the payment of lawful rates and reasonable terms and conditions established by a franchisee or the board of directors of the cable television commission, to receive and continue to receive services. Initial subscription to service shall not be denied to any person on the basis of the person’s credit rating or for other reasons relating to economic condition. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.536 Franchisee’s rules.

Each franchisee shall have authority to promulgate rules and conditions governing the conduct of its business. No such rules or conditions shall conflict with the franchise documents applicable to the franchise, the provisions of federal or state statutes or regulations, or county or cities ordinances.

Such rules or conditions shall be reasonable and subject to approval as to reasonableness by the board of directors of the cable television commission, after public hearings, notice of which has been given in the manner prescribed by RCMC 5.50.024, and shall not conflict with rules and regulations enacted by the board of directors of the commission. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.538 Privacy.

Each franchisee, and its officers, agents, employees, contractors and subcontractors, shall respect, refrain from invading, and take affirmative action to prevent violation of the privacy of subscribers served by the cable television system and others.

A. Neither the franchisee nor any other person, agency, or entity shall tap or arrange for the tapping or monitoring of any cable, line, signal input device, or subscriber outlet or receiver for any purpose whatsoever, except that the franchisee may conduct tests of the functioning of the system where necessary in order to ensure proper maintenance of the system and to collect performance data for agencies regulating the quality of signals, and the franchisee may conduct systemwide or individually addressed “sweeps” for the sole purpose of verifying system integrity (including individual security system integrity), controlling return path transmissions, billing for pay services, or collecting aggregate data on viewing patterns by channel. “Tapping” shall mean observing a communications signal exchange where the observer is neither of the communicating parties, whether the exchange is observed by visual, aural or electronic means, for any purpose whatsoever. The provision of interactive services shall not be construed to be “tapping” or “monitoring” under this subsection.

B. The franchisee shall not place in any private residence or in any institution any equipment capable of two-way communications without the written consent of the subscriber, and shall not utilize the two-way communications capability of the system for subscriber surveillance of any kind without the written consent of the subscriber specifying how the data collected will be used and by whom. Tenants who occupy premises connected by the system shall be deemed to be subscribers within the meaning of this subsection regardless of who actually pays for the service. The written consents shall be, and shall show on their face that they are, revocable by the subscriber at any time by written communication mailed by the subscriber to the franchisee. No penalty shall be invoked for a subscriber’s failure to provide a written consent or for his or her revocation thereof, and all written consents shall so state on their face. The franchisee shall not make such written consent a condition precedent to receipt by a subscriber of noninteractive service. The provisions of this subsection shall not be deemed to require consent as a condition precedent to systemwide or individually addressed “sweeps” for the sole purpose of verifying system integrity, controlling return-path transmissions, billing for pay services, or collecting aggregate data on viewing patterns by channel.

C. No cable, line, wire, amplifier, converter, or other piece of equipment associated with cable television system services shall be attached to any residence or other property of a citizen (except within streets) without first securing the written permission of the owner or tenant of the property. If such permission is later revoked, whether by the original or a subsequent owner or tenant, the franchisee shall remove forthwith all of the equipment and promptly restore the property to its original condition. The franchisee shall perform all installations in a workmanlike manner and shall be responsible for any damage to residences or other property caused by the installation.

D. No franchisee or officer, agent or employee thereof shall sell, or otherwise make available, lists of and addresses of its subscribers, or any list which identifies, by name or otherwise, individual subscriber viewing habits, to any person, agency, or entity for any purpose whatsoever; except that the franchisee shall, upon request, provide lists of names and addresses of its subscribers to authorized representatives of the cable television commission when the board of directors of the commission deems such information necessary for performance of the regulatory functions of the commission. Names and addresses of subscribers within the possession of the commission shall not be subject to public inspection or review.

E. A franchisee may release the number of subscribers but only as a total number and as a percentage of the potential subscribers within the franchise area. When indicating the number of subscribers viewing a particular channel, a franchisee shall indicate only the total number of subscribers viewing during the relevant time and the percentage of all subscribers which they represent, but not the identity of any subscriber.

F. No polls or other two-way responses of subscribers shall be conducted, whether for commercial purposes, in connection with community use, or otherwise, unless the program of which the poll is a part contains an explicit disclosure of the nature, purpose, and prospective use of the results of the poll. The franchisee shall supervise and monitor all polls in which responses are received through the cable television system, and shall adopt and enforce measures which ensure that personally identifiable information concerning a subscriber, including his or her viewing habits and response or responses to the inquiry or inquiries, is not received by any third party, including the party sponsoring the poll.

G. A franchisee shall not tabulate any test results, nor permit the use of the system for such tabulation, which would reveal the commercial product preferences or opinions of individual subscribers, members of their families or their invitees, licensees or employees, without advance written authorization by the subscriber. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.540 Complaints.

The cable television commission and each franchisee shall separately designate representatives whose responsibility it is to receive and investigate complaints relating to violations of the franchise documents.

As subscribers are connected or reconnected to a cable television system and at least annually as respects continuing subscriptions, each franchisee shall by appropriate means, such as card or brochure, furnish information concerning the opportunity to make complaints, including the names, addresses and telephone numbers of the representatives designated by the franchisee and commission.

Each franchisee shall make available for inspection and copying all records relating to complaints, and make such other information available to the commission’s representative as necessary to permit a complete investigation of complaints by the representative. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.542 Evaluation sessions.

Upon request by either a franchisee or the cable television commission and, in any event, not less frequently than 30 calendar days following the third, sixth, ninth, twelfth, fifteenth, and eighteenth years’ anniversary dates following the date of filing of the certificate of acceptance of each franchise, the franchisee and the commission shall conduct evaluation sessions. The evaluation sessions shall be conducted during public hearings held by the board of directors or an advisory or other committee appointed by the board of directors of the commission, notice of which has been given in the manner prescribed by RCMC 5.50.024. Topics discussed at such sessions may include services’ application of new technologies, system performances, services provided, programming offered, customers’ complaints, privacy of franchisee or commission rules and regulations, and shall include any topic which the franchisee, the commission or members of the public request be discussed. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 12, 1983; SCC 488 § 1 (part), 1981].

5.50.544 Standards for system quality.

After public hearing notice of which is given in the manner prescribed by RCMC 5.50.024, the board of directors of the cable television commission shall, from time to time, be authorized to enact technical standards applicable to the operation, maintenance, repair, replacement or functioning of a cable television system for the purpose of improving or maintaining quality of video or audio signals, freedom from interference, reliability of service delivery, or other similar types of functional characteristics of the system. Each franchisee shall take such actions as are necessary to comply with such standards, and the failure to do so shall constitute a material violation and breach of the franchise documents. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.546 Testing and improvement of system.

When the board of directors of the cable television commission finds that complaints from subscribers or other factors cast doubt upon the reliability or quality of service, the board of directors shall have the right to order a franchisee to test, analyze and report upon the performance of the cable television system. Such tests shall be conducted at the sole expense of the franchisee. The board of directors may require that the tests be supervised by an engineer selected by the board and compensated by the franchisee who signs all test records and provides an independent report or advice to the board. Within 45 calendar days following the date on which an order requiring the tests is mailed to the franchisee, the franchisee shall file with the clerk of the board of directors a report which identifies the system component or components tested, describes the equipment used and procedures employed in testing, and explains the nature, extent and cost of feasible alternative methods of correcting any deficiencies revealed.

If after a public hearing notice of which has been given in the manner prescribed by RCMC 5.50.024 the board of directors of the commission finds that a franchisee has failed to comply with or maintain the technical standards or quality of service prescribed pursuant to RCMC 5.50.544 or otherwise set forth in the franchise documents for that franchise, the board of directors may order the franchisee to make specifically enumerated repairs of or improvements in the system or changes in the maintenance, repair or operation of the system. The franchisee shall complete such repairs or improvements within a reasonable time, and, in any event, not later than six months following the date on which the order requiring repair or improvement is mailed to the franchisee. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.548 Affirmative action.

No franchisee shall discriminate in employment or selection of contractors or subcontractors on the basis of race, color, religion, national origin or sex (including marital status). Each franchisee shall strictly comply with the equal employment opportunity regulations promulgated by the FCC and all applicable federal and state statutes and regulations and ordinances of the county and cities. Each franchisee shall establish as objectives the employment of a work force based upon merit and achievement of a racial balance within its work force consistent with that which pertains within the residential population of the Sacramento community. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.552 Commission powers.

Except as otherwise expressly provided herein, the board of directors of the cable television commission shall be authorized to regulate all cable television operations and services provided by a franchisee for the purpose of promoting and protecting the public convenience, health, safety and welfare.

The board of directors of the commission may exercise regulatory powers conferred herein by the enactment, from time to time, of rules and regulations, after a public hearing by the board or an advisory committee appointed by the board, notice of which is given in the manner prescribed by RCMC 5.50.024. The rule-making powers of the board of directors shall include, but not be limited to, the authority to interpret, clarify, make specific and apply the provisions of this chapter and to enact rules and regulations which impose specific duties or prohibitions for the purpose of implementing the duties, responsibilities and restrictions set forth in this chapter or such duties, responsibilities and restrictions as may be authorized to be imposed by such future state or federal enactments as may, from time to time, occur. The foregoing shall include, but not be limited to, consumer protection regulations and, to the extent now or hereafter allowed by state and federal law, rate regulation. Each franchisee shall comply with all such rules and regulations. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 0819 § 2, 1991; SCC 565 § 14, 1983; SCC 488 § 1 (part), 1981].

Article IVd. Franchise Fees – Rates

5.50.600 Franchise fees.

For the use of the streets and for the purposes of providing revenue with which to defray the costs of regulation arising out of issuance of franchises under this chapter and promoting, assisting and financing community use programming and other cable services of a public character, each franchisee shall pay franchise fees in the amount prescribed by RCMC 5.50.602. Each franchisee shall cooperate with the cable television commission in filing with the FCC and supporting a waiver request permitting payment of the amount prescribed by RCMC 5.50.602. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.602 Amount and payment of franchise fees.

During the term of each franchise, each franchisee shall pay to the cable television commission an amount equal to five percent per year of the franchisee’s annual gross revenues.

Said fees shall be paid quarterly not later than August 1st, November 1st, February 1st, and May 1st for the preceding three-month period ending, respectively, June 30th, September 30th, December 31st, and March 31st. Not later than the date of each payment, each franchisee shall file with the clerk of the board of directors of the cable television commission and with the governing bodies of the county and cities a written statement signed under penalty of perjury by an officer of the franchisee which identifies in detail the sources and amounts of gross revenues received by a franchisee during the quarter for which payment is made.

No acceptance of any payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim which the commission may have for further or additional sums payable under the provisions of this section. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.604 Minimum advance payment.

From and after the date of filing of a certificate of acceptance of a franchise pursuant to the provisions of RCMC 5.50.220, the franchisee shall pay to the cable television commission an annual amount equal to the lesser of the following: (A) 120 percent times each annual budget of the commission; or (B) a minimum annual amount of $700,000. Said annual amount shall be paid by the franchisee in equal quarterly installments (prorated for the first quarter if a franchise is issued in the middle of a quarter) at the times and for the periods prescribed by RCMC 5.50.602. At the commencement of the first full fiscal year following issuance of a franchise and at the commencement of each fiscal year thereafter, said minimum annual amount of $700,000 shall be increased by a percentage equal to the annual percentage increase in the Consumer Price Index for all urban consumers published by the United States Department of Labor for the San Francisco-Oakland Bay Area for the 12-month period ending June 30th immediately preceding the commencement of the fiscal year for which adjustment is to be made.

At such time as annual franchise fees due to the commission pursuant to the provisions of RCMC 5.50.602 shall exceed the annual sum payable under this section, the amounts previously paid to the commission pursuant to the provisions of this section which have exceeded annual amounts otherwise owing under RCMC 5.50.602 shall be credited against the franchisee fee in an amount not to exceed 20 percent of the total franchise fee payment each year until the entire amount advanced to the commission is accounted for; provided, that in no event shall such credits be used to reduce actual payments to the commission below the minimum amount specified above; provided further, that at no time during the term of a franchise shall the amount payable by a franchisee be lower than prescribed by this section; and provided further, that in no event shall the commission, county or cities become or be liable to the franchisee for payments made pursuant to the provisions of this section.

The purpose of this section is to provide operating capital with which to defray the costs of regulation and other operations incurred by the cable television commission, county and cities during any period in which the franchisee’s gross revenues are too low to provide adequate funds from franchise fees to finance such functions. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 15, 1983; SCC 556 § 10, 1983; SCC 488 § 1 (part), 1981].

5.50.606 Future laws.

Neither the county nor cities have or expect in the foreseeable future to receive sufficient funds with which to defray the costs of administering and regulating cable television franchises within the Sacramento community. The ability to finance such costs through franchise fees pursuant to the provisions of RCMC 5.50.602 and 5.50.604 constitutes a material inducement to initiate a cable television program within the Sacramento community, because neither the county nor cities would be willing to reduce or eliminate other public programs in order to make public funds available with which to defray the costs of administering and regulating the cable television program.

Therefore, should any future law or regulation limit or prevent the cable television commission from imposing a franchise fee in the amount provided for herein, each franchisee shall cooperate with the cable television commission in filing and supporting a request to obtain any possible waiver or permission to pay the full amounts provided for herein, and, to the extent such future law or regulation permits a franchisee discretion to make the limitation or prohibition applicable or inapplicable, each franchisee shall elect to make the limitation or prohibition inapplicable.

Should any future law or regulation limit or prevent the franchisee from paying the minimum advance fee required by RCMC 5.50.604 the franchisee, by the filing of the certificate of acceptance hereto, agrees to make a non-interest-bearing loan to the commission annually in an amount equal to the amount by which a minimum advance payment calculated pursuant to the provisions of RCMC 5.50.604 would have exceeded amounts reasonably anticipated to be due to the commission within the ensuing year pursuant to RCMC 5.50.602, which loan shall be repaid in subsequent years to the extent that the amount paid as franchise fees by the franchisee pursuant to the provisions of RCMC 5.50.602 exceeds an amount equal to an amount which would have been paid as a minimum advance payment under RCMC 5.50.604, in such subsequent years had such payments been permitted.

The failure of the commission to receive the fees or the loans prescribed by this article shall be deemed to constitute a substantial and material failure to comply with the franchise documents within the meaning of RCMC 5.50.050. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 16, 1983; SCC 488 § 1 (part), 1981].

5.50.608 Auditing and financial records.

The auditor of the cable television commission may, from time to time during the term of a franchise, prescribe standards governing the nature, extent and type of accounting system and accounting procedures utilized by a franchisee and require changes in accounting standard procedures utilized by a franchisee, for the purpose of promoting the efficient administration of the franchise pursuant to the provisions of this chapter. Any such standards shall be in writing, shall be filed with the clerk of the board of directors of the commission, and shall be mailed to the franchisee to whom directed. A franchisee shall promptly comply with all such standards.

During the term of each franchise, the cable television commission may, not more frequently than once each year, conduct an audit of the books, records and accounts of the franchisee for the purpose of determining whether the franchisee has paid franchise fees in the amounts prescribed by RCMC 5.50.602. The audit may be conducted by the auditor of the commission or by an independent certified public accounting firm retained by the commission, and shall be conducted at the sole expense of the commission. The party conducting the audit shall prepare a written report containing its findings, and the report shall be filed with the clerk of the board of directors of the commission, and mailed to the county, cities and franchisee. Notwithstanding the foregoing, the commission shall conduct such an audit at any time if requested to do so by the governing body of the county or any of the cities. The cost of such an audit so requested shall be borne by and at the sole expense of the county or any of the cities making the request, and the cost shall be paid within 30 calendar days following receipt of billing therefor by the commission. The report of the audit shall be filed and mailed as prescribed above.

At any time during the term of a franchise, the cable television commission may, through its auditor or a certified public accounting firm which it retains, and at its sole expense, conduct an audit of the books, records and accounts of the franchisee for the purpose of identifying any information which the board of directors of the commission deems necessary to obtain for the purpose of administering the franchise under the provisions of this chapter. A written report of such audit shall be filed with the clerk of the board of directors of the commission, and mailed to the county, cities and franchisee. The franchisee shall comply with any recommendations or directives set forth in such report respecting changes in its accounting system.

Each franchisee shall make available for inspection by authorized representatives of the cable television commission its books, accounts, and all other financial records at reasonable times and upon reasonable advance notice for the purpose of permitting exercise of the authorities conferred by this section. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.610 Delinquent fees – Limitations – Damages.

The period of limitation for recovery of any franchise fees payable pursuant to the provisions of RCMC 5.50.602 or 5.50.604 shall be five years from the date on which payment by the franchisee is due. Unless within five years from said date the cable television commission initiates recovery pursuant to the provisions of RCMC 5.50.612, recovery shall be barred. Delinquent franchise fees shall bear interest at an annual rate equivalent to that Federal Reserve discount rate on advances to member banks in effect on January 2nd, April 1st, July 1st, and October 1st for the succeeding quarter of delinquency.

The interest shall be compounded quarterly at the end of each quarter. In addition to interest as above prescribed, a 10 percent per annum penalty shall be paid on all delinquent franchisee fees in recognition of the fact that fluctuating interest rates on borrowed funds makes it impossible to establish a reliable interest rate standard as a measure of damage for delinquency in the payment of franchise fees, and other elements of damage resulting from delinquency, such as the inadequacy of revenue with which to adequately administer and enforce the franchise, arising out of such delinquency are subjective and impossible to estimate. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.612 Delinquent fees – Arbitration.

A. In the event a franchisee fails to pay franchise fees pursuant to RCMC 5.50.602 or 5.50.604 or the board of directors of the commission determines that a franchisee has paid franchise fees in a lower amount or amounts than prescribed, written notice thereof shall be mailed to the franchisee. The notice shall show the basis for the determination that fees are owing, and the amount thereof, if known, and may show the amount of interest and penalties accumulated to date.

B. Within 30 calendar days following the date of mailing of such notice, the franchisee may pay any amount stated in the notice, plus interest and penalties, without protest. Any payment made without accompaniment of a written statement of protest shall be deemed to have been made without protest, and shall constitute a waiver of the right to request arbitration or other relief respecting any and all amounts so paid.

C. Within 30 calendar days following the date of mailing of such notice, the franchisee may, alternatively, file a written request for arbitration with the clerk of the board of directors of the commission objecting to payment, and specifically identifying why objection is made and wherein the franchisee disagrees with the determination. At the time of filing such a request for arbitration, the franchisee may deposit with the commission, under protest, any amount, including interest and penalties, which the franchisee estimates to be in dispute. Any such deposit shall be accompanied by a written statement by the franchisee stating that the amount deposited is pursuant to protest and a request for arbitration. From and after the date of any such deposit, interest and penalties as prescribed by RCMC 5.50.610 on the amount deposited shall terminate, and no such interest or penalties on such amount shall accrue subsequent to the date of deposit. In the event it is finally determined that the whole or any portion of an amount so deposited under protest was not owing by the franchisee, such amount, without interest, shall be credited against and reduce the amount of franchise fees which become owing by the franchisee subsequent to the date of such final determination; provided, that no such future payment shall be reduced as such a credit by an amount greater than 10 percent of the franchise fee payment otherwise owing; and provided further, that in no event shall the commission, county or cities become or be liable to the franchisee for reimbursement of any portion of an amount so deposited under protest except as a credit against any future franchise fees which become owing.

D. If the notice to the franchisee by the commission shows the amount of franchise fees owing, including interest and penalties, the board’s determination shall become final and conclusive, not subject to judicial review or reversal by any authority and judicially enforceable, unless the franchisee requests arbitration within the time and in the manner prescribed above.

E. If the franchisee fails to either pay the franchise fees without protest or request arbitration and if the notice by the commission does not specify the amount of franchise fees, including interest and penalties, owing, or if the franchisee pays an amount without protest and the board of directors of the commission disagrees that the amount paid is the amount owing, the board of directors, at its sole discretion, may request arbitration by mailing written notice of its election to arbitrate to the franchisee.

1. The interpretation of the provisions of the franchise documents solely in relation to the decision required by subsection (F)(2) of this section; and

2. The amount, if any, owing by the franchisee. The franchisee shall immediately pay any amount determined to be owing by the arbitration panel. The arbitration award may be judicially enforced, shall be final, binding and conclusive upon the parties and shall not be subject to judicial review or vacation except on grounds set forth in Section 1286.2 of the Code of Civil Procedure. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.614 Increase in franchisee fees – Arbitration.

A. The amount of the franchise fees prescribed by RCMC 5.50.602 has been established pursuant to limitations set forth in state law (Section 53066 of the California Government Code) and regulations of the FCC (47 CFR 76.31).

B. In the event the above-described limitations upon the amount of franchise fees should, during the term of any franchise issued pursuant to the provisions of this chapter, be increased or eliminated, the franchisee, upon request by the commission, shall enter into negotiations with the cable television commission for the purpose of formulating a mutually agreeable increase in the franchise fees prescribed by RCMC 5.50.602.

C. Any agreement relating to such an increase shall be embodied in a written contract between the commission and franchisee, which shall be deemed to amend RCMC 5.50.602 respecting the amount of the fees. If, within 90 calendar days following the date of request by the commission for negotiations, mutual agreement has not been reached respecting an amendment of the provisions of RCMC 5.50.602, increasing the fees, the directors of the commission may cause written notice of its request to arbitrate to be mailed to each concerned franchisee and the county and cities. The notice shall specifically identify the amount of increase in fees which the board desires to submit to arbitration, and shall describe the nature and amount of uncompensated costs which the commission, county and cities are incurring or desire to incur in administering the franchise or franchises and promoting, assisting and regulating the various types of access use.

D. The arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by RCMC 5.50.830 through 5.50.840, inclusive. Parties to the arbitration proceeding may include each franchisee who would be affected by an amendment of RCMC 5.50.602, the commission, the county, and the cities. The questions which may be submitted to the arbitration panel and jurisdiction of the panel shall be limited to:

1. The interpretation of the provisions of the franchise documents solely in relation to the determination required by subsection (D)(2) of this section; and

2. The amount, if any, by which the franchise fees prescribed by RCMC 5.50.602 may be increased.

E. The arbitration panel shall authorize an increase in the franchise fees by an amount which the panel finds is justified by actual (including past uncompensated) or proposed costs incurred by the commission, county or cities for administering each franchise issued pursuant to the provisions of this chapter and promoting, assisting and financing any types of community use proposed pursuant to the provisions of RCMC 5.50.332 through 5.50.340 or provided pursuant to RCMC 5.50.548; provided, that the annual franchise fee shall under no circumstances exceed the maximum permissible percentage per year of a franchisee’s annual gross revenues under applicable federal or state law. In the event more than one franchise is issued pursuant to the provisions of this chapter, the arbitration panel shall establish such an amount with respect to each franchisee. Any increase or increases ordered by the arbitration panel shall be deemed to amend the provisions of RCMC 5.50.602 respecting the amount of the fees. The county and cities shall be authorized to amend RCMC 5.50.602 by increasing the franchise fees by any amounts authorized under the decision of the arbitration panel.

F. Negotiations and arbitration proceedings pursuant to this section may be initiated by the commission not more frequently than once each year during the remainder of the term of any franchise issued pursuant to the provisions of this chapter following the increase of or elimination of the statutory and regulatory limitations upon the amount of franchise fees which may be charged under state and federal law.

G. The arbitration award pursuant to this section may be judicially enforced, shall be final, binding, and conclusive upon the parties, and shall not be subject to judicial review or vacation except on grounds set forth in Section 1286.2 of the Code of Civil Procedure. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 17, 1983; SCC 488 § 1 (part), 1981].

5.50.616 Rate proposals.

The purpose of this section through RCMC 5.50.624 is to permit applicants for a franchise to propose the provision of minimal service during the term of a franchise at rates and charges designed to ensure that all residents within the franchise area, including the economically underprivileged, will have the opportunity to benefit from the educational, recreational and other advantages made available by the cable television system.

The county and cities recognize the right of a franchisee to propose the provisions of minimal services at specified rates pursuant to the provisions of this section through RCMC 5.50.624, and nonetheless subsequently elect to be exempt from local rate regulation or to unilaterally adjust its rates in strict compliance with the provisions of Section 53066.1 of the Government Code; provided, that if, for any reason, the right of the franchisee to elect exemption from rate regulation shall hereafter be abridged or repealed, the full regulatory authority of the commission shall thereupon be restored pro tanto. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 18, 1983; SCC 488 § 1 (part), 1981].

5.50.618 Application contents.

Each applicant for a franchise may state in its application the rates and charges at which various services on the subscriber network will be offered when service is first made available under the franchise.

In addition, an applicant may (but is not required to) propose that the rates and charges for the provision of basic service be maintained during the term of the franchise at levels not greater than those described by RCMC 5.50.622 and 5.50.624. An applicant desiring to make such a proposal shall state in its application, for each service area applicable to the franchise, the amounts and types of all rates and charges, including deposits, of whatever kind or nature to be applicable to the provision of basic service, including, but not limited to, rates and charges for connection, installation, reinstatement and the monthly subscription or service charge; and in relation thereto refer to and incorporate by express reference into the application the provisions of both RCMC 5.50.622 and 5.50.624. The amounts and types of any deposits required in relation to connection, installation, reinstatement, subscription or otherwise shall be stated separately. The acquisition or rental costs of converters required to provide basic service, if any, shall not be separately stated and shall be included in the monthly subscription or service charge for basic service, if any. An applicant desiring to make different rates and charges for basic service applicable to single-family residential and commercial or certain types of commercial uses shall separately state the rates and charges according to categories of uses with respect to which differences will apply. As used in this section, the term “commercial uses” shall include, in addition to other types of business enterprises, hotels, motels, apartments, condominiums, mobile home parks, other multiple-family residential units, and areas served by master antenna systems. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.620 Compliance with proposal.

A franchisee who has referred to and incorporated in its application the provisions of RCMC 5.50.622 and 5.50.624 shall comply with the provisions of said sections during the term of the franchise.

If a franchise is issued to an applicant who has referred to and incorporated the provisions of said sections in its application, the receipt by such applicant at any time during the term of the franchise of rates or charges which are inconsistent with the provisions of Section 53066.1 of the Government Code shall be deemed to constitute a substantial and material failure to comply with the franchise documents within the meaning of RCMC 5.50.050.

If, at any time hereafter, the right of the franchisee to elect exemption under Section 53066.1 of the Government Code or other federal or state law shall be abridged or repealed in any manner, the commission’s full regulatory authority shall thereupon be restored pro tanto. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 19, 1983, SCC 488 § 1 (part), 1981].

5.50.622 Basic service rates and charges – Increases.

The provisions of this section shall be applicable only to a franchisee who has referred to and incorporated the provisions hereof by reference in its application for the franchise.

There shall be no charge for the provision of basic service to subscribers, whether residential or commercial, except with respect to rates and charges, if any, stated in the application for the franchise and as otherwise authorized by this section. There shall be no fee or charge to subscribers in connection with the repair or replacement of converters, except in connection with repair or replacement required as a result of misuse or abuse of or damage to the converter while on the premises of the subscriber without fault by the franchisee or its agents.

All rates and charges for basic service stated in the franchisee’s application, including those for connection, installation, reinstatement and the monthly subscription or service charge, shall remain in effect until the date on which the franchisee makes basic service available to 100 percent of the dwelling units within each service area identified by the franchise documents for that franchise. The date on which the franchisee shall be deemed to have made basic service available to 100 percent of the dwelling units shall be deemed to be the date on which the final order of completion is issued pursuant to the provisions of RCMC 5.50.418 or 5.50.420.

Effective on the date the franchisee is deemed to have made basic service available to 100 percent of the dwelling units as prescribed above, the rates and charges for basic service stated in the franchisee’s application, including those for connection, installation, reinstatement and the monthly subscription or service charge or any of them, may be increased by amounts which do not individually exceed 50 percent of the increase, if any, in the Consumer Price Index for all urban consumers published by the United States Department of Labor for the San Francisco-Oakland Bay Area during the 12-calendar-month period ending 90 days prior to the effective date of such increases. Such rates and charges for basic service shall not exceed the amounts as increased in the manner herein authorized during the 12-calendar-month period following the date on which the adjustments become effective.

At the conclusion of the term of the first increase as identified above, and each 12 calendar months thereafter during the remainder of the term of the franchise, such rates and charges for basic service stated in the application, or any of them, may be increased in a like manner. In each instance, the increase in the amounts stated in the application shall not exceed 50 percent of the increase, if any, in the Consumer Price Index for all urban consumers published by the United States Department of Labor for the San Francisco-Oakland Bay Area during the 12-month period ending 90 days prior to the date the increase is to become effective.

In the event a franchisee increases rates or charges pursuant to the provisions of this section less frequently than authorized by this section or in any amounts lower than authorized by this section, the provisions of this section shall apply prospectively respecting any such increases as the limitations herein permit, and cumulative or multiple increases based upon the authorization of this section are prohibited. For example, a franchisee who elects to increase basic service rates and charges for the first time effective six months following the date on which basic service is deemed to have been made available to 100 percent of the dwelling units, rather than effective on the date that basic service is deemed to have been made available to 100 percent of the dwelling units, shall apply the Consumer Price Index increase for the 12-month period ending 90 days prior to the actual effective date of the increase, rather than the date when the increase is permitted by this section to be effective, and shall not be authorized to increase rates thereafter until the end of a 12-month period following the actual date of the increase, rather than the date when the increase was permitted by this section to become effective. A potential increase lost by failure to increase rates as authorized by this section may not be recaptured through its addition to future rate increases authorized hereby. If certain types of basic service rates are increased effective on a particular date and others are not, though they might have been, the rates not increased may be individually increased at any time without waiting for expiration of the 12-month period applicable to the types of rates actually increased.

No increase in rates or charges pursuant to this section shall become effective until the expiration of 30 days following the date on which written notice showing the types of rates or charges to be increased, the amount of the increase, the Consumer Price Index increase upon which the rate or charge increase is predicated, and the date on which such rates or charges were last increased is mailed to all existing subscribers of the franchisee who would be affected thereby and filed with the clerk of the board of directors of the cable television commission. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.624 Discriminatory practices.

A. The provisions of this section shall apply only to a franchisee who has made reference to this section and incorporated the provisions hereof by reference in its application for the franchise.

B. Except as hereinafter provided, or as otherwise expressly authorized by this chapter, a franchisee shall not, in its rates or charges, or in making available the services or facilities of its cable television system, or in its rules or regulations, or in any other respect, make or grant preference or advantages to any subscriber or user with respect to basic service; and such services shall be offered upon terms and conditions which are not discriminatory. A franchisee may offer or make the following distinctions with respect to the terms or conditions of basic service:

1. Rates and charges associated with basic service offered within a proposed service area and, except as provided by RCMC 5.50.424 and 5.50.426, outside of a service area, may differ from those associated with basic service offered within an imposed service area and may differ from one proposed service area to another. Any such differences in rates and charges between an imposed service area and proposed service areas or among proposed service areas shall be specifically identified in the application pursuant to RCMC 5.50.618, and in the absence of such identification rates and charges set forth in the application shall apply uniformly within all service areas.

2. Rates and charges associated with basic service offered outside of a service area shall, except as otherwise provided by RCMC 5.50.424 and 5.50.426, be subject to review and approval by the board of directors of the cable television commission pursuant to the provisions of RCMC 5.50.446.

3. Within a service area, a franchisee may generally or within limited geographical areas offer, on a limited-term basis, reduced rates or charges as part of a promotional campaign to stimulate subscriptions. The monthly subscription or service rate or charge for basic service shall not be eliminated or reduced for a period longer than 90 calendar days during any 36-month period for any particular occupant of the same dwelling unit, including both single-family and multiple-family dwelling units.

4. A franchisee may, in connection with the provision of basic service to commercial uses, as the term “commercial uses” is defined by RCMC 5.50.618, establish charges for installation or connection (exclusive of deposits) which are either higher or lower than amounts stated in its application, or as permissibly adjusted pursuant to the provisions of RCMC 5.50.622. The amount of any such variance in such rates and charges shall be predicated upon and limited to differences in costs incurred for installation or connection with respect to particular commercial uses in relation to those estimated as set forth in the application. The sole purpose of this subsection is to permit variances in connection or installation charges for particular commercial uses based upon the circumstances specially applicable to any individual commercial use, in view of the impracticality of estimating connection or installation costs for commercial uses at the time an application is filed.

5. A franchisee may grant preferential rates or charges to hospitals, rest homes and prisons or detention facilities.

6. With advance approval by the commission a franchisee may grant preferential rates or charges for services to the elderly, the handicapped, or the economically disadvantaged.

7. A franchisee may require residential subscribers to pay for each month of basic service in advance at the beginning of each month. Service shall not be terminated for delinquency in making a monthly advance payment earlier than 15 calendar days following the date upon which the advance payment is due, and monthly statements to subscribers shall provide notice of the franchisee’s policy respecting termination of service for delinquency in making advance payments. With the foregoing exception, and except as otherwise expressly authorized by this chapter, a franchisee shall not, without advance approval by the commission, require any other advance payment or deposit of any kind with respect to the provision of basic service to subscribers.

C. The authority vested in the cable television commission by this section shall be exercised by the board of directors of the commission after public hearings conducted by the board or an advisory committee which it designates, notice of which is given in the manner prescribed by RCMC 5.50.024. The determinations by the board of directors shall be final, binding, conclusive and not subject to review or reversal by any authority. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

Article IVe. Security – Indemnification – Insurance

5.50.700 Performance bond.

Each franchisee shall file with the certificate of acceptance which it files pursuant to the provisions of RCMC 5.50.220, and at all times thereafter maintain in full force and effect, an acceptable corporate surety bond in the amount of $2,500,000 effective for the entire term of the franchise, and conditioned that in the event the franchisee shall fail to comply with any one or more of the provisions of the franchise documents, whether or not the franchise is terminated, then there shall be recoverable jointly and severally from the principal and surety of such bond any damages suffered by the county, cities, or cable television commission as a result thereof, including, but not limited to, the full amount of any liquidated damages, delinquent franchise fees, compensation and costs of repairing or completing the cable television system, and compensation, and cost of removal or abandonment of property and repair of streets and other public or private improvements, up to the full amount of the bond; said condition to be a continuing obligation for the duration of the franchise and thereafter until the franchisee has satisfied all of its obligations which may have arisen from the acceptance of the franchise or from its exercise of any privileges thereunder. Neither the provisions of this section, any bond accepted pursuant thereto, nor any damages recovered thereunder shall be construed to excuse faithful performance by the franchisee or to limit the liability of the franchisee under the franchise or for damages, either to the full amount of the bond or otherwise. The bond shall contain a provision which prohibits cancellation by the surety during the term of the franchise, whether for failure to pay a premium or otherwise, without 30 calendar days’ advance written notice mailed by the surety to the clerk of the board of directors of the cable television commission.

The form of the bond and surety shall be subject to the approval by the county’s risk manager.

On or after the date of issuance of the final order of completion pursuant to the provisions of RCMC 5.50.418 or 5.50.420, the board of directors of the commission may, in its sole discretion, reduce, for the remainder of the term of the franchise, the required amount of the bond to a sum not less than $1,000,000. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.702 Security deposit.

Each franchisee shall file with the certificate of acceptance which it files pursuant to the provisions of RCMC 5.50.220 a certified or cashier’s check in the amount of $250,000 made payable to the order of the cable television commission. The check shall be cashed and the proceeds retained by the treasurer of the commission in a special account. Said sum shall be maintained by the treasurer as security for the faithful performance by the franchisee of all of the provisions of the franchise documents, any damages, including, but not limited to, liquidated damages, delinquent franchise fees, compensation and costs of completing or repairing the cable television system, and compensation and costs of removal of abandoned property, and repair of streets, and other public or private improvements incurred as a result of the failure of the franchisee to comply with the provisions of the franchise documents, and shall be payable from the account upon the terms, conditions and under the procedures prescribed by RCMC 5.50.808. Interest earned upon the sum shall accrue to the credit of the account.

Within 10 calendar days after notice is mailed to the franchisee that any amount has been withdrawn from the special account, the franchisee shall deposit with the treasurer of the commission such sum as may be necessary to restore the account to its required amount, including any interest which may have accrued and been credited to the account.

On the date of issuance of the final order of completion pursuant to RCMC 5.50.418 or 5.50.420, the commission shall reduce the amount of said security deposit by paying so much thereof to the franchisee as will reduce the amount of said deposit retained to $100,000, unless on said date there are scheduled or pending or intended to be scheduled or pending proceedings relating to the alleged violation by the franchisee of any of the provisions of RCMC 5.50.410. In such event the reduction shall not occur and payment shall not be made until such proceedings are terminated and any damages determined to be owing are compensated. Subsequent to such reduction and payment, said deposit shall be maintained at $100,000 plus interest accumulations credited thereto during the remainder of the term of the franchise.

Upon termination of the franchise and satisfaction of any damages, including liquidated damages, which may be due, the balance of the special account, including all interest credited thereto, shall be returned to the franchisee.

The rights reserved with respect to the special account are in addition to all other rights of the county, cities and cable television commission, whether reserved by the franchise documents or authorized by law, and no action, proceeding or exercise of a right with respect to such account shall affect any other right which the county, cities, or commission may have.

Nor shall the amount of the special account constitute a monetary limit on the liability for any actual or liquidated damages resulting from breach of the franchise documents. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.703 Discretion in commission.

Notwithstanding the provisions of RCMC 5.50.700 and 5.50.702, in any instance in which the franchisee is (A) a unit of government, (B) a nonprofit public benefit corporation, or (C) a corporation whose rates, fees, and charges are established by a unit of government, the cable television commission may establish such lesser amount, or none at all, for the corporate surety bond specified by RCMC 5.50.700 and for the security deposit specified by RCMC 5.50.702 as it, in its sole and complete discretion, deems appropriate. Nothing contained in this section shall be deemed to require any such reduced amount to be established. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 671 § 1, 1986].

5.50.704 Indemnification.

A. Each franchisee shall defend, indemnify and hold harmless the commission, its members, and, in their capacity as such, the officials, agents, employees, representatives and volunteers thereof, from any and all claims, demands, suits, causes of action, damages, costs, expense, losses or liability, in law or in equity, of every kind and nature whatsoever (“claims”), arising out of or in connection with franchisee’s operations under this chapter including but not limited to:

1. Injury or death to persons including, but not limited to, franchisee’s officers, agents, contractors or employees, or damage to property, including loss of use, caused or alleged to be caused in whole or in part by any act or omission of the franchisee, its officers, agents, contractors, employees, or representatives or anyone for whose acts the franchisee may be liable.

2. Injury or damage arising out of invasion of the right of privacy, libel, slander, defamation of any person, firm or corporation, or the violation or infringement of any copyright, patent, service mark, trademark, trade name, or of any other right of any person, firm or corporation.

3. Injury or damage arising out of anticompetitive practices alleged against the franchisee.

4. Claims, damages or penalties arising out of the franchisee’s failure to comply with the provisions of any statute, regulation or ordinance of the United States, state of California, or any local agency applicable to the franchisee in its business.

5. Injury or damage arising out of the franchisee’s failure to comply with the provisions of this chapter relating to procurement and maintenance of insurance.

6. Injury or damage arising out of the franchisee’s failure to fulfill any of the covenants set forth in this chapter.

B. The franchisee shall pay and satisfy any judgment or decree that may be rendered against the commission, its members, their officials, agents, employees, volunteers or representatives, or any of them, arising out of any such claims.

C. The franchisee shall reimburse the commission, its members, their officials, agents, employees, volunteers or representatives, for any and all legal expense incurred by any of them in connection herewith or in enforcing the indemnity granted in this section.

D. Indemnitees may, at their discretion, participate in the investigation and defense of any claims or litigation brought against them at any time, using legal counsel of their choice, and such expense shall be borne solely by the franchisee. Such participation shall not relieve the franchisee from its duty to defend, indemnify and hold harmless indemnitees as set forth in this section.

E. The indemnification obligations of the franchisee set forth in this section shall apply regardless of any act or omission of the commission, its members, their officials, agents, employees, representatives or volunteers which may have contributed to the said injury or damage, to the maximum extent allowed by California law. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 1096 § 2, 1997; SCC 488 § 1 (part), 1981].

5.50.706 Insurance.

A. General Liability. General liability insurance including, but not limited to, protection for claims of bodily injury and property damage liability, personal and advertising injury liability and products and completed operations liability. Coverage shall be at least as broad as Insurance Services Office commercial general liability coverage form GG 0001 (occurrence). The limits of liability shall be not less than:

1. Each occurrence: $1,000,000;

2. Personal and advertising injury: $1,000,000;

3. General aggregate: $2,000,000;

4. Products and complete operations aggregate: $2,000,000.

The policy shall cover contractual liability applicable to the franchisee’s assumed liability under this contract.

B. Automobile Liability. Automobile liability insurance providing protection against claims of bodily injury and property damage arising out of ownership, operation, maintenance, or use of owned, hired, and nonowned automobiles. Coverage shall be at least as broad as Insurance Services Office automobile liability coverage form CA 0001, symbol 1 (any auto). The limits of liability shall not be less than:

1. Bodily injury and property damage combined single limit: $1,000,000.

If general liability coverage, as required in subsection (A) of this section, is provided by the commercial general liability form, the automobile liability policy shall include an endorsement providing automobile contractual liability.

C. Workers’ Compensation. Workers’ compensation insurance, with coverage as required by the state of California (unless the franchisee is a qualified self-insurer with the state of California), and employers liability coverage. The limits of employers liability shall not be less than:

1. Each accident: $1,000,000;

2. Disease, each employee: $1,000,000;

3. Disease, policy limit: $1,000,000.

D. Excess or Umbrella Liability. Excess or umbrella liability providing excess coverage at least as broad as the underlying coverage for general liability, automobile liability and employers liability with a limit of $4,000,000 per occurrence and in the aggregate.

E. The franchisee’s general liability, automobile liability and excess or umbrella liability policies shall contain the following provisions:

1. The commission, its members, their officials, agents, employees, representatives and volunteers shall be covered as additional insureds as respects liability arising out of the activities performed by or on behalf of the franchisee, products and completed operations of the franchisee, premises owned, occupied, or used by the franchisee, or automobiles owned, leased, hired, or borrowed by the franchisee. The policy shall contain no special limitations on the scope of coverage afforded to the commission, its members, their officials, agents, employees, representatives or volunteers.

2. The franchisee’s insurance coverage shall be primary insurance as respects the commission, its members, their officials, agents, employees, representatives or volunteers. Any insurance or self-insurance maintained by the commission, its members, their officials, agents, employees, representatives or volunteers shall be in excess of the franchisee’s insurance and shall not contribute with it.

3. Any failure to comply with reporting or other provisions of the policies on the part of the franchisee, including breaches of warranties or unintentional misrepresentations, shall not affect coverage provided to the commission, its members, their officials, agents, employees, representatives or volunteers.

4. The franchisee’s workers’ compensation and employers liability policies shall contain an endorsement that waives any rights or subrogation against the commission, its members, their officials, agents, employees, representatives or volunteers.

5. Each insurance policy shall state that coverage shall not be suspended, voided, canceled by either party, reduced in scope or in limits, nonrenewed, or materially changed unless the insurer provides 30 days’ advance written notice by certified mail to the Clerk of the Board of Directors of the Sacramento Metropolitan Cable Television Commission, 700 H Street, Room 2450, Sacramento, California 95814, prior to such change. The insurer shall provide 10 days’ advance written notice by certified mail to the clerk of the board of directors of the Sacramento metropolitan cable television commission in the event of cancellation due to nonpayment of premium.

6. All of the franchisee’s insurance coverage, except as noted below, shall be placed with insurance companies with a current A.M. Best’s rating of at least A-:VII. Exceptions:

a. Underwriters at Lloyd’s of London;

b. Workers’ compensation which is provided through a State Compensation Insurance Fund;

c. Franchisee’s qualified workers’ compensation self-insurance under California law.

7. The commission will accept franchisee’s self-insurance of its general or automobile liability risks only if the franchisee has a minimum net worth of at least $10,000,000.

8. The franchisee shall furnish the commission with certificates of insurance, including copies of all endorsements specifically required hereunder, signed by a person authorized by the insurer to bind coverage on its behalf, as evidence of the coverage required by this section.

9. For unforeseen risks, the commission, at its discretion, may increase the amounts and types of insurance coverage required hereunder at any time during the term of the contract by giving written notice to the franchisee. The franchisee shall immediately procure such insurance or increase the amounts of insurance coverage, and provide certificates of insurance as required in subsection (E)(8) of this section.

10. The form and substance of the insurance required of the franchisee shall be subject to the approval of the commission and the county of Sacramento risk manager. Any acceptance of insurance certificates by the commission or the county of Sacramento risk manager shall in no way limit or relieve the franchisee of the franchisee’s duties and responsibilities set forth in this chapter.

11. The failure of the commission to enforce in a timely manner any of the provisions of this section shall not act as a waiver to enforcement of any of these provisions at any time during the term of the franchise. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 1096 § 3, 1997; SCC 488 § 1 (part), 1981].

5.50.708 Commission’s indemnification.

The cable television commission shall defend, indemnify and hold harmless the county, the cities and, in their capacity as such, the officials, agents, employees, representatives and volunteers thereof, from any and all claims, demands, suits, causes of action, damages, costs, expenses, losses or liability, in law or in equity, of every kind and nature whatsoever (“claims”), arising out of or in connection with the commission’s operations under this chapter. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 1096 § 4, 1997; SCC 488 § 1 (part), 1981].

5.50.710 Commission’s indemnification.

The cable television commission shall, at its sole expense, fully indemnify, defend and hold harmless the county, the cities, and in their capacities as such the officers, agents and employees of the county and cities from and against any and all claims, suits, actions, liability and judgments for damages for actual or alleged injury to persons or property in any way arising out of or through or alleged to arise out of or through the acts or omissions of the commission or its officers, agents or employees, or to which the commission’s or its officers’, agents’ or employees’ acts or omissions in any way contribute. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.712 Commission’s insurance.

The cable television commission shall file with the clerk of each of the governing bodies of the county and cities not later than 120 calendar days after the initial CATV franchise is issued and at all times thereafter maintain in full force and effect at its sole expense the following insurance:

A. General Liability. General liability insurance including, but not limited to, protection for claims of bodily injury and property damage liability, personal and advertising injury liability, and products and completed operations liability. Coverage shall be at least as broad as Insurance Services Office commercial general liability coverage form CG 0001 (occurrence). The limits of liability shall not be less than:

1. Each occurrence: $1,000,000;

2. Personal and advertising injury: $1,000,000;

3. General aggregate: $2,000,000;

4. Products and complete: $2,000,000;

5. Operations aggregate: $2,000,000.

The policy shall cover contractual liability applicable to the franchisee’s assumed liability under this contract.

B. Automobile Liability. Automobile liability insurance providing protection against claims of bodily injury and property damage arising out of ownership, operation, maintenance, or use of owned, hired, and nonowned automobiles. Coverage shall be at least as broad as Insurance Services Office automobile liability coverage form CG 0001, symbol 1 (any auto). The limits of liability shall not be less than:

1. Bodily injury and property damage combined single limit: $1,000,000.

C. Workers’ Compensation. Workers’ compensation insurance, with coverage as required by the state of California (unless the commission is a qualified self-insurer with the state of California), and employers liability coverage. The limits of employers liability shall not be less than:

1. Each accident: $1,000,000;

2. Disease, each employee: $1,000,000;

3. Disease, policy limit: $1,000,000.

E. The commission’s general liability and excess or umbrella liability policies shall contain the following provisions:

1. The county and cities, their officials, agents, employees, representatives and volunteers shall be covered as additional insureds as respects liability arising out of the activities performed by or on behalf of the commission. The policy shall contain no special limitations on the scope of coverage afforded to the county and cities, their officials, agents, employees, representatives or volunteers.

2. The commission’s insurance coverage shall be primary insurance as respects the county and cities, their officials, agents, employees, representatives or volunteers. Any insurance or self-insurance maintained by the county and/or cities, their officials, agents, employees, representatives or volunteers shall be in excess of the commission’s insurance and shall not contribute with it.

3. Any failure to comply with reporting or other provisions of the policies on the part of the commission, including breaches of warranties or unintentional misrepresentations, shall not affect coverage provided to the county and cities, their officials, agents, employees, representatives or volunteers.

4. The commission’s workers’ compensation and employers liability policies shall contain an endorsement that waives any rights of subrogation against the county and cities, their officials, agents, employees, representatives or volunteers.

5. Each insurance policy shall state that coverage shall not be suspended, voided, canceled by either party, reduced in scope or in limits, nonrenewed, or materially changed unless the insurer provides 30 days’ written notice by certified mail to the clerk of each of the governing bodies of the county and cities prior to such change. The insurer shall provide 10 days’ written notice by certified mail to the clerk of each of the governing bodies of the county and cities in the event of cancellation due to nonpayment of premium.

6. All of the commission’s insurance coverage, except as noted below, shall be placed with insurance companies with a current A.M. Best’s rating of at least A-:VII. Exceptions:

a. Underwriters at Lloyd’s of London;

b. Workers’ compensation which is provided through a State Compensation Insurance Fund.

7. The commission shall furnish the county and cities with certificates of insurance, including copies of all endorsements specifically required hereunder, signed by a person authorized by the insurer to bind coverage on its behalf, as evidence of the coverage required by this section.

8. The form and substance of the insurance required of the commission shall be subject to the approval of the county of Sacramento risk manager. Any acceptance of insurance certificates by the county or cities shall in no way limit or relieve the commission of the commission’s duties and responsibilities set forth in this chapter. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 1096 § 5, 1997; SCC 585 § 1, 1984; SCC 488 § 1 (part), 1981].

Article V. Assignments – Remedies

Article Va. Assignments

5.50.750 Transfers prohibited.

Except as provided by either RCMC 5.50.752 or 5.50.754, no part or element of a cable television system or any other real or personal property which is mandatorily included by RCMC 5.50.242 within a purchase which the cable television commission or its assignee is authorized to make shall be sold, transferred, assigned, mortgaged, pledged, leased, sublet or otherwise encumbered for any purpose whatsoever, nor shall title thereto, either legal or equitable, or any right or interest therein, pass to or vest in any party.

Except as provided by either RCMC 5.50.752 or 5.50.754, a franchise issued pursuant to the provisions of this chapter shall not, either in whole or in part, be sold, transferred, assigned, mortgaged, pledged, leased, sublet, or otherwise encumbered for any purpose whatsoever; nor shall title thereto, either legal or equitable, or any right or interest therein, pass to or vest in any party.

Any such sale, transfer, assignment, mortgage, pledge, lease, sublease or other encumbrance of whatever kind or nature made in violation of the provisions of this section shall be void. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.752 Encumbrances for financing purposes.

A. Upon written application by a franchisee, the lender, and any and all signators or guarantors upon the proposed loan, the board of directors of the cable television commission may, in its sole discretion, from time to time, consent by duly adopted resolution to the sale, transfer, assignment, mortgage, pledge, lease, sublease or other encumbrance upon real or personal property mandatorily included by RCMC 5.50.242 within a purchase which the commission or its assignee is authorized to make or upon a franchise issued pursuant to the provisions of this chapter, for the purpose of securing a loan of capital or constituting a purchase money security interest. Such information concerning the identity and background of the lender, terms of the transaction, intended expenditure of the capital, and other matters relating to the transaction shall be provided as is required by the board or its authorized representative. If, in its sole discretion, the board of directors elects to approve such encumbrance or encumbrances, such approval may be granted upon such terms and conditions as the board determines to be appropriate including, but not limited to, the following:

1. The purpose for which the capital to which the encumbrance relates will be utilized, including guarantees relating to expenditure or disposition of such capital;

2. The terms and conditions of encumbrance instruments relating to such matters as default, and the rights of the lender and successors in interest in relation thereto;

3. The amount of the encumbrance and types of properties encumbered;

4. Subordination of the encumbrance to the rights of the county, cities and commission under the franchise, consistent with the terms and conditions of the encumbrance approved by the board; and

5. An agreement by any party in whose name the loan secured by the encumbrance is made or any signator or guarantor thereon to be bound by the terms, conditions, provisions and requirements of the franchise documents, in addition to the party or parties whose names the franchise is issued by the resolution offering the franchise and certificate of acceptance.

B. The board of directors of the commission shall by resolution be authorized to delegate to its executive director power to consent in writing to such encumbrances for financing purposes of individual items of property described by RCMC 5.50.242(A)(3) subject to limitations prescribed. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.754 Transfers of system or franchise.

The board of directors of the cable television commission may, pursuant to the provisions of RCMC 5.50.758, consent by duly adopted resolution to the sale, transfer, assignment, mortgage, pledge, lease, sublease or other transfer of right, title or interest in property mandatorily included by RCMC 5.50.242 within that authorized to be purchased or in a franchise issued pursuant to the provisions of this chapter, when such transfer is for a purpose other than securing a loan of capital. Any such transfer shall be subject and subordinate to the rights of the county, cities and commission under the franchise documents for the franchise, and the transferee shall acknowledge in writing such subordination and agreement to comply with and be bound by the terms, conditions, provisions and requirements of the franchise documents. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.756 Transfer of control.

Every change, transfer or acquisition of control of the franchisee or of any owner of the franchisee who is named in the resolution offering the franchise shall render the franchise subject to cancellation by the board of directors of the cable television commission unless the board of directors consents thereto by duly adopted resolution pursuant to the provisions of RCMC 5.50.758. As used in this section, the word “control” shall mean the acquisition of sufficient dominance to determine the operational and financial policies of the franchisee, including disposition of its assets. A rebuttable presumption that a transfer of control has occurred shall arise upon: (A) the acquisition or accumulation by any party or association of parties of 10 percent or more or the voting shares or stock of the franchisee or named owner of the franchisee; (B) a change in general partners of a franchisee or named owner of the franchisee; or (C) a merger or consolidation of the franchisee or named owner of the franchisee. The presumption is subject to rebuttal only by determination by the board of directors of the commission. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.758 Determination of proposed transfers.

A. A franchisee shall file written notice with the clerk of the board of directors of the cable television commission as soon as it acquires knowledge of any impending transaction or other event consent to which by the board is required by RCMC 5.50.754 or 5.50.756. The written notice shall be filed not less than 90 calendar days in advance of the proposed effective date of the transaction or event for which consent is required.

B. The notice shall state the name or names and address or addresses of the party or parties who are interested in the transaction or event and describe the details of the transaction or event. In the event of a voluntary assignment, transfer, lease, sublease, mortgage or other encumbrance, a copy of the executed or proposed agreement shall be filed with the notice. Any written acknowledgment of subordination to the rights of the county, cities and commission under the franchise documents and agreement to comply with and be bound thereby required by the provisions of RCMC 5.50.754 shall be filed with the notice.

C. The franchisee shall immediately submit such additional information concerning such a transaction as the board of directors or other authorized representative of the commission may request.

D. The board of directors of the commission shall schedule a public hearing to determine whether consent required by the provisions of RCMC 5.50.754 or 5.50.756 will be given. Notice of the hearing shall be given in the manner prescribed by RCMC 5.50.024. The hearing shall be commenced not later than 60 calendar days following filing of the notice of the franchisee pursuant to this section. At the conclusion of the hearing the board shall determine whether consent will be given.

E. In the hearing to determine whether consent will be given, the franchisee (proposed transferor) shall have the burden of proving by clear and convincing evidence each of the following factors:

1. That the reputation, responsibility, integrity and reliability of the party or parties to whom the transfer is contemplated and of the directors, officers, employees, and agents thereof is equal to that of the parties obligated under the franchise documents;

2. That the financial capability and capacity of the party or parties to whom the transfer is contemplated is equal to that of the parties obligated under the franchise documents;

3. That the terms, conditions or other circumstances of the transfer are not likely to result in an increase in the rates or charges for services;

4. That at the time of the transfer the franchisee is in compliance with the terms, conditions and requirements of the franchise documents and any rules, regulations or determinations promulgated thereunder;

5. That installation of the cable television system has been completed in the manner and within the times prescribed by RCMC 5.50.410 (in the absence of extraordinary circumstances, a transfer shall not be approved in advance of such completion); and

6. That the transaction would not detrimentally affect the public interest.

F. The determination by the board of directors as to whether to give such consent shall be vested within the sole discretion of the board, but shall be based exclusively upon the factors prescribed above. Such consent may be given upon maintenance or operation of the cable television system, services to be provided, rates and charges for services, management of the franchise business and other requirements relating to the franchise, as the board of directors, in its sole discretion, may order.

G. In the event the board does not consent and the franchisee seeks judicial review of the board’s decision, the franchisee agrees, by filing of the certificate of acceptance, that the decision of the board shall be upheld by a trial or appellate court if there is any substantial evidence supporting the decision of the board as to any of the prescribed factors above. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 565 § 20, 1983; SCC 488 § 1 (part), 1981].

5.50.762 Receivership.

The board of directors of the cable television commission shall have the right to cancel a franchise 120 calendar days after the appointment of a receiver, or trustee, to take over and conduct the business of the franchisee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 calendar days, or unless within such 120 calendar days the receiver or trustee shall both:

A. Have fully complied with all of the provisions of the franchise documents and any rules, regulations or determinations promulgated thereunder; and

B. Have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee acknowledges that its rights are subject and subordinate to those of the county, cities and cable television commission under the franchise documents for the franchise, and promising to comply with and be bound by the terms, conditions and requirements of the franchise documents and any orders, directives, rules or regulations issued thereunder. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.764 Recording and filing.

Each franchisee shall execute a document in a form determined by the cable television commission evidencing the franchise documents appropriate for recording in the office of the Sacramento County recorder, and a financing statement in a form determined by the commission for filing pursuant to the provisions of Sections 9401 through 9403, inclusive, of the California Commercial Code. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

Article Vb. Remedies

5.50.800 Crimes.

Violation of the provisions of RCMC 5.50.052, 5.50.206 and 5.50.538 shall constitute a misdemeanor. With the foregoing exception, violation of the provisions of this chapter shall not constitute a misdemeanor, infraction or other crime. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.802 Impracticality of ascertaining damages.

A. At the time of issuance of any franchise under the provisions of this chapter, it will be impractical to reasonably ascertain the total extent of damages which may be incurred as a result of the breach by the franchisee of its obligations under the franchise documents as prescribed by RCMC 5.50.804. The provisions of RCMC 5.50.804 shall apply in the event of breach as liquidated damages therefor. Factors relating to the impracticality of ascertaining damages include, but are not limited to, the following:

1. The facts that:

a. The primary damage resulting from breaches by the franchisee of the schedules for construction and extension of the cable television system and provision of services prescribed by RCMC 5.50.404 through 5.50.416, 5.50.422 through 5.50.430 and 5.50.446, and of the duty prescribed pursuant to RCMC 5.50.544, will be to members of the public who are denied services or denied quality or reliable services;

b. Such breaches cause inconvenience, anxiety, frustration and deprivation of the benefits of the franchise to individual members of the general public in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms;

c. That services might be available through the cable television system which are both necessary and available at a substantially lower cost than alternative services, and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and

d. Termination of a franchise for such breaches and other remedies is, at best, a means of future correction, and not a remedy which makes the public whole for past breaches;

2. The fact that the failure of a franchisee to make timely reports identifying its progress in installing its cable television system within services areas will make it difficult in ways which are not measurable for the commission to administer the construction schedule, delay initiation of enforcement proceedings, and impede compliance with the periods allowed for construction; and

3. The fact that the failure of a franchisee to file timely annual reports will deny information necessary to enable the commission to expeditiously, effectively and efficiently administer the franchise and exercise its regulatory powers in relation thereto for the promotion and protection of the public convenience, health, safety and welfare.

B. Without the provisions of RCMC 5.50.804, the actual damages for which a franchise would be liable could greatly exceed the specified amount of liquidated damages. Therefore, the provisions of RCMC 5.50.804 are of benefit to a franchisee. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.804 Liquidated damages – Amount.

In its sole discretion, the board of directors of the cable television commission may assess a franchisee and the franchisee shall be liable for liquidated damages in the amount of $1,000 for each calendar day on which a franchisee is in breach and for each breach of any of the provisions of any of the following: RCMC 5.50.404 through 5.50.412, 5.50.416, 5.50.422 through 5.50.430, and 5.50.466; time limitations prescribed pursuant to RCMC 5.50.438; or RCMC 5.50.544 and 5.50.546 or such other provisions of this resolution as shall expressly refer to this provision. Said liquidated damage sum shall be separately applicable to each calendar day of delay in complying with the provisions of RCMC 5.50.410(A)(1) through (A)(4), and separately applicable for each calendar day of delay in complying with any of the provisions in RCMC 5.50.410(E). Said liquidated damage amount shall be separately applicable to each instance for each calendar day of delay in extending lines pursuant to the provisions of RCMC 5.50.424 or 5.50.426; provided, that if more than one dwelling unit is subject to a particular extension from the boundaries of a service area, the total liquidated damages shall not exceed $1,000 for each calendar day of delay. Said liquidated damage sum shall be separately applicable to each calendar day of delay in complying with each approval or the conditions thereof issued pursuant to the provisions of said RCMC 5.50.446.

5.50.806 Reduction of term.

In addition to the foregoing liquidated damages, in its sole discretion the board of directors of the cable television commission may reduce the term of any franchise one calendar month for each cumulative 30 calendar days in excess of the first 30 calendar days a franchisee is in breach of any of the provisions of RCMC 5.50.410(A)(4) or (D). The purpose of this section is to authorize the commission, after a franchise has been in breach of said provisions of said section for the first 30 calendar days, to reduce the term of the franchise for subsequent delays caused by the franchisee’s breach on a month-to-month basis. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 556 § 12, 1983; SCC 488 § 1 (part), 1981].

5.50.808 Collection of damages.

The auditor of the cable television commission shall charge and transfer from the special account established pursuant to RCMC 5.50.702 to the credit of the commission such amounts as are assessed as liquidated damages by determinations of the board of directors pursuant to RCMC 5.50.442, which are not appealed to arbitration and become final, or which are affirmed by an arbitration panel under the provisions of RCMC 5.50.444.

With respect to breaches of any of the provisions of RCMC 5.50.532, 5.50.544 or 5.50.546, the board of directors of the commission shall determine the amount of liquidated damages to be assessed and mail notice thereof to the franchisee. Such a notice may provide for assessments for breaches occurring in advance of the notice and for periods of breach subsequent to the issuance of the notice pending compliance by the franchisee. The determinations by the board of directors shall become final, binding and conclusive, not subject to judicial review or reversal by any authority, and judicially enforceable, unless within 30 calendar days following the date of mailing of the notice of the determination the franchisee files with the clerk of the board of directors of the commission a written notice appealing the determination to arbitration pursuant to the provisions of RCMC 5.50.810. The notice of appeal shall specifically identify the grounds for the appeal. The auditor of the commission shall charge and transfer from the special account established pursuant to RCMC 5.50.702, to the credit of the commission, such amounts as are assessed as liquidated damages by determinations of the board of directors pursuant to this paragraph which are not appealed to arbitration and become final or which are affirmed by an arbitration panel under RCMC 5.50.810.

With respect to breaches of any of the provisions of RCMC 5.50.602 or 5.50.604, the auditor of the commission shall charge and transfer from the special account established pursuant to RCMC 5.50.702 to the credit of the commission such amounts as are assessed as franchise fees, interest and liquidated damages by determinations of the board of directors pursuant to RCMC 5.50.612 which are not appealed to arbitration and become final or which are affirmed by an arbitration panel under RCMC 5.50.612, or such amounts of franchise fees, interests and liquidated damages as are prescribed by a judgment of a court.

The auditor shall mail notice to the franchisee of each transfer from the special account. The notice shall identify the amount transferred, the balance of the account after transfer (including accumulated interest), and the total amount, if any, which the franchisee is required to pay in order to replenish the account in accordance with the requirements of RCMC 5.50.702.

Any amounts owing by a franchisee in excess of the current balance within the special account established pursuant to RCMC 5.50.702 may be recovered from the surety on the performance bond filed pursuant to the provisions of RCMC 5.50.700 or from the franchisee. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.810 Liquidated damage arbitration proceedings.

A. With respect to arbitration proceedings conducted pursuant to the provisions of the second paragraph in RCMC 5.50.808, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by RCMC 5.50.830 through 5.50.840, inclusive. The questions which may be submitted to the arbitration panel and jurisdiction of the arbitration panel shall be limited to the following:

1. The interpretation of the provisions of the franchise documents solely in relation to the decision required by subsection (A)(2) of this section; and

2. The amount, if any, owing by the franchisee.

B. The franchisee shall immediately pay any amount determined to be owing by the arbitration panel.

C. The arbitration award may be judicially enforced, shall be final, binding and conclusive upon the parties, and shall not be subject to judicial review or vacation except on grounds set forth in Section 1286.2 of the Code of Civil Procedure. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.812 Alternative remedies.

Neither reduction of the term of the franchise nor liquidated damages shall be deemed to be the exclusive remedy for the types of breaches identified in RCMC 5.50.804. Neither the right to assess liquidated damages nor the assessment of liquidated damages nor the right to reduce nor reduction of the term of the franchise shall be deemed to bar or otherwise limit the right of the cable television commission to obtain judicial enforcement of the franchisee’s obligations by means of specific performance, injunctive relief, mandate or other remedies at law or in equity, other than monetary damages. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.818 Termination of franchise.

The following material breaches of the obligations of a franchisee under the franchise documents shall constitute grounds for termination of a franchise by the cable television commission:

A. Cumulative unexcused delay in excess of:

1. One hundred eighty calendar days in complying with the provisions of RCMC 5.50.410(A)(2) or beyond the times prescribed pursuant to RCMC 5.50.438 in relation to RCMC 5.50.410(A)(2); or

2. Three hundred sixty-five calendar days in complying with the provisions of RCMC 5.50.410(A)(4) or beyond the times prescribed pursuant to RCMC 5.50.438 in relation to RCMC 5.50.410(A)(2), (3) or (4); or

3. Three hundred sixty-five calendar days in complying with the provisions of RCMC 5.50.410(E) or pursuant to RCMC 5.50.438 in relation to RCMC 5.50.410(E);

B. The failure of a franchisee to make any payment to replenish the special account for security established under RCMC 5.50.702 within the time required by said section;

C. Any violation of RCMC 5.50.750, 5.50.756 or 5.50.762;

D. The failure to make any disclosure of fact within the application for the franchise which is required by this chapter or a request for proposals, or the misrepresentation of such a fact in the application;

E. The willful failure to make any payments required by RCMC 5.50.602 or 5.50.604; or

F. Any other act or omission by the franchisee which materially violates the terms, conditions or requirements of the franchise documents or any order, directive, rule or regulation issued thereunder and which is not corrected or remedied within 30 calendar days following mailing to the franchisee of written notice of the violation or within such period beyond the 30 calendar days as is reasonable. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.820 Commencement of termination proceedings.

The board of directors of the cable television commission shall not determine that a franchise shall be terminated either upon grounds identified by RCMC 5.50.818 or pursuant to RCMC 5.50.050 until a hearing has been conducted upon the matter. Written notice of the time, date and place of the hearing shall be mailed to the franchisee and to the franchisee’s surety on the performance bond filed pursuant to RCMC 5.50.700 not later than 30 calendar days in advance of the date of commencement of the hearing. The notice shall state the reasons for the hearing, describe the basis for termination, and identify the terms, conditions or requirements with respect to which the breach has occurred, if breach is the basis for termination.

5.50.822 Conduct of hearing.

A. All witnesses testifying at the hearing concerning termination shall be sworn. Witnesses shall be subject to direct and cross examination. However, formal rules of evidence applicable to the trial of civil or criminal proceedings in the trial courts of this state shall not be applicable to the hearing. The provisions of the Administrative Procedure Act, commencing at Section 11500 of the California Government Code, or any successor legislative enactment, shall not be applicable to any such hearing. The hearing may be continued from time to time.

B. If the hearing is conducted by a hearing officer, the officer shall, upon conclusion of the hearing, prepare a recommended decision which includes findings of fact and conclusions. The recommended decision shall be filed with the clerk of the board of directors of the commission and mailed to the parties not later than 30 calendar days after conclusion of the hearing. Upon receipt of such a recommended decision, the board of directors may, without a hearing except as otherwise required below, either:

1. Adopt the recommended decision, including findings of fact and conclusions submitted by the hearing officer;

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

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

4. Reject the recommended decision and conduct a new hearing.

D. If the decision by the board of directors is that there are grounds for termination of the franchise and that the franchise should be terminated, the board shall adopt a resolution which terminates the franchise and includes its decision. The effective date of termination shall be such date as is prescribed by the board of directors, within its sole discretion, in the resolution, and the effective date may be made variable in relation to whether an appeal to arbitration is filed pursuant to RCMC 5.50.824. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.824 Appeal to arbitration.

Not later than 30 calendar days following the date of mailing to the franchisee of the resolution of termination by the board of directors, the franchisee shall be authorized to appeal to arbitration the determination to terminate the franchise. The appeal shall be taken by filing a written notice thereof with the clerk of the board of directors. The notice of appeal shall state the specific reasons for appeal and shall be accompanied by a fee equal to the estimate by the clerk of the cost of preparing the transcript and record of the hearing. In the event the franchisee fails to file the notice of appeal with accompanying fee within 30 calendar days following the date on which a copy of the resolution of termination was mailed to the franchisee, the termination of the franchise shall become final, binding, conclusive and not subject to review or reversal by any authority. Judicial enforcement of the decision may be sought.

The question which may be submitted to the arbitration panel and jurisdiction of the panel shall be limited to a decision as to whether the evidence received during the hearing preceding the determination by the board of directors established a basis for the termination of the franchise, and interpretation of the provisions of the franchise documents solely in relation to the question of whether there was a basis for termination. Under no circumstances shall the arbitration panel have authority or be vested with jurisdiction to review, reverse or otherwise nullify the exercise of discretion by the board of directors in terminating the franchise, if the panel determines that there are grounds for termination.

The hearing by the arbitration panel shall not be trial de novo, no new evidence shall be introduced, received, or considered, and the sole function of the panel shall be to review the record of the hearing preceding the decision by the board of directors to decide whether there was substantial evidence in the record to support the findings and to interpret the franchise documents in relation to the decision by the board of directors. The board’s determination to terminate shall be sustained by the arbitration panel if it finds that there is substantial evidence in the record to sustain the determination, and that the conclusions are consistent with the provisions of the franchise documents. In determining whether there is substantial evidence in the record to support the findings, the panel shall conduct an independent review of the evidence in the record and determine the weight of the evidence contained in the record. The panel shall not substitute its discretion for that of the board with respect to the determination to terminate. If the panel decides that the determination by the board to terminate violates the provisions of the franchise documents, it shall remand the matter to the board for further determination, reserving jurisdiction to review the determination. However, such remand shall not include a duty to receive further evidence, unless such evidence was initially offered and excluded during the hearing preceding the board’s decision. Objections by the franchisee which were not presented during the hearing preceding the board’s decision shall be deemed to have been waived.

5.50.826 Acquisition of property.

Upon a final determination to terminate the franchise pursuant to RCMC 5.50.822 or 5.50.824, the board of directors of the cable television commission, in its sole discretion, shall be authorized to purchase the property associated with the franchise, as defined by RCMC 5.50.242. Purchase of the property shall be made in accordance with the standards, procedures and provisions set forth in RCMC 5.50.240 through 5.50.266, inclusive. No compensation shall be payable by the commission or its assignee in relation either to the termination of the franchise or purchase of the property, except pursuant to and in accordance with said RCMC 5.50.240 through 5.50.266. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.828 Commission’s right to operate system.

In the event a franchisee fails to operate its cable television system for seven consecutive days without prior approval by the board of directors of the cable television commission and for reasons which are not beyond its control, the commission through its officers, agents, employees or contractors may, at its option, enter upon the premises of the franchisee, occupy such premises and property constituting the cable television system, and operate the system until such time as the franchisee presents proof satisfactory to the board of directors that it is ready, willing and able to renew operation of the system. In operating the system, the commission or its contractor shall be vested with the powers of a receiver, and shall be authorized to contract in the name of the franchisee, incur expenses in the name of the franchisee, and take any and all other actions necessary to enable it to effectuate the purposes of this section. The costs incurred by the commission in undertaking such operation shall be a charge against the assets of the franchisee, and the commission or its contractor shall be authorized to reimburse itself for the costs incurred from revenues received during the period of operation. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.830 Arbitration proceedings.

Except as otherwise provided by this chapter, arbitration proceedings of matters expressly made arbitrable under the provisions of this chapter shall be conducted in compliance with the provisions of the California Arbitration Act, commencing with Section 1280 of the California Code of Civil Procedure. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.832 Arbitration panel.

Each arbitration shall be conducted by a panel of three arbitrators. One arbitrator shall be appointed by the franchisee, one arbitrator shall be appointed by the cable television commission, and the third arbitrator shall be the chairperson of the panel, and shall be appointed by the other two arbitrators. If the other two arbitrators are unable to agree upon an appointment, the third arbitrator shall be appointed by the presiding judge of the superior court in Sacramento County. Each member of the arbitration panel shall be an attorney licensed to practice within the courts of the state of California. No member of the panel shall be an officer, employee or attorney of any franchisee or any affiliate thereof, the county, cities or the commission. The franchisee and commission shall each appoint its arbitrator and mail notice to the other of its selection not later than 15 calendar days following filing of a notice of appeal to arbitration or mailing of the initiation of arbitration. The third arbitrator shall be appointed not later than 30 calendar days following filing of the notice of appeal to arbitration or mailing of the initiation of arbitration. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.834 Arbitration hearing.

The chairperson of the arbitration panel shall select the site of the hearing, retain a stenographic reporter to report the hearing, and, in consultation with the other members of the panel and the parties, schedule the hearing. The hearing shall be scheduled to commence not later than 75 calendar days following filing of the notice of appeal to arbitration or mailing of the initiation of arbitration. The chairperson of the panel shall mail written notice of the time, date and place of the hearing to the other two arbitrators, legal counsel to the cable television commission, the franchisee, and the franchisee’s surety on the performance bond filed pursuant to the provisions of RCMC 5.50.700 not later than 20 calendar days in advance of the hearing. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.836 Costs of arbitration.

The compensation and expenses of the arbitrator appointed by the franchisee shall be borne and paid solely by the franchisee. The compensation and expenses of the arbitrator appointed by the cable television commission shall be borne and paid solely by the commission. The franchisee and commission shall each bear and solely pay their own costs of attorneys’ fees, expert and other witness fees and other expenses incurred in preparing and prosecuting their respective cases. In proceedings where the record of a public hearing of the board of directors of the commission is to be considered by the arbitration panel, the costs of transcribing, typing and copying the record shall be borne and paid solely by the franchisee.

The compensation and expenses of the chairperson of the arbitration panel, rental, if any, for the place of the hearing, per diem costs of the stenographic reporter, costs of transcribing and typing any transcripts of the arbitration hearing, and any other costs of the arbitration proceeding not identified in the first paragraph of this section shall be divided equally between, borne and paid by the franchisee and commission. The arbitration panel shall not be empowered to order a division of costs, fees or expenses different from that prescribed by this section. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.838 Arbitration award.

The arbitration award shall be determined by a majority of the members of the arbitration panel and shall be in writing. If it is necessary for the panel to make determinations of fact, it shall include findings of fact and conclusions with the award if requested by any party to the proceeding. The award shall be issued and mailed to the parties not later than 90 calendar days following the close of the arbitration hearing. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.840 Limitations of powers.

The arbitration panel shall have no authority to add to, delete or alter any provisions of the franchise documents, but shall limit its interpretation to the express terms of the franchise documents. Under no circumstances shall an arbitration panel be vested with authority or jurisdiction to determine or award monetary damages (by way of setoff, counterclaim, directly or otherwise) or any other relief against the county, the cities, the cable television commission, or their officers, agents or employees, except with respect to proceedings under RCMC 5.50.258 or 5.50.260 to determine the value of property and, in such instances, any such award shall be limited to a determination of the value of the property according to the expressed terms and standards of the franchise documents. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.842 Alternative remedies.

No provision of this chapter shall be deemed to bar the right of the county, cities or cable television commission to seek or obtain judicial relief from a violation of any provision of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this chapter nor the exercise thereof shall be deemed to bar or otherwise limit the right of the county, cities or cable television commission to recover monetary damages (except where liquidated damages are otherwise prescribed) for such violation by the franchisee, or judicial enforcement of the franchisee’s obligations by means of specific performance, injunctive relief or mandate, or any other judicial remedy at law or in equity. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.844 No recourse against agencies.

No franchisee shall have any recourse whatsoever against the county, cities, cable television commission, or their officers, agents, or employees for any loss, costs, expense, or damage arising out of or resulting from any provision or requirement of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder, or because of the enforcement of any provision of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder, or in the event any provision of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder is determined to be invalid. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.846 Nonenforcement.

A franchisee shall not be relieved of any obligation to comply with any of the provisions of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder by reason of any failure of the county, cities, cable television commission or their officers, agents or employees to enforce prompt compliance. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 488 § 1 (part), 1981].

5.50.848 Commission’s power to make permissive.

Wherever within this chapter a requirement or provision is applicable to franchises issued by the commission, there is hereby delegated to the commission the power to make such requirement or provision permissive and render such requirement or provision inapplicable to a given franchisee upon a showing of good cause therefor. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 717 § 3, 1988].

5.50.850 Amended and restated resolutions.

Subsequent to the adoption of a resolution offering a franchise to any franchisee, the commission may adopt one or more amended and restated resolutions regarding the franchise issued to such franchisee. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 717 § 4, 1988].

Article Vc. Video Customer Service Act

5.50.900 Delegation of powers.

Except as otherwise expressly provided in any franchise issued by the county pursuant to its reserved powers under RCMC 5.50.042, all powers, rights, duties and obligations of the county pursuant to the provisions of Article 4.5 (commencing with Section 53088) of Chapter 1 of Division 2 of Title 5 of the California Government Code (hereinafter the “Video Customer Service Act”), as it now exists or should hereafter be amended, are hereby delegated to and conferred upon the board of directors of the cable television commission as to any video provider included within the scope of its provisions, including without limitation those video providers who have received, or hereafter receive, a franchise issued by the commission pursuant to this chapter. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 0943 § 1, 1993].

5.50.902 Monetary penalties.

The maximum monetary penalties set forth in Section 53088.2(o) of the Government Code are hereby adopted and enacted as the applicable schedule of penalties for the material breach by a video provider of the provisions of Section 53088.1 of the Government Code, as it now exists or should hereafter be amended, within the jurisdiction of the county. Subject to the procedures required by Section 53088.2(p) of the Government Code, the board of directors of the commission is authorized to impose monetary penalties up to the maximum amounts so specified and subject to the terms thereof; provided, that the schedule of penalties hereby adopted shall not be deemed to reduce or delimit any other or additional penalties which the commission may otherwise be authorized to impose under law. [Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 0943 § 1, 1993].

Article Vd. Local Administration and Enforcement of Provisions of the Digital Infrastructure and Video Competition Act of 2006

5.50.950 Purpose and applicability – Definitions.

The purpose of this article is to set forth regulations for the provision of video service by state franchise holders in accordance with the Digital Infrastructure and Video Competition Act, California Public Utilities Code Sections 5800 et seq. (“the Act”). This article shall apply only to video service providers issued a state franchise to serve any area within the city by the California Public Utilities Commission pursuant to the Act.

For purposes of this article, the terms used shall have the same definitions given those terms in the Act. [Ord. 2-2009 § 2].

5.50.952 Delegation of powers.

Except as otherwise expressly provided in any action of the city council pursuant to its reserved powers under RCMC 5.50.042, all powers, rights, duties and obligations of the city, pursuant to the provisions of the Act as it exists now or should hereafter be amended, are hereby delegated to and conferred upon the Board of Directors of the Sacramento Metropolitan Cable Television Commission (“SMCTC”) as to any video service provider included within the scope of the Act, including, without limitation, the Act’s provisions for customer service regulation and enforcement, establishment of the percent of franchise fees, provision of public, educational and governmental access (“PEG”) channels, PEG program carriage and PEG channel facilities fees and enforcement of the Act. [Ord. 2-2009 § 2].

5.50.954 Implementation actions.

Consistent with the delegation of powers provided in RCMC 5.50.952 and without limiting this delegation of powers, the following implementation actions provided for under the Act are hereby confirmed, ratified and delegated to the SMCTC:

A. Franchise Fee. All state franchise holders shall remit to the SMCTC a franchise fee in the amount of five percent of the gross revenues of the state franchise holder in compliance with California Public Utilities Code Sections 5840(q) and 5860.

B. PEG Channels.

1. All state franchise holders shall provide capacity for seven PEG channels in accordance with California Public Utilities Code Section 5870.

2. All state franchise holders shall comply with the provisions of the Act related to PEG channels, including the following requirements of California Public Utilities Code Section 5870:

a. The PEG channels shall all be carried on the basic service tier.

b. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the basic service tier and the channel numbers for the PEG channels shall be the same channel numbers used by the incumbent cable operator, unless prohibited by federal law.

c. After the initial designation of PEG channel numbers, the channel numbers shall not be changed without the agreement of the city, unless the change is required by federal law.

d. The PEG access capacity provided shall be of similar quality and functionality to that offered by commercial channels on the lowest cost tier of service, unless the signal is provided to the state franchise holder at a lower quality or with less functionality.

3. A state franchise holder shall have three months from the date SMCTC requests the PEG channels to designate the capacity. However, the three-month period shall be tolled by any period during which the designation or provision of PEG channel capacity is technically infeasible, including any failure or delay of the incumbent cable operator to make adequate interconnection available as required by the Act. Any state franchise holder who believes that the designation or provision of PEG channel capacity is technically infeasible shall provide to SMCTC, in writing, its reasons therefor and its plan for correcting or solving the infeasibility. SMCTC may hold a hearing on the claim of infeasibility to provide the PEG channel capacity on the state franchise holder’s network.

C. PEG Channel Facilities Fee.

1. All state franchise holders shall remit to the SMCTC a fee to support PEG channel facilities and equipment in an amount of up to three percent of gross revenues (“PEG fee”) in the manner and at the time SMCTC determines. Use of the PEG fee shall be consistent with applicable state and federal law. Any PEG fee required to be collected may be shown as a separate line item on the regular bill of each subscriber.

2. Any state franchise holder that believes that it is exempt from said PEG fee or subject to a different or lower fee may file a written request with the SMCTC for a determination of exemption from or reduction of the PEG fee. Said requests shall be filed within 30 days of the effective date of the PEG fee or within 30 days of the date the state franchise holder commences providing video services within the city, whichever occurs last. Said requests shall be heard by SMCTC.

a. Said requests may be based on state or federal law, or on the provisions of local franchises. For example, requests for reduction of the PEG fee to be paid to the SMCTC may be based on monetary support or in-kind PEG channel support provided by the claimant, including support of PEG channel facilities and equipment and/or institutional network facilities. [Ord. 2-2009 § 2].

5.50.956 Customer service and protection – Monetary penalties.

A. All state franchise holders shall comply with the provisions of Section 637.5 of the California Penal Code and the privacy standards contained in Section 631 of the federal Cable TV Privacy Act of 1984, 47 U.S.C. Sections 551 et seq. All state franchise holders shall comply with the provisions of Sections 53055, 53055.1, 53055.2 and 53088.2 of the California Government Code, and any other customer service standards pertaining to the provision of video service established by federal law or regulation or adopted by subsequent enactment of the Act. The SMCTC and/or the city shall enforce, in the manner set forth in the Act, all customer service and consumer protection standards contained in Section 5900 of the California Public Utilities Code, including without limitation those standards set forth in Section 5900(c). SMCTC has been and hereby is authorized to impose penalties for any material breach of Section 5900 of the California Public Utilities Code, as set forth herein.

B. The maximum monetary penalties set forth in California Public Utilities Code Section 5900 are hereby adopted and enacted as the applicable schedule of penalties for material breaches of Section 5900 by a state franchise holder, as follows:

1. Five hundred dollars per day for each material breach, not to exceed $1,500 for each occurrence of a material breach. The SMCTC shall provide notice to the state franchise holder of the material breach pursuant to California Public Utilities Code Section 5900(e) prior to the imposition of the penalty.

2. For a second material breach of the same nature that occurs within 12 months, and if the SMCTC has provided notice to the state franchise holder of the material breach pursuant to California Public Utilities Code Section 5900(e) and a penalty has been assessed, $1,000 per day for each material breach, not to exceed $3,000 for each occurrence of the material breach.

3. For a third or further material breach of the same nature that occurs within those same 12 months, and if the SMCTC has provided notice to the state franchise holder of the material breach pursuant to California Public Utilities Code Section 5900(e) and a penalty has been assessed, $2,500 per day for each material breach, not to exceed $7,500 for each occurrence of the material breach. [Ord. 2-2009 § 2].