Chapter 3-11

* Chapter 3-11, Sections 3-11.01 through 3-11.66, codified from Ordinance No. 605-83 C-M, effective October 13, 1983, repealed and replaced by Sections 3-11.01 through 3-11.1002, codified from Ordinance No. 1054-98 C-M, effective July 9, 1998.

Article 1. General

3-11.101 Definitions.

For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meaning given in this section. Words used in the present tense include the future; words in the plural number include the singular number; and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning.

(a) “ADA” means the Americans with Disabilities Act of 1990.

(b) “Adequate staffing” means an adequate number of telephone lines are available within the defined telephone answer time and an adequate number of trained customer service representatives are present and available to respond to subscribers.

(c) “Basic cable service” means any service tier which includes at a minimum the retransmission of local television broadcast signals as defined by the Federal Communications Commission.

(d) “Business day” means any day during which the grantee’s business offices are open for the transaction of business. Grantee may not select to restrict the scope, force and effect of the customer service regulations identified in Article 6 of this chapter.

(e) “Business hours” means the hours during which the grantee’s customer service or business offices are open for the transaction of business.

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

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

(2) A facility that serves subscribers without using any public right-of-way;

(3) A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Cable Act, except that such facility shall be considered a cable system (other than for purposes of Section 621(c)) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

(4) An open video system that complies with Section 653 of the Cable Act; or

(5) Any facilities of any electric utility used solely for operating its electric utility systems.

(g) “Cable service” means the total of the following:

(1) The one-way transmission to Subscribers of audio and video programming, or other programming services offered to Subscribers by the Franchise; and

(2) Subscriber interaction, if any, which is required for the selection of such audio and video programming, data or other programming services.

(h) “Cable Channel” means a portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a television channel as defined by the Federal Communications Commission.

(i) “Closing Date” as used in this Chapter means the calendar date through which all charges are imposed and payments and credits reflected for any given billing period.

(j) “Collection Action” means any threatened or actual initiation of adverse credit evaluation or referral to any credit reporting agency, association or bureau and/or the threat of, or initiation of legal action.

(k) “Customer Service Representative” is an agent, employee or contractor of the Grantee authorized and empowered to bind the Grantee as to the subject matter of the Customer Service Regulation identified within Article 6 of this Chapter.

(l) “Customer Service Supervisor” is an agent, employee or contractor of the Grantee authorized and empowered by the Grantee to control and direct the activities of Customer Service Representatives as to the subject matter of the Regulation utilizing the latter term.

(m) “Deposit” is the amount paid by a Subscriber which is not credited to a current charge within twenty (20) business days after receipt thereof.

(n) “Due Date” is a Business Day not less than twenty (20) business days after the date of the mailing of a bill for Cable Service. Such Due Date shall be the date by which, if payment is made thereby, no additional charge shall be imposed or collected by reason of the timeliness thereof.

(o) “Effective Date” shall be the first day of the term of the Franchise.

(p) “Franchise” means the right to operate a Cable System pursuant to a Franchise Agreement.

(q) “FCC” means the Federal Communications Commission or its designated representatives.

(r) “Franchise Agreement” means a Franchise approved by the Grantor pursuant to Chapter XII of the City Charter containing the specific provisions of the Franchise granted, including references, specifications, requirements and other related matters.

(s) “Franchise Area” means an entire geographic area within the City limits of the City as it is now constituted or may in the future be constituted, unless otherwise specified in the Franchise Agreement.

(t) “Franchise Fee” means any tax, fee or assessment of any kind imposed by the City on a Grantee or Subscriber, or both, solely because of their status as such. The term “Franchise Fee” does not include:

(1) Capital costs which are required by the Franchise Agreement to be incurred by Grantee for PEG Access Facilities;

(2) Requirements or charges incidental to the awarding or enforcing of the Franchise, including payments for bonds, letters of credit, insurance, indemnification, penalties, or liquidated damages required by the Franchise Agreements; or

(3) Any fee imposed under Title 17 (Copyrights) of the United States Code.

(u) “Franchise Property” means all property owned or leased within the Service Area by Grantee while in the conduct of the Cable System business under a Franchise.

(v) “Grantee” means any Person receiving a Franchise Agreement pursuant to this Chapter, and its lawful successor, transferee or assignee.

(w) “Grantor” means the City of Watsonville.

(x) “Gross Annual Revenues” or “Gross Annual Receipts” or “Gross Receipts” means all revenue, as determined in accordance with Generally Accepted Accounting Principles, which is received, directly or indirectly, by Grantee and by each Affiliated Person from or in connection with the distribution of any Cable Service, and any other Service which may, under now or then applicable federal law, be included in the Cable Act definition for the purpose of calculating and collecting the maximum allowable Franchise fee for operation of the System, whether or not authorized by any Franchise, including, without limitation, leased or access channel revenues received, directly or indirectly from or in connection with the distribution of any Cable Service. It is intended that all revenue collected by the Grantee, and by each Affiliated Person, from the provision of Cable Service over the System, whether or not authorized by the Franchise, be included in this definition. Gross Annual Revenue also specifically includes:

(1) The fair market value of any nonmonetary (i.e., barter) transactions between Grantee and any Person, other than an Affiliated Person, but not less than the customary prices paid in connection with equivalent transactions;

(2) The fair market value of any nonmonetary (i.e., barter) transaction between Grantee and any Affiliated Person, but not less than the customary prices paid in connection with equivalent transactions conducted with Persons who are not Affiliated Persons; and

(3) Any revenue received, as reasonably determined from time to time by the Grantor, through any means which is intended to have the effect of avoiding the payment of compensation that would otherwise be paid to the Grantor for the Franchise granted.

(4) Franchise fees collected from subscribers. Gross Annual Revenue also includes any bad debts recovered. Gross Annual Revenue also includes all advertising revenue which is received directly or indirectly by Grantee, any Affiliated Person, or any other person from or in connection with the distribution of any Service over the System or the provision of any Service-related activity in connection with the System. Gross Annual Revenue does not include:

(i) The revenue of any Person to the extent that such revenue is also included in the Gross Annual Revenue of Grantee;

(ii) Taxes imposed by law on Subscribers which Grantee is obligated to collect; and

(iii) Amounts which must be excluded pursuant to applicable law.

(y) “Installation” means the connection of the system to Subscribers’ terminals and the provision of service.

(z) “Isolated Outage” is a loss of a cable signal for at least one channel of Cable Service to a Subscriber which is not a System Outage.

(aa) “Person” means any corporation, partnership, proprietorship, individual, or organization authorized to do business in the State of California.

(bb) “PEG Access Facilities” means the total of the following:

(1) Channel capacity designated for public, educational, or governmental use; and

(2) Facilities and equipment for the use of such channel capacity.

(cc) “Poor Signal Quality” is a signal reception by a Subscriber below the standards for such a signal as adopted by the Federal Communications Commission.

(dd) “Referral Information” includes without limitation dispatch of personnel in situations affecting the health and safety of persons, information as to business hours and appropriate telephone numbers for business office contacts.

(ee) “Security Fund” means any negotiable financial instrument that is exercisable at the City’s sole option and in the City’s sole favor. Examples of such include, but are not limited to: corporate guarantee, or letter of credit.

(ff) “Service Area” means the area where Cable Service is available to the Subscribers at the street.

(gg) “Service Call” is any work requiring the visit of the Grantee’s representative to the location at which Cable Service is provided and any appointment requiring the presence of the Subscriber, including without limitation, the installation and repair of primary and additional outlets.

(hh) “Service Tier” means a category of Cable Service or other services provided by a Grantee and for which a separate rate is charged by the Grantee.

(ii) “Subscriber” means any person who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connection with cable system.

(jj) “System Outage” means a loss of all channels upon the Cable System simultaneously affecting at least ten (10) customers.

(kk) “Telephone Answer Time” means that period of time from the initial ring signal to the Grantee to the acknowledgment of answer by the Customer Service Representative and includes all waiting and/or “on hold” time prior to such answer and all transfer time by any automated response unit from the time of appropriate menu selection by the Subscriber to the acknowledgment of answer by the Customer Service Representative.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.102 Terms not defined.

Words, terms, or phrases not defined in this Chapter shall first have the meaning as defined in the Cable Act, and then the special meanings or connotations used in any industry, business, trade, or profession where they commonly carry such special meanings. If those special meanings are not common, they will have the standard definitions as set forth in commonly used and accepted dictionaries of the English language.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.103 Intent.

(a) The City, pursuant to Article XII of the City Charter, is authorized to grant one or more nonexclusive franchises to construct, operate, maintain and reconstruct Cable Systems within the City limits.

(b) The Grantor finds that the development of a Cable Telecommunications System has the potential of having great benefit and impact upon the residents of Watsonville. Because of the complex and rapidly changing technology associated with cable television, the Grantor further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which will be vested in the Grantor and be administered by such persons as the Grantor shall designate. It is the intent of this Chapter and subsequent amendments to provide for and specify the means to attain the best possible Cable System to the public and any Franchise issued pursuant to this Chapter shall be deemed to include this finding as an integral part thereof. It is the further intent of this Chapter to establish regulatory provisions that permit the Grantor to regulate Cable Systems to the extent permitted by Federal and State law, including but not limited to the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, the Telecommunications Act of 1996, applicable Federal Communications Commission regulations and applicable California law.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.104 Federal or state jurisdiction.

(a) This Chapter shall be construed in a manner consistent with all applicable Federal and State laws. Whenever any State or Federal law has paramount jurisdiction over any specific provisions of this Chapter, or when such paramount jurisdiction is exercised by an individual with standing, the Federal Communications Commission (FCC) or Public Utilities Commission of the State of California (CPUC) or any other Federal or California State agency, such paramount jurisdiction shall preempt or preclude the exercise of like jurisdiction by the City. Any modification of such Federal or State law shall to the extent applicable be considered part of this Chapter as of the effective date of such law.

(b) In the event that the State or Federal government discontinues preemption in any area of cable communications over which it currently exercises jurisdiction in such manner as to expand rather than limit municipal authority, Grantor may, if it so elects, adopt rules and regulations in these areas, provided that such rules and regulations shall not apply to any Franchise Agreement issued pursuant to this Chapter before the adoption of such rules and regulations to the extent they materially adversely affect such Franchise Agreement, including without limitation, requirements with respect to system rebuilds, channel capacity, system design, construction and performance requirements, PEG Access Facilities, support for any such facilities, interconnect commitments, activation of interactive capability or institutional networks. Such new municipal regulatory powers may, however, affect existing franchises with respect to franchise renewal procedures, technical standards and related provisions.

(c) This Chapter shall apply to all Franchises granted or renewed after the effective date of this Chapter. It shall also apply to the extent permitted by applicable Federal or State law to all Franchises before the effective date of this Chapter.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

Article 2. Franchise Terms and Conditions

3-11.201 Franchise required.

It shall be unlawful for any person to construct, install, or operate a Cable System in the City without a Franchise awarded pursuant to this Chapter.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.202 Nonexclusive franchise.

Any Franchise granted shall be nonexclusive. The Grantor specifically reserves the right to grant, at any time, such additional Franchises for a Cable System or any component thereof, as it deems appropriate, subject to applicable State and Federal law.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.203 Multiple franchises.

(a) Grantor may grant any number of Franchises in the Franchise Area. Grantor may limit the number of Franchise Agreements granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations, such as:

(1) The capacity of the public rights-of-way to accommodate multiple coaxial cables, fiber, or related cable signal transmission lines in addition to the cables, conduits and pipes of the utility systems, such as electrical power, telephone, gas and sewage;

(2) The benefits that may accrue to Subscribers as a result of competition, such as lower rates and improved service;

(3) The disadvantages that may result from competition, such as the requirement for multiple pedestals on Subscriber’s property, and the disruption and damage arising from numerous excavations of the rights-of-way; and

(4) Each Grantee awarded a Franchise Agreement to serve the entire City shall offer Cable Service, in accordance with construction and service schedules mutually agreed upon between Grantor and Grantee, and consistent with applicable law.

(b) Grantor may require that any new Grantee be responsible for its own underground trenching and the costs associated therewith, if, in Grantor’s opinion, the rights-of-way in any particular area cannot feasibly accommodate additional cables.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.204 Franchise purpose.

Cable System Franchises authorized pursuant to this Chapter shall be for the following purposes:

(a) To provide that Grantee may engage in the business of providing Cable Television service to Subscribers within the designated service area;

(b) To provide that Grantee may erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain cable, lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of a Cable System in, on, over, under, upon, along, and across streets or other public places within the Franchise Area;

(c) To provide that Grantee may maintain and operate said Cable System for the origination, reception, transmission, amplification, and distribution of television and radio signals and for the delivery of Cable Services; and

(d) To set forth the obligations of a Grantee under the Franchise.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.205 Franchise renewal.

Franchise renewal may be allowed by the Grantor in accordance with applicable law, including, but not necessarily limited to, the Cable Communications Policy Act of 1984, as amended. Grantor and Grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the Franchise Agreement. Grantee shall reimburse Grantor for all costs associated with processing and reviewing the application for renewal up to a maximum of Ten Thousand and no/100ths ($10,000.00) Dollars. Any amount larger than Ten Thousand and no/100ths ($10,000.00) Dollars must be negotiated in any Franchise renewal process. This amount shall be adjusted for inflation pursuant to the San Francisco Consumer Price Index for all consumers.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.206 Term of the franchise.

(a) A Franchise granted under this Chapter shall be for a fixed term established in the Franchise Agreement, and the term shall commence on the Grantor’s adoption of an ordinance or resolution authorizing the Franchise Agreement.

(b) A Franchise granted pursuant to this Chapter may in Grantee’s discretion be renewed upon application by the Grantee pursuant to the provisions of applicable State and Federal law and of this Chapter.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.207 Franchise fee.

(a) Following the issuance and acceptance of the Franchise, Grantee shall pay to the Grantor a Franchise Fee in the amount set forth in the Franchise Agreement.

(b) The Grantor, on an annual basis, shall be furnished a statement within sixty (60) days of the close of the calendar year, either audited and certified by an independent Certified Public Accountant or certified by an officer of the Grantee, reflecting the Gross Annual Receipts and all payments, deductions and computations for the period covered by the payment. Upon ten (10) days prior written notice, Grantor shall have the right to conduct an independent audit of Grantee’s records for the three (3) year period immediately preceding such notice, in accordance with Generally Accepted Auditing Standards, and if such audit indicates a Franchise Fee underpayment of two (2%) percent or more, the Grantee shall assume all reasonable costs of such an audit; if the Franchise Fee underpayment is between zero (0%) percent and two (2%) percent, the Grantee will split equally with Grantor all reasonable costs of such an audit.

(c) Except as otherwise provided by law, no acceptance of any payment by a Grantee shall be construed as a release or as an accord and satisfaction of any claim the Grantor may have for further or additional sums payable as a Franchise Fee under this Chapter or for the performance of any other obligation of the Grantee.

(d) If any Franchise payment or recomputed amount is not paid on or before the dates specified in the Franchise Agreement, Grantee shall pay as additional compensation:

(1) An interest charge, computed from such due date, at an annual rate equal to ten (10%) percent or the legal rate, whichever is more during the period for which payment was due; and

(2) If a payment is late for forty-five (45) days or more, a late penalty payment of five (5%) percent of the amount due in order to defray those additional expenses and costs incurred by the Grantor by reason of delinquent payment.

(3) The Grantee shall pay all attorney’s fees incurred in collecting of unpaid amount.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.208 Transfer of franchise.

(a) Any Person desiring a transfer of a Cable System Franchise shall file a transfer application with the Grantor. A nonrefundable transfer application fee of an amount up to Seven Thousand Five Hundred and no/100ths ($7,500.00) Dollars established by the Grantor shall accompany the application to reimburse the Grantor for all costs associated with processing and reviewing the application, including without limitation, costs of administrative review, financial, legal and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication requirements with respect to the consideration of the application and document preparation expenses. In the event such costs exceed the application fee, the selected applicant(s) shall pay the difference to the City within thirty (30) days following receipt of an itemized statement of such costs.

(b) Grantee shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation or otherwise, the Franchise or any of the rights or privileges therein granted, without the prior consent of the Grantor and then only upon such terms and conditions as may be prescribed by the Grantor, which consent shall not be unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign or otherwise dispose of the Franchise without the consent of the Grantor shall be null and void. The granting of a security interest in any Grantee assets, or any mortgage or other hypothecation, shall not be considered a transfer for the purposes of this Section.

(c) The requirements of Subsection (a) of this Section 3-11.208 shall restrict any change in the control of Grantee. The word “control” as used in this Section is not limited to major stockholders or partnership interests, but includes actual working control in whatever manner exercised. If Grantee is a corporation, partnership, limited liability company or other business organization, prior approval of the Grantor shall be required where ownership or control of more than ten (10%) percent of the voting stock of Grantee is acquired by a person or group of persons acting in concert, none of whom own or control the voting stock of Grantee as of the effective date of the Franchise, singularly or collectively.

(d) Grantee shall notify Grantor in writing of any foreclosure or any other judicial sale of all or a substantial part of the Cable System of the Grantee or upon the termination of any lease or interest covering all or a substantial part of such Cable System. Such notifications shall be considered by Grantor as notice that a change in control of ownership of the Franchise has occurred and the provisions under this Section governing the consent of Grantor to such change in control ownership shall apply.

(e) In determining whether it shall consent to such change, transfer, or acquisition of control, Grantor may inquire into the financial and other qualifications of the prospective transferee or controlling party, and Grantee shall assist Grantor in any such inquiry. In seeking Grantor’s consent to any change of ownership or control, Grantee shall have the responsibility of insuring that the transferee completes an application in the form and substance reasonably satisfactory to Grantor, which application shall include information required under Subsections (a) through (h) of Section 3-11.302 of this Chapter. Grantee shall also provide such reasonable additional information that Grantor deems applicable. An application shall be submitted to Grantor not less than one hundred twenty (120) days before the proposed date of transfer. The transferee shall be required to establish that it possesses the qualifications and financial and technical capability to operate and maintain the Cable System and comply with all Franchise requirements for the remainder of the term of the Franchise Agreement. If, after considering the legal, financial, character, technical and other public interest qualities of the applicant and determining that they are satisfactory, the Grantor finds that such transfer is acceptable, the Grantor may allow the transfer and assign most of the rights and obligations of such Franchise as may be in the public interest. The consent of the Grantor to such transfer shall not be unreasonably withheld.

(f) Any financial institution having a pledge of the Grantee or its assets for the advancement of money for the construction and/or operation of the Franchise shall have the right to notify the Grantor that it or its designee satisfactory to the Grantor shall take control of and operate the Cable System, if a Grantee defaults in its financial obligations. Further, such financial institution shall also submit a plan for such operation within one hundred twenty (120) days of assuming such control that will insure continued service and compliance with all Franchise requirements during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year unless extended by the Grantor in its discretion and during such period of time it shall have the right to petition the Grantor to transfer the Franchise to another Grantee. The Grantor shall have the right to terminate the Franchise at the end of the one year period of time that a financial institution exercises control over the system.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.209 Geographical coverage.

(a) Grantee shall design, construct and maintain the Cable System to have the capability to pass every dwelling unit in the City, subject to any service area line extension requirements of the Franchise documents.

(b) After service has been established by activating trunk and/or distribution cables for any Service Area, Grantee shall provide service to any requesting Subscriber within that Service Area within thirty (30) days from the request, provided that the Grantee is able to secure all rights-of-way and encroachment permits necessary to extend service to such Subscriber within such thirty (30) day period on reasonable terms and conditions mutually acceptable to Grantee and such subscriber.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

Article 3. Application for Franchise

3-11.301 Franchise applications.

Any person desiring a Cable System Franchise shall file an application with the Grantor. A reasonable nonrefundable application fee will be established by the Grantor. The application fee shall accompany the application to cover all costs associated with processing and reviewing the application, including without limitation, costs of administrative review, financial, legal and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication requirements with respect to the consideration of the application and document preparation expenses. If such costs exceed the application fee, the selected applicant(s) shall pay the difference to the City within thirty (30) days following receipt of an itemized statement of such costs.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.302 Applications—Contents.

An application for a Franchise for a Cable System shall contain:

(a) A description of the proposed Franchise and Service Area;

(b) Resume of prior history of applicant, including the expertise of applicant in the cable television field;

(c) List of partners, general and limited, and their ownership interests, of the applicant, if a partnership, or the percentage of stock owned or controlled by each shareholder or member, if a corporation or limited liability company;

(d) Identity of officers, directors and managing employees of applicant, together with a description of the background of each such person;

(e) The names and addresses of any parent or subsidiary of applicant or any other business entity owning or controlling applicant in whole or in part, or owned or controlled in whole or in part by applicant;

(f) An audited current financial statement of applicant verified or otherwise certified to be true by applicant’s management;

(g) Proposed construction and service schedule; and

(h) Any reasonable additional information that the Grantor deems applicable.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.303 Consideration of applications.

(a) Upon receipt of any application for a Franchise, the City Manager shall prepare a report and make a recommendation respecting such application to the City Council.

(b) A public hearing shall be set prior to approval of any proposed Franchise Agreement. Within thirty (30) days after the close of the hearing, the Grantor shall make a decision based upon the evidence received at the hearing as to whether or not the Franchise(s) should be granted, and if granted, subject to what conditions. The Council may grant one or more Franchises, or may decline to grant any Franchise Agreements.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

Article 4. Physical Requirements

3-11.401 Design and construction requirements.

(a) Grantee shall not construct any portion of the Cable System until Grantee has secured necessary permits from Grantor, or other cognizant public agencies.

(b) In those areas of the Franchise Area where transmission or distribution facilities of the public utilities providing telephone, electric power, sewer or water services or the Cable Television System of Grantee(s) are underground as of the effective date of this Chapter, the Grantee likewise shall continue to construct, operate and maintain its Cable Systems underground. For the purposes of this subsection, “underground” shall include a partial underground system. When approved by the Grantor, amplifiers and other equipment in Grantee’s transmission and distribution lines may be placed in appropriate housings upon the surface of the ground, provided that placement of such housings shall be in compliance with applicable Federal or local access requirements, such as provided for in the Americans With Disabilities Act of 1990 (“ADA”). The Grantor shall not in any manner be responsible for any costs or liabilities incurred by Grantee in placing Grantee’s Cable System facilities underground or obtaining any easements therefor.

(c) In those areas of the City where Grantee’s Cable System is located on the above-ground transmission or distribution facilities of the public utility providing telephone or electric power service, and in the event that the facilities of both such public utilities subsequently are placed underground at such public utilities’ cost, then the Grantee likewise shall reconstruct, operate and maintain its transmission and distribution facilities underground, at Grantee’s cost. Certain of Grantee’s equipment, such as pedestals, amplifiers and power supplies, which normally are placed above ground, may, with approval of Grantor, continue to remain in above-ground enclosures, provided that placement of such enclosures shall be in compliance with applicable federal or local access requirements, such as provided for in ADA.

(d) If a Grantor of a Franchise pursuant to this Chapter desires to serve new residential developments in which the electric power and telephone utilities are underground, the following procedure shall apply with respect to access to and utilization of underground easements:

(1) The developer shall be responsible for contacting all Franchises to ascertain which Franchisee is to provide Cable Service to that development. The developer may establish a reasonable deadline to receive a response. Any Tentative or other Subdivision Map shall indicate the Franchise that has agreed to serve the development.

(2) If one or two (2) Franchises wish to provide service, they shall be accommodated in the joint public utilities trench on a nondiscriminatory basis.

(3) Cost of trenching, installing conduit and aerial lines and obtaining easements shall be the responsibility of the developer.

(4) The developer shall provide at least ten (10) working days’ notice of the date that utility trenches will be open to the Franchisees that have agreed to serve the development. When the trenches are open, Franchisees shall have two (2) working days to begin the installation of their Cable System, and five (5) working days after beginning installation to complete installation.

(5) The Final Subdivision Map shall not be approved until the developer submits evidence to Grantor that:

(i) It has notified each Franchisee that underground utility trenches are to open as of an estimated date, and that each Franchisee will be allowed access to such trenches, including trenches from proposed streets to individual homes or home sites, on specified nondiscriminatory terms and conditions; and

(ii) It has received a written notification from each Franchisee that the Franchisee intends to install its facilities during the open trench period on the specified terms and conditions, or such other terms and conditions as are mutually acceptable to the developer and Grantee, or has received no reply from a Grantee within ten (10) days after its notification to such Grantee, in which case the Grantee will be deemed to have waived its opportunity to install its facilities during the open trench period.

(6) Sharing the joint utilities trench shall be subject to compliance with Public Utilities Commission and City utility standards. If such compliance is not possible, the developer shall provide a separate trench for the Cable System. With the concurrence of the developer, the affected utilities and the Franchisees, alternative installation procedures, such as use of deeper trenches, may be utilized, subject to applicable law.

(7) If a developer has complied with the terms of this Chapter, then any Franchisee wishing to serve an area where the trenches have been closed and which has not responded in the manner required by this Section, shall be responsible for all of its own trenching and associated costs.

(8) If more than one Franchise is granted, the Grantor reserves the right to limit the number of drop cables and/or pedestals per residence.

(e) Grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public.

(f) Grantee shall install and maintain its wires, cables, fixtures, and other equipment in accordance with the requirements of the National Electrical Code as adopted by the City from time to time, in such manner that they will not interfere with any installations of the City or of a public utility serving the City. Grantee shall strictly adhere to all locally adopted building and zoning codes currently or hereafter in force.

(g) All structures and Cable System in, over, under, and upon streets, wherever situated or located, shall at all times be kept and maintained in a safe, suitable, substantial condition, and in good order and repair.

(h) Grantee shall arrange its Cable System and other appurtenances on both public and private property in such manner as to cause no unreasonable interference with the use of public or private property by any person.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.402 Line extensions.

The Grantee shall be required to extend Cable Service from any existing terminus of the Cable System to any area within the Franchise Area having a density of at least ten (10) existing and completed dwelling units within any one-quarter ( 1/4) linear mile, provided that the dwelling unit nearest to the existing terminus of the Cable System in such one-quarter ( 1/4) linear mile is within one-half ( 1/2) mile of the existing terminus of the Cable System. Within thirty (30) days after Grantee has confirmed the existence of the density provided above, Grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required for the extension of such trunk cable, including any utility joint use agreements and any permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of the Cable System. Within thirty (30) days following completion of such trunk cable extension construction, the Grantee shall proceed to render Cable Service; provided, however, that any Subscriber requesting Cable Service from the extension of the energized trunk cable shall be subject to the provisions of Section 3-11.404 of this Chapter.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.403 Technical standards.

The Grantee shall construct, install, operate and maintain its Cable Television System in a manner consistent with all applicable laws, ordinances, construction standards, governmental requirements, FCC technical standards, and any detailed standards set forth in its Franchise Agreement. In addition, the Grantee shall provide to the Grantor, upon request, a written report of the results of the Grantee’s periodic proof of performance test conducted pursuant to FCC technical standards and guidelines. Failure to comply with technical standards shall constitute a material breach of any Franchise Agreement.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.404 Service connections.

(a) The Grantee shall extend Cable Service to any potential Subscriber located in the Service Area served by Grantee’s energized distribution cable which requires only the connection of a standard drop or tap to make such service available, including those premises serviced by underground utilities, at a standard documented rate if the owner or occupant of the premises requests such service.

(b) If the Cable Service connection requires no more than a two hundred fifty (250') foot aerial drop line, the Grantee shall provide connection to its service at no charge for the initial two hundred fifty (250') feet, other than the Grantee’s standard installation fee. The Grantee may charge any prospective Subscriber for the Grantee’s actual cost of all labor, equipment and materials for:

(1) That portion of any new aerial service connection in excess of two hundred fifty (250') feet;

(2) The length of any new Cable Service connection installed underground; and

(3) The entire length of any new Cable Service connection to remote or relatively inaccessible Subscribers.

Prior to installing any Cable Service connection for which the Grantee will charge a prospective Subscriber on a time and materials basis, the Grantee must present the prospective Subscriber with a written statement of its estimated costs for the Cable Service connection.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.405 Service to public facilities.

With the Grantor’s reasonable cooperation, Grantee shall, without charge to Grantor, within one hundred eighty (180) days of the Effective Date of any Franchise Agreement granted pursuant to this Chapter, fully wire with one or more outlets and provide all legally and contractually allowable Subscriber services of its Cable System to all public and nonprofit private schools, City police and fire stations, City recreation centers, libraries, City Hall, and such other buildings owned or controlled by the City, provided that such buildings shall be located within the Franchise Area. Grantee shall have no obligation to provide such Cable Service to buildings owned or controlled by the City if the primary purpose for such buildings is solely to house equipment, store records or provide residential housing.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.406 Grantee to obtain necessary permits and authorizations.

Within thirty (30) days after the effective date of any Franchise Agreement granted pursuant to this Chapter, the Grantee shall commence and proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business including, but not limited to, any utility joint use attachment agreements, microwave carrier licenses and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of the Cable Systems.

In connection therewith, copies of all petitions, applications and communications submitted by the Grantee to the FCC, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting Grantee’s cable television operations, shall also be submitted simultaneously to the City Manager.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.407 Deadline to commencement of construction.

Within ninety (90) days after obtaining all necessary permits, licenses and authorizations, including right of access to poles and conduits, Grantee shall commence construction and installation of the Cable System.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.408 Deadline to furnish or begin service to subscribers.

Within one hundred eighty (180) days after the commencement of construction and installation of the Cable System, Grantee shall begin Cable Service to Subscribers, and the completion of the installation and construction shall be pursued with reasonable diligence thereafter, so that Cable Service to all of the areas designated and scheduled on the final map approved by the Grantor made part of the Franchise Agreement shall be provided as set forth therein. Grantee is required to complete construction of Cable System in a maximum of three (3) years, although a shorter time may be specified in the Franchise Agreement.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.409 Use of existing poles, conduits and other components of cable system.

Grantee shall utilize existing poles, conduits, and components of a Cable System whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or owned property unless and until first securing the written approval of the Grantor.

Whenever Grantee is permitted to use existing poles, conduits and other components of the Cable System, or whenever existing conduits and other facilities are located beneath the surface of the streets, or whenever the City shall undertake a program designed to cause conduits and other components of the Cable System to be located beneath the surface of the streets within the Franchise Area, in the exercise of its police power or pursuant to the terms hereof or any Franchise Agreement, upon reasonable notice to Grantee, any such conduits or other components of the Cable System of Grantee shall be constructed in accordance with Section 3-11.401.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.410 City use of grantee’s poles or conduits.

The City shall have the right, free of charge, to make additional use, for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits, or other similar facilities erected, controlled, or maintained exclusively by or for Grantee in any street, provided such use by City does not unreasonably interfere with the use by Grantee.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.411 Disconnection, relocation or removal of facilities at city request.

The Grantee at its expense shall protect, support, temporarily disconnect, relocate, or remove any property of Grantee when, in the opinion of the Grantor, the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements or governmental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement, including, but not limited to, movement of buildings, urban renewal and redevelopment, and any general program under which the Grantor shall undertake to cause all such properties of the Grantee to be located beneath the surface of the ground. The Grantee shall in all cases have the privilege, subject to the corresponding obligations, to abandon any real property of Grantee in place, as provided in this Chapter. Nothing under this Section shall be deemed a taking of the property of Grantee, and Grantee shall be entitled to no surcharge by reason of anything in this Chapter.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.412 Failure of grantee to perform required work.

Upon the failure, refusal, or neglect of Grantee to cause any work or other act required by law or in this Chapter to be done on any street within any time prescribed therefor, or upon notice given, where no time is prescribed, the Grantor may cause such work or other act to be completed in whole or in part, and upon so doing shall submit to Grantee an itemized statement of the costs thereof. The Grantee shall, within thirty (30) days after receipt of such statement, pay to the Grantor the entire amount thereof.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.413 Removal or abandonment of grantee’s property.

(a) In the event that:

(1) The use of any part of the Cable System of Grantee ceases to operate for any reason for a continuous period of thirty (30) days without prior written notice to and approval by the Grantor; or

(2) Any part of such Cable System has been installed in any street or other area without complying with the requirements of this Chapter; or

(3) Any Franchise shall be terminated, canceled, or shall expire; then the Grantee shall, at the option of the Grantor, and at the expense of Grantee and at no expense to the Grantor, and upon demand of the Grantor, promptly remove from any streets or other areas all property of Grantee, and Grantee shall promptly restore the street or other area from which such property has been removed to such condition as the Grantor shall approve.

(b) Grantor may, upon written application therefor by Grantee, approve the abandonment of any of such property in place by Grantee and under such terms and conditions as the Grantor may prescribe. Upon abandonment of any of such property in place, Grantee shall cause to be executed, acknowledged, and delivered to the Grantor such instruments as the City Attorney shall prescribe and approve, transferring and conveying the ownership of such property to the Grantor.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.414 Compatibility and connectivity.

All Cable System Franchise must provide, insofar as technically and financially possible, the capability to interconnect and interoperate with other available Cable Systems within the Franchise Area and to neighboring Franchises within Santa Cruz and Monterey Counties.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

Article 5. Records and Performance Requirements

3-11.501 Reports—General.

(a) All reports required under this Chapter, except those which the Grantor has agreed to keep confidential, shall be available for public inspection in the City Clerk’s offices during normal business hours.

(b) All reports and records required under this Chapter shall be furnished at the sole expense of Grantee, except as otherwise specifically provided in this Chapter or the Franchise Agreement.

(c) The willful refusal, failure, or neglect of Grantee to file any of the reports required as and when due under this Chapter, may be deemed a material breach of the Franchise Agreement if such reports are not provided to Grantor within thirty (30) days, and may subject the Grantee to all remedies, legal or equitable, which are available to Grantor under the Franchise or otherwise.

(d) Any materially false or misleading statement or representation made knowingly and willfully by the Grantee in any report required under this Chapter or under the Franchise Agreement is a material breach of the Franchise Agreement and may subject Grantee to all remedies, legal or equitable, which are available to Grantor under the Franchise or otherwise.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.502 Records required and grantor’s right to inspect.

(a) Grantee shall at all times maintain:

(1) A record of all complaints received and interruptions or degradation of Cable Service experienced for the preceding two (2) years, provided that such complaints result in or require a Service Call.

(2) A full and complete set of plans, records and “as built” maps showing the location of the Cable System installed or in use in the City, exclusive of Subscriber service drops and equipment provided in Subscriber’s homes. Said plans, records and maps are trade secrets of Grantee and, as such, are exempt from disclosure to members of the public under the Public Records Act (Government Code Section 6250 et. seq.), including Subparagraph (n) of Section 6254(n). Grantee agrees to assist Grantor in demonstrating that the plans, records and maps are exempt under express provisions of the Public Records Act or that on the facts of the particular case, the public interest served by not making the plans, records or maps public clearly outweighs the public interest served by disclosure of the plans, maps or records. Grantor agrees to provide Grantee with prompt notice of any request Grantor receives for public records that would include said plans, records or maps.

(3) An annual log of Service Calls, identifying the number, general nature and disposition of such calls, service log shall be submitted to the Grantor within thirty (30) days following the end of each year in a form reasonably acceptable to the Grantor. The annual log of Service Calls shall be maintained in a fashion that allows for the Grantor to check the status of Service Calls at any time during the year.

(4) Within ninety (90) days after the effective date of the Franchise Agreement the Grantee shall file with the Grantor a General Rate and Programming Disclosure as specified in Section 3-11.610.

(5) The Grantee shall maintain an Installation Record (one year written record or an equivalent stored on magnetic media capable of reproduction in printed form by the Grantee) of all service activations, including the date of request and the date of actual service activation.

(6) The Grantor may request, and upon request Grantee shall furnish additional information, records and documents, provided they reasonably relate to the scope of the Grantor’s rights under this Chapter or the Grantee’s Franchise Agreement.

(7) Within ninety (90) days after the end of the calendar year, the Grantee shall submit a written annual report to Grantor with respect to the preceding calendar year in a form approved by Grantor, including, but not limited to, the following information:

(i) A summary of the previous year’s (or in the case of the initial reporting year, the initial year’s) activities in development of the Cable System, including but not limited to, services begun or discontinued during the reporting year;

(ii) A list identifying the Grantee’s officers, members of its board of directors, and other principals of Grantee;

(iii) A list of stockholders or other equity investors holding five (5%) percent or more of the voting interest in Grantee;

(iv) An indication of any dwelling units in Grantee’s Franchise Area where Cable Service is not provided, and subject to applicable line extension policies, a schedule for providing Cable Service to those dwelling units;

(v) Any other information which the Grantor shall reasonably request.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.503 Privacy report.

Upon Grantor’s request, but no more than annually, Grantee shall submit to Grantor a report indicating the degree of compliance with the privacy provisions contained in Section 3-11.502 and Section 3-11.505 and all steps taken to assure that the privacy rights of individuals have been protected.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.504 Public reports.

(a) If Grantee is publicly held, a copy of each of Grantee’s annual and other periodic reports and those of any parent, shall be submitted to Grantor within forty-five (45) days of issuance.

(1) Grantee shall submit to Grantor copies of all pleadings, applications and reports submitted by Grantee to any Federal, State or local court, agency or governmental body as well as copies of all decisions, correspondence and actions by any such Federal, State or local court, regulatory agency, or other governmental body which are non-routine in nature and which will materially affect its Cable System operations within the Franchise Area. Grantee shall submit such documents to Grantor simultaneously with its submission to such court, agency and/or body; or within five (5) days after its receipt from such court, agency and/or body. Information otherwise confidential by law and so designated by Grantee, which is submitted to Grantor, shall be retained in confidence by Grantor and its authorized agents and shall not be made available for public inspection.

(2) Upon reasonable notice, and during normal business hours, Grantee shall permit examination by any duly authorized representative of the Grantor, of the Cable System together with any appurtenant property and facilities of Grantee situated within or without the City, and all records relating to the Franchise, provided they reasonably relate to the scope of the Grantor’s rights under this Chapter or the Franchise Agreement.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.505 Trade secrets, confidential or proprietary information.

Notwithstanding the foregoing, Grantee shall have no obligation to provide copies of documents to Grantor which contain trade secrets of Grantee or which are otherwise of a confidential or proprietary nature to Grantee unless it receives satisfactory assurances from Grantor that such information can and will be held in strictest confidence by the Grantor. To the extent possible, Grantee will provide Grantor with summaries of any required documents or copies thereof with trade secrets and confidential and proprietary matters deleted therefrom. The burden of proof shall be on Grantee to establish the confidential nature of any information submitted, to the reasonable satisfaction of Grantor.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.506 Opinion survey.

(a) Upon request of the Grantor, but not more than once every two (2) years, the Grantee shall conduct a Subscriber satisfaction survey pertaining to Subscriber opinion as to quality of service. The survey may be transmitted to Subscribers in Subscriber statements for Cable Service. The form and content of such survey shall be reasonably acceptable to the Grantor. The cost of such survey shall be borne by the Grantee.

(b) The Grantee shall furnish to the Grantor the results of any such survey conducted by the Grantee. The results of such survey shall be furnished to the Grantor within thirty (30) days following completion of the survey. Upon request, Grantee shall furnish Grantor the actual survey forms completed by Subscriber.

(c) The Grantor and Grantee shall utilize Section 3-11.507(c) to resolve any Cable System performance problems identified in the opinions survey.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.507 System performance review meetings.

(a) Every fifth year throughout the term of the Franchise, if requested by the Grantor, Grantor and Grantee shall meet to review the Cable System performance and quality of service provided by a Grantee. The Grantor may request a Council appointed committee to review the Cable System performance and quality of service and make recommendations to the Council.

(b) The various reports required pursuant to this Chapter, results of technical performance tests, the record of Subscriber complaints and Grantee’s response to complaints, and the information acquired in any Subscriber surveys, shall be utilized as the basis for review of Cable System performance and quality of service. In addition, any Subscriber may submit comments or complaints during the review meetings, either orally or in writing, and these shall be considered. The Grantor will also review all insurance, security fund and other performance requirements to make sure that they are up to date and in compliance with standards established in this Chapter. Within thirty (30) days after conclusion of a system performance review meeting, Grantor may issue findings with respect to the Cable System’s performance and the quality of service provided by Grantee.

(c) If Grantor determines by any method that Grantee is not in compliance with the requirements of the Cable System performance identified within this Chapter or the Grantee’s Franchise, Grantor may direct Grantee to comply within a period of time determined by Grantor. Failure of Grantee, after such notice, to comply within the period specified therefor or to commence compliance within such period and diligently achieve compliance thereafter, shall be considered a material breach of the Franchise, and Grantor may exercise any remedy within the scope of this Chapter and the Franchise Agreement considered appropriate.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.508 Special review of system performance.

When complaints or other evidence, in the judgment of the Grantor, casts reasonable doubt on the reliability or quality of Cable Service, the Grantor shall have the right to compel the Grantee to analyze, test, and report on the performance of the Cable System in order to assure compliance with this Chapter and the Franchise Agreement. Grantor may not compel Grantee to analyze, test, and report unless and until Grantor has provided Grantee with at least thirty (30) days’ notice of its intention to exercise its rights under this Section and has provided Grantee with a hearing before the Council prior to its exercise of such rights. Such analysis, tests, or reports shall be made and delivered to the Grantor no later than thirty (30) days after the Grantor notifies the Grantee that it is exercising such right. The analysis, tests and reports shall be made at Grantee’s sole cost. Any analysis, tests, or reports shall include the following information: the nature of the complaints which precipitated the analysis and tests; what Cable System component was tested; the equipment used and procedures employed in such analysis and testing; the results of such analysis and tests; and the method by which any complaints were resolved. Any other information pertinent to the special test such as video tape, audio tape, digital data, computer data, or written details shall be recorded.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

Article 6. Service Standards

3-11.601 Minimum customer service regulations.

This Article may be cited as the “Customer Service Regulations.”

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.602 Office and telephone services.

(a) The Grantee shall provide a conveniently located business office within the Franchise Area. At such office the company shall provide Adequate Staffing to serve the public and Customers not less than eight (8) hours per Business Day, and to provide at least the following services to Customers at the local business office:

(1) Accept payments;

(2) Exchange or accept converters or other equipment;

(3) Respond to inquiries; and

(4) Schedule service or technical calls.

(b) There shall be a toll-free telephone access, staffed with one or more Customer Service Representative to provide twenty-four (24) hours referral information, including weekends and holidays.

(c) Customer Service Representatives shall be adequately trained to have the capability to provide Referral Information without limitation.

(1) For purposes of documenting the Subscriber’s communications with the Customer Service Representative, the Customer Service Representative shall provide the Subscriber with his or her true name and/or his or her Customer Service Representative number.

(2) Under normal operating conditions, Telephone Answer Time by a Customer Service Representative shall not exceed thirty (30) seconds, and busy signals shall not occur on more than three (3%) percent of calls. If a call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These requirements shall be attained not less than thirteen point five (13.5) days out of any possible consecutive fifteen (15) day period.

(d) If a Subscriber requests to speak with a Customer Service Supervisor and none is available, the Customer Service Supervisor shall return the telephone call of the Subscriber within four (4) Business Hours. If the Customer Service Supervisor does not achieve a direct contact with the Subscriber on the return call, the Customer Service Supervisor shall leave, in any message for the Subscriber, a direct dial or extension number which will reach the Customer Service Supervisor for the subsequent use of the Subscriber.

(1) Grantee telephone numbers shall be listed in the directories published by all local exchange telephone companies operating within the Watsonville area, as well as on all Subscriber bills and advertisements.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.603 Installation.

(a) Standard installation will be performed within seven (7) Business Days after an order has been placed by a Subscriber. “Standard” installation is a connection or reconnection of cable service as defined in Article 4 of this Chapter.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.604 Term of service.

(a) The Subscriber may terminate service at any time. Said termination, shall be effective upon the earlier of: (1) termination of service by the Grantee and return of any equipment in possession of Subscriber, or (2) the expiration of five (5) Business Days following the Subscriber’s request for termination. Disabled persons and persons unable to travel to the Business Office may have the Grantee pick up cable service equipment owned by the Grantee at no charge, which pick-up shall occur within five (5) Business Days following the Subscriber’s request for termination and shall occur at a time reasonably convenient to the Subscriber. The Grantee may provide the Subscriber with mailers for postage prepaid return of the equipment owned by the Grantee in lieu of the foregoing pick-up procedure.

(b) Upon the termination of Subscriber’s Cable Service, the Subscriber shall have the option, in the sole discretion of the Subscriber:

(1) To require the Grantee to remove all wires and other unused Cable Service equipment installed by the Grantee in connection with the original installation; and

(2) To require the Grantee to leave all Cable Service wiring in place and undisturbed, provided that the Grantee shall have the right to disable the Cable Service at the joinder of the public right-of-way (and at no other place) in order to forestall diversion of Cable Service.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.605 Service call.

(a) The Grantee shall maintain a sufficient number of repair technicians and related support staff, equipment and facilities to enable the Grantee to respond to a Subscriber request for handling Service Calls in all reasonably anticipated circumstances within the following time limitations:

(1) For System Outages: response for repair shall occur within two (2) hours, including weekends and holidays, after the receipt of the first notice of a System Outage.

(2) For an Isolated Outage: response for repair shall occur within six (6) Business Hours after the receipt of a Service Call from a Subscriber.

(3) For Poor Signal Quality: response for evaluation and/or repair shall occur within twenty-four (24) Business Hours after the receipt of a request for repair and/or rectification of such Poor Signal Quality.

(b) When scheduling a Service Call, the Grantee shall identify to the Subscriber at the time of scheduling a specific date on a Business Day and either a specific appointment time or a block of time within a specified period of four (4) Business Hours. The Grantee may schedule Service Calls and other installation activities outside of Business Hours for the express convenience of the Subscriber. The Grantee may not cancel an appointment with a Subscriber after the close of business on the Business Day prior to the scheduled appointment. If the Grantee representative is running late for an appointment with a Subscriber and will not be able to keep the appointment as scheduled, Grantee shall contact the Subscriber and shall reschedule the appointment, as necessary, at a time during the Business Day which is convenient for the Subscriber.

(1) Service call alternative. Instead of a Service Call, the Franchise Agreement may allow for the Subscriber to return and to replace converters and/or other Cable Service equipment through the use of the Business Office at no charge to the Subscriber for a Service Call.

(2) The Grantee shall be deemed to have responded to a request for a Service Call for the purposes of determining compliance with time limitations of this section when a qualified Grantee technician arrives at the Subscriber’s location and begins work in response to the request, provided that the qualified Grantee technician continues such work without cessation to completion and restoration of service. In case of a Subscriber not being home when the technician arrives, the technician shall leave written notification of who and when to call to reschedule. Two (2) successive failures of the Subscriber to be present at the appointed time shall excuse the Grantee of the duty to respond within twenty-four (24) hours of the receipt of a call.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.606 Grantee failure to keep appointment.

For each failure of the Grantee to meet any scheduled appointment within the parameters specified hereby, the Grantee must offer the Subscriber so affected, in the sole discretion of the Subscriber after full disclosure a choice of either:

(a) A credit to the Subscriber’s then current billing balance in an amount equal to the greater of: (i) Twenty and no/100ths ($20.00) Dollars; or (ii) the then current rate for one month of Basic Service; or

(b) With respect to service connection or repair appointments, an opportunity to elect to seek remedies under California Civil Code Section 1722, if applicable.

(c) The Subscriber shall not be deemed to have made an election unless and until the Grantee shall demonstrate that it has informed the Subscriber that, by his/her acceptance of the credit specified above, the Subscriber intends to waive his/her remedies under the Civil Code for the missed appointment.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.607 Charge for cable service calls.

A Subscriber shall not be charged for a Service Call unless the service request can be demonstrated by the Grantee to be unrelated to the Grantee’s Cable System or to be proximately caused by Subscriber negligence.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.608 Service outages, refunds, and credits.

(a) Upon notification by a Subscriber of a System or Isolated Outage, the Grantee shall provide a credit equal to at least one day’s proration of the Grantee’s total monthly charges (for all levels and types of service and equipment) for each day or portion thereof for: (i) each System or Isolated Outage of all Cable Service exceeding twelve (12) hours accumulating within a twenty-four (24) hour period; and (ii) for one day’s proration of the Subscriber’s monthly charge for a Premium Service for each outage of such Premium Service exceeding four (4) hours. Credits for service will be issued by the Grantee during the Subscriber’s next billing cycle following the outage, or if a request is made for credit pursuant to Section 3-11.608(b), then following determination that the credit is warranted under that Section.

(b) A Subscriber may identify a System or Isolated Outage justifying a credit when the Grantee has not otherwise identified the Isolated or System Outage. The Grantee shall respond to such an identification of System or Isolated Outage pursuant to the procedures required for resolution of disputed bills.

(c) If a refund or deposit return is due to a Subscriber at the time of a service termination, the refund check or deposit return will be issued promptly, but no later than forty-five (45) days after service termination.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.609 Bills, billing, deposits, and disconnections.

(a) A Subscriber may not be required to pay for Cable Service more than one (1) month in advance of receiving such service.

(b) Every Subscriber bill shall be clear, concise and understandable and shall itemize separately each fee or charge comprising the total thereof for: (i) each category of service; (ii) each piece of equipment for which a charge is imposed; and (iii) any other fees to which a Subscriber has agreed in writing and the arithmetic necessary to calculate the bill. The bill must also specify:

(1) A due date for the payment thereof;

(2) The amount of the Late Charge, if any, which may be imposed by the Grantee for payments received after the due date;

(3) The Closing Date; and the amount(s) of any payments or credits applicable through the Closing Date; and

(4) The amount of any unpaid charge from any earlier bill not yet paid in full.

(c) The Grantee may disconnect service to a Subscriber for nonpayment of amounts due only after Grantee has provided to the Subscriber a written notice of its intent to do so. The Grantee will attempt to make contact with the Subscriber prior to disconnection of Cable Service. The notice shall specify, at a minimum, the following:

(1) The proposed date on or after which Cable Service may be terminated;

(2) The total payment required to avoid termination;

(3) The total amount in arrears if that amount differs from the payment required to avoid termination; and

(4) The telephone number and office hours of a Customer Service Representative authorized to explain, adjust and resolve the bill to avoid termination of Cable Service.

The Grantee may not disconnect service other than during business hours.

(d) The Grantee may not disclose, refer, enter or cause, or allow to be disclosed, referred or entered (“referral”), any negative report to any consumer credit reporting agency, association or bureau relating to the payment performance of a Subscriber until the Grantee or its agent has provided a written notice of its intent to do so to the Subscriber. The notice shall specify, at a minimum, the following:

(1) The date and nature of the proposed referral;

(2) The total payment required to avoid disconnection or reporting;

(3) The total amount in arrears if that amount differs from the payment required to avoid the referral;

(4) The telephone number and office hours of a Customer Service Representative authorized to explain, adjust and resolve such proposed referral; and

(5) A pre-addressed envelope or address label with which to mail any payment or response to the Grantee.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.610 Notices and identification.

(a) The Grantee shall provide each Subscriber at the times and in the circumstances specified in this Chapter with a General Rate and Programming Disclosure (“Disclosure”). The Disclosure shall contain at a minimum all of the programming bundling, tiers and combinations, equipment, and services currently available, and the rates and charges which apply thereto, including without limitation, all installation charges;

(1) The amount(s) of any required deposit(s) and the Grantee’s detailed policies and procedures relating to deductions or offsets therefrom;

(2) The Grantee’s billing policies and complaint resolution procedures;

(3) The Grantee’s telephone number, Business Hours, street address and mailing address, including without limitation, the address to which complaints and inquiries may be directed, and a telephone number;

(4) The full extent of the Subscriber’s liability for Grantee equipment in the event of loss, damage, or destruction thereof;

(5) The charges imposed by the Grantee related to a Subscriber’s account, including without limitation, fees and charges for returned checks, and late charges;

(6) The Subscriber’s right to refer problems, inquiries or complaints to the Grantor at its designated address and telephone number and to request complete copies of this Chapter from the Grantor;

(7) Installation and service maintenance policies; and

(8) Instructions on how to use the cable service.

(9) The Grantee shall provide each affected Subscriber with the Disclosure prior to any binding agreement between Grantee with Subscriber and prior to any installation of Cable Service by the Grantee.

(b) Subscribers will be notified of any changes in rates, programming services or channel positions as soon as possible in writing. Notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the Grantee. The Grantee shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee, or any other fee, tax, assessment, or charge of any kind imposed by any Federal agency, State or the City on the transaction between the Grantee and the Subscriber.

(c) All Grantee representatives dealing with the public shall have identification badges identifying the Grantee, the representative’s name with a current picture, and a telephone number to call to authenticate the representative’s identity and affiliation. Field personnel shall prominently display identification badges at all times when providing Cable Service to Subscribers.

(d) Within ninety (90) days after the effective date of a Franchise, the Grantee shall file with the Grantor a copy of its written procedures for receiving, acting upon, and resolving Subscriber complaints. The procedures shall prescribe the manner in which a Subscriber may submit a complaint and the time within which the Grantee commits to investigate and resolve such complaints.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.611 Additional service standards.

Additional service consumer protection standards and responses by Grantee to Subscriber complaints not otherwise provided for in this Chapter may be established in the Franchise Agreement, and the Grantee shall comply with such standards in the operation of the Cable System. A verified and continuing pattern of material noncompliance may be deemed a breach of the Franchise.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

Article 7. Insurance

3-11.701 Insurance.

(a) Before any Franchise becomes effective, the Grantee shall obtain policies of commercial general liability, automobile liability, fire and property damage, and Workers’ Compensation insurance from a company or companies duly authorized, admitted and qualified by the Insurance Commissioner of California and the California Secretary of State to transact business in California with a best rating of A:VII or higher.

(b) The policies of commercial general liability insurance shall:

(1) Be issued to Grantee and name Grantor, its elected and appointed officials, employees, and agents as additional insureds;

(2) Indemnify Grantee and Grantor for all liability for personal and bodily injury, illness or death and damage to property arising from activities conducted and premises used pursuant to this Chapter by providing coverage therefor, including but not limited to, coverage for:

(i) Negligent acts or omissions of Grantee and its agents, servant and employees, committed in the conduct of Franchise operations, and/or

(ii) Use of motor vehicles;

(3) Provide a combined single limit for commercial general liability and automobile liability insurance in the amount provided for in the Franchise Agreement. The form of such insurance policy and the endorsement naming the Grantor or additional insured shall be subject to the review and approval of Grantor’s legal counsel; and

(4) Be noncancellable without thirty (30) days prior written notice thereof directed to Grantor.

(1) Have been previously approved as to substance and form by the California Insurance Commissioner;

(2) Cover all employees of Grantee who in the course and scope of their employment are to conduct the Franchise operations;

(3) Provide for every benefit and payment presently or hereinafter conferred by Division 4 of the Labor Code of the State (commencing with Section 3200) upon an injured employee, including vocational rehabilitation and death benefits; and

(4) Waive all rights of subrogation against the Grantor, its officers, officials, employees, and volunteers for losses paid under the terms of the policy which arises from work performed by the named insured for the Grantor.

(d) The policy of fire, property damage and casualty insurance shall provide insurance with extended coverage on the Franchise property used by Grantee in the conduct of Franchise operations in an amount adequate to enable Grantee to resume Franchise operations following the occurrence of any risk covered by this insurance.

(e) Grantee shall file with Grantor prior to commencement of Franchise operations the required endorsements and either certified copies of these insurance policies or at Grantor’s option a certificate of insurance for each of the required policies executed by the company issuing the policy or by a broker authorized to issue such a certificate, certifying that the policy is in force and providing the following information with respect to such policy;

(1) The policy number;

(2) The date upon which the policy will become effective and the date upon which it will expire;

(3) The names of the named insureds and any additional insured required by this Chapter or the Franchise Agreement;

(4) The subject of the insurance;

(5) The type of coverage provided by the insurance;

(6) Amount or limit of coverage provided by the insurance; and

(7) Any reserved amounts or deductible.

(f) Conduct of Franchise operations shall not commence until Grantee has complied with the aforementioned provisions of this Section.

(g) In the event Grantee fails to maintain any of the above-described policies in full force and effect, Grantor may upon forty-eight (48) hours notice to Grantee, procure the required insurance and recover the cost thereof from Grantee. Grantor shall also have the right, upon forty-eight (48) hours notice to Grantee, to suspend the Franchise during any period that Grantee fails to maintain said policies in full force and effect.

(h) No more than once during any three (3) year period, Grantor shall have the right to order Grantee to increase the amounts of the insurance coverage provided in this Chapter. Such order may be made by Grantor after complying with the hearing procedure provided for in Section 3-11.507. Increases in insurance coverage shall be based upon current prudent business practices of like enterprises involving the same or similar risks.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.702 Security fund.

No later than the effective date of any Franchise granted under this Chapter, the Grantee shall establish and provide to the Grantor a Security Fund (the “Security Fund”) in a form and amount as specified in the Franchise Agreement as security for the faithful performance by the Grantee of specified provisions of the Franchise Agreement. The Security Fund shall increase annually at a rate equivalent to the San Francisco-Oakland-San Jose “All Items Index” (1967-100) Consumer Price Index.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

Article 8. Rights Reserved

3-11.801 Rights reserved to grantor.

(a) In addition to any rights specifically reserved to the Grantor by this Chapter, the Grantor reserves to itself every right and power which is required to be reserved by a provision of any ordinance or under the Franchise, and the Grantee by accepting a Franchise under this Chapter agrees to be bound thereby and to comply with any action or requirement of the Grantor in its exercise of any such right or power.

(b) The Grantor shall have the right to waive any provision of the Franchise, except those required by Federal or State regulation, if the Grantor determines: (i) that it is in the public interest to do so, and (ii) that the enforcement of such provision will impose an undue hardship on the Grantee or Subscribers. To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of the Grantor. Waiver of any provision in one instance shall not be deemed a waiver of such provision subsequent to such instance nor be deemed a waiver of any other provision of a Franchise unless the statement so states.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.802 Rights of individuals.

(a) Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, age or sex. Grantee shall comply at all times with all other applicable Federal, State and local laws and regulations, and all executive and administrative orders, relating to nondiscrimination, including without limitation, Section 51 of the California Civil Code.

(b) Grantee shall adhere to the applicable equal employment opportunity requirements of the FCC, State and local regulations, as now written or as amended from time to time.

(c) Neither Grantee, nor any person, agency, or entity shall, without the Subscriber’s consent, tap, or arrange for the tapping, of any cable, line, or signal input device, or subscriber outlet or receiver for any purpose except routine maintenance of the Cable System, detection of unauthorized service, polling with audience participating, or audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified.

(d) In the conduct of providing its Cable Services or in pursuit of any collateral commercial enterprise resulting therefrom, Grantee shall take reasonable steps to prevent the invasion of a Subscriber’s or general citizen’s right of privacy or other personal rights through the use of the Cable System as such rights are delineated or defined by applicable law. Grantee shall not without lawful court order or other applicable valid legal authority utilize the Cable System’s interactive two-way equipment or capability for unauthorized personal surveillance of any Subscriber or general citizen.

(e) No cable line, wire, amplifier, converter, or other part of the Cable System owned by Grantee shall be installed by Grantee in the Subscriber’s premises, other than in appropriate easements, without first securing any required consent. If a Subscriber requests Cable Service, permission to install upon Subscriber’s property shall be presumed.

(f) The Grantee, or any of its agents or employees, shall not sell, or otherwise make available to any party for any purpose other than the operation or transfer of the Cable System without consent of the Subscriber pursuant to State and Federal privacy laws:

(1) Any list of the names and addresses of Subscribers which contain the names and/or addresses of Subscribers who request in writing to be removed from such list; and

(2) Any list which identifies the viewing habits of individual Subscribers, without the prior written consent of such Subscribers. This does not prohibit the Grantee from providing composite ratings of Subscriber viewing to any Party.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

Article 9. Franchise Violation Procedures and Remedies

3-11.901 Grantor’s power to revoke franchise.

(a) The material failure of Grantee to comply with the requirements of these regulations shall be a material breech of the Grantee’s Franchise Agreement to provide Cable Service.

(b) Grantor reserves the right to revoke any Franchise granted pursuant to this Chapter and rescind all rights and privileges associated with it in the following circumstances, each of which shall represent a default by Grantee and material breach under the Franchise Agreement:

(1) If Grantee shall default in the performance of its material obligations under this Chapter or the Franchise Agreement and shall continue such default after receipt of notice and a reasonable opportunity to cure the default;

(2) If Grantee shall fail to provide or maintain in full force and effect the insurance coverage or Security Fund as required in this Chapter;

(3) If Grantee shall violate any order or ruling of any regulatory body having jurisdiction over the Grantee relative to the Grantee’s Franchise, unless such order or ruling is being contested by Grantee by appropriate proceedings conducted in good faith;

(4) If Grantee attempts to unlawfully evade any provision of this Chapter or practices any fraud or deceit upon Grantor;

(5) If Grantee persistently fails three (3) or more times within a twelve (12) month period to remedy defaults for which lesser penalties have previously been imposed; and/or

(6) If Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged as bankrupt;

(c) The termination and forfeiture of the Grantee’s Franchise shall in no way affect any right of Grantor to pursue any remedy under the Franchise Agreement or any provision of law.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.902 Procedure for remedying franchise violations.

(a) Prior to imposing any remedy or other sanction against Grantee specified in this Chapter, Grantor shall give Grantee notice and opportunity to be heard on the matter, in accordance with the following procedures:

(1) Grantor shall first notify Grantee of the violation in writing by personal delivery or registered or certified mail, and demand correction within reasonable time, which shall not be less than five (5) days in the case of failure of the Grantee to pay any sum or other amount due the Grantor under this Chapter or the Grantee’s Franchise and thirty (30) days in all other cases. If Grantee fails to correct the violation within the time prescribed or if Grantee fails to commence correction of the violation within the time prescribed and diligently remedy such violation thereafter, the Grantor shall then give written notice of not less than twenty (20) days of a public hearing to be held before the Council. Such notice shall specify the violations alleged to have occurred.

(b) The Council may designate a Cable Committee to hear and consider all relevant evidence, and thereafter render findings and its decision.

(c) If the Council or appointed Cable Committee finds that Grantee has corrected the violation or has diligently commenced correction of such violation after notice thereof from Grantor and is diligently proceeding to fully remedy such violation, or that no violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.

(d) If the Council or appointed Cable Committee finds that the alleged violations exist and that Grantee has not corrected the same in a satisfactory manner or has not diligently commenced corrections of such violation after notice thereof from Grantor and is not diligently proceeding to fully remedy such violation, the Council or appointed Cable Committee may impose one or more of the remedies specified in Article 9 as it, in its discretion, deems appropriate under the circumstances.

(e) Council may, at it’s discretion, hear appeals from decisions of the Cable Committee.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.903 Force majeure; Grantee’s inability to perform.

(a) In the event Grantee’s performance of any of the terms, conditions or obligations required by this Chapter or a Franchise granted under this Chapter is prevented by a cause or event not within Grantee’s control, such inability to perform may be excused and penalties or sanctions may be waived or reduced by Grantor. Causes or events not within the control of Grantee shall include, without limitation, acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires but shall not include financial inability of the Grantee to perform or failure of the Grantee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts of omissions of Grantee, or the failure of the Grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or repair of the Cable System where the Grantee has failed to exercise reasonable diligence to secure such supplies, services or equipment.

(b) At the expiration of the term for which the Franchise is granted, or upon its revocation or earlier termination, as provided for in this Chapter, in any such case without renewal, extension or transfer, the Grantor shall have the right to require Grantee to remove, at its own expense, all above-ground portions of the Cable System from all streets within the Franchise Area within a reasonable period of time, which shall not be less than one hundred eighty (180) days.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.904 Abandonment or removal of franchise property.

(a) In the event that use of any Franchise Property or a portion thereof is discontinued for a continuous period of twelve (12) months, Grantee shall be deemed to have abandoned that Franchise Property. Any part of the Cable System that is intended for use only when needed because it is parallel or redundant to other parts of such system, shall not be deemed to have been abandoned because of its lack of use.

(b) Grantor, upon such terms as Grantor may impose, may give Grantee permission to abandon, without removing, any system facility or equipment laid, directly constructed, operated or maintained under the Franchise. Unless such permission is granted or unless otherwise provided in this Chapter, the Grantee shall remove all abandoned above-ground facilities and equipment upon receipt of written notice from Grantor and shall restore any affected street to its former state at the time such facilities and equipment were installed, so as not to impair its usefulness. In removing its plant, structures, and equipment, Grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all streets and public ways and public places in as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles, or attachments. Grantor shall have the right to inspect and approve the condition of the streets, public ways, public places, cables, wires, attachments and poles prior to and after such removal. The liability, indemnity and insurance provisions of this Chapter and the Security Fund provided in this Chapter shall continue in full force and effect during the period of removal and until full compliance by Grantee with the terms and conditions of this Section.

(c) Upon abandonment of any Franchise property in place, the Grantee, if required by the Grantor, shall submit to the Grantor an instrument, satisfactory in form to the Grantor, transferring to the Grantor ownership of the Franchise property abandoned.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.905 Restoration by grantor; Reimbursement of costs.

In the event of a failure by Grantee to complete any work required in this Chapter or by any other law or ordinance, and if such work is not completed within thirty (30) days after receipt of written notice thereof from Grantor or, if more than thirty (30) days are reasonably required therefor, if Grantee does not commence such work within such thirty (30) day period and diligently complete the work thereafter (except in cases of emergency constituting a threat to public health, safety or welfare), Grantor may cause such work to be done and Grantee shall reimburse Grantor for the costs thereof within thirty (30) days after receipt of an itemized list of such costs, or Grantor may recover such costs through the Security Fund provided by Grantee.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.906 Extended operation and continuation of services.

Upon either expiration or revocation of a Franchise, the Grantor shall have discretion to permit Grantee to continue to operate the Cable System for an extended period of time not to exceed twelve (12) months from the date of such expiration or revocation, unless extended by resolution of Grantor. Grantee shall, as trustee for its successor-in-interest, continue to operate the Cable System under the terms and conditions of this Chapter and the Franchise and to provide the regular Subscriber service and any and all of the Cable Services that may be provided at that time. It shall be the right of all Subscribers to continue to receive all available Cable Services provided their financial and other obligations to Grantee are honored. The Grantee shall use reasonable efforts to provide continuous, uninterrupted Cable Service to its Subscribers, including operation of the Cable System during transitional periods following Franchise expiration or termination.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.907 Receivership and foreclosure.

(a) A Franchise granted under this Chapter shall, at the option of Grantor, cease and terminate one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of Grantee, whether in receivership or reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: (i) such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this Chapter and the Franchise granted pursuant hereto, and the receivership or trustees within said one hundred twenty (120) days shall have remedied all the faults under the Franchise or provided a plan for the remedy of such faults which plan is satisfactory to the Grantor; and (ii) such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the Franchise granted.

(b) In the case of a foreclosure or other judicial sale of the Franchise Property Cable System, or any material part thereof, Grantor may serve notice of termination upon Grantee and the successful bidder at such sale, in which event the Franchise granted and all rights and privileges of the Grantee hereunder shall cease and terminate thirty (30) days after service of such notice, unless: (i) Grantor shall have approved the transfer of the Franchise, as and in the manner that this Chapter provides; and (ii) such successful bidder shall have covenanted and agreed with Grantor to assume and be bound by all terms and conditions of the Franchise.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.908 Remedies for franchise violations.

If a Grantee fails to perform in a timely manner any obligation required by this Chapter or a Franchise Agreement granted under this Chapter, following notice from the Grantor and, opportunity to be heard by the Council appointed committee and an opportunity to cure such nonperformance in accordance with the provisions of Article 10 or this Chapter, and the Franchise Agreement, Grantor may at its option and in its sole discretion apply any one or more of the following remedies:

(1) Cure the violation and recover the actual costs thereof from the Security Fund established under this Chapter if such violation is not cured within thirty (30) days after prior written notice to the Grantee, and an opportunity for Grantee to be heard, of Grantor’s intention to cure and assess the Security Fund;

(2) Assess against Grantee liquidated damages in an amount or amounts set forth in the Franchise Agreement for any such violation(s) if such violation is not cured, or if Grantee has not commenced a cure, on a schedule acceptable to Grantor, within thirty (30) days after written notice to the Grantee of Grantor’s intention to assess such liquidated damages. Such assessment may be withdrawn from the security fund, and shall not constitute a waiver by grantor of any other right or remedy it may have under the franchise or applicable law, including without limitation its right to recover from grantee such additional damages, losses, costs and expenses, including reasonable and actual attorney’s fees, as may have been suffered or incurred by grantor by reason of or arising out of such breach of the franchise agreement of this chapter.

(3) For violations of consumer service regulations of this chapter or the franchise agreement which have materially degraded the quality of service, grantor may order and direct grantee to issue rebates or credits to subscribers, in an amount to be determined by grantor to be reasonably related to the nature and extent of the degradation in service and measured by the period of the degradation, to provide monetary relief substantially equal to the reduced quality of cable service resulting from grantee’s failure to perform.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

Article 10. Dispute Resolution

3-11.1001 Arbitration.

Disputes arising out of the interpretation or implementation of this chapter or matters which are expressly made subject to arbitration by either party under the provisions of a franchise agreement shall be determined by a panel of three (3) arbitrators. Arbitration shall be mandatory as to both parties. Each of the parties, grantor and grantee, shall appoint one (1) arbitrator. The third arbitrator shall be appointed by the Presiding Judge of the Superior Court of Santa Cruz County, California, except if the parties agree, the two (2) arbitrators appointed by the parties shall appoint a third arbitrator. Arbitrations under this chapter shall be governed by the provisions of the California Arbitration Act. The expenses of the arbitration, including the fees of the arbitrators shall be borne by the parties in such manner as the arbitrators provide in their award. The determination of a majority of the arbitrators shall be binding on the parties. The arbitrators shall be required to follow the law of California and shall be lawyers or engineers with at least five (5) years experience in telecommunications law.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

3-11.1002 Hold harmless.

Grantee shall indemnify, defend and hold grantor, its elected officials, officers, agents and employees harmless from any liability, claims, damages, costs or expenses, including reasonable attorney’s fees, arising from injury to persons or damages to property to the extent caused by any conduct undertaken by the grantee, its officers, agents or employees, by reason of the franchise; grantee shall at its sole cost and expense, upon demand of grantor, appear in and defend any and all suits, actions or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative or otherwise, brought or instituted or had by third persons or duly constituted authorities, against or affecting grantor, its officers, agents or employees, and arising out of or pertaining to the granting of a franchise to the grantee and/or any conduct of the grantee, its agents or employees which is within the scope of this indemnity.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

Article 11. State Video Franchises

3-11.1101 Purpose.

This article is intended to be applicable to state franchise holders who have been awarded a state franchise for the provision of video service under the Digital Infrastructure and Video Competition Act of 2006 (DIVCA), codified by the California Public Utilities Code (CPUC) Section 5800 et seq. It is the purpose of this article to implement within the incorporated areas of the City the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated thereunder that are applicable to a local franchising entity or a local entity as defined in Sections 5830(h) and 5830(k) of the CPUC.

(§ 1, Ord. 1251-10 (CM), eff. February 11, 2010)

3-11.1102 Administration and regulations.

(a) The City may from time to time adopt rules and regulations to implement the provisions of this article consistent with DIVCA.

(b) The City Manager or the City Manager’s designee is hereby authorized to administer this article and to provide or cause to be provided any notices (including noncompliance notices) and to take any action on behalf of the City that may be required under this article, DIVCA, or under applicable law.

(c) The failure of the City, upon one (1) or more occasions, to exercise a right or to require compliance or performance under this article or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing or its exercise by the City is not permitted by DIVCA.

(d) The City may designate one (1) or more entities, including itself, to control and manage the use of public, educational and governmental (PEG) access channels, and any PEG facilities and equipment owned, controlled or used by the City or the designated entity or entities.

(§ 1, Ord. 1251-10 (CM), eff. February 11, 2010)

3-11.1103 State video service franchise fees.

(a) As provided in Section 5860(a) of the CPUC, any holder of a state franchise that offers video service within the incorporated areas of the City shall calculate and remit to the City a franchise fee equal to five (5%) percent of gross revenues.

(b) This section shall satisfy the requirements of Section 5840(q) of the CPUC.

(d) Pursuant to Section 5860(h) of the CPUC, a holder of a state franchise shall remit the state franchise fee to the City quarterly, within forty-five (45) days after the end of each calendar quarter.

(§ 1, Ord. 1251-10 (CM), eff. February 11, 2010)

3-11.1104 State video service fees for public, educational and governmental (PEG) access channels.

(a) As of December 31, 2006, the City was imposing a fee to support public, educational and governmental (PEG) access channel facilities of sixty-four ($0.64) cents per month per subscriber.

(b) As required by Section 5870(n) of the CPUC, the City establishes a fee of sixty-four ($0.64) cents per month per subscriber to be paid by any holder of a state franchise to support PEG access channel facilities. Consistent with the requirement imposed on the City-franchised cable operator in the City, the support payment amount may be increased to an amount not to exceed One and no/100ths ($1.00) Dollar per month per subscriber. Any such increase shall be upon ninety (90) days prior written notice from the City to the holder of a state franchise that offers video service with the City and after a City Council public hearing. The fee shall be paid concurrent with the franchise fee payments to the City.

(c) As of December 31, 2006, the support fee provided for in subsection (a) of this section was the equivalent of one and thirteen hundredths (1.13%) percent of the gross revenues of the City-franchised cable operator in the City. Upon the expiration of the City-granted franchise in the City, all state franchise holders operating in the City shall pay a fee to support PEG channel facilities equal to one and thirteen hundredths (1.13%) percent of gross revenues. The fee shall be paid concurrent with the franchise fee payments to the City as described in Section 3-11.1103(d).

(§ 1, Ord. 1251-10 (CM), eff. February 11, 2010)

3-11.1105 Carriage and interconnection for public, educational and governmental (PEG) access channels.

(a) A holder of a state franchise that uses the public rights-of-way to offer video service shall designate sufficient capacity on its network to enable carriage of at least four (4) PEG access channels for the exclusive use of the City or its designees.

(b) To the extent feasible, the PEG access channels shall not be separated numerically from other channels carried on the basic service tier, and the channel numbers for the PEG access shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law.

(c) As set forth in Section 5870(b) and (g)(3) of the CPUC, a holder of a state franchise shall ensure that all PEG access channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a state franchise holder shall be of similar quality and functionality to that offered by commercial channels on the state franchise holder’s lowest cost tier of service unless the PEG signal is provided to the state franchise holder at a lower quality or with less functionality.

(d) As set forth in Section 5870(h) of the CPUC, the holder of a state franchise and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. If a holder of a state franchise and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the City shall require the incumbent cable operator to allow the holder of a state franchise to interconnect its network with the incumbent cable operator’s network at a technically feasible point on the state franchise holder’s network as identified by the holder of the state franchise. If no technically feasible point of interconnection is available, the state franchise holder shall make interconnection available to the PEG channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the holder of the state franchise requesting the interconnection unless otherwise agreed to by the parties.

(§ 1, Ord. 1251-10 (CM), eff. February 11, 2010)

3-11.1106 Customer service penalties.

(a) Any holder of a state franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

(b) The City will provide any holder of a state franchise written notice of any material breach of applicable customer service and protection standards, and will allow the state franchise holder at least thirty (30) calendar days from the receipt of the notice to remedy the specified material breach. A material breach that is not remedied by the state franchise holder within the remedy period shall subject the state franchise holder to the following penalties to be imposed by the City:

(1) For the first occurrence of a material breach, a penalty of not more than Five Hundred and no/100ths ($500.00) Dollars for each day of each material breach, not to exceed One Thousand Five Hundred and no/100ths ($1,500.00) Dollars for each occurrence of a material breach.

(2) For the second violation of the same nature within twelve (12) months, a penalty of One Thousand and no/100ths ($1,000.00) Dollars for each day of each material breach, not to exceed Three Thousand and no/100ths ($3,000.00) Dollars for each occurrence of the material breach.

(3) For a third or further violation of the same nature within twelve (12) months, a penalty of Two Thousand Five Hundred and no/100ths ($2,500.00) Dollars for each day of each material breach, not to exceed Seven Thousand Five Hundred and no/100ths ($7,500.00) Dollars for each occurrence of the material breach.

(c) Any notice and any penalty may be issued or imposed by the City Manager, or the City Manager’s designee. Any notice shall be in writing. Notices shall be transmitted by United States Postal Service certified or registered mail, return receipt requested and postage prepaid, or by private commercial delivery or courier service for same day or next business day delivery with delivery and receipt signature required.

(d) The holder of a state franchise may appeal any finding of material breach or imposition of penalties to the City Council. Any appeal must be made within thirty (30) calendar days of receipt by the state franchise holder of the finding of material breach or the imposition of penalties, and must be submitted in writing to the City Clerk and the City Manager in order to be placed on a City Council agenda for consideration. Any appeal must contain a detailed explanation of why the applicant believes that the finding of material breach or the imposition of penalties was inconsistent with statutory requirements.

(e) The City and any holder of a state franchise may mutually agree to extend the time periods specified herein. Any such agreement shall be in writing and executed by the City Manager, or the City Manager’s designee, and an authorized representative of the holder of a state franchise.

(f) Any penalty imposed on the holder of a state franchise shall be paid to the City. As provided for in Section 5900(g) of the CPUC, the City shall submit one-half of all penalties received from a holder of a state franchise to the Digital Divide Account established in Section 280.5 of the CPUC.

(§ 1, Ord. 1251-10 (CM), eff. February 11, 2010)

3-11.1107 Audits and records.

(a) Pursuant to Section 5860(i) of the CPUC, not more than once annually, the City or its designee may examine and audit the business records of a state franchise holder to ensure compliance with the franchise fee payment obligations of Section 3-11.1103 and the PEG fee payment obligations of Section 3-11.1104.

(b) A holder of a state franchise shall keep all business records reflecting any gross revenues, even if there is a change in ownership of the holder of a state franchise, for at least four (4) years after such gross revenues are recognized by the state franchise holder on its books and records. In the case of subscriber numbers used for calculating the PEG fee, a holder of a state franchise shall keep data on the number of its subscribers in the City, even if there is a change in ownership of the holder of a state franchise, for at least four (4) years after the close of each calendar quarter on which the PEG fee is to be paid.

(c) To the extent consistent with DIVCA and other applicable law, the City may request, and a holder of a state franchise shall provide, information and books and records to the extent necessary to monitor a state franchise holder’s compliance with this article.

(§ 1, Ord. 1251-10 (CM), eff. February 11, 2010)

3-11.1108 Permits and construction.

A holder of a state franchise that offers video service within the City, in its use of public rights-of-way and public and private property shall, to the extent otherwise permitted by law, comply with all generally applicable City encroachment and other permitting requirements.

(§ 1, Ord. 1251-10 (CM), eff. February 11, 2010)

3-11.1109 Procedures for appeal of denial of an encroachment permit.

(a) As provided for in Section 5885 of the CPUC, the City shall either approve or deny an application from a holder of a state franchise for an encroachment permit within sixty (60) days of receiving a completed application.

(b) An “encroachment permit” means any permit issued by the City relating to construction or operation of facilities relating to the provision of video service under a state franchise.

(c) An application for an encroachment permit is considered complete when the applicant has complied with all statutory requirements, including the California Environmental Quality Act (CEQA) of the Public Resources Code.

(d) Any City denial of an application for an encroachment permit shall be in writing and shall contain a detailed explanation of the reason for the denial.

(e) An applicant whose application for an encroachment permit has been denied may appeal the denial to the City Council as provided for in Chapter 1-4. Any appeal must be made within fourteen (14) calendar days of receipt by the holder of a state franchise of the denial, and must be submitted in writing to the City Clerk and the City Manager in order to be placed on the City Council agenda for consideration. Any appeal must contain a detailed explanation of why the applicant believes that the denial was inconsistent with statutory requirements.

(§ 1, Ord. 1251-10 (CM), eff. February 11, 2010)

3-11.1110 Emergency alert system.

(a) Pursuant to Section 5880 of the CPUC, a holder of a state franchise shall comply with the emergency alert system (EAS) requirements of the Federal Communications Commission (FCC) in order that emergency messages may be distributed over the state franchise holder’s network.

(b) Any provision in the City’s locally issued franchise authorizing the City to provide local emergency notifications shall remain in effect, and shall apply to all state franchise holders within the City limits, for the duration of the locally issued franchise, until the terms of the franchise would have expired were the franchise not terminated pursuant to Section 5840(o) of the CPUC, or until January 1, 2009, whichever is later.

(c) To the extent consistent with Section 5880 of the CPUC, each holder of a state franchise shall provide the system capability to transmit an emergency alert signal to all participating subscribers, in the form of an emergency override capability to permit the City to interrupt and cablecast an audio and/or video message on all channels simultaneously in the event of a disaster or public emergency. The City shall permit only appropriately trained and authorized persons to operate the EAS equipment. Except to the extent expressly prohibited by applicable law, the City shall hold the state franchise holder, its employees and officers harmless from any claims arising out of the emergency use of its facilities by the City.

(§ 1, Ord. 1251-10 (CM), eff. February 11, 2010)

3-11.1111 Severability.

If any section, subsection, paragraph, sentence, clause, phrase or portion of this article is for any reason held to be invalid, unconstitutional or unenforceable, these decisions shall not affect the validity of the remaining portions of this article. The City Council hereby declares that this article and each section, subsection, division, paragraph, sentence, clause, phrase, and portion thereof would have been adopted irrespective of the fact that one or more portions of this article may be declared invalid, unconstitutional or unenforceable.

(§ 1, Ord. 1251-10 (CM), eff. February 11, 2010)

3-11.1112 Notices.

All notices and copies of documents that DIVCA requires to be provided to the City, as a local entity or a local franchising entity, shall be addressed to the City Manager or the City Manager’s designee.

(§ 1, Ord. 1251-10 (CM), eff. February 11, 2010)

3-11.1113 Reauthorization.

(a) Upon the expiration of the state franchise this article shall expire, and may be reauthorized by the Council upon the expiration of the state franchise to continue to collect the public, educational and governmental (PEG) support fees.

(b) The Council hereby reauthorizes the franchise for ten (10) years through and including December 31, 2027, effective immediately.

(§ 1, Ord. 1360-17 (CM), eff. December 12, 2017)

Chapter 11CABLE TELEVISION FRANCHISES*

3-11.101 Definitions.

3-11.102 Terms not defined.

3-11.103 Intent.

3-11.104 Federal or state jurisdiction.

3-11.201 Franchise required.

3-11.202 Nonexclusive franchise.

3-11.203 Multiple franchises.

3-11.204 Franchise purpose.

3-11.205 Franchise renewal.

3-11.206 Term of the franchise.

3-11.207 Franchise fee.

3-11.208 Transfer of franchise.

3-11.209 Geographical coverage.

3-11.301 Franchise applications.

3-11.302 Applications—Contents.

3-11.303 Consideration of applications.

3-11.401 Design and construction requirements.

3-11.402 Line extensions.

3-11.403 Technical standards.

3-11.404 Service connections.

3-11.405 Service to public facilities.

3-11.406 Grantee to obtain necessary permits and authorizations.

3-11.407 Deadline to commencement of construction.

3-11.408 Deadline to furnish or begin service to subscribers.

3-11.409 Use of existing poles, conduits and other components of cable system.

3-11.410 City use of grantee’s poles or conduits.

3-11.411 Disconnection, relocation or removal of facilities at city request.

3-11.412 Failure of grantee to perform required work.

3-11.413 Removal or abandonment of grantee’s property.

3-11.414 Compatibility and connectivity.

3-11.501 Reports—General.

3-11.502 Records required and grantor’s right to inspect.

3-11.503 Privacy report.

3-11.504 Public reports.

3-11.505 Trade secrets, confidential or proprietary information.

3-11.506 Opinion survey.

3-11.507 System performance review meetings.

3-11.508 Special review of system performance.

3-11.601 Minimum customer service regulations.

3-11.602 Office and telephone services.

3-11.603 Installation.

3-11.604 Term of service.

3-11.605 Service call.

3-11.606 Grantee failure to keep appointment.

3-11.607 Charge for cable service calls.

3-11.608 Service outages, refunds, and credits.

3-11.609 Bills, billing, deposits, and disconnections.

3-11.610 Notices and identification.

3-11.611 Additional service standards.

3-11.701 Insurance.

3-11.702 Security fund.

3-11.801 Rights reserved to grantor.

3-11.802 Rights of individuals.

3-11.901 Grantor’s power to revoke franchise.

3-11.902 Procedure for remedying franchise violations.

3-11.903 Force majeure; Grantee’s inability to perform.

3-11.904 Abandonment or removal of franchise property.

3-11.905 Restoration by grantor; Reimbursement of costs.

3-11.906 Extended operation and continuation of services.

3-11.907 Receivership and foreclosure.

3-11.908 Remedies for franchise violations.

3-11.1001 Arbitration.

3-11.1002 Hold harmless.

3-11.1101 Purpose.

3-11.1102 Administration and regulations.

3-11.1103 State video service franchise fees.

3-11.1104 State video service fees for public, educational and governmental (PEG) access channels.

3-11.1105 Carriage and interconnection for public, educational and governmental (PEG) access channels.

3-11.1106 Customer service penalties.

3-11.1107 Audits and records.

3-11.1108 Permits and construction.

3-11.1109 Procedures for appeal of denial of an encroachment permit.

3-11.1110 Emergency alert system.

3-11.1111 Severability.

3-11.1112 Notices.

3-11.1113 Reauthorization.

Chapter 11
CABLE TELEVISION FRANCHISES*