Chapter 5.25 CABLE SYSTEM FRANCHISES

For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number, and the masculine gender includes the feminine gender. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated, words not defined herein shall be given the meaning set forth in Title 47 of the United States Code, Chapter 5, Subchapter V-A, Part 1 (Section 521 et seq.), as amended, and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision.

(a) "A" definitions:

(1) "Access channel" means any channel on a cable system set aside by a franchisee for public, educational, or governmental use.

(2) "Affiliate" means any person who owns or controls, is owned or controlled by, or is under common ownership or control with a franchisee.

(3) "Applicant" means any person submitting an application within the meaning of this chapter.

(4) "Application" means any proposal, submission or request to (i) construct and/or operate a cable system within the city; (ii) transfer a franchise; (iii) renew a franchise; or (iv) modify a franchise. An application includes an applicant's initial proposal, submission or request, as well as any and all subsequent amendments or supplements to the proposal and relevant correspondence.

(5) "Applicable law" means all lawfully enacted and applicable Federal, State, and City laws, ordinances, codes, rules, regulations and orders as the same may be amended or adopted from time to time.

(b) "B" definitions:

(1) "Basic cable service" or "basic service" means any service tier that includes the retransmission of local television broadcast signals.

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

(2) "Cable operator" shall have the same meaning as in the Cable Act.

(3) "Cable service" means (i) the one-way transmission to subscribers of video programming or other programming services; and (ii) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

(4) "Cable system" has the meaning ascribed to it under Title VI of the Cable Act and also includes facilities which are "community antenna television systems" under California law. A reference to a franchisee's cable system includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the cable system.

(5) "City" means the City of Santa Clara, California. Any act that may be taken by the City may be taken by the City Council or any agency, department, agent or other entity now or hereafter authorized to act on the City's behalf.

(6) "City Council" means the governing body of the City of Santa Clara, California.

(7) "Construction," "operation," or "repair" and similar formulations of those terms mean the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, excavation and tree trimming.

(d) "D" definitions:

(1) "Director of Communications" means the City Manager of the City. Any act that may be taken by the Director of Communications may be taken by any agency, department, agent or other entity now or hereafter authorized to act on behalf of the City Manager.

(e) "E" definitions:

(1) "Equitable price" means fair market value adjusted downward for the harm to the City or subscribers, if any, resulting from a franchisee's breach of its franchise agreement or violation of this chapter and as further adjusted to account for other equitable factors that may be considered consistent with 47 U.S.C. Section 547.

(f) "F" definitions:

(1) "Fair market value" means the price for the cable system valued as a going concern but with no value allocated to the franchise itself.

(2) "FCC" means the Federal Communications Commission or its designee.

(3) "Franchise" means a nonexclusive authorization granted in accordance with this chapter and exercised in accordance with a franchise agreement to install cables, wires, lines, optical fiber, underground conduit, and other devices necessary and appurtenant to the construction, operation, and maintenance of a cable system along the public rights-of-way within a franchise area. Any such authorization, in whatever form granted, shall not mean or include:

(A) Any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the City;

(B) Any permit, agreement or authorization required in connection with operations on public streets or property including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the City or a private entity, or for excavating or performing other work in or along public rights-of-way;

(C) Express or implicit authorization to provide service to, or install a cable system on private property without owner consent (except for use of compatible easements pursuant to Section 621(a)(2) of the Cable Act, 47 U.S.C. 541(a)(2)).

(4) "Franchise agreement" means a contract entered into in accordance with the provisions of this chapter between the City and a franchisee that sets forth, subject to this chapter, the terms and conditions under which a franchise will be exercised.

(5) "Franchise area" means the area of the City that a franchisee is authorized to serve by its franchise agreement.

(6) "Franchisee" means a natural person, partnership, domestic or foreign corporation, association, joint venture, or organization of any kind that has been granted a cable television franchise by the City.

(g) "G" definitions:

(1) "Governmental access channel" means any channel or capacity on a cable system set aside by a franchisee for government use.

(2) "Gross revenues" means any and all cash or other consideration of any kind or nature derived by a franchisee or by another person subject to a franchise fee under 47 U.S.C. Section 542 or applicable law governing the provision of cable service. In the case of a franchisee, the term "gross revenues" means the gross revenues of the franchisee or any other entity that is a cable operator of such system in any way derived from the operation of a franchisee's cable system in the franchise area to provide cable services. Gross revenues include, by way of illustration and not limitation, monthly fees charged subscribers for any basic, optional, premium, per-channel, or per-program service; installation, disconnection, reconnection, and change-in-service fees; leased channel fees; late fees and administrative fees; revenues received from programmers for carriage of programming on the cable system; revenues from rentals or sales of converters or other equipment; advertising revenues; revenues from program guides; and revenues from home shopping channels.

Gross revenues shall be the basis for computing the franchise fee under any franchise. Gross revenues shall not include: (i) any taxes on services furnished by a franchisee which are imposed directly on any subscriber or user by the State, City, or other governmental unit and which are collected by a franchisee on behalf of said governmental unit; (ii) programming revenues of any affiliate of a franchisee whose programming is carried on the cable system where such revenues are paid to said affiliate by the franchisee and recovered by the franchisee through charges to subscribers that are included in gross revenues; (iii) amounts paid to a franchisee by a subscriber but refunded to the subscriber; and (iv) amounts booked as revenues which are bad subscriber debt, net of any collections. A franchisee which takes advantage of this bad debt exception must exercise due diligence and utilize all reasonable means to collect debt owed to it.

(h) Reserved for future use.

(i) Reserved for future use.

(j) Reserved for future use.

(k) Reserved for future use.

(l) Reserved for future use.

(m) Reserved for future use.

(n) "N" definitions:

(1) "Non-cable service" means any service that is authorized to be distributed over the cable system, other than a cable service, and may include, but not be limited to, transmission of voice, data or interactive video.

(o) "O" definitions:

(1) "Overbuild" means a cable system constructed to serve subscribers in an area of the City served by an existing cable system.

(p) "P" definitions:

(1) "Person" is as defined in SCCC 1.05.020, "P" definitions. The term does not include the City.

(2) "Public access channel" means any channel or capacity on a cable system set aside by a franchisee for use by the general public, including groups and individuals, and which is available for such use on a nondiscriminatory basis.

(3) "Public rights-of-way" means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway, easement, or similar property in which the City now or hereafter holds any property interest, which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining a cable system. No reference herein, or in any franchise agreement, to a "public right-of-way" shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a franchisee shall be deemed to gain only those rights to use as are properly in the City and as the City may have the undisputed right and power to give.

(q) Reserved for future use.

(r) Reserved for future use.

(s) "S" definitions:

(1) "Sale" means any sale, exchange, or similar transaction.

(2) "Service tier" means a package of two or more cable services for which a separate charge is made by the franchisee, other than a package of premium and pay-per-view services that is not subject to rate regulation under the Cable Act and applicable FCC regulations because those services are also sold on a true a la carte basis.

(3) "Subscriber" means the City or any person who legally receives any cable service from a cable operator delivered over that cable operator's cable system.

(t) "T" definitions:

(1) Transfer.

(A) "Transfer" means any transaction in which:

(i) All or substantially all of the cable system is sold or assigned; or

(ii) There is any change, acquisition, or transfer of control of the franchisee; or

(iii) The rights and/or obligations held by the franchisee under the franchise are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party.

(B) "Control of the franchisee" for purposes of this section means the ability to exert actual working control, in whatever manner exercised, over the affairs of a franchisee or a cable operator of a cable system, either directly or indirectly. Without limiting the above, any change in the managing general partners of a franchisee shall be presumed a change in control.

(u) "U" definitions:

(1) "User" means a person or the City utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.

(v) Reserved for future use.

(w) Reserved for future use.

(x) Reserved for future use.

(y) Reserved for future use.

(z) Reserved for future use. (Ord. 1692 § 2(2), 8-6-96).

5.25.030 Grant of franchise.

The City may grant one or more cable system franchises, and each such franchise shall be awarded in accordance with and subject to the provisions of this chapter. In no event shall this chapter be considered a contract between the City and a franchisee such that the City would be prohibited from amending any provision hereof. (Ord. 1692 § 2(3)(a), 8-6-96).

5.25.040 Scope of franchise.

A franchise shall, by its terms, authorize the construction, operation and maintenance of a cable system to provide cable services. A franchisee may at any time (as part of an application for a franchise under this chapter, or separately) apply to expand the scope of its franchise, subject to appropriate conditions, or may apply for a separate authorization to provide non-cable services, pursuant to such procedures as the City may lawfully establish from time to time. (Ord. 1692 § 2(3)(b), 8-6-96).

5.25.050 Franchise required.

Except as Federal law may otherwise provide, no person may construct or operate a cable system without holding a valid franchise granted by the City. No person may be granted a franchise without having entered into a franchise agreement with the City pursuant to this chapter. (Ord. 1692 § 2(3)(c), 8-6-96).

5.25.060 Length of franchise.

No franchise shall initially be granted for a period of more than ten years, except that a franchisee may apply for renewal or extension pursuant to SCCC 5.25.110 through 5.25.170. (Ord. 1692 § 2(3)(d), 8-6-96).

5.25.070 Franchise characteristics.

(a) A franchise is nonexclusive and will not explicitly or implicitly preclude, subject to SCCC 5.25.050, the issuance of other franchises to operate cable systems within the city; affect the City's right to authorize use of public rights-of-way by other persons to operate cable systems or for other purposes as it determines appropriate; or affect the City's right to itself construct, operate, or maintain a cable system, with or without a franchise.

(b) All privileges prescribed by a franchise shall be subordinate to any prior lawful occupancy of the public rights-of-way, and the City reserves the right to designate where a franchisee's facilities are to be placed within the public rights-of-way.

(c) A franchise shall be a privilege that is in the public trust and personal to the original franchisee. No transfer of a franchise shall occur without the prior consent of the City and unless application is made by the franchisee and transferee and City approval is obtained, all in accordance with this chapter, the franchise agreement and other applicable law.

(d) A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service. However, nothing herein prevents a franchisee from entering into an otherwise lawful exclusive arrangement with a building owner or manager of a multiple dwelling unit or commercial subscriber. (Ord. 1692 § 2(3)(e), 8-6-96).

5.25.080 Franchisee subject to other laws, police power.

(a) Except as specified in the franchise, the franchisee shall be subject to all requirements of City ordinances, rules, regulations and specifications heretofore or hereafter enacted or established. However, a franchisee, by entering into a franchise, does not waive its rights to challenge the lawfulness of any such enactment, including on the ground that a particular action is an unconstitutional impairment of contractual rights.

(b) There is hereby reserved to the City every right and power which is required to be herein reserved or provided by any applicable law.

(c) Neither the granting of any franchise nor any provision thereof shall constitute a waiver or bar to the exercise of any governmental right or power of the City.

(d) The City Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter. The Director of Communications or its designee is hereby authorized and empowered to adjust, settle or compromise any controversy involving performance or charges arising from the operations of any franchisee under this chapter on behalf of the City. The Council may accept, reject or modify the decision of the Director of Communications, and the Council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any franchisee or from any provision of this chapter.

(e) Without limiting the foregoing, a franchisee shall at all times be subject to and shall comply with all applicable laws.

(f) The City shall have the maximum plenary authority to regulate cable systems, franchisees, and franchises as may now or hereafter be lawfully permissible, except where rights are expressly waived by the City in a franchise agreement, they are reserved, whether expressly enumerated or not. (Ord. 1692 § 2(3)(f), 8-6-96).

5.25.090 Acts at franchisee's expense.

Any act that a franchisee is or may be required to perform under this chapter, a franchise agreement, or applicable law shall be performed at the franchisee's expense, unless expressly provided to the contrary in this chapter, the franchise agreement, or applicable law. (Ord. 1692 § 2(3)(g), 8-6-96).

5.25.100 Eminent domain.

Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the City's exercise of the right of eminent domain, and nothing herein contained shall be construed to contract away or to enlarge or limit, modify or abridge, either for a term or in perpetuity, the City's right of eminent domain with respect to any public utility. (Ord. 1692 § 2(3)(h), 8-6-96).

5.25.110 Application – Filing.

(a) A written application shall be filed with the City for:

(1) Grant of an initial franchise;

(2) Renewal of a franchise under 47 U.S.C. Section 546(a) through (g); or

(3) Modification of a franchise agreement pursuant to this chapter or a franchise agreement.

(b) To be acceptable for filing, a signed original of the application shall be submitted together with six copies. The application must conform to any applicable request for proposals, and contain all information required under SCCC 5.25.120. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

(c) All applications accepted for filing shall be made available by the City for public inspection. (Ord. 1692 § 2(4)(a), 8-6-96).

5.25.120 Contents of application.

A request for proposals for a franchise, including for a renewal franchise under 47 U.S.C. Section 546(c), shall require, and any application submitted pursuant to SCCC 5.25.110 (and expressly not an informal renewal application submitted pursuant to 47 U.S.C. Section 546(h)) shall contain, at a minimum, the following information:

(a) Name and address of the applicant and identification of the ownership and control of the applicant including: the names and addresses of the ten largest holders of an ownership interest in the applicant and in all persons in the applicant's direct ownership chain, the names and addresses of all persons with ten percent or more ownership interest in the applicant and in persons in the applicant's direct ownership chain; the persons who control the applicant and persons in the applicant's direct ownership chain; and all officers and directors of the applicant and persons in the applicant's direct ownership chain;

(b) A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including identification of key personnel;

(c) A demonstration of the applicant's legal qualifications to construct and/or operate the proposed cable system, including but not limited to a demonstration that the applicant meets the following criteria:

(1) The applicant must be willing to comply with the provisions of this chapter and applicable laws, and to comply with such requirements of a franchise agreement as the City may lawfully require.

(2) The applicant must not have submitted an application for an initial or renewal franchise to the City, which was denied on the ground that the applicant failed to propose a cable system meeting the cable-related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved (including any appeals) adversely to the applicant, within three years preceding the submission of the application.

(3) The applicant must not have had any cable television franchise validly revoked (including any appeals) by any franchising authority within three years preceding the submission of the application.

(4) The applicant must have the necessary authority under California law to operate a cable system.

(5) The applicant shall not be issued a franchise if it may not hold the franchise as a matter of applicable law. An applicant must have, or show that it is qualified to obtain, any necessary Federal or State authorizations or waivers required to operate the cable system proposed.

(6) The applicant shall not be issued a franchise if, at any time during the ten years preceding the submission of the application, the applicant was convicted of any act or omission of such character that the applicant cannot be relied upon to deal truthfully with the City and the subscribers of the cable system, or to substantially comply with its lawful obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anticompetitive acts, fraud, racketeering, or other similar conduct.

(7) The applicant shall not be issued a franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide.

(8) The applicant shall not be issued a franchise if an elected official of the City holds a controlling interest in the applicant or an affiliate of the applicant.

Notwithstanding the foregoing provisions of subsections (c)(3) and (6) of this section, the City shall provide a reasonable opportunity to an applicant to show that it would be inappropriate to deny it a franchise under subsection (c)(3) or (6) of this section, by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of cable systems. Nothing in this section prevents an applicant from raising other issues with the City relevant to the consideration of the applicant's legal qualifications under subsections (c)(3) or (6) of this section;

(d) A statement prepared by a certified public accountant regarding the applicant's financial ability to complete the construction and operation of the cable system proposed;

(e) A description of the applicant's prior experience in cable system ownership, construction, and operation, and identification of cities and counties in California in which the applicant or any of its principals have a cable franchise or any interest therein; provided, that an applicant that holds a franchise for the City and is seeking renewal of that franchise need only provide this information for other cities and counties in California where its franchise is scheduled to expire during the twelve (12)-month period prior to the date its application is submitted to the City and for other cities and counties in California where its franchise had been scheduled to expire during the twelve (12)-month period after the date its application is submitted to the City. If an applicant has no other franchise in California, it shall provide the information for its operations in other states;

(f) Identification of the area of the City to be served by the proposed cable system, including a description of the proposed franchise area's boundaries;

(g) A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, headend, and access facilities;

(h) Where applicable, a description of the construction of the proposed cable system, including an estimate of plant mileage and its location, the proposed construction schedule, a description, where appropriate, of how services will be converted from existing facilities to new facilities, and information on the availability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities;

(i) The proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services;

(j) A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of the capacity, facilities and support for public, educational, and governmental use of the cable system (including institutional networks) applicant proposes to provide and why applicant believes that the proposal is adequate to meet the future cable-related needs and interests of the community;

(k) Pro forma financial projections for the proposed franchise term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules;

(l) If the applicant proposes to provide cable service to an area already served by an existing cable franchisee, the identification of the area where the overbuild would occur, the potential subscriber density in the area that would encompass the overbuild, and the ability of the public rights-of-way and other property that would be used by the applicant to accommodate an additional system;

(m) Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this chapter; and

(n) An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the application meets all requirements of applicable law. (Ord. 1692 § 2(4)(b), 8-6-96).

5.25.130 Application for grant of franchise other than Cable Act renewal franchise.

(a) A person may apply for a franchise by submitting a request for issuance of a request for proposals ("RFP") and requesting an evaluation of its application pursuant to subsection (c) of this section. Upon receipt of a request for an RFP, the City shall, if necessary, commence a proceeding to identify the future cable-related needs and interests of the community and, upon completion of that proceeding, shall promptly issue an RFP and proposed franchise agreement, which shall be mailed to the person requesting its issuance and any existing cable system franchisee, and made available to any other interested party. The applicant shall respond within the time directed by the City, providing the information and material set forth in SCCC 5.25.120. The procedures, instructions, and requirements set forth in the RFP shall be followed by each applicant as if set forth and required herein. The City or its designee may seek additional information from any applicant and establish deadlines for the submission of such information (which deadlines shall be not less than twenty (20) days from issuance of a request for additional information). An existing franchisee shall have the right to file comments regarding any applicant and their application, which comments shall be treated as part of the record before the City.

(b) Notwithstanding the provisions of subsection (a) of this section, a person may apply for an initial franchise by submitting an unsolicited application containing the information required in SCCC 5.25.120 and requesting an evaluation of that application pursuant to subsection (c) of this section. Prior to evaluating that application, the City may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in subsection (c) of this section and may seek additional applications.

(1) The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing cable franchise for the City;

(2) Whether the quality of the applicant's service under any existing franchise in the City, including signal quality, response to customer complaints, billing practices, and the like, has been reasonable in light of the needs and interests of the communities served;

(3) Whether the applicant has the financial, technical, and legal qualifications to hold a cable franchise;

(4) Whether the application satisfies any minimum requirements established by the City and is otherwise reasonable to meet the future cable-related needs and interests of the community taking into account the cost of meeting such needs and interests;

(5) Whether, to the extent not considered as part of subsection (c)(4) of this section, the applicant will provide adequate public, educational, and governmental use capacity, facilities, or financial support;

(6) Whether issuance of a franchise is in the public interest considering the immediate and future effect on the public rights-of-way and private property that would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way; the effect of granting an overbuild franchise on the ability of any existing franchisee to meet the cable-related needs and interests of the community; and the comparative superiority or inferiority of competing applications; and

(7) Whether the approval of the application may eliminate or reduce competition in the delivery of cable service in the City.

(d) If the City finds that it is in the public interest to issue a franchise considering the factors set forth above, and subject to the applicant's entry into an appropriate franchise agreement, it shall issue a franchise. If the City denies a franchise, it will issue a written decision explaining why the franchise was denied. Prior to deciding whether or not to issue a franchise, the City may hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. The City also may grant or deny a request for a franchise based on its review of an application without further proceedings and may reject any application that is incomplete or fails to respond to an RFP. (Ord. 1692 § 2(4)(c), 8-6-96).

5.25.140 Application for grant of a Cable Act renewal franchise.

Requests for renewal under the Cable Act shall be received and reviewed in a manner consistent with Section 626 of the Cable Act, 47 U.S.C. Section 546. It is the proposal submitted by a franchisee under 47 U.S.C. Section 546(b), and not the request for commencement of the renewal proceedings submitted under 47 U.S.C. Section 546(a), that must contain the information required under SCCC 5.25.120. If neither a franchisee nor the City activates in a timely manner, or can activate the renewal process set forth in 47 U.S.C. Section 546(a) through (g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 U.S.C. Section 546(h), the provisions of SCCC 5.25.130 shall apply and a renewal request shall be evaluated using the same criteria as any other request for a franchise. The following requirements shall apply to renewal requests properly submitted pursuant to the Cable Act:

(a) If the provisions of 47 U.S.C. Section 546(a) through (g) are properly invoked, the City shall issue an RFP after conducting a proceeding to review on the franchisee's past performance and to identify future cable-related community needs and interests. The City shall make available for review by a franchisee the results of the City's review and ascertainment proceedings. The City shall establish deadlines and procedures for responding to the RFP (which deadlines shall not be less than thirty (30) days after issuance of the RFP), may seek additional information from the franchisee related to the City's evaluation of the proposal given the standards for review of that proposal under applicable law, and shall establish deadlines for the submission of that additional information (which deadlines shall not be less than 20 days after issuance of the request). Following receipt of the application responding to that RFP (and such additional information as may be provided in response to requests), the City Council will determine that the franchise should be renewed, or make a preliminary assessment that the franchise should not be renewed in accordance with the provisions of the Cable Act applicable to that preliminary decision. The preliminary determination shall be made by resolution. If the City Council determines that the franchise should not be renewed, and the franchisee notifies the City, either in its RFP response or within thirty (30) business days of the preliminary assessment, that it wishes to pursue any rights to an administrative proceeding it has under the Cable Act, then the City shall commence an administrative proceeding after providing prompt public notice thereof, in accordance with the Cable Act. If the City Council decides preliminarily to grant renewal, the City shall prepare a final franchise agreement that incorporates, as appropriate, the commitments made by the franchisee in the application. If the franchisee accepts the franchise agreement, and the final agreement is ratified by the City Council, the franchise shall be renewed. If the franchise agreement is not so accepted and ratified within the time limits established by 47 U.S.C. Section 546(c)(1), renewal shall be deemed preliminarily denied, and an administrative proceeding commenced if the franchisee requests it within thirty (30) business days of the expiration of the time limit established by 47 U.S.C. Section 546(c)(1), unless the time limit is extended by mutual agreement of the City and the franchisee.

(b) If an administrative hearing is commenced pursuant to 47 U.S.C. Section 546(c), the franchisee's application shall be evaluated considering such matters as may be considered consistent with Federal law. The following procedures shall apply:

(1) The proceeding shall be conducted with all deliberate speed in accordance with such lawful procedures as the City may adopt by resolution.

(2) The City Council may appoint an administrative hearing officer or officers. The entity that will conduct the administrative hearing is referred to as "hearing officer."

(3) The hearing officer shall establish a schedule for proceeding. The hearing officer shall have the authority to require the production of evidence from any person as the interests of justice may require. Any order regarding the production of evidence may be enforced by a court of competent jurisdiction or by imposing appropriate sanctions in the administrative hearing.

(4) The hearing officer may conduct a prehearing conference and establish appropriate prehearing orders. Intervention by non-parties is not authorized except to the extent required by the Cable Act.

(5) The hearing officer shall require the City and the franchisee to submit prepared testimony prior to the hearing. Unless the parties agree otherwise, the franchisee shall present evidence first, and the City shall present evidence second.

(6) Any reports or the transcript or summary of any proceedings conducted pursuant to 47 U.S.C. Section 546(a) shall be, for purposes of the administrative hearing, regarded no differently than any other evidence. The City and the franchisee shall be afforded fair opportunity for full participation in the proceeding, including the right to introduce evidence (including evidence related to issues raised in the proceeding under 47 U.S.C. Section 546(a)), to require the production of evidence, and to question witnesses.

(7) Following completion of any hearing, the hearing officer shall require the parties to submit proposed findings of fact with respect to the matters that the City is entitled to consider in determining whether renewal ought to be granted. Based on the entire record of the administrative hearing, the hearing officer shall then prepare written findings, and submit those findings to the City Council and to the parties (unless the hearing officer is the City Council, in which case the written findings shall constitute the final decision of the City).

(8) If the hearing officer is not the City Council, the parties shall have thirty (30) days from the date the findings are submitted to the City Council to file exceptions to those findings. The City Council shall thereafter issue a written decision granting or denying the application for renewal, consistent with the requirements of the Cable Act and based on the record of such proceeding. A copy of the final decision of the City Council shall be provided promptly to the applicant.

(9) This section does not prohibit any franchisee from submitting an informal renewal application pursuant to 47 U.S.C Section 546(h), which application may be granted or denied in accordance with the provisions of 47 U.S.C. Section 546(h). If such an informal renewal application is granted, then the steps specified in SCCC 5.25.130(a) and (c)(1) through (7), or subsections (a) and (b)(1) through (8) of this section, need not be taken, notwithstanding the provisions of those subsections. (Ord. 1692 § 2(4)(d), 8-6-96).

5.25.150 Application for modification of a franchise.

(a) An application for modification of a franchise agreement shall include, at minimum, the following information:

(1) The specific modification requested;

(2) The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through, inter alia, submission of pro forma financial statements;

(3) A statement indicating whether the modification is sought pursuant to Section 625 of the Cable Act, 47 U.S.C. Section 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. Section 545;

(4) Any other information that the applicant believes is necessary for the City to make an informed determination on the application for modification; and

(5) An affidavit or declaration of the applicant or applicant's authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with the requirements of applicable law.

(b) A request for modification submitted pursuant to 47 U.S.C. Section 545 shall be considered in accordance with the requirements of that section. (Ord. 1692 § 2(4)(e), 8-6-96).

5.25.160 Public hearings.

An applicant shall be notified of any public hearings held in connection with the evaluation of its application and shall be given a reasonable opportunity to be heard. In addition, prior to the issuance of a franchise, the City shall provide for the holding of a public hearing within the proposed franchise area, following reasonable notice to the public, at which each applicant and its application shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard. Reasonable notice to the public shall include causing notice of the time and place of such hearing to be published in a newspaper of general circulation in the proposed franchise area once a week for two consecutive weeks. The first publication shall be not less than 14 days before the day of the hearing. (Ord. 1692 § 2(4)(f), 8-6-96).

5.25.170 Consistency.

The provisions of SCCC 5.25.110 through 5.25.160 shall be read and applied so that they are consistent with Sections 625 and 626 of the Cable Act, 47 U.S.C. Sections 545 and 546. (Ord. 1692 § 2(4)(g), 8-6-96).

5.25.180 System construction schedule.

Every franchise agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the cable system. The schedule shall provide for prompt completion of the project, considering the amount and type of construction required. (Ord. 1692 § 2(5)(a), 8-6-96).

5.25.190 Construction procedures.

(a) A franchisee shall construct, operate and maintain the cable system subject to the supervision of all of the authorities of the City who have jurisdiction in such matters, and in compliance with all laws, ordinances, departmental rules and regulations affecting the cable system.

(b) Inspection.

(1) Every cable system shall be subject to the right of periodic inspection by the City to determine compliance with the provisions of this chapter, a franchise agreement, or other applicable law. Responsibility for the City's costs for inspections performed pursuant to applicable law (such as fees for inspections performed under the City's permitting procedures) shall be determined by that applicable law. The City shall bear its own costs associated with any independent technical tests of the cable system conducted under this section.

(2) The City shall provide reasonable advance written notice to a franchisee where the inspection will require the City to move franchisee's cable system or attach a device to any portion of the franchisee's cable system located more than 12 inches outside of a subscriber's premises. Inspections will be conducted in a manner so as not to unreasonably interfere with the operations of the cable system or provision of service to subscribers. The City shall notify the franchisee when and if an inspection report is completed, and shall provide a copy of the completed report to the franchisee on request; provided, that nothing in this chapter shall be deemed to limit or control the City's inspection of the franchisee's plant under other laws of the City, such as the City's Fire Code. Inspection does not relieve the franchisee of its obligation to build a cable system in compliance with all provisions of its franchise agreement and applicable law.

(c) No construction, operation or repair of the cable system within the public rights-of-way shall be commenced until written permits have been properly filed for and obtained from the proper City officials and all permit and associated fees paid. In any permit so issued, the City may impose such conditions and regulations as a condition of the granting of the permit as are necessary for the purpose of protecting any structures in the public rights-of-way, for the proper restoration of such public rights-of-way and structures, and for the protection of the public and the continuity of pedestrian and vehicular traffic. (Ord. 1692 § 2(5)(b), 8-6-96).

5.25.200 Construction standards.

(a) The construction, operation, or repair and maintenance of a cable system shall be in accordance with all applicable Federal, State and local laws, including without limitation, zoning laws, construction codes, and the City's standard provisions and details. In addition, the construction, operation and maintenance shall be performed in a manner consistent with high industry standards, which obligation shall, without limitation, require a franchisee to comply with the latest edition of the listed manuals which are available at the time of submission of the construction and/or maintenance request: this includes, but is not limited to, AT&T Manual of Construction Procedures (Blue Book); and Franchisee's Construction Procedures Manual. In the event of a conflict among codes and standards, the most stringent code or standard shall apply (except insofar as that standard, if followed, would result in a system that could not meet requirements of Federal, State or local law). A franchisee shall at all times employ reasonable care, within the meaning of applicable law, and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public.

(b) Without limiting the foregoing, all of a franchisee's cable system shall be constructed, operated and maintained in accordance with good engineering practices, performed by experienced and properly trained maintenance and construction personnel.

(c) Except in underground utility service areas, franchisee's cable system may be constructed overhead where poles now exist and electric and telephone lines are now overhead, but where either electric or telephone lines are underground, or are being initially placed underground, the cable system shall be constructed underground in accordance with existing City practices at the time the cable system is constructed subject to any waivers that may be granted. Whenever and wherever the owner of the poles moves its plant from overhead to underground placement in an area, all cable system facilities and plant in that area shall be similarly moved underground by the franchisee as directed by the City Engineer in accordance with then-existing City practices, subject to any waivers that may be granted. The City will cooperate in good faith with a franchisee in any waiver process.

(d) A franchisee shall construct, operate and maintain its cable system so as not to endanger or interfere with improvements the City shall deem appropriate to make or to interfere in any manner with the public rights-of-way or legal rights of any property owner or to unnecessarily hinder or obstruct pedestrian or vehicular traffic. A franchisee shall not place facilities, equipment, or fixtures where they will interfere with any gas, electric, telephone, telecommunications, water, sewer, or other utility facilities, or obstruct or hinder in any manner such entities' use of any public rights-of-way. Any and all public rights-of-way, public property, or private property that is disturbed or damaged by franchisee during the construction, repair, replacement, relocation, operation, maintenance, or construction of a cable system shall be promptly repaired by the franchisee.

(e) A franchisee shall by a time specified by the City, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the City or any other governmental entity by reason of traffic conditions; public safety; public rights-of-way construction; public rights-of-way maintenance or repair (including resurfacing or widening); change of public rights-of-way grade; construction, installation or, repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned communications system, public work or improvement or any government-owned utility; public rights-of-way vacation; or for any other purpose where the work involved would be aided by the removal or relocation of the cable system; provided, however:

(1) Except in the case of emergencies, the City shall provide written notice describing where the work is to be performed at least one week prior to the deadline for performing the work; a franchisee may seek an extension of the time to perform the work where it cannot be performed in a week even with the exercise of due diligence, and such request for an extension shall not be unreasonably refused;

(2) That the franchisee may abandon any property in place upon notice to the City, unless the City determines, in the exercise of its reasonable discretion exercised within ninety (90) days of the date the City receives notice, that the safety, appearance, functioning or use of the public rights-of-way and facilities in the public rights-of-way will be adversely affected thereby; and

(3) If a State or local statute requires the City to compensate users of the right-of-way (including franchisee) for the cost of relocation or removal, nothing in this chapter shall be read to abrogate any right a franchisee may have to obtain an appropriate share of funds available for relocation or removal.

(f) Within thirty (30) days after its receipt of a written request from the City, a franchisee shall expose its subsurface cable system facilities by potholing (digging a test hole) to a depth of one foot below the bottom of such facilities.

(g) If any removal, relaying, or relocation is required to accommodate the construction, operation, or repair of the facilities of another person that is authorized to use the public rights-of-way, a franchisee shall, after thirty (30) days' advance written notice, take action to effect the necessary changes requested by the responsible entity. Unless the matter is governed by a valid contract or a State or Federal law or regulation, the reasonable cost of removal, relaying or relocation shall be borne by the party requesting the removal, relaying or relocation. The City may direct a franchisee to remove, relay or relocate its facilities pending resolution of a dispute as to responsibility for costs, if the person requesting removal, relaying or relocation posts a satisfactory bond or provides other adequate security.

(h) In the event of an emergency, or where a cable system creates or is contributing to an imminent danger to health, safety, or property, the City may remove, relay, or relocate any or all parts of that cable system without prior notice; however, the City shall make reasonable efforts to provide prior notice.

(i) A franchisee shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the franchisee shall have the authority to estimate the reasonable material and labor costs and require payment of the same in advance. The franchisee shall be given not less than seven days advance notice to arrange for such temporary wire changes.

(j) A franchisee shall have the authority to trim trees that overhang public rights-of-way of the City so as to prevent the branches of such trees from coming in contact with the cable system of the franchisee. Notwithstanding that grant of authority, if the franchisee performs the work, it shall be fully liable for any damages caused thereby, and shall be responsible for replacing damaged trees and shrubs. Franchisee shall be responsible for notifying affected property owners prior to trimming trees and shall obtain permission from the City arborist. At the option of the City, such trimming may be done by it and charged to the franchisee.

(k) The franchisee shall not install or erect any facilities or apparatus in or on other public property, places or rights-of-way, or within any privately owned area within the city which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision or parcel map approved by the City, except those installed or erected upon public utility facilities now existing without obtaining the prior written approval of the Director of Communications.

(l) The City shall have the right to install and maintain free of charge upon any poles or in any conduit owned by a franchisee any wire and pole fixtures that do not unreasonably interfere with the cable system operations of the franchisee; provided, that if the City uses a franchisee's conduit or poles to install a cable system that competes with that franchisee in the provision of cable service to residential subscribers, the franchise agreement may provide that the franchisee may charge the City a fair market rate pursuant to the franchise agreement for using the poles and conduit. Franchisee shall notify the City when it enters into an agreement for use of its poles and conduits. Copies of agreements for use of franchisee's conduits or poles in the public rights-of-way or on other public property shall be available for review upon the City's request. A franchise agreement may include a provision under which the City shall protect, defend, indemnify and hold harmless a franchisee for all claims arising out of the City's use of that franchisee's poles and conduits where the franchisee and the City do not have a joint pole or conduit use agreement.

(m) Any contractor or subcontractor used for work or construction, installation, operation, maintenance, or repair of cable system equipment must be properly licensed under laws of the State and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as franchisee would have under this chapter and applicable law if the work were performed by franchisee. The franchisee shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with its franchise agreement and applicable law, shall be responsible for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor, and shall implement a quality control program to ensure that the work is properly performed. This section is not meant to alter tort liability of franchisee to third parties. (Ord. 1692 § 2(5)(c), 8-6-96).

5.25.210 Participation with other utilities.

Each franchisee shall cooperate in the planning, locating and construction of its cable system in utility joint trenches or common duct banks with other telecommunications providers. The City will provide advance notice to any franchisee when it plans to open a trench and each franchisee shall provide notice to the City when it plans to open a trench. A franchisee and the City will offer to make space available to the other, and to other persons who participate in joint trenching, on reasonable terms. (Ord. 1692 § 2(5)(d), 8-6-96).

5.25.220 Underground Services Alert.

Each franchisee shall be a member of the regional notification center for subsurface installations (Underground Services Alert) and shall field mark, at its sole cost and expense, the locations of its underground cable system facilities upon notification in accordance with the requirements of Section 4216 of the Government Code, and any other applicable law. (Ord. 1692 § 2(5)(e), 8-6-96).

5.25.230 Provision of service – Quality of service.

In addition to satisfying such requirements as may be established in a franchise, every cable system shall be subject to the following conditions, except as prohibited by Federal law:

(a) Provision of Service. It is the policy of the City to ensure that every franchisee provide service in the franchise area upon request to any person or any City building. Each franchisee shall extend service upon request within its franchise area; provided, that a franchise agreement may permit a franchisee to require a potential subscriber to contribute a fair share of the capital costs of installation or extension as a condition of extension or installation in cases where such extension or installation may be unduly expensive. Service must be provided within time limits specified in subsection (b) of this section.

(b) Time for Extension. Except as a franchise agreement otherwise provides, a franchisee must extend service to any person or to any City building in the franchise area who requests it (1) within seven days of the request, where service can be provided by activating or installing a drop; (2) within 90 days of the request where an extension of one-half mile or less is required; or (3) within six months where an extension of one-half mile or more is required; provided, that in cases where a franchise agreement permits a franchisee to require a potential subscriber to bear a share of extension or installation costs, and franchisee requires the potential subscriber to bear such costs, the time for extension shall be measured from the date the subscriber agrees to bear such costs or, if a franchisee requires prepayment of all or a portion of the estimated costs, from the date the prepayment is made. A franchisee that requires a potential subscriber to bear a portion of installation or extension costs must prepare a written estimate of extension costs within seven days of a request for an installation or extension that would be subject to cost-sharing.

(c) Technical Standards. Any cable system within the city shall meet or exceed the technical standards set forth in 47 Code of Federal Regulations Section 76.601 and any other applicable technical standards.

(d) Tests. A franchisee shall perform all tests necessary to demonstrate compliance with the requirements of the franchise agreement and other technical and performance standards established by applicable law. Unless a franchise agreement or applicable law provides otherwise, all tests shall be conducted in accordance with Federal rules and in accordance with the most recent edition of National Cable Television Association's "Recommended Practices for Measurements on Cable Television Systems," or if no recent edition exists, such other appropriate manual as the parties may designate. A written report of any test results shall be filed with the City within seven days of a request by the City. If a location fails to meet technical or performance specifications, the franchisee, without requirement of additional notice or request from City, shall promptly take corrective action, and retest the locations.

(e) Interconnection. Every cable system and every cable operator shall be required to interconnect with every other cable system and cable operator within the city on fair and reasonable terms for purposes of providing PEG (Public, Education, Government) and I-Net (Institutional Network) services. (Ord. 1692 § 2(5)(f), 8-6-96).

5.25.240 Publicizing proposed construction work.

(a) A franchisee shall publicize the initial build or any substantial rebuild or upgrade of its cable system in each affected neighborhood at least one week prior to commencement of that work by causing written notice of such construction work to be delivered to the City and by notifying those persons whose property is within three hundred (300) feet of the work in at least two of the following ways: by telephone, in person, by mail, by distribution of flyers to residences, by publication in local newspapers, or in any other manner reasonably calculated to provide adequate notice. Apart from any initial build or substantial rebuild or upgrade, any underground construction will be publicized in accordance with applicable notice requirements. In addition, before entering onto any person's property, a franchisee shall contact the property owner or (in the case of residential property) the resident at least one day in advance. If a franchisee must enter a residence or building, it must schedule an appointment at the convenience of the owner or resident.

(b) During the period of any cable system initial build or rebuild, a franchisee shall maintain a file open to public inspection showing its timetable for construction of the cable system by area of the City. (Ord. 1692 § 2(5)(g), 8-6-96).

5.25.250 System maintenance.

Scheduled maintenance shall be performed so as to minimize the effect of any necessary interruptions of cable service. (Ord. 1692 § 2(5)(h), 8-6-96).

5.25.260 Continuity of service.

Each franchise agreement shall, during the term of the franchise, ensure that subscribers are able to receive continuous service and that, in the event the franchise is revoked or terminated, the franchisee may be obligated to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity. (Ord. 1692 § 2(5)(i), 8-6-96).

5.25.270 Open books and records.

(a) The City shall have the right upon thirty (30) days' advance written notice to inspect and copy at any time during normal business hours at the nearest cable system office or at such location within the city as the City may designate, all books and records reasonably necessary to monitor compliance with the terms of this chapter, a franchise agreement, or applicable law; or reasonably necessary for the exercise of any right or duty of the City under the same. This right includes the right to inspect not only the books and records of a franchisee, but any such books and records held by an affiliate regardless of who holds them, a cable operator of the cable system, or any contractor/ subcontractor or any person holding any form of management contract for the cable system. Each franchisee shall be responsible for collecting the information and producing it. For purposes of this chapter, the terms "books and records" shall be read expansively to include information in whatever format stored. Books and records requested shall be produced to the City at City Hall, except by agreement or pursuant to subsection (b) of this section or SCCC 5.25.310. Books and records shall be maintained in accordance with generally accepted accounting principles.

(b) Access to a franchisee's books and records shall not be denied by the franchisee on the basis that said books and records contain proprietary information. However, all proprietary information received by the City from a franchisee and clearly marked as such shall not be publicly disclosed insofar as permitted by the California Public Records Act, Government Code Section 6254 et seq., and other applicable law. The City will notify franchisee if any third party seeks release of any document marked confidential and the City will withhold release for the maximum period permitted by law to provide the franchisee the opportunity to seek court protection against the release of the requested documents.

(c) The franchisee shall maintain a file of records open to public inspection in accordance with applicable FCC rules and regulations. (Ord. 1692 § 2(6)(a), 8-6-96).

5.25.280 Communication with regulatory agencies.

(a) Upon request, and except as provided under SCCC 5.25.290, a franchisee shall file with the City all reports required by the FCC including, without limitation, any proof of performance tests and results, Equal Employment Opportunity ("EEO") reports, and all petitions, applications, and communications of all types directly related to the cable system, or a group of cable systems of which the franchisee's cable system is a part, submitted or received by the franchisee, an affiliate, or any other person on the behalf of the franchisee, either to or from the FCC, the Security and Exchange Commission, or any other Federal or State regulatory commission or agency having jurisdiction over any matter affecting operation of the franchisee's cable system; provided, that nothing herein requires the franchisee to produce regulatory or court filings that are treated by the agency or court as confidential, such as Hart-Scott-Rodino Act filings. Nothing in this subsection (a) affects any rights the City may have to obtain books and records under SCCC 5.25.270(a).

(b) Franchisee shall also deliver to the City the following:

(1) Notices of deficiency or forfeiture related to the operation of the cable system; and

(2) Copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly. This material shall be submitted to the City at the time it is filed or within ten days of the date it is received. (Ord. 1692 § 2(6)(b), 8-6-96).

5.25.290 Reports.

(a) Quarterly Report. Within 45 days of the end of each calendar quarter, a franchisee shall submit a report to the City containing the following information:

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

(2) The number and type of outages known by the franchisee for the prior quarter, identifying separately the following:

(A) Each planned outage, the time it occurred, its duration, and the estimated area and number of subscribers affected;

(B) Each known unplanned outage, the time it occurred, its estimated duration and the estimated area and the number of subscribers affected, and if known, the cause;

(C) The total estimated hours of known outages as a percentage of total hours of cable system operation. An outage is a loss of sound or video on any signal, or a significant deterioration of any signal affecting two or more subscribers; and

(D) Other information a franchisee is required to submit to the City on a quarterly basis pursuant to this chapter.

On or before September 1st of each year, the City shall provide an annual notice to each franchisee. The annual notice shall state whether any or all of the quarterly reports are required in the coming year, state any changes in the form or content of the reports that the City proposes, and ask each franchisee to comment on the utility of any report, and on any proposed changes in the reports. The City may also meet with any franchisee to discuss changes in the quarterly reports.

(b) Annual Report. No later than ninety (90) days after the end of its fiscal year, a franchisee shall submit a written report containing the information set forth in this subsection (b) and any other information that is required under subsection (e) of this section to the Director of Communications in accordance with forms prepared by the Director of Communications after providing a period for notice and comment and providing interested parties an opportunity to comment on the forms. Until such forms are prepared after notice and comment, the reports shall be prepared in accordance with the general business practices of a franchisee. The information requested in subsection (b)(4) through (7) shall be filed within sixty (60) days of the effective date of a franchise agreement, and thereafter need only be filed as part of the annual report if, at the time of filing, the information provided has changed. The information provided shall include:

(1) A summary of the previous year's activities in the development of the cable system, including descriptions of services begun or discontinued, the number of subscribers gained or lost for each category of cable service;

(2) A summary of complaints for which records are required under SCCC 5.25.300(a), identifying both the number and nature of the complaints received and an explanation of their dispositions;

(3) A fully audited or certified revenue report from the previous calendar year for the cable system;

(4) An ownership report, indicating all persons who at the time of filing control or own an interest in the franchisee of ten percent or more;

(5) A list of officers of the board and members of the board of directors of the franchisee and any affiliates directly involved in the operation or the maintenance of the cable system;

(6) An organizational chart showing all corporations or partnerships with more than a ten percent interest ownership in the franchisee, and the nature of that ownership interest (limited partner, general partner, preferred shareholder, etc.); and showing the same information for each corporation or partnership that holds such an interest in the corporations or partnerships so identified and so on until the ultimate corporate and partnership interests are identified;

(7) An annual report of each entity identified in subsection (b)(6) of this section which issues an annual report;

(8) A report on the cable system's technical tests and measurements;

(9) A complete report on its plant. This plant report shall state the physical miles of plant construction and plant in operation during the prior calendar year, identify any cases where subscribers contributed to plant extension, provide revisions to the cable system maps filed with the City, and report the results of appropriate electronic measurements to show conformity with FCC technical standards;

(10) A report showing, for each customer service standard in SCCC 5.25.350 through 5.25.430, the franchisee's performance with respect to that standard for each quarter of the preceding year. In each case where franchisee concludes it did not comply fully, the franchisee will describe the corrective actions it is taking to assure future compliance.

(c) Presentation of Annual Report. An annual report submitted under subsection (b) of this section may be presented at a regular public meeting of the City Council to be held no earlier than ten days following submission of the report.

(d) Special Reports. Upon the City's request, each franchisee shall submit construction reports and make available for review updated as-built system design maps for its cable system for any construction undertaken during the term of the franchise. The maps shall be developed on the basis of post-construction inspection by the franchisee and construction personnel to assess compliance with system design. Any material departures from design must be indicated.

(e) General Reports. Each franchisee shall prepare and furnish to the City such reports as requested by the City if such reports are prepared in the ordinary course of business or are reasonably necessary to enforce franchisee's compliance with its franchise agreement. (Ord. 1692 § 2(6)(c), 8-6-96).

5.25.300 Records required.

A franchisee shall at all times maintain:

(a) Records of all complaints received with information sufficient to allow the franchisee to prepare the reports required in SCCC 5.25.270 through 5.25.320. The term "complaints" as used herein and throughout this chapter refers to complaints about any aspect of the cable system or franchisee's operations, including, without limitation, complaints requiring service calls, and complaints about employee courtesy, billing, prices, programming, outages and signal quality;

(b) Records of outages known to the franchisee, with information sufficient to allow a franchisee to prepare the reports required in SCCC 5.25.270 through 5.25.320;

(c) Records of service calls for repair and maintenance indicating the date and time service was requested, the date of acknowledgement and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved; and

(d) Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended. (Ord. 1692 § 2(6)(d), 8-6-96).

5.25.310 Voluminous materials.

If any books and records are too voluminous, or for security reasons cannot be copied and moved, then a franchisee may request that the inspection take place at some other location mutually agreed to by the City and the franchisee; provided, that (a) the franchisee must make necessary arrangements for copying documents selected by the City after its review; and (b) the franchisee must pay all travel and additional copying expenses incurred by the City (above those that would have been incurred had the documents been produced in the City) in inspecting those documents or having those documents inspected by its designee. (Ord. 1692 § 2(6)(e), 8-6-96).

5.25.320 Retention of records – Relation to privacy rights.

Each franchisee shall take all reasonable steps required, if any, to ensure that it is able to provide the City all information which must be provided or may be requested under this chapter, a franchise agreement, or applicable law, including by providing appropriate subscriber privacy notices. Nothing in this section shall be read to require a franchisee to violate 47 U.S.C. Section 551. Each franchisee shall be responsible for redacting any data that applicable law prevents it from providing to the City. Books and records required to be retained under this chapter or a franchise agreement shall be kept for at least five years from the date such book or record was prepared. However, a franchise agreement may specify an exception to this requirement for particular voluminous materials, so long as the information contained in those materials is reflected in other documents. (Ord. 1692 § 2(6)(f), 8-6-96).

5.25.330 Maps and plans.

Each franchisee shall maintain accurate maps and improvement plans which show the location, size, and a general description of all cable system facilities installed in the public rights-of-way and any power supply sources (including voltages and connections). Maps shall be based upon post-construction inspection to verify location. Within thirty (30) days of a request from the City, a franchisee shall, at its own cost and expense, deliver to the City copies of such maps and plans. A franchisee shall provide to a third party interested in performing work within the public rights-of-way, for a reasonable charge payable in advance and upon request, such maps and plans. (Ord. 1692 § 2(7), 8-6-96).

5.25.340 Performance evaluation.

(a) Performance Evaluation Sessions. The City may, at its discretion, but not more frequently than once every two years, hold performance evaluation sessions. All such evaluation sessions shall be open to the public, and announced in a newspaper of general circulation. The City and a franchisee shall each provide written notice to the other identifying any items it intends to raise at such performance evaluation not later than thirty (30) days prior to the scheduled date of the performance evaluation session.

(b) Performance Evaluation Topics. Topics that may be discussed at any performance evaluation session may include, but are not limited to, cable system construction and performance, franchisee compliance with this chapter and the franchise agreement, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, franchise fees, penalties, free or discounted services, applications of new technologies, judicial and FCC filings, and line extensions. (Ord. 1692 § 2(8), 8-6-96).

5.25.350 Consumer protection provisions – General provisions.

Each franchisee must satisfy consumer protection provisions established by the City from time to time. In addition, each franchisee shall at all times satisfy any additional or stricter requirements established by applicable law including, without limitation, FCC customer service standards and consumer protection laws. (Ord. 1692 § 2(9)(a), 8-6-96).

5.25.360 Telephone and office availability.

(a) Each franchisee shall maintain an office at a convenient location in the City that shall be open for walk-in traffic at least ten hours per day (except legal holidays) Monday through Friday, with some evening hours, and at least five hours on Saturday to allow subscribers to pay bills, to drop off equipment and to pick up standard analog converters. Each franchisee shall perform service calls, installations, and disconnects at least ten hours per day Monday through Saturday, except legal holidays; provided, that a franchisee shall respond to outages twenty-four (24) hours a day, seven days a week.

Each franchisee shall establish a publicly listed local toll-free telephone number. The phone must be answered by customer service representatives at least ten hours per day, Monday through Saturday, except legal holidays, for the purpose of receiving requests for service, inquiries, and complaints from subscribers.

After such business hours the phone shall be answered so that customers can register complaints and report service problems on a twenty-four (24)-hour-per-day, seven-day-per-week basis, and so that the franchisee can respond to service outages as required herein. Phones shall be answered in accordance with subsection (b) of this section.

(b) Telephone answering time shall not exceed thirty (30) seconds or four rings, and the time to transfer the call to a customer service representative (including hold time) shall not exceed an additional thirty (30) seconds. Under normal operating conditions, this standard shall be met ninety percent (90%) of the time, measured quarterly. Under normal operating conditions customers will receive a busy signal less than three percent of the time. When the business office is closed, an answering machine or service capable of receiving and recording service complaints and inquiries shall be employed. The after-hours answering service shall comply with the same telephone answer time standard set forth in this subsection (b). (Ord. 1692 § 2(9)(b), 8-6-96).

5.25.370 Scheduling work.

(a) All appointments for service, installation, or disconnection shall be specified by date. Each franchisee shall specify a specific time at which the work shall be done, or offer a choice of time blocks, which shall not exceed four hours in length. A franchisee may also, upon request, schedule service installation calls outside normal business hours, for the express convenience of the customer. If at any time an installer or technician is running late for an appointment and believes it will not be able to make a scheduled appointment time, an attempt to contact the customer will be made prior to the time of appointment and the appointment rescheduled at a time convenient to the customer, if rescheduling is necessary. It is the operator's burden to prove it met the appointment.

(b) The franchisee shall offer and fully describe to subscribers who have experienced a missed appointment (where the missed appointment was not the subscriber's fault) that the subscriber may choose between the following options: (1) installation or service call free of charge, if the appointment was for an installation or service call for which a fee was to be charged; one month of the most widely subscribed to service tier free of charge if an installation or service call was to have been provided free of charge; one month of such service, free of charge for other appointments, and (2) an opportunity to elect remedies under California Civil Code Section 1722, if applicable.

(c) With regard to disabled customers, upon subscriber request, each franchisee shall arrange for pickup and/or replacement of converters or other franchisee equipment at the subscriber's address or by a satisfactory equivalent (such as the provision of a postage-prepaid mailer).

(d) Under normal operating conditions, requests for service, repair, and maintenance must be acknowledged by a trained customer service representative within twenty-four (24) hours, or prior to the end of the next business day, whichever is earlier. A franchisee shall respond to all other inquiries (including billing inquiries) within five business days of the inquiry or complaint. Under normal operating conditions, repairs and maintenance for outages or service interruptions must be completed within twenty-four (24) hours after the outage or interruption becomes known to franchisee where the franchisee has adequate access to facilities to which it must have access in order to remedy the problem. Under normal operating conditions, work to correct all other service problems must be begun by the next business day after notification of the service problem, and must be completed within five business days from the date of the initial request. When normal operating conditions do not exist, a franchisee shall complete the work in the shortest time possible. The failure of the franchisee to hire sufficient staff or to properly train its staff shall not justify a franchisee's failure to comply with this provision.

(e) A franchisee shall not cancel a service or installation appointment with a customer after the close of business on the business day preceding the scheduled appointment.

(f) Under normal operating conditions, the standards of subsections (d) and (e) of this section shall be met at least ninety-five percent (95%) of the time, measured on a quarterly basis.

(g) Under normal operating conditions, the installation time standard in SCCC 5.25.230(b) and below will be met no less than ninety-five percent (95%) of the time measured on a quarterly basis:

Requests for additional outlets, service upgrades or other connections (e.g., DMX, VCR, A/B switch) separate from the initial installation will be performed within seven business days after an order has been placed. (Ord. 1692 § 2(9)(c), 8-6-96).

5.25.380 Notice to subscribers.

(a) A franchisee shall provide each subscriber at the time service is installed, clear and accurate written information: on placing a service call, filing a complaint, or requesting an adjustment (including when a subscriber is entitled to refunds for outages and how to obtain them); showing the telephone number of the City office responsible for administering the franchise; providing a schedule of rates and charges, channel positions, services provided, a copy of the service contract, delinquent subscriber disconnect and reconnect procedures; notifying subscribers of the availability of parental control devices; and describing any other of the franchisee's policies in connection with its subscribers. The same information shall be provided to the subscriber annually thereafter, except another copy of the service contract need not be provided. Copies of the notices provided to the subscribers shall be provided to the City. Subject to the rate regulation provisions of SCCC 5.25.440, franchisee shall provide the Director of Communications at least sixty (60) days' notice and all subscribers at least thirty (30) days' notice of any significant changes in the information required to be provided under this subsection (a). Such notice shall be made in writing.

(b) Each franchisee shall take appropriate steps to ensure that all written franchisee promotional materials, announcements, and advertising of residential cable service to subscribers and the general public, where price information is listed in any manner, clearly and accurately discloses price terms. In the case of telephone orders, a franchisee shall take appropriate steps to ensure that price terms are clearly and accurately disclosed to potential customers in advance of taking the order.

(c) Each franchisee shall maintain a file open for public inspection containing all notices provided to subscribers under these customer service standards, as well as all promotional offers made to subscribers. The notices and offers shall be kept in the file for at least one year from the date of such notice or promotional offer. (Ord. 1692 § 2(9)(d), 8-6-96).

5.25.390 Interruptions of service.

A franchisee shall provide forty-eight (48) hours' prior notice to subscribers and the City before interrupting service for planned maintenance or construction; provided, however, that planned maintenance that does not require more than two hours' interruption of service and that occurs between the hours of 12:00 midnight and 6:00 A.M. shall not require such notice to subscribers, and notice to the City must be given no less than twenty-four (24) hours prior to the anticipated service interruption. (Ord. 1692 § 2(9)(e), 8-6-96).

5.25.400 Billing.

(a) A franchisee's first billing statement after a new installation or service change shall be prorated as appropriate and shall reflect any security deposit.

(b) A franchisee's billing statement must be clear, concise and understandable, must itemize each category of service and equipment provided to the subscriber and must state clearly the charge therefor.

(c) A franchisee's billing statement must show a specific payment due date not earlier than the later of (1) fifteen days after the date the statement is mailed; or (2) the fifteenth (15th) day of the thirty (30) day period in which the service being billed is rendered. A late fee or administrative fee may not be imposed for payments before the due date. Subscribers shall not be charged a late fee or otherwise penalized for any failure by a franchisee, including failure to timely or correctly bill the subscriber, or failure to properly credit the subscriber for a payment timely made.

(d) A franchisee's bill must permit a subscriber to remit payment by mail or in person at the franchisee's local office.

(e) The account of any subscriber shall be credited a prorated share of the monthly charge for the service upon subscriber request if a subscriber is without service or if service is substantially impaired for any reason for a period exceeding four hours during any twenty-four (24)-hour period; or automatically after November 1, 1998, if the loss of service or impairment is for twenty-four (24) hours or longer, except where it can be documented that a subscriber will obtain a refund for a loss of service or impairment which was caused by the subscriber or by subscriber-owned equipment (not including, for purposes of this section, in-home wiring installed by the franchisee).

(f) Franchisee shall respond to all written billing complaints from subscribers within thirty (30) days.

(g) Refunds to subscribers shall be issued no later than:

(1) The earlier of the subscriber's next billing cycle following resolution of the refund request, or thirty (30) days; or

(2) The date of return of all equipment to franchisee, if cable service has been terminated.

(h) Credits for cable service shall be issued no later than the subscriber's next billing cycle after the determination that the credit is warranted. (Ord. 1692 § 2(9)(f), 8-6-96).

5.25.410 Disconnection/downgrades.

(a) A subscriber may terminate service at any time.

(b) A franchisee shall promptly disconnect from the franchisee's cable system or downgrade any subscriber who so requests. No period of notice prior to voluntary termination or downgrade of cable service may be required of subscribers by any franchisee. Charges for any voluntary disconnection, and any downgrade charges shall conform to applicable law.

(c) Any security deposit and/or other funds due a subscriber that disconnects or downgrades service shall be returned to the subscriber within thirty (30) days or in the next billing cycle, whichever is later, from the date disconnection or downgrade was requested except in cases where the subscriber does not permit the franchisee to recover its equipment, in which case the amounts owed shall be paid to subscribers within thirty (30) days of the date the equipment was recovered, or in the next billing cycle, whichever is later.

(d) A franchisee may not disconnect a subscriber's cable service for nonpayment unless:

(1) The subscriber is delinquent in payment for cable service;

(2) A separate, written notice of impending disconnection, postage prepaid, has been sent to the subscriber at least twenty (20) days prior to the date on which service may be disconnected, at the premises where the subscriber requests billing, which notice must state the date by which disconnection may occur, and the amount the subscriber must pay to avoid disconnection;

(3) The subscriber has failed to pay the amounts owed to avoid disconnection by the date of disconnection; and

(4) No pending inquiry exists regarding the bill to which franchisee has not responded in writing.

Payment is not delinquent until the fifteenth (15th) day of the month in which the service being billed for is rendered; the notice required under subsection (d)(2) of this section may not be sent to a subscriber prior to the delinquency date. If the subscriber pays all amounts due, including late charges, before the date scheduled for disconnection, the franchisee shall not disconnect service. After disconnection (except in cases where disconnection is also subject to subsection (e) of this section, upon payment by the subscriber in full of all proper fees or charges, including the payment of the reconnection charge, if any, the franchisee shall promptly reinstate service.

(e) A franchisee may immediately disconnect a subscriber if (1) the subscriber is damaging, destroying, or unlawfully tampering with or has damaged or destroyed or unlawfully tampered with the franchisee's cable system; (2) the subscriber is not authorized to receive a service, and is facilitating, aiding or abetting the unauthorized receipt of service by others; or (3) subscriber-installed or attached equipment is resulting in signal leakage which is in violation of FCC rules, provided the subscriber has failed to correct the leakage within three business days after receiving written notice of the problem from the franchisee. After disconnection, the franchisee shall restore service after the subscriber provides adequate assurance that it has ceased the practices that led to disconnection, and paid all proper fees and charges, including any reconnect fees and all amounts owed the franchisee for damage to its cable system or equipment.

(f) Except as Federal or State law may otherwise provide, a franchisee may remove its property from a subscriber's premises within thirty (30) days of the termination of service. If a franchisee fails to remove its property in that period, the property shall be deemed abandoned unless the franchisee has been denied access to the subscriber's premises, or the franchisee has a continuing right to occupy the premises under Federal or State statutes. (Ord. 1692 § 2(9)(g), 8-6-96).

5.25.420 Deposits.

A franchisee may require a reasonable, nondiscriminatory deposit on equipment provided to subscribers. Deposits shall be placed in an interest-bearing account, and the franchisee shall return the deposit, plus interest earned to the date the deposit is returned to the subscriber, less any amount the franchisee can demonstrate should be deducted for damage to such equipment. (Ord. 1692 § 2(9)(h), 8-6-96).

5.25.430 Parental control option.

Without limiting a franchisee's obligations under Federal law, two years after the effective date of the ordinance codified in this chapter (September 5, 1996), a franchisee must provide parental control devices at no charge to all subscribers who request them that enable the subscriber to block the video and audio portion of any channel or channels of programming. (Ord. 1692 § 2(9)(i), 8-6-96).

5.25.440 Rate regulation.

(a) Scope and Applicability. The City reserves all rights to implement and impose regulation of a franchisee's rates and charges to the maximum extent permitted by law, and may do so by amendment to this chapter, by separate ordinance, by amendment to a franchise agreement, or in any other lawful manner.

(b) Affirmation of Regulation of Rates For Basic Cable Service and Equipment. As of the effective date of the ordinance codified in this chapter, Resolution No. 5895, as amended from time to time, governs the regulation of rates for basic cable service and equipment within the city for any franchisee which has been notified that (1) the City has been certified to regulate its basic service and equipment rates; and (2) the City has adopted regulations governing regulation of basic service and equipment rates. (Ord. 1692 § 2(10), 8-6-96).

5.25.450 Franchise fee – Amount.

Franchisee shall pay to the City a franchise fee in an amount equal to five percent of gross revenues. (Ord. 1692 § 2(11)(a), 8-6-96).

5.25.460 Franchise fee – Payment.

Unless otherwise specified in a franchise agreement, a franchisee shall pay the franchise fee due to the City on a quarterly basis. Payment for each quarter shall be made to the City not later than forty-five (45) days after the end of each calendar quarter. (Ord. 1692 § 2(11)(b), 8-6-96).

5.25.470 Quarterly statement of gross revenues.

Unless a franchise agreement provides otherwise, a franchisee or other entity subject to a fee under this provision shall file with the City within forty-five (45) days of the end of each calendar quarter a statement showing the franchisee's or such entity's gross revenues during the preceding quarter and the number of subscribers served. (Ord. 1692 § 2(11)(c), 8-6-96).

5.25.480 Acceptance of payment not a release.

No acceptance by the City of any franchise fee payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such franchise fee payment be construed as a release of any claim the City may have for additional sums payable. (Ord. 1692 § 2(11)(d), 8-6-96).

5.25.490 Franchise fee not in lieu of taxes.

The franchise fee payment is not a payment in lieu of any tax, fee or other assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and cable operators or their services, but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscribers), consistent with Section 622(g)(2) of the Cable Act, 47 U.S.C. Section 542(g)(2). (Ord. 1692 § 2(11)(e), 8-6-96).

5.25.500 Annual statement of gross revenue.

A franchisee or other entity subject to a franchise fee under this provision shall file within ninety (90) days following the end of each of its fiscal years a statement setting forth the computation of gross revenues used to calculate the franchise fee for the preceding year and a detailed explanation of the method of computation showing (a) gross revenues by category (e.g., basic, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); and (b) what, if any, deductions were made from gross revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction. The statement shall be certified by a certified public accountant, the chief financial officer of the person or persons paying the fee, or such other person who is authorized and qualified to make representations on behalf of such person regarding its revenues. (Ord. 1692 § 2(11)(f), 8-6-96).

5.25.510 City's right to audit books and records.

The City may, from time to time, and upon reasonable advance written notice, inspect and audit any and all books and records reasonably necessary to the determination of whether gross revenues and franchise fees have been accurately computed and paid. If, as a result of the audit, the City determines that the franchisee has underpaid the franchise fees owed in an amount exceeding five percent of the franchise fees actually paid or ten thousand dollars ($10,000.00), whichever is less, the cost of the audit shall be borne by the person responsible to pay the fee. It shall be the responsibility of the person subject to the fee to have all books and records necessary to satisfactorily perform the audit readily available in the City to the persons performing the audit, or at such other convenient location as the City and a franchisee may provide in a franchise agreement. Nothing in this section expands or extends the document retention period set out in SCCC 5.25.270 through 5.25.320. (Ord. 1692 § 2(11)(g), 8-6-96).

5.25.520 Failure to pay franchise fee.

In the event that a franchise fee payment is not received by the City on or before the due date set forth in SCCC 5.25.440(b), or is underpaid, the person subject to the fee will be charged interest from the due date at an interest rate equal to three percent above the rate for three-month Federal Treasury Bills at the most recent United States Treasury Department sale of such Treasury Bills occurring prior to the due date of the franchise fee payment. (Ord. 1692 § 2(11)(h), 8-6-96).

5.25.530 Final statement of gross revenues.

In the event that a franchise terminates for whatever reason, the franchisee shall file with the City within ninety (90) calendar days of the date its operations in the City cease (the "termination date") a final statement of gross revenues for the period from the beginning of the calendar year in which the franchise terminated to the termination date, which statement shall contain the information and be certified as required by SCCC 5.25.510. (Ord. 1692 § 2(11)(i), 8-6-96).

5.25.540 Franchise fee – Holding over after expiration.

In the event of any holding over after expiration or other termination of any franchise granted hereunder, without the consent of the City, the franchisee shall pay to the City the maximum franchise fee permitted by law. (Ord. 1692 § 2(11)(j), 8-6-96).

5.25.550 Insurance required.

Each franchisee must maintain adequate insurance during the entire term of the franchise against claims for injuries to persons or damages to property which in any way relate to, arise from, or are connected with the holding of the franchise by the franchisee, its agents, representatives, contractors, subcontractors and employees. Each franchisee must keep insurance in effect in accordance with the minimum insurance scope the City may set from time to time. (Ord. 1692 § 2(12)(a), 8-6-96).

5.25.560 Insurance – Franchise provisions.

Each franchise agreement shall specify the initial minimum amounts, form, quality and proof of insurance that must be provided and maintained through the franchise term, in accordance with the insurance policies of the City in effect at the time the franchise is issued. (Ord. 1692 § 2(12)(b), 8-6-96).

5.25.570 Insurance – Material term.

Every franchise shall state that the insurance provisions of the franchise are material terms. (Ord. 1692 § 2(12)(c), 8-6-96).

5.25.580 Indemnification.

(a) Each franchise agreement shall contain an indemnification provision which shall provide that, to the extent permitted by law, the franchisee shall, at its sole cost and expense, fully protect, defend, indemnify and hold harmless the City, its officials, boards, commissions, commissioners, agents, and employees, against any and all claims, suits, causes of action, proceedings, and judgments for damages or equitable relief arising out of the construction, maintenance, or operation of its cable system; copyright infringements or a failure by the franchisee to secure consents from the owners, authorized distributors, or franchisees of programs to be delivered by the cable system; the conduct of the franchisee's business in the City; or in any way arising out of the franchisee's enjoyment or exercise of a franchise granted hereunder, regardless of whether the act or omission complained of is authorized, allowed, or prohibited by applicable law or a franchise agreement, except in cases where liability is (1) solely caused by the gross negligence of the person or persons covered by the indemnity; or (2) results from programming contributed or produced by the City and transmitted over the cable system.

(b) Without limiting the foregoing, the franchisee shall, at its sole cost and expense, fully protect, defend, indemnify and hold harmless the City, its officials, boards, commissions, commissioners, agents, and employees, thereof, from and against any and all claims, suits, actions, liability, and judgments for damages or otherwise, subject to Section 638 of the Cable Act, 47 U.S.C. Section 558, arising out of or alleged to arise out of the installation, construction, operation, or maintenance of its system, including but not limited to any claim against the franchisee for invasion of the right of privacy, defamation of any person, firm or corporation, or the violation or infringement of any copyright, trade mark, trade name, service mark, or patent, or of any other right of any person, firm, or corporation. This indemnity does not apply to programming carried on any channel set aside for public, educational, or government use, or channels leased pursuant to 47 U.S.C. Section 532, except for programming contributed or produced by the franchisee.

(c) The City shall notify the franchisee in writing of its duty to indemnify in any case subject to the indemnity in which the franchisee is not a named defendant or plaintiff. The franchisee shall employ competent counsel, reasonably acceptable to the City Attorney. (Ord. 1692 § 2(12)(d), 8-6-96).

5.25.590 Security fund.

(a) Prior to a franchise becoming effective, the franchisee shall post with the City a cash security deposit to be used as a security fund to ensure the franchisee's faithful performance of and compliance with all provisions of this chapter, the franchise agreement, and other applicable law, and compliance with all orders, permits, and directions of the City, and the payment by the franchisee of any claims, liens, fees, or taxes due the City which arise by reason of the construction, operation, or maintenance of the cable system. The amount of the security fund shall be specified in a franchise agreement.

(b) In lieu of a cash security fund, a franchisee may file and maintain with the City an irrevocable letter of credit with an acceptable surety in the amount specified in the franchise agreement to serve the same purposes as set forth therein. Said letter of credit shall remain in effect for the full term of the franchise plus an additional six months thereafter. The letter of credit shall provide for thirty (30) days' prior written notice to the City of any intention on the part of the franchisee to fail to renew or otherwise materially alter its terms. Neither the filing of a letter of credit with the City, nor the receipt of any damages recovered by the City thereunder, shall be construed to excuse faithful performance by the franchisee or limit the liability of the franchisee under the terms of its franchise for damages, either to the full amount of the letter of credit or otherwise.

(c) The rights reserved to the City with respect to the security fund are in addition to all other rights of the City, whether reserved by this chapter or authorized by other law or a franchise agreement, and no action, proceeding, or exercise of a right with respect to such security fund or letter of credit will affect any other right the City may have.

(d) The following procedures shall apply to drawing on the security fund and letter of credit:

(1) If the franchisee fails to make timely payment to the City of any amount due as a result of a franchise, fails to make timely payment to the City of any amounts due under a franchise agreement or applicable law, fails to make timely payment to the City of any taxes due, or fails to compensate the City within ten days of written notification that such compensation is due, for any damages, costs, or expenses the City suffers or incurs by reason of any act or omission of the franchisee in connection with its franchise agreement or the enforcement of its franchise agreement after ten days' notice to comply with any provision of the franchise or franchise agreement that the City determines can be remedied by an expenditure of the security, the City may withdraw the amount thereof, with interest and any penalties, from the security fund or from funds available under the letter of credit.

(2) Within three days of a withdrawal from the security fund or under the letter of credit, the City shall mail, by certified mail, return receipt requested, written notification of the amount, date, and purpose of such withdrawal to the franchisee.

(3) If at the time of a withdrawal from the security fund or under the letter of credit by the City, the amounts available are insufficient to provide the total payment towards which the withdrawal is directed, the balance of such payment shall continue as the obligation of the franchisee to the City until it is paid.

(4) No later than thirty (30) days after mailing of notification to the franchisee by certified mail, return receipt requested, of a withdrawal from the security fund or under the letter of credit, the franchisee shall deliver to the City for deposit in the security fund an amount equal to the amount so withdrawn or shall restore the letter of credit. Failure to make timely delivery of such amount to the City or to restore the letter of credit shall constitute a material violation of the franchise.

(5) Franchisee's recourse, in the event franchisee believes any taking of security funds is improper, shall be through legal action after the security has been drawn upon. If the City's action or taking is found to be improper by any court or agency of competent jurisdiction, franchisee shall be entitled to a refund of the funds plus interest and/or any other specific performance which such court or agency shall order.

(6) Upon termination of the franchise, the balance then remaining in the security fund shall be withdrawn by the City and paid to the franchisee within ninety (90) days of such termination; provided, that there is then no outstanding obligations secured by the security fund, in which case the amount paid may be reduced by the amount of the outstanding obligations; provided, that the security fund shall be deemed forfeited if the franchise is revoked or the cable system is abandoned. If a franchisee's obligations are secured through a letter of credit, the City shall authorize the franchisee to release the letter of credit within ninety (90) days of termination, unless there are outstanding obligations secured by the letter of credit. The letter of credit shall be deemed forfeited if the franchise is revoked or the cable system abandoned. (Ord. 1692 § 2(13)(a), 8-6-96).

5.25.600 Performance bond.

(a) Prior to any cable system construction, upgrade, or other work in the public rights-of-way, a franchisee shall obtain all required bonds, which shall be in amounts and subject to such terms established by the City consistent with its normal practices, and which shall further contain these additional conditions:

(1) The bond shall state that it ensures the franchisee's faithful performance of the construction, upgrade, or other work required by the franchise agreement. It shall further state that the City may also recover against the bond any amount recoverable against the security fund required by a franchise agreement where such amount exceeds that available under the security fund.

(2) The bond shall provide that, in the event franchisee fails to complete the cable system construction, upgrade, or other work in the public rights-of-way in a safe, timely, and competent manner in accord with the provisions of a franchise agreement, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the franchisee, or the cost of completing or repairing the cable system construction, upgrade, or other work in the public rights-of-way, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond.

(b) Material Term. Every franchise shall state that the security fund, letter of credit, or performance bond provisions of the franchise are material terms. (Ord. 1692 § 2(13)(b), 8-6-96).

5.25.610 Remedies.

In addition to any other remedies available at law or equity, the City may apply any one or a combination of the following remedies in the event a franchisee violates this chapter, its franchise agreement, or applicable law:

(a) Revoke the franchise pursuant to the procedures specified in this chapter.

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

(c) Apply any remedy provided for in a franchise agreement, including enforcement provisions, if any. (Ord. 1692 § 2(13)(c), 8-6-96).

5.25.620 Revocation or termination of franchise.

(a) A franchise may be revoked by the City Council for the franchisee's failure to construct, operate or maintain the cable system as required by this chapter or the franchise agreement, or for any other material violation of this chapter or material breach of the franchise agreement. Prior to revoking the franchise, the City must give a franchisee notice (which notice shall describe the nature of an alleged violation or breach) and opportunity to cure. If within sixty (60) calendar days following receipt of written notice from the City to the franchisee the franchisee has not, to the City's satisfaction, taken corrective action or corrective action is not being actively and expeditiously pursued to the City's satisfaction, the City may give written notice to the franchisee of its intent to consider revocation of the franchise.

(b) Prior to revoking a franchise, and no sooner than thirty (30) calendar days after notifying the franchisee of its intent to consider revoking a franchise as provided in subsection (a) of this section, the City Council shall hold a public hearing, at which the franchisee and the public shall be given an opportunity to be heard. A franchise agreement may provide for more specific procedures to streamline resolution of any dispute. Following the public hearing the City Council may determine whether to revoke the franchise based on the evidence presented at the hearing, and other evidence of record. If the City Council determines to revoke a franchise, it shall issue a written decision setting forth the reasons for its decision. A copy of such decision shall be transmitted to the franchisee.

(c) Notwithstanding the foregoing, any franchise may, at the option of the City following a public hearing before the City Council, be revoked one hundred twenty (120) calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding, unless within that one hundred twenty (120) day period:

(1) Such assignment, receivership or trusteeship has been vacated; or

(2) Such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the franchise agreement and has executed an agreement, approved by a court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise agreement.

(d) Notwithstanding the foregoing, in the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the City may revoke the franchise, following a public hearing before the City Council, by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges of the franchise will be revoked and will terminate thirty (30) calendar days after serving such notice, unless:

(1) The City has approved the transfer of the franchise to the successful bidder; and

(2) The successful bidder has covenanted and agreed with the City to assume and be bound by the terms and conditions of the franchise agreement and this chapter. (Ord. 1692 § 2(13)(d), 8-6-96).

5.25.630 Procedures upon revocation or abandonment of a franchise.

If the City revokes a franchise, or if for any other reason a franchisee fails to operate its cable system or maintain service to its subscribers, the following procedures and rights are effective:

(a) The City may require the former franchisee to remove its facilities and equipment at the former franchisee's expense. If the former franchisee fails to do so within a reasonable period of time, the City may have the removal done at the former franchisee's and/or surety's expense except the franchisee may abandon any portion of its cable system in place that could have been abandoned in place under SCCC 5.25.200(e)(2);

(b) The City, by resolution of the City Council, may acquire ownership or effect a transfer of the cable system at an equitable price; or

(c) If a cable system is abandoned by a franchisee, abandoned portions shall become the property of the City and the City may keep, sell, assign or transfer all or part of the assets of the cable system. (Ord. 1692 § 2(13)(e), 8-6-96).

5.25.640 City's establishment of a cable system.

The provisions of this chapter governing the City's acquisition of a cable system upon revocation or termination of a franchise do not limit the City's ability to acquire a cable system in any other lawful manner. (Ord. 1692 § 2(13)(f), 8-6-96).

5.25.650 Remedies cumulative.

All remedies under this chapter and the franchise agreement are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a franchisee of its obligations to comply with its franchise. Remedies may be used singly or in combination; in addition, the City may exercise any rights it has at law or equity. Nothing herein shall be read to authorize the double recovery of damages. (Ord. 1692 § 2(13)(g), 8-6-96).

5.25.660 Recovery – Relation to insurance and indemnity requirements.

Recovery by the City of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise does not limit a franchisee's duty to indemnify the City in any way; nor shall such recovery relieve a franchisee of its obligations under a franchise, limit the amounts owed to the City, or in any respect prevent the City from exercising any other right or remedy it may have. Nothing herein shall be read to authorize the double recovery of damages. (Ord. 1692 § 2(13)(h), 8-6-96).

5.25.670 Reserved.

5.25.680 Transfer – City approval required.

No transfer shall occur without prior written notice to and approval of the City Council. Transfer without the prior written approval of the City shall be considered to impair the City's assurance of due performance. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer. (Ord. 1692 § 2(14)(a), 8-6-96).

5.25.690 Transfer – Application.

(a) The franchisee shall promptly notify the City of any proposed transfer. If any transfer should take place without prior notice to the City, the franchisee will promptly notify the City that such a transfer has occurred.

(b) At least one hundred twenty (120) calendar days prior to the contemplated effective date of a transfer, the franchisee shall submit to the City an application for approval of the transfer. Such an application shall provide complete information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the transferee, and on the potential impact of the transfer on subscriber rates and service. At a minimum, the following information must be included in the application; provided, that a franchisee is not required to duplicate information that it submits to the City to comply with its obligations under Federal or State law:

(1) All information and forms required under Federal law or the equivalent of such forms if no longer required by Federal law;

(2) All information required in SCCC 5.25.120(a) through (e), (l), and (n);

(3) A detailed statement of the corporate or other business entity organization and management structure of the proposed transferee, together with an explanation of how decisions regarding the cable system will be made if the proposed transaction is approved;

(4) Any contracts or other documents that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein;

(5) Any shareholder reports or filings with the Securities and Exchange Commission ("SEC") that discuss the transaction;

(6) Other information necessary to provide a complete and accurate understanding of the financial position of the cable system before and after the proposed transfer;

(7) Complete information regarding any potential impact of the transfer on subscriber rates and service;

(8) A brief summary of the proposed transferee's plans for at least the next five years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of services, and any other changes affecting or enhancing the performance of the cable system.

(c) For the purposes of determining whether it shall consent to a transfer, the City or its agents may inquire into all qualifications of the prospective transferee and such other matters as the City may deem necessary to determine whether the transfer is in the public interest and should be approved, denied, or conditioned as provided under SCCC 5.25.700. The franchisee and any prospective transferees shall assist the City in any such inquiry, and if they fail to do so, the request for transfer may be denied. (Ord. 1692 § 2(14)(b), 8-6-96).

5.25.700 Transfer – Determination by City.

(a) In making a determination as to whether to grant, deny, or grant subject to conditions an application for a transfer of a franchise, the City shall consider the legal, financial, and technical qualifications of the transferee to operate the cable system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in compliance with its franchise agreement and this chapter and if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other cable system in the City, and whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the City; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the public, or the City's interest under this chapter, the franchise agreement, or other applicable law.

(b) Any transfer without the City's prior written approval shall be ineffective, and shall make this franchise subject to revocation and to any other remedies available under the franchise or other applicable law. (Ord. 1692 § 2(14)(c), 8-6-96).

5.25.710 Transferee's agreement.

No application for a transfer of a franchise shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise agreement, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee under this chapter and the franchise agreement for all purposes, including renewal, unless the City, in its sole discretion, expressly waives this requirement in whole or in part. (Ord. 1692 § 2(14)(d), 8-6-96).

5.25.720 Transfer – Exceptions.

(a) Notwithstanding the foregoing, pledges in trust or mortgages of the assets of the system to secure the construction, operation or repair of the cable system may be made without the City's prior consent, except that no such arrangement may be made which would in any respect under any condition prevent the franchisee or any successor from complying with the franchise and applicable law, nor may any such arrangement permit a third party to succeed to the interest of franchisee, or to own or control the cable system, without the prior consent of the City. Any mortgage, pledge or lease shall be subject and subordinate to the rights of the City under this chapter or other applicable law.

(b) Notwithstanding the foregoing, a franchise agreement may provide that transfers to affiliates of a franchisee shall be excepted from the requirements of SCCC 5.25.680 through 5.25.700 where:

(1) The affiliate is wholly owned and managed by an entity that will guarantee the performance under a franchise agreement; and

(2) The transferee affiliate:

(A) Notifies the City of the transfer at least sixty (60) days before it occurs and, at that time, provides the agreements and warranties required by this section, describes the nature of the transfer, and submits complete information describing who will have direct and indirect ownership and control of the cable system after the transfer;

(B) Warrants that it has read, accepts and agrees to be bound by each and every term of the franchise and related amendments, regulations, ordinances and resolutions then in effect;

(C) Agrees to assume all responsibility for all liabilities, acts and omissions known and unknown of its predecessor franchisees for all purposes, including renewal;

(D) Agrees that the transfer shall not permit it take any position or exercise any right which could not have been exercised by its predecessor franchisees;

(E) Warrants that the transfer will not substantially increase the financial burdens upon or substantially diminish the financial resources available to the franchisee (the warranty to be based on comparing the burdens upon and resources that will be available to the transferee compared to its predecessors), or otherwise adversely affect the ability of the franchisee to perform;

(F) Warrants that the transfer will not in any way adversely affect the City or subscribers (including by increasing rates);

(G) Notifies the City that the transfer is complete within five business days of the date the transfer is complete; and

(H) Agrees that the transfer in no way affects any evaluation of its legal, financial or technical qualifications that may occur under the franchise or applicable law after the transfer, and does not directly or indirectly authorize any additional transfers. (Ord. 1692 § 2(14)(e), 8-6-96).

5.25.730 Transfer – Approval does not constitute waiver.

Approval by the City of a transfer of a franchise does not constitute a waiver or release of any of the rights of the City under this chapter or a franchise agreement, whether arising before or after the date of the transfer. (Ord. 1692 § 2(14)(f), 8-6-96).

5.25.740 Discriminatory practices prohibited.

(a) A franchisee shall not deny service, deny access, or otherwise discriminate against subscribers, programmers, or residents of the City on the basis of race, color, creed, national origin, sex, age, conditions of physical disability, religion, ethnic background, marital status, or sexual orientation.

(b) A franchisee shall not discriminate among persons or the City or take any retaliatory action against a person or the City because of that entity's exercise of any right it may have under Federal, State, or local law, nor may the franchisee require a person or the City to waive such rights as a condition of taking service.

(c) A franchisee shall not deny access or levy different rates and charges on any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides.

(d) Except to the extent the City may not enforce such a requirement, a franchisee is prohibited from discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential subscribers; provided, however, that a franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such discounts are offered on a nondiscriminatory basis to similar classes of subscribers throughout the franchise area; and a franchisee may offer discounts for the elderly, the disabled, or the economically disadvantaged; and such other discounts as it is expressly entitled to provide under Federal law, if such discounts are applied in a uniform and consistent manner. A franchisee shall comply at all times with all applicable Federal, State, and City laws, and all executive and administrative orders relating to nondiscrimination. (Ord. 1692 § 2(15)(a), 8-6-96).

5.25.750 Equal employment opportunity.

A franchisee shall not refuse to employ, discharge from employment, or discriminate against any person in compensation or in terms, conditions, or privileges of employment because of race, color, creed, national origin, sex, age, conditions of physical disability, religion, ethnic background, marital status, or sexual orientation. A franchisee shall comply with all Federal, State, and local laws and regulations governing equal employment opportunities, as the same may be from time to time amended. (Ord. 1692 § 2(15)(b), 8-6-96).

5.25.760 Subscriber privacy.

A franchisee shall at all times protect the privacy of all subscribers pursuant to the provisions of Section 631 of the Cable Act, 47 U.S.C. Section 551. A franchisee shall not condition subscriber service on the subscriber's grant of permission to disclose information which, pursuant to Federal or State law, cannot be disclosed without the subscriber's explicit consent. (Ord. 1692 § 2(15)(c), 8-6-96).

5.25.770 Compliance with laws.

Each franchisee shall comply with all applicable laws heretofore and hereafter adopted or established during the entire term of its franchise. (Ord. 1692 § 2(16)(a), 8-6-96).

5.25.780 Captions.

The captions to sections throughout this chapter are intended solely to facilitate reading and reference to the sections and provisions of this chapter. Such captions shall not affect the meaning or interpretation of this chapter. (Ord. 1692 § 2(16)(b), 8-6-96).

5.25.790 No recourse against the City.

Every franchise agreement shall provide that, without limiting such immunities as the City or other persons may have under applicable law, a franchisee shall have no monetary recourse whatsoever against the City or its officials, boards, commissions, agents or employees for any loss, costs, expense or damage arising out of any provision or requirement of this chapter or because of the enforcement of this chapter or the City's exercise of its authority pursuant to this chapter, a franchise agreement, or other applicable law, unless the same shall be caused by criminal acts or by willful or gross negligence. (Ord. 1692 § 2(16)(c), 8-6-96).

5.25.800 Connections to cable system – Use of antennas.

(a) To the extent consistent with Federal law, subscribers shall have the right to attach VCRs, receivers, and other terminal equipment to a franchisee's system. Subscribers also shall have the right to use their own remote control devices and converters, and other similar equipment.

(b) A franchisee shall not, as a condition of providing service, require a subscriber or potential subscriber to remove any existing antenna, or disconnect an antenna except at the express direction of the subscriber or potential subscriber; provided, that such antenna is connected with an appropriate device and complies with applicable law. (Ord. 1692 § 2(16)(d), 8-6-96).

5.25.810 Calculation of time.

Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this chapter or any franchise agreement, and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of duration time. (Ord. 1692 § 2(16)(e), 8-6-96).

5.25.820 Publication expenses.

The franchisee shall pay to the City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise pursuant to the provisions of this chapter. Such payment shall be made within thirty (30) days after the City furnishes the franchisee with a written statement of such expenses by delivery of same to the City Clerk. (Ord. 1692 § 2(16)(f), 8-6-96).