Chapter 5.15 FRANCHISES – CABLE TELEVISION

The city council finds that the development of cable communications systems has the potential of having great benefit and impact upon the residents of Willows. The city council further finds that the public convenience, safety, and general welfare can best be served by establishing regulatory powers governing the installation, construction, operation, and maintenance of cable communications systems which should be vested in the city and such persons as the city shall designate. It is the intent of this chapter to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this chapter shall be deemed to include this finding as an integral part thereof. [Ord. 619-88, 11-8-88. Prior code § 19-1].

5.15.020 Definitions.

Unless the contrary is stated or clearly appears from the context, the definitions set forth in this section shall govern the construction of the words and phrases used in this chapter.

“Basic cable service” means any service tier which includes the retransmission of local television broadcast signals.

“Broadcast signal” means a television or audio signal originating from a broadcast facility licensed by the FCC that is transmitted over the air to a wide geographic audience, is intended for reception by the general public, and is received by a cable communications system off-the-air, by satellite, or by microwave.

“Cable communications system,” “cable system,” or “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 which includes video programming and which is provided to multiple subscribers within the city, but such term does not include:

(a) A facility that serves only subscribers in one or more multiple dwelling units under common ownership, control, or management, unless such facility uses any public street or right-of-way;

(b) A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video and/or audio programming directly to subscribers; or

“Cable service” means (a) the one-way transmission to subscribers of video and/or audio programming or other programming service and (b) subscriber interaction, if any, which is required for the selection of such video and/or audio programming or other programming service.

“Cablecast signal” means a nonbroadcast signal that originates within the facilities of the cable communications system, including local origination programming and community access programming.

“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 FCC.

“Commence construction” means that time and date when construction of the cable communications system is considered to have commenced, which shall be when the first connection is physically made to a utility pole or undergrounding of cables is initiated after preliminary engineering (strand mapping) and after all necessary permits and authorizations have been obtained.

“Commence operation” means that time and date when operation of the cable communications system is considered to have commenced, which shall be when sufficient distribution facilities have been installed so as to permit the offering of full service to one or more subscribers.

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

“Community access channel” means such channel capacity on the cable communications system as from time to time may be allocated to public, educational, or governmental programming, together with such facilities and equipment as are made available for the use of such channel capacity.

“Completion of construction” means that point in time when all distribution facilities of the cable communications system required by a franchise have been installed and are in an operational state.

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

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

“Franchise” means the nonexclusive rights granted pursuant to this chapter to install, construct, operate, and maintain a cable communications system along the public streets and rights-of-way within all or a specified area of the city. Any such authorization, in whatever form granted, shall be in lieu of any license or permit required for the privilege of transacting and carrying on a business within the city as required by other chapters of this code.

“Franchise fee” means any tax, fee, or assessment of any kind imposed by the city on the grantee or any of its cable subscribers, or both, solely because of their status as such. The term “franchise fee” does not include:

(a) Any tax, fee, or assessment of general applicability;

(b) Capital costs which are required by the franchise to be incurred by the grantee for community access facilities;

(c) Requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or

(d) Any fee imposed under Title 17, United States Code.

“Grantee” means any person receiving a franchise pursuant to this chapter and such person’s lawful successor, transferee, or assignee.

“Gross revenues” means all compensation received by the grantee from subscribers in the city as the result of the use of the public streets and rights-of-way in the city for the operation of its cable communications system; provided, that there shall be deducted from gross revenues as so determined (a) refunds made in connection with such operations and (b) bad debts written off by the grantee in the usual and ordinary course of business, in each case to the extent that the revenue with respect thereto has been included in the determination of gross revenues.

Gross revenues shall not include (a) amounts received in the nature of refundable security deposits, (b) revenue received by the grantee from the provision of services or the sale, rental, or servicing of equipment or merchandise not required for the delivery of the grantee’s cable service through its cable communications system in the city or (c) sales, excise, or other taxes collected for direct pass-through to federal, state, or local authorities, including copyright and franchise fees.

In computing gross revenues for each calendar quarter from sources other than subscribers of the grantee’s cable service located within the city, including, but not limited to, revenues derived from the sale of advertising or the lease of channel capacity by the grantee on its cable communications system, the aggregate of the revenues received by the grantee from such other sources during such calendar quarter shall be multiplied by a fraction, the numerator of which shall be the arithmetic average of the number of subscribers in the city as of the first and last day of such calendar quarter and the denominator of which shall be the arithmetic average of the number of subscribers within all areas to which the grantee provides its cable service by the same physical cable system as of the first and last day of such calendar quarter. The result obtained thereby shall be included in the determination of the grantee’s gross revenues for purposes of computing the franchise fee due the city for such calendar quarter.

“Initial service area” means the area of the city which will receive cable service initially, as set forth in the grantee’s franchise. If not stated otherwise in the franchise, the initial service area shall consist of the entire city.

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

“Monitoring” means observing a communication signal, or the absence of a signal, where the observer is neither of the communicating parties, whether the signal is observed by visual or electronic means for any purpose whatsoever. Monitoring shall not include individually addressed sweeps of the cable communications system solely for the purpose of detecting unauthorized connections to the system nor system-wide, nonindividually addressed sweeps of the system for purposes of verifying system integrity, controlling return path transmissions, or billing for pay cable.

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

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

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

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

“Residential subscriber” means a person occupying a dwelling unit who receives cable service and is billed directly by the grantee on an individual subscriber basis.

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

“Service area” means the entire geographic area within the city in which the grantee is authorized to provide cable service under the terms of its franchise. Unless otherwise specified in the franchise, a grantee’s service area shall include any new or additional territory which is annexed to the city immediately upon completion of annexation; provided, that the city shall give the grantee prompt written notice thereof and shall identify the area which has been so annexed.

“Subscriber” means any person who or which elects to subscribe to, for any purpose, a cable service provided by the grantee by means of or in connection with the cable communications system. [Ord. 619-88, 11-8-88. Prior code § 19-2].

Article II. Grant of Franchise

5.15.030 Franchise required.

No cable communications system shall be allowed to occupy or use the public streets or rights-of-way of the city or be allowed to operate such a system without a franchise granted in accordance with the provisions of this chapter. [Ord. 619-88, 11-8-88. Prior code § 19-3].

5.15.040 Franchise application.

(1) Application. Any person seeking a franchise to operate a cable communications system within the city shall file an application for such franchise with the city. Such application shall be in the form and contain the information required by the city manager and shall be accompanied by a nonrefundable filing fee established by the city council in an amount not to exceed the reasonable cost of processing the application.

(2) Public Hearing. When filed, the application shall be available for public inspection at places designated by the city manager. No later than 90 days after filing the application, a public hearing or hearings shall be held by the city council on the application. Notice of the initial public hearing shall be published in a newspaper of general circulation within the city on three separate days not less than five nor more than 10 days immediately preceding such hearing.

(3) Decision. At the conclusion of such hearing or hearings, the city council shall determine to grant the franchise subject to any appropriate terms and conditions as the council may prescribe or determine not to grant the franchise. [Ord. 619-88, 11-8-88. Prior code § 19-4].

5.15.050 Grant.

(1) Scope of Grant. Any franchise granted under this chapter shall authorize and permit the grantee to engage in the business of operating and providing a cable communications system in the city within the service area specified in the franchise and for that purpose to erect, install, construct, inspect, repair, replace, reconstruct, maintain, and retain in, under, on, across, along, over, and above any street or right-of-way such structures and equipment as are necessary, appurtenant, or useful in the operation of the cable communications system.

(2) Grant Both a Right and an Obligation. In the event that the city council shall grant to the grantee a franchise to install, construct, operate, and maintain a cable communications system within a service area, said franchise shall constitute both a right and an obligation to provide the services of a cable communications system as required by the provisions of this chapter and the franchise. [Ord. 619-88, 11-8-88. Prior code § 19-5].

5.15.060 Franchise nonexclusive.

Any franchise granted shall be nonexclusive. The city council specifically reserves the right to grant, at any time, such additional franchises for cable communications system as it deems appropriate. [Ord. 619-88, 11-8-88. Prior code § 19-6].

5.15.070 Use of public streets and rights-of-way.

For the purpose of operating and maintaining a cable communications system in the service area, and subject to the provisions of this chapter, the grantee may erect, install, construct, inspect, repair, replace, reconstruct, maintain, and retain in, under, on, across, along, over, and above any street or right-of-way within the service area such wires, cables, conductors, connectors, poles, anchors, guys, pole attachments, ducts, conduits, vaults, manholes, amplifiers, transformers, appliances, pedestals, drops, attachments, and other structures and equipment as are necessary, appurtenant, or useful to the operation of the cable communications system. Prior to construction or alteration of any part of the cable communications system situated in the streets or rights-of-way for which an encroachment permit or other approval is required by this code, the grantee shall in each case file plans with the appropriate city department and receive such encroachment permit or other approval before proceeding. The grantee shall comply with all applicable city requirements relating to construction performed within city streets or rights-of-way. [Ord. 619-88, 11-8-88. Prior code § 19-7].

5.15.080 Term.

The term of any franchise and all rights, privileges, obligations, and restrictions pertaining thereto shall be as set forth in the grantee’s franchise, but shall in no event be for a period of more than 20 years from the effective date of the franchise. The effective date of the franchise shall be the date written acceptance thereof by the grantee is filed with the city clerk or such other date as may be specified in such franchise. [Ord. 619-88, 11-8-88. Prior code § 19-8].

5.15.090 Service area.

The city council may grant a franchise for the construction, operation, and maintenance of a cable communications system for the entire city or any defined portion of the city. [Ord. 619-88, 11-8-88. Prior code § 19-9].

5.15.100 Franchise fee.

(1) Amount of Franchise Fee. A grantee of a franchise granted hereunder shall pay to the city a franchise fee in the amount specified in grantee’s franchise.

(2) Acceptance by City. The acceptance of a franchise fee payment by the city shall not be construed as a release or as an accord and satisfaction of any claim the city 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.

(3) Failure to Make Required Payment. In the event that any franchise fee payment is not made on or before the date specified herein and the grantee fails to make such payment within five days after receipt of written notice from the city demanding such payment, the grantee shall pay as additional compensation:

(a) An interest charge, computed from such due date, at the legal rate of interest under California law in effect upon the due date;

(b) A sum of money equal to five percent of the amount due (exclusive of interest due under subsection (3)(a) of this section) in order to defray those additional expenses and costs incurred by the city by reason of delinquent payment.

(4) Quarterly Payments. Franchise fee payments due the city under this section shall be computed quarterly, for the preceding quarter, as of March 31st, June 30th, September 30th, and December 31st. Each quarterly payment shall be due and payable no later than 45 days after the dates listed in the previous sentence. Each payment shall be accompanied by a statement of gross revenues received by the grantee for such quarterly period showing the basis for the computation of the franchise fee then due.

Such statement shall be certified as accurate by an authorized representative of the grantee.

(5) Annual Certification. Within 180 days after the expiration of each calendar year or portion thereof during which the franchise is in force or within such other time as may be specified in the grantee’s franchise, the grantee shall file with the city finance officer a statement prepared by a certified public accountant for the grantee setting forth the gross revenues for such calendar year or portion thereof. If the amount of the gross revenues reported by such certified public accountant exceeds the amount thereof as reported in the statements prepared by the grantee for all quarterly periods of such calendar year, the grantee shall pay to city, within 15 days after the time for filing the statement certified by such certified public accountant, the amount of the additional franchise fee due for such calendar year or portion thereof; provided, that if the amount of the additional franchise fee is in excess of five percent of the gross revenues as reported by such certified public accountant, the grantee shall also pay the city interest on the amount of the additional franchise fee at the legal rate of interest under California law as in effect and computed from and after January 1st of the year in which such certified statement is furnished to the city. If the amount of the gross revenues reported by such certified public accountant is less than the amount thereof as reported in the quarterly statements prepared by the grantee, the city shall pay to the grantee, within 15 days after the time for filing the statement certified by such certified public accountant, the amount by which the franchise fee was overpaid or, at the option of the city, such overpayment shall be credited against the franchise fee next becoming due and payable to the city.

(6) Right of Inspection. At all reasonable times upon prior written notice to the grantee, the city shall have the right to inspect and audit the grantee’s records showing the gross revenues from which its franchise payments are computed; provided, that such inspection and audit shall extend to no other books or records of the grantee. If any independent audit of the grantee’s records directed by the city evidences an underpayment of the franchise fee in excess of five percent, the grantee shall assume all reasonable costs for said audit. [Ord. 619-88, 11-8-88. Prior code § 19-10].

5.15.110 Transfer of ownership or control.

(1) Transfer of Franchise. Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, transferred, leased, assigned, or disposed of by forced or voluntary sale, merger, consolidation, receivership, or other means without the prior consent of the city, which consent shall not be unreasonably withheld and then only under such conditions as the city may establish; provided, that the franchise may be transferred to any affiliate of grantee or to any entity controlled by or under common control of grantee as of the effective date of the initial franchise without such consent.

(2) Ownership or Control. The grantee shall promptly notify the city of any proposed change in, transfer of, or acquisition by any other party of control of the grantee. The word “control” as used herein is not limited to major partners or stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or transfer by any person or group of persons of 25 percent of the aggregate partnership interests in or voting shares of the grantee. Every change, transfer, or acquisition of control of the grantee shall make the franchise subject to cancellation unless and until the city shall have consented thereto, except as provided in subsection (1) of this section. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the city may inquire into the qualifications of the prospective controlling party, and the grantee shall assist the city in any such inquiry. In seeking the city’s consent to any change in ownership or control of the grantee, the grantee shall have the responsibility to establish to the reasonable satisfaction of the city:

(a) Whether the proposed purchaser, transferee, or assignee (the “proposed transferee”) which, in the case of a partnership or corporation, shall include all partners, officers, directors, and all persons having a legal or equitable interest in five percent or more of its partnership interests or voting stock, or any of the proposed transferee’s principals:

(i) Has ever been convicted or held liable for acts involving moral turpitude or is presently under an indictment, investigation, or complaint charging such acts; or

(ii) Has ever had a judgment in an action for fraud or misrepresentation entered against it, her, him, or them by any court of competent jurisdiction; or

(iii) Has pending against it, her, him, or them any legal claim, lawsuit, or administrative proceeding arising out of or involving a cable communications system; and

(b) Whether the proposed transferee has the financial and technical capability to enable it to maintain and operate the cable communications system for the remaining term of the franchise under the existing franchise provisions.

(3) Right of Lender to Operate System. Notwithstanding anything to the contrary contained in this chapter, any financial institution having a pledge of the franchise for the advancement of money for the construction and/or operation of the cable communications system operating under authority of such franchise shall have the right to notify the city that it or its designee satisfactory to the city will take control and operate the cable communications system in the event of a grantee default in its financial obligations. Further, said financial institution shall also submit a plan for such operation that will ensure continued service and compliance with all franchise requirements during the term the financial institution 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 city in its discretion, and during said period of time it shall have the right to petition the city to transfer the franchise to another grantee. If, after considering the legal, financial, character, technical, and other public interest qualities of the proposed transferee, the city finds that such transfer is satisfactory, the city will approve the transfer and assign the rights and obligations of such franchise to such proposed transferee.

(4) No Transfer before Completion of Construction. In the absence of extraordinary circumstances, the city will not approve any transfer or assignment of the franchise prior to completion of construction or reconstruction of the proposed cable communications system.

(5) Transferee to Assume Grantee’s Obligations under Franchise. In no event shall a transfer of ownership or control be approved without the successor in interest to the grantee assuming all of the grantee’s obligations under its franchise. Notwithstanding the requirements of the grantee’s franchise, the city may require, as a condition of the transfer of such franchise, that the proposed transferee furnish either or both a security fund and a performance bond in such amount or amounts as the city shall designate.

(6) Permitted Encumbrances. Notwithstanding the provisions of this section, the grantee may pledge, assign, hypothecate, or create a security interest in its franchise without the consent of the city in favor of any bank, financial institution, or other lender with respect to any indebtedness of the grantee to such person. [Ord. 619-88, 11-8-88. Prior code § 19-11].

5.15.120 Franchise renewal.

Renewal of any franchise granted under this chapter shall be undertaken in accordance with applicable federal or state law or, in the absence of any such renewal procedures, the following provisions of this section shall apply:

(1) Application. Not later than 18 nor earlier than 24 months prior to the expiration of any franchise granted pursuant to this chapter, a grantee may submit an application for renewal of such franchise. Such application shall be in the form and contain the information required by the city manager and shall be accompanied by a nonrefundable application fee established by the city council in an amount not to exceed the reasonable cost of processing the application.

(3) Decision. At the conclusion of such hearing or hearings, the city council shall determine to renew the franchise subject to any appropriate terms and conditions as the council may prescribe or determine not to renew the franchise.

(4) Nonrenewal. If the decision of the city council is not to renew the franchise, the council may initiate public solicitations for applications for a new franchise. The original grantee shall not be precluded from submitting such an application.

(5) Additional Services. In any renewal or public solicitation, the city council may require additional services, system upgrade, or any other conditions it deems feasible and appropriate in the light of the state of art of the cable communications industry at that time, taking into consideration the cost of such services, upgrades, or other conditions to both the grantee and its subscribers.

(6) Renewal of Existing Franchises. The provisions of this section relating to the time for filing a franchise renewal application and the time for holding a hearing or hearings on such application shall not be applicable to any franchise originally granted prior to January 1, 1987. [Ord. 619-88, 11-8-88. Prior code § 19-12].

5.15.130 Franchise processing costs.

For either a new franchise award, a franchise transfer, or a franchise renewal, costs to be borne by the grantee, unless otherwise specified in the grantee’s franchise, shall include, but shall not be limited to, all costs incurred for publication of any notice of a public hearing on the franchise award, transfer, or renewal, all costs incurred in the development and publication of relevant ordinances or agreements, and any cost not covered by the application fee but reasonably incurred by the city in its study, preparation of proposal solicitation documents, and evaluation of applications, including, but not limited to, consultant and attorney fees and city staff time. [Ord. 619-88, 11-8-88. Prior code § 19-13].

Article III. Regulation of Franchise

5.15.140 City regulations.

Every cable communications system for which a franchise is required by this chapter shall be constructed, operated, and maintained in accordance with the regulations now or hereafter adopted by or pursuant to this chapter, as well as the provisions of any city law or regulation of general application now or hereafter in effect, including, but not limited to, any such city law or regulation requiring the issuance of a permit and payment of a permit fee incident to the performance of work within a public street or right-of-way; provided, that in the event of a conflict between a regulation adopted by or pursuant to this chapter and the provisions of any city law or regulation of general application, the regulations adopted by or pursuant to this chapter shall prevail. However, the provisions of this section shall not be construed to accord to the city any right to adopt any law or regulation which results in the unconstitutional impairment of any right of a grantee under a franchise granted pursuant to this chapter. [Ord. 619-88, 11-8-88. Prior code § 19-14].

5.15.150 Federal and state regulations.

The regulations adopted by or pursuant to this chapter shall be interpreted and applied so as to be consistent with any applicable federal or state law or regulation now or hereafter in effect to the extent such federal or state law or regulation is preemptive of local laws and regulations; provided, that in the event of any conflict between this chapter or any regulations adopted by or pursuant to this chapter and any such federal or state law or regulation, the federal or state law or regulation shall prevail. [Ord. 619-88, 11-8-88. Prior code § 19-15].

5.15.160 Joint regulatory responsibility.

If the area served by the grantee’s cable communications system also serves other contiguous or neighboring communities, the city may, at its sole option, participate in a joint regulatory agency with the delegated responsibility in the area of cable and related communications. The city, acting jointly with other grantors, may exercise or delegate the following regulatory responsibility:

(1) Administration. Administering and enforcing the provisions of this chapter and the cable communications system franchise(s).

(2) Coordination. Coordination of the operation of community access channels and public programming services.

(3) Support. Providing technical, programming, and operational support to public agency users, such as governmental agencies, schools, and health care institutions.

(4) Interconnection. Analyzing the possibility of integrating cable communications systems with other national, state, or local telecommunications networks.

(5) Policy. Formulating and recommending long-range telecommunications policy. [Ord. 619-88, 11-8-88. Prior code § 19-16].

5.15.170 Initial rates.

The grantee shall establish initial rates that must be applied fairly and uniformly to all subscribers similarly situated in its service area. [Ord. 619-88, 11-8-88. Prior code § 19-17].

5.15.180 Rate change procedures.

The procedures set forth in this section shall apply only to the extent the city is permitted, consistent with applicable federal and state law, to regulate or control the rates, charges, and rate structures established by the grantee for the services provided over its cable communications system.

(1) Application. A grantee seeking a rate change shall file an application for such rate change with the city council. Such application shall be in the form and contain the information required by the city manager and shall be accompanied by such records, financial data, and other information as the city manger may request, including, but not limited to, financial statements of the grantee with respect to the operation of its cable communications system within the city.

(3) Notice. The grantee shall notify its subscribers of its application for a rate change by including notice of the application in a regular billing statement mailed by the grantee to its subscribers not less than 20 nor more than 75 days immediately preceding the date of the initial public hearing on the proposed rate change. Such notice shall set forth the proposed rate change and the time and place of the initial public hearing on the proposed rate change.

(4) Decision. Within 90 days after said hearing or hearings, the city council shall render a decision on the grantee’s application, either approving, rejecting, modifying, or deferring the same and reciting the basis for its decision. The city council may consider whatever factors or employ whatever methods it shall consider necessary or appropriate for the purpose of evaluating the grantee’s application for rate change. The city council shall have the right to audit the records, financial data, and other information submitted by the grantee in support of its application to verify the accuracy thereof. If the results of any such audit reveal an understatement of gross revenues or an overstatement of expenses in excess of five percent, the grantee shall bear the reasonable cost of such audit.

(5) Rates Deemed Approved. If the city council fails to render a decision either approving, rejecting, modifying, or deferring the grantee’s application within 180 days of the filing of the grantee’s application and receipt of requested records, financial data, and other financial information pursuant to this section, the grantee shall thereafter be entitled to put its proposed new rates into effect as contained in such application.

(6) Submission of Rate Increase Requests. The grantee shall not submit an application for rate increases earlier than 12 months after approval of a prior request for the same level of service. [Ord. 619-88, 11-8-88. Prior code § 19-18].

5.15.190 Limitations respecting rates.

(1) Schedule of Rates. The grantee shall maintain and file with the city, upon request of the city or within 30 days after any change therein, a complete schedule of subscriber rates, including, but not limited to, rates for basic cable service, pay cable services, ancillary services, installation, converter rental, and related charges.

(2) No Consideration beyond Schedule. If, subject to rate regulation by the city in accordance with the provisions of this chapter, the grantee shall receive no consideration whatsoever for or in connection with its provision of cable service to its subscribers over or by means of its cable communications system other than as set forth in the schedule of subscriber rates approved by the city council for those rates which the city may regulate or as set forth in WMC 5.15.180.

(3) Disconnections. There shall be no charge for disconnection from the cable communications system. However, if a subscriber has failed to pay properly due monthly fees or if a subscriber disconnects for seasonal periods, the grantee may require, in addition to full payment of any delinquent fees, a reasonable fee for reconnection. [Ord. 619-88, 11-8-88. Prior code § 19-19].

5.15.200 System and service review.

To evaluate technological, economic, and regulatory changes in the state of the art of cable communications, to facilitate renewal procedures, and to promote a continuing, advanced modern system, the city and the grantee shall comply with the system and services review provisions set forth in the following sections. [Ord. 619-88, 11-8-88. Prior code § 19-20].

5.15.210 Tri-annual review.

(1) Review. At the city council’s sole option, the city council and the grantee shall hold a system and services review session on or about the third anniversary of the effective date of the franchise. Subsequent review sessions may be scheduled by the city each three years thereafter. The grantee shall, at its expense, notify its subscribers of each such review reasonably in advance thereof so as to afford such subscribers the opportunity to comment with respect to any proceedings held in connection with such review. Such notice may be given by electronic means across one or more channels of the grantee’s cable communications system.

(2) Issues. Topics for discussion and review at the system and services review sessions shall include, but shall not be limited to, services provided, application of new technologies and the economic impact with respect thereto, system performance, programming, subscriber complaints, user complaints, rights of privacy, undergrounding processes, developments in the law, and regulatory constraints.

(3) Additional Topics. Either the city council or the grantee may select additional topics for discussion at any such review session.

(4) Services Not Offered. Prior to the date scheduled for any such review, the grantee shall furnish the city council with a report of those cable services, if any, being provided on a full-time operational basis (excluding test and demonstrations) by similarly situated local cable communications systems which services are not then offered by the grantee.

(5) Findings. Not later than 60 days after the conclusion of each system and services review session, the city council may issue findings. [Ord. 619-88, 11-8-88. Prior code § 19-21].

5.15.220 Annual review of performance.

(1) Review. At the city council’s sole option, within 90 days after any anniversary of the effective date of the grantee’s franchise, the city council and the grantee shall meet to review the grantee’s performance and quality of service with respect to operation of the cable communications system. The reports required of the grantee under this chapter regarding subscriber complaints and the records of performance tests shall be utilized as the basis for review. In addition, any subscriber may submit comments or complaints during the review meetings, either orally or in writing, and these shall be considered. The grantee shall, at its expense, notify its subscribers of any such review reasonably in advance thereof, which notice may be given by electronic means across one or more channels of the grantee’s cable communications system.

(2) Findings. Within 30 days after the conclusion of such meetings, the city council may issue findings with respect to the adequacy of system performance and quality of service. If any event of default (as defined in this chapter) by the grantee is found to exist, the city may direct the grantee by written notice to correct such default within such period of time as is specified therefor in accordance with the provisions of this chapter. [Ord. 619-88, 11-8-88. Prior code § 19-22].

5.15.230 Default.

The grantee shall be deemed to be in default with respect to the performance of its obligations under its franchise upon the occurrence of any of the following events (any such occurrence, an “event of default”):

(1) The grantee is in violation of the provisions of its franchise, this chapter or any federal or state law or regulation applicable to the operation of the grantee’s cable communications system in the city and such violation is not corrected within 30 days following receipt of written notice thereof from the city manager specifying such violation or, if more than 30 days are reasonably required to correct such violation, within such additional time as the city manager shall consider reasonably necessary to effect such correction;

(2) The grantee has engaged in repeated violations of any of its material obligations under its franchise or this chapter or any material federal or state law or regulation applicable to the operation of the grantee’s cable communications system in the city which, for purposes of this chapter, shall be deemed to exist if the same or similar violation occurs three or more times within any 12-month period. In any such case, the grantee shall not be entitled to notice or a period to correct the third such violation; or

(3) If the grantee ceases to operate the cable communications system in all or substantially all of its service area for a period of seven consecutive days without the prior approval of the city or for any reason within the control of the grantee. [Ord. 619-88, 11-8-88. Prior code § 19-23].

5.15.240 Remedies upon default.

(1) Upon the occurrence of any event of default by the grantee, the city council may:

(a) Assess against the grantee monetary penalties as specified in any franchise for each such event of default or series of related events of default and/or require the grantee to cure each such event of default within such time, in such manner, and upon such terms and conditions as the city council shall designate; or

(b) Revoke and terminate the grantee’s franchise.

(2) Public Hearing. Prior to imposing any such remedy or remedies upon the grantee upon the occurrence of any such event of default, the city shall do the following:

(a) The city shall provide the grantee with at least 30 days prior written notice of the time and place of a public hearing to be held before the city council for purposes of determining whether such event of default has occurred and, if it has occurred, whether such event of default was for just cause. Notice as to the time and place of such hearing shall be published at least once 10 days before such hearing in a newspaper of general circulation within the grantee’s service area;

(b) The grantee shall be afforded full due process in connection with such hearing, including, but not limited to, adequate notice of the hearing and fair opportunity to introduce evidence, to require the production of evidence, and to introduce and/or question persons connected with or having knowledge of the alleged default. A transcript may be made of the hearing at the grantee’s expense;

(c) The city council shall hear any persons interested therein and, based upon the evidence presented at such hearing, shall determine whether or not an event of default by the grantee has occurred;

(d) If the city council shall determine that there occurred an event of default by the grantee and such default was with just cause, the city council shall direct the grantee to correct or remedy the same within such additional time, in such manner, and upon such terms and conditions as the council determines to be necessary; or

(e) If the city council shall determine that there occurred an event of default by the grantee and such default was without just cause, then the city council may, by resolution, impose any one or more of the remedies set forth in subsection (1) of this section.

(3) Remedies Cumulative. The city council may, in its sole judgment and discretion, impose any one or more of the foregoing remedies against the grantee, which administrative remedies shall be in addition to any and all other legal or equitable remedies it has under the franchise or under any applicable law. [Ord. 619-88, 11-8-88. Prior code § 19-24].

5.15.250 Procedures in the event of termination or expiration.

(1) Disposition of Facilities. In the event the franchise expires, is revoked, or is otherwise terminated, the city council may order the removal of the cable communications system facilities from the franchise area or require the original grantee to maintain and operate its cable communications system until a subsequent grantee is selected and a subsequent or modified cable system becomes operational, but in no event shall the original grantee be required to continue maintenance and operation of its cable system for more than six months after such expiration, revocation, or termination. If the city council orders removal of the system facilities of the grantee upon any such expiration, revocation, or termination, such removal shall be diligently pursued and shall be completed by the grantee within 12 months after the grantee’s receipt of notice of termination or forfeiture of its franchise; provided, that the city council or the city manager may extend the time for removal for such reasonable additional period as shall be required to complete the same in the event the grantee, acting in good faith, cannot reasonably remove its cable system within such 12-month period or by reason of any circumstance beyond the grantee’s control. The grantee may, at its option, abandon all or any part of the system such that when it is abandoned it does not unreasonably interfere with the use of the public streets or rights-of-way. Upon abandonment of any such property, the grantee shall cause to be executed, acknowledged, and delivered to the city such instruments as the city council shall prescribe and approve transferring and conveying the ownership of such property to the city.

(2) Restoration of Property. In removing its facilities, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all streets affected by such removal in as good condition as that prevailing prior to the grantee’s removal of its facilities without unreasonably affecting the electrical or telephone cable, wires, or attachments. The city shall inspect and approve the condition of such streets after removal. Any liability insurance and performance bond required of the grantee under its franchise shall continue in full force and effect during the period of removal and until full compliance by the grantee with the terms and conditions of this section.

(3) Restoration by City – Reimbursement of Costs. In the event of a failure by the grantee to complete any work required of it under this section within the period allowed therefor to the satisfaction of the city, the city may upon five days’ notice to grantee cause such work to be done and the grantee shall reimburse the city the cost thereof within 30 days after receipt of an itemized list of such costs or the city may recover such costs through the security fund or bonds provided by the grantee in accordance with the terms of its franchise.

(4) Extended Operation. In the event the city council requires the grantee to continue to operate the cable communications system subsequent to the expiration, revocation, or termination of its franchise, the grantee shall, as trustee for its successor in interest, continue to operate the cable system under the terms and conditions of this chapter and its franchise and to provide the cable services that may be provided at that time. The grantee shall be entitled to collect and retain all revenues derived from the operation of the cable communications system during this period, subject to the obligation to pay the franchise fee with respect thereto in accordance with the provisions of this chapter.

(5) City’s Rights Not Affected. The termination and forfeiture of any franchise shall in no way affect any of the rights of the city under the franchise or any provision of law. [Amended during 2009 recodification; Ord. 619-88, 11-8-88. Prior code § 19-25].

5.15.260 Receivership and foreclosure.

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

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

(b) Such receivers or trustees shall, within said 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.

(2) Foreclosure. Subject to the provisions of this chapter permitting a lender to operate a cable communications system upon the default of the grantee in its obligations to such lender, in the case of a foreclosure or other judicial sale of the plant, property, and equipment of the grantee, or any part thereof, the city may serve notice of termination upon the grantee and the successful bidder at such sale, in which event the franchise and all rights and privileges of the grantee hereunder shall cease and terminate 30 days after the services of such notice, unless:

(a) The city council shall have approved the transfer of the franchise in the manner provided by this chapter; and

(b) Such successful bidder shall have covenanted and agreed with the city to assume and be bound by all the terms and conditions of the franchise. [Ord. 619-88, 11-8-88. Prior code § 19-26].

Article IV. General Financial and Insurance Provisions

5.15.270 Construction bond.

(1) Filing Bond. Within 30 days after the granting of a franchise and prior to the commencement of any construction work by the grantee, the grantee shall, if required by the franchise, file with the city a construction bond in the amount specified in the franchise in favor of the city and any other person who may claim damages as a result of the breach of any duty by the grantee assured by such bond. Such bond shall be in a form approved by the city attorney.

(2) No Limitation of Liability. In no event shall the amount of said bond be construed to limit the liability of the grantee for damages.

(3) Waiver. The city, at its sole option, may waive this requirement, or permit consolidation of the construction bond with the performance bond and/or security fund specified in this chapter. [Ord. 619-88, 11-8-88. Prior code § 19-27].

5.15.280 Performance bond.

(1) Filing of Bond. In addition to the construction bond set forth in WMC 5.15.270, the grantee shall, at least 30 days prior to the commencement of operation or, if completion of construction of the cable communications system has occurred, within 30 days after the effective date of the franchise, file with the city a performance bond in the amount specified in the franchise in favor of the city and any other person who may be entitled to damages as a result of any act or omission of the grantee, its employees, agents, and contractors arising in the operation or termination of the cable communications system operated under the franchise, and including the payments required to be made to the city hereunder. Such bond shall be in a form approved by the city attorney.

(2) No Limitation of Liability. In no event shall the amount of said bond be construed to limit the liability of the grantee for damages. [Ord. 619-88, 11-8-88. Prior code § 19-28].

5.15.290 Security fund.

(1) Deposit and Amount. If so required under its franchise, within 30 days after the effective date of the franchise, the grantee shall deposit with the city, and maintain on deposit through the term of the franchise, the sum specified in the franchise as security for the faithful performance by it of all the provisions of the franchise, and compliance with all orders, permits, and directions of any department of the city having jurisdiction over its acts or defaults under this chapter, and the payment of the grantee of any claims, liens, and taxes due the city which arise by reason of the installation, construction, operation, or maintenance of the cable communications system. No interest shall accrue or be paid to the grantee with respect to such security fund. The security fund may be assessed by the city for purposes including, but not limited to, the following:

(a) Failure of the grantee to pay the city sums due under the terms of the franchise;

(b) Reimbursement of costs borne by the city to correct franchise violations not corrected by grantee, after due notice; and

(2) Letter of Credit in Lieu of Deposit. At the city’s sole option, all or a portion of the security fund may be provided by way of an irrevocable letter of credit in a form approved by the city attorney.

(3) Restoration of Fund. Within 30 days after notice that any amount has been withdrawn by the city from the security fund or letter of credit pursuant to the provisions of this section, the grantee shall deposit with the city a sum of money sufficient to restore such security fund to the original amount or shall restore the letter of credit to the original amount thereof.

(4) Withdrawal from Fund. If the grantee fails, after 10 days’ notice, to pay to the city any franchise fee or taxes due and unpaid, or fails to pay to the city within such 10 days any damages, costs, or expenses which the city shall be compelled to pay by reason of any event of default of the grantee in connection with the franchise, or fails, after notice of such failure by the city and expiration of the applicable cure period, to comply with any provision of the franchise which the city reasonably determines can be remedied by an expenditure of the security fund or draw against the letter of credit, as the case may be, the city may immediately withdraw the amount thereof, with interest and any penalties, from the security fund or the letter of credit. Upon such withdrawal, the city shall notify the grantee of the amount and date thereof.

(5) Forfeiture or Return of Fund. The security fund deposited pursuant to this section shall become the property of the city in the event that the franchise is revoked for cause by reason of the occurrence of an event of default by the grantee in accordance with the procedures of this chapter. The grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit no later than 90 days after the expiration of the term of the franchise; provided, that there is then no outstanding default on the part of the grantee in the performance of its obligations required under its franchise.

(6) No Limitation of Liability. In no event shall the amount of such security fund be construed to limit the liability of the grantee for damages. [Ord. 619-88, 11-8-88. Prior code § 19-29].

5.15.300 Insurance.

(1) Scope of Coverage. The grantee shall maintain throughout the term of the franchise insurance in amounts at least as follows:

(a) Worker’s Compensation Insurance. Worker’s compensation insurance shall be maintained in accordance with the worker’s compensation insurance and safety laws of the state of California.

(b) Comprehensive General Liability. Comprehensive general liability insurance, including, but not limited to, coverage for bodily injury and property damage, shall be maintained in the sum(s) specified in the franchise.

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

(2) Certificates of Insurance. The grantee shall furnish the city with copies of such insurance policies or certificates of insurance evidencing compliance by the grantee with the provisions of this section and the corresponding provisions of the franchise.

(3) City as Additional Insured. The city, its officers, boards and commissions, and members thereof, its employees and agents shall be named as additional insured in any of said liability insurance policies required under subsections (1)(a) and (b) of this section. The obligation of the insurer under such policies to provide coverages in the amounts specified in the grantee’s franchise shall be primary up to the limits of liability as set forth in such franchise without right of contribution from any insurance in effect for the city. Such policies shall not be canceled or reduced in coverage without 30 days prior written notice to the city of the effective date thereof.

(4) No Limitation of Liability. The minimum amounts set forth in the franchise for such insurance shall not be construed to limit the liability of the grantee to the city under the franchise issued hereunder to the amounts of such insurance.

(5) Licensed Insurers. All insurance carriers providing coverage under this section shall be duly licensed to operate in the state of California and shall be subject to approval of the city, which approval shall not be unreasonably withheld. [Ord. 619-88, 11-8-88. Prior code § 19-30].

5.15.310 Indemnification.

The grantee shall by acceptance of any franchise granted herein indemnify the city, its officers, boards and commissions, and members thereof, its employees and agents from any and all liabilities which might arise out of or relate to the exercise or enjoyment by the grantee of such franchise, except with respect to any such liability as may be due to the active negligence of the city, its employees, agents, or contractors. Should the city or any of its officers, boards and commissions, and members thereof, its employees or agents be named in any suit, or should any claim be made against it or any of them by suit or otherwise, whether the same be groundless or not, arising out of or relating to any claim for which the grantee may be required to indemnify the city hereunder, the grantee shall defend the city and said officers, boards and commissions, and members thereof, its employees and agents and shall indemnify them for any judgment rendered against them or any sums paid out in settlement or otherwise; provided, that neither the city nor any such other person shall agree to any settlement, compromise, or other resolution or disposition with respect to such suit or claim without the prior written consent of the grantee. [Ord. 619-88, 11-8-88. Prior code § 19-31].

Article V. Design and Construction Provisions

5.15.320 System design.

The cable communications system shall be constructed in accordance with the design requirements contained in the franchise. [Ord. 619-88, 11-8-88. Prior code § 19-32].

5.15.330 Geographical coverage.

The grantee shall design and construct the cable communications system in such a manner as to have the eventual capability to pass by every residential dwelling unit, commercial establishment, school, and public agency within the service area of the franchise, except as otherwise provided in the grantee’s franchise. Cable system construction and provision of service shall be nondiscriminatory, and the grantee shall not delay or defer service to any section of the service area on the grounds of economic preference, but shall extend the cable system to such section in accordance with the construction schedules and/or line extension policies established in grantee’s franchise. [Ord. 619-88, 11-8-88. Prior code § 19-33].

5.15.340 System construction schedule.

(1) Compliance with Schedule. The grantee shall comply with the requirements of the system construction schedule contained in the franchise.

(2) Construction Plan. If required by the franchise, the grantee shall provide a detailed construction plan indicating progress schedule, area construction maps, test plan, and projected dates for offering service. In addition, the grantee shall update this information on a monthly basis, showing specifically whether schedules are being met and the reasons for any delay. [Ord. 619-88, 11-8-88. Prior code § 19-34].

5.15.350 Remedies for delay in construction.

The city may, at its sole option, apply any or all of the following remedies in connection with delays in system construction occasioned by events within the grantee’s reasonable control:

(1) Forfeiture of Bonds and Other Monetary Assessments. Forfeiture of any construction bond, as well as the assessment of monetary penalties in such amounts as are specified in the grantee’s franchise.

(2) Termination (Delay in Construction). Termination of the franchise within one year after award of the franchise if the grantee has failed to commence construction within such period.

(3) Termination (Other Delays). Termination of the franchise for other delays exceeding 18 months, including failure to commence operation within such period.

Any remedies applied for delays in construction shall be in accordance with the procedures provided in this chapter, including, but not limited to, notice, hearing, and due process. [Ord. 619-88, 11-8-88. Prior code § 19-35].

5.15.360 Provision of service.

Following commencement of operations in any area, the grantee shall provide service to any person requesting cable service in such area within 30 days from the date of request; provided, that:

(1) Such person’s residence or commercial establishment for which such service is requested is located within 150 feet of the grantee’s activated trunk cable; and

(2) Such person has the financial capacity to pay the grantee for such services as are to be provided to such subscriber; and

(3) Grantee can secure all rights of access to such person’s residence on terms reasonably satisfactory to grantee. [Ord. 619-88, 11-8-88. Prior code § 19-36].

5.15.370 Undergrounding of cable.

The undergrounding of cable is encouraged. In any event, cables shall be installed underground at the grantee’s cost where both telephone and electric utilities are already underground. Previously installed aerial cable shall be undergrounded and relocated in concert with other utilities when both telephone and electric utilities convert from aerial to underground construction. Where public funds or funds from property owners are specifically available for which work of undergrounding the cable system, whether pursuant to statute or otherwise, the grantee shall be reimbursed for such work to the extent of the availability of such funds. [Ord. 619-88, 11-8-88. Prior code § 19-37].

5.15.380 New development undergrounding.

In cases of new construction or property development where utilities are to be placed underground, the developer or property owner shall give the grantee at least 30 days’ advance notice of the particular date on which utilities are to be placed underground in conjunction with such construction or property development. The grantee shall promptly thereafter provide the developer or property owner with specifications as needed for trenching, installation of conduit, vaults, pedestals, cable, and related components, and for the pre-wiring of the units being constructed.

(1) Installation. The developer or property owner will, at its own cost and expense:

(a) Perform all necessary trenching and backfilling for underground distribution and service laterals required for the extension of the underground distribution system of any cable communications system authorized to provide service in such area;

(b) Provide for the installation of all conduit, vaults, and pedestals required for the distribution and transmission lines of the cable system to be located in such distribution and service laterals (with the grantee to place the cable therein and attach all required electronic components thereto); and

(c) Provide for the pre-wiring of each residential dwelling unit located in such which are to be installed by the developer or property owner under the provisions of this section shall be borne by the developer or property owner. The cost of the cable and associated electronics required for such underground distribution system or for such pre-wiring shall be borne by the grantee. [Ord. 619-88, 11-8-88. Prior code § 19-38].

5.15.390 Undergrounding at multiple dwelling units.

In cases of multiple dwelling units serviced by aerial utilities, the grantee shall make every effort to minimize the number of individual aerial drop cables, giving preference to undergrounding of multiple drop cables between the pole and the dwelling unit. [Ord. 619-88, 11-8-88. Prior code § 19-39].

5.15.400 Street occupancy.

(1) Existing Facilities. The grantee shall utilize existing poles, conduit occupied by the grantee’s activated cable distribution system, and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits or other facilities in the streets until the written approval of the city is obtained. However, no location of any pole or wire holding structure of the grantee in the streets shall be a vested interest and such poles or structures shall be removed or modified by the grantee at its own expense for any of the reasons set forth in this section.

(2) Notice of Construction. The grantee shall notify the city at least 10 days prior to the intention of the grantee to commence any construction in any streets. The city shall cooperate with the grantee in granting any permits required therefor. Construction by the grantee shall not unreasonably interfere with the use of such streets and shall be done in accordance with the pertinent provisions of this code and the grantee’s franchise.

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

(4) Restoration. The grantee shall, at its own expense, and in a manner approved by the city, restore to the standards and specifications required by this code or the grantee’s franchise any damage or disturbance caused to the streets by the grantee, and its employees, agents, or contractors as a result of its operations or construction on its behalf in connection with the exercise of its rights under its franchise.

(5) No Charge to City. Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the city to remove any of the grantee’s facilities due to material and imminent harm to the public health, safety, property, or welfare, no charge shall be made by the grantee against the city for restoration and repair.

(6) Tree Trimming. The grantee shall have the authority to trim trees on public property in accordance with the provisions of this code at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and direction of the city. Trimming of trees on private property shall require consent of the property owner.

(7) Relocation. The grantee at its expense shall protect, support, temporarily disconnect, relocate, or remove any property of the grantee when, in the opinion of the city, the same is reasonably required by reason of traffic conditions, public safety, street vacation, freeway or street grade, installation of sewers, drains, water pipes, power line, signal line, transportation facilities, tracks, or any other type of structure or improvement by governmental agencies whether acting in a governmental or a proprietary capacity, or any other public improvement, including, but not limited to, movement of buildings, redevelopment, or any general program under which the city shall undertake to cause any such properties to be located beneath the surface of the ground, provided the facilities of both the telephone and electric utilities are to be similarly undergrounded. Where public funds or funds from property owners are specifically available for such work of protection, support, disconnection, relocation, removal, or undergrounding of the cable system, whether pursuant to statute or otherwise, the grantee shall be reimbursed for such work to the extent of the availability of such funds. Nothing hereunder shall be deemed a taking of the property of the grantee and the grantee shall be entitled to no surcharge by reason of anything hereunder.

(8) Right of City to Perform. Upon failure of the grantee to commence, pursue, or complete any work required by law or by the provisions of this chapter or the grantee’s franchise to be done by the grantee in any street within the time prescribed therein or herein and to the satisfaction of the city, the city may, at its option, upon five days’ notice to grantee cause such work to be done if the grantee has failed to promptly commence such work, and the grantee shall pay to the city the reasonable cost thereof in the itemized amounts reported by the city to the grantee within 30 days after receipt of such itemized report; provided, that no such written direction need be given by the city in the event of material and imminent harm to the public health, safety, property, or welfare.

(9) Paving or Curb Cuts. The grantee shall make no paving or curb cuts in the streets unless absolutely necessary, and only after the grantee has secured an encroachment permit issued by the city authorizing such cuts.

(10) Conduit Required. The city reserves the rights to require conduit for underground cabling. [Ord. 619-88, 11-8-88. Prior code § 19-40].

5.15.410 Construction and technical standards.

(1) Construction Standards.

(a) The grantee shall comply with all applicable city construction codes and permit procedures and pay all applicable permit and inspection fees with respect thereto.

(b) Construction undertaken by the grantee with respect to its cable communications system shall comply with all federal, state, and city laws, rules, and regulations applicable thereto.

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

(2) Technical Standards. The cable communications system shall meet all technical and performance standards contained in the franchise.

(3) Test and Compliance Procedures. The grantee shall submit within 60 days after request by the city a detailed test plan describing the methods and schedules for testing the cable communications system on an ongoing basis to determine compliance with the provisions of the franchise. The proof of performance requirements for cable communications system set forth in the FCC’s Rules and Regulations shall constitute a satisfactory test plan for purposes of demonstrating compliance with such provisions.

(4) Special Tests. At any time after commencement of service to subscribers the city may require additional tests, full or partial repeat tests, or tests involving a specific subscriber’s terminal. Requests for such additional tests will be made on the basis of complaints received or other evidence indicating a material unresolved controversy or significant noncompliance, and such tests shall be limited to the particular matter in controversy. The city shall endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to the grantee and to the subscriber. [Ord. 619-88, 11-8-88. Prior code § 19-41].

Article VI. Operation and Maintenance

5.15.420 Services to be provided.

The grantee shall initially provide the cable services set forth in its franchise. [Ord. 619-88, 11-8-88. Prior code § 19-42].

5.15.430 Open books and records.

The city shall have the right to inspect at any time during normal business hours and upon reasonable prior notice to the grantee all maps, cable communications system construction plans, financial records limited to gross revenues, service complaint logs, and performance test results which relate to the operation of the franchise and are maintained at the grantee’s office within the service area. If any of such records are not kept in the grantee’s local office, or upon reasonable request made available to the city, and if the city shall determine that an examination of such records is necessary or appropriate to the performance of any of the city’s duties, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by the grantee. [Ord. 619-88, 11-8-88. Prior code § 19-43].

5.15.440 Records required.

In any event the grantee shall at all times maintain:

(1) Subscriber Complaints. Grantee shall maintain a written record or the equivalent stored in computer memory and capable of being retrieved of complaints received and interruptions and/or degradation of service for a period of three years. In any event the grantee shall maintain such records or a reasonable summary thereof identifying the number and nature of complaints and their disposition for each month at issue, which shall be furnished to the city upon request of the city, allowing reasonable time to assemble and/or copy the same.

(2) System Maps. A full and complete set of plans, records, and as-built maps as of a reasonably current date accurately showing the location of the cable communications system equipment then installed or in use in the service area, exclusive of subscriber service drops. Such plans, records, and maps will be furnished to the city upon request of the city, allowing reasonable time to assemble and/or copy the same. [Ord. 619-88, 11-8-88. Prior code § 19-44].

5.15.450 Consumer protection.

(1) Consumer Service Standards. The grantee shall maintain the necessary facilities, equipment and personnel to comply with the following consumer standards under normal conditions of operation:

(a) Sufficient toll-free telephone line capacity during normal business hours to assure on 20 consecutive business days average that a minimum of 90 percent of all callers for any service will not be required to wait more than three minutes before being connected to a service representative. Grantor may require that grantee acquire, install and maintain adequate monitoring equipment to assure performance hereunder. For purposes of the computation required in this section, the grantee shall be allowed to exclude any days on which material system outages occurred.

(b) Emergency toll-free telephone answering capacity on a 24-hour basis, including weekends and holidays. A tape recorded answering machine does not constitute an answering service. A bona fide answering (business) service is acceptable.

(c) An emergency system maintenance and repair staff, capable of responding to and commencing repairing of major system malfunction on a 24-hour basis.

(d) An installation staff, capable of installing service to any subscriber within 10 business days after receipt of a bona fide request, in all areas where trunk and feeder cable have been activated.

(e) Grantee shall schedule, within a specified time period (a.m. or p.m.) all appointments with subscribers for installation or service.

(2) Requests for Cable Service Repairs.

(a) The grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions, insofar as possible and practical, shall be preceded by notice and shall occur during period of minimum use of the system, preferably between midnight and 6:00 a.m. A written log or an equivalent stored in computer memory and capable of access and reproduction shall be maintained for all service interruptions and requests for cable service repair as required. Such records shall be maintained for 36 months.

(b) The grantee shall maintain a repair force of technicians normally capable of responding to subscriber requests for service within the following time frames:

(i) System Outage. Within two hours, including weekends and holidays, of receiving subscriber calls which by number identify a system outage of sound or picture of six or more channels, affecting all the subscribers of the system or a considerable number thereof.

(ii) Isolated Outage. Within 24 hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for six or more channels.

(iii) Inferior Reception Quality. Within 48 hours, excluding weekends and holidays, of receiving a request for service identifying a problem concerning picture or sound quality.

(c) Grantee shall be deemed to have responded to a complaint or a request for service under the provisions of this section when a technician arrives at the service location and begins work on the problem. In the case of a subscriber not being home when the technician arrives, response shall be deemed to have taken place if the technician leaves written notification of arrival.

No charge shall be made to the subscriber for any service call unless the service request can be demonstrated to be noncable system in origin, or subscriber caused.

(3) Verification of Standards. Upon reasonable notice, the grantee shall demonstrate compliance with any or all of the standards required in subsections (1) and (2) of this section. The grantee shall provide sufficient detail to permit the grantor to verify the extent of compliance no more than twice per year, however if any noncompliance is detected the grantor may in its sole discretion require such additional verification as it deems necessary and at grantee’s expense for each time additional verification is needed.

(4) Noncompliance with Standards. A repeated and verifiable pattern of noncompliance with the consumer protection standards of subsections (1) and (2) of this section, after grantee receipt of due notice and an opportunity to cure, may be termed a breach of the franchise, subject to any and all remedies as prescribed in WMC 5.15.240 and applicable law.

(5) Local Office. The grantee shall maintain an office in Glenn County which shall be open during business hours and have a publicly listed toll free telephone. The grantee may use an answering service to receive such complaints and requests during other than the grantee’s usual business hours or on such days as the grantee is not open for business.

(6) Notice to Subscribers. The grantee shall furnish each subscriber, at the time service is installed, written information that clearly sets forth the name, address, and local telephone number of the grantee for purposes of inquiries or complaints concerning cable service. [Ord. 619-88, 11-8-88. Prior code § 19-45].

5.15.460 Rights of individuals.

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

(2) Equal Employment Opportunity. The grantee shall strictly adhere to the equal employment opportunity requirements of the FCC and state and local authorities, as amended from time to time.

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

(4) Subscriber Information. The grantee’s policy with respect to personally identifiable information shall be consistent with federal, state, and local laws, rules, and regulations with respect thereto. [Ord. 619-88, 11-8-88. Prior code § 19-46].

5.15.470 Continuity of service.

(1) Continuity Required. It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the grantee are honored. In the event that the grantee elects to overbuild, rebuild, modify, or sell the cable communications system, or the city gives notice of intent to terminate or fails to renew the franchise, the grantee shall act so as to minimize the period of any interruption in service resulting therefrom. Such interruptions, insofar as possible, shall be preceded by notice to the affected subscribers and shall be limited to periods of minimum use of the service or services to be interrupted.

(2) Operation by Grantee after Termination. In the event of a change of grantee, or in the event a new operator acquires the cable communications system, the grantee shall cooperate with the city, new grantee, or operator in maintaining continuity of service to all subscribers. During such period, the grantee shall be entitled to the revenues for any period during which it operates the system. [Ord. 619-88, 11-8-88. Prior code § 19-47].

5.15.480 Grantee rules and regulations.

The grantee shall have the authority to promulgate such rules, regulations, terms, and conditions governing the conduct of its business as the grantee shall consider reasonably necessary to enable the grantee to exercise its rights and perform its obligations under the franchise and to assure service to each and all of its subscribers; provided, that such rules, regulations, terms, and conditions shall not be in conflict with the provisions hereof or applicable federal and state laws, rules, and regulations. The grantee shall provide the city with copies of any such rules, regulations, terms, and conditions within 30 days after any change therein. [Ord. 619-88, 11-8-88. Prior code § 19-48].

5.15.490 Tenant rights.

The grantee shall be required to provide tenants in individually billed units of a multiple dwelling unit housing facility with all cable services offered to other dwelling units located within the service area, so long as the owner of the facility consents in writing, if requested by the grantee, to the following:

(1) To the grantee’s providing of the service directly to individual units of the facility;

(2) To reasonable conditions and times for installation, maintenance, and inspection of the system on the facility premises;

(3) To reasonable conditions promulgated by the grantee to protect the grantee’s equipment and to encourage widespread use of the system; and

(4) To not discriminate in retail charges or otherwise between tenants who receive cable service and those who do not. [Ord. 619-88, 11-8-88. Prior code § 19-49].

Article VII. Rights Reserved to the City

5.15.500 Right to purchase system.

The city may in any lawful manner and upon the payment of a fair valuation lawfully ascertained, purchase, condemn, acquire, take over, and hold the property and plant of the grantee in whole or in part. If such purchase or taking over be upon revocation of the franchise or at the expiration of the term of the franchise, such evaluation shall not include any sum for the value of the franchise or grant under which such plant and property is being operated. [Ord. 619-88, 11-8-88. Prior code § 19-50].

5.15.510 Right of inspection of construction.

The city shall have the right to inspect all construction or installation work performed in the streets pursuant to the provisions of the grantee’s franchise and to make such tests as are provided in this chapter, such franchise, or applicable federal, state, or city law as it shall find necessary to ensure compliance with the terms of this chapter, the franchise, and such other pertinent provisions of law. [Ord. 619-88, 11-8-88. Prior code § 19-51].

Article VIII. Rights Reserved to the Grantee

5.15.520 Rights of grantee generally.

In the event of any dispute between the city and the grantee arising with respect to this chapter or the grantee’s franchise, or with respect to any rights or obligations arising therefrom, the grantee shall first pursue and exhaust all available administrative remedies. Thereafter, the grantee may pursue appropriate legal action. [Ord. 619-88, 11-8-88. Prior code § 19-52].

5.15.530 Right of appeal.

The grantee may appeal any action by any officer, employee, department, board, or commission of the city with respect to the grantee’s franchise to the appeals board of the city in accordance with the provisions set forth in this chapter. [Ord. 619-88, 11-8-88. Prior code § 19-53].

Article IX. Reports

5.15.540 Annual reports.

At the city’s sole option, within 60 days after the close of the grantee’s fiscal year, the grantee shall submit a written annual report, in a form approved by the city, which shall contain the following information:

(1) Activities Undertaken. A summary of the previous year’s (or, in the case of the initial report year, the initial year’s) activities in development of the cable communications system, including, but not limited to, services begun or discontinued during the reporting year and the number of subscribers for each class of service.

(2) Partners, Officers, and Directors. A list of the grantee’s general partners, officers, members of its board of directors, or other principals, as the case may be.

(3) Principal Partners and Stockholders. A list of partners, stockholders, or other equity investors holding five percent or more of the partnership interests in the grantee or the voting interest in the grantee, its parent, and subsidiary and affiliated corporations, if any. [Ord. 619-88, 11-8-88. Prior code § 19-54].

5.15.550 Plant survey report.

At the city’s sole option, the grantee shall submit to the city within 90 days after its request therefor an annual plant survey report which shall be a complete survey of the grantee’s plant and a full report thereon relating to the most recently completed calendar year. Said report shall contain a description of the portions of the service area that have been cabled and have all cable services available and shall reference the availability of as-built maps showing location of the cable communications system installed in the service area as of the end of the calendar year for which such report is requested. Said report shall be in sufficient detail to enable the city to ascertain that the technical standards of the FCC are achieved and maintained, which shall be satisfied by incorporating in the plant survey report the proof of performance report completed by the grantee for such calendar year. If the city has reason to believe that portions or all of the system materially fails to satisfy the FCC technical standards applicable to cable communications systems, at the city’s request, but no more often than once each three years, the grantee and the city shall agree upon the appointment of a qualified independent engineer to evaluate and verify the technical performance of the cable system. The cost of such evaluation shall be borne equally by the grantee and the city, unless such evaluation indicates that the cable communications system materially fails to meet such FCC technical standards, in which case the cost thereof shall be borne solely by the grantee. [Ord. 619-88, 11-8-88. Prior code § 19-55].

5.15.560 Public reports.

Upon request of the city, the grantee shall furnish copies of any publicly available reports concerning the grantee, its parent, or affiliates, including, but not limited to, annual and other periodic reports filed with the Securities and Exchange Commission. [Ord. 619-88, 11-8-88. Prior code § 19-56].

5.15.570 Surveys.

Upon request of the city, the grantee shall furnish the results of any survey undertaken by the grantee of a representative sample of all of its subscribers; provided, that the grantee shall give the city at least 10 days’ prior notice of any such survey to permit the city to submit requests for items to be included in such survey. The grantee may, in its reasonable judgment, elect not to include any or all of those items requested by the city for incorporation in such survey. [Ord. 619-88, 11-8-88. Prior code § 19-57].

5.15.580 Miscellaneous reports.

The grantee shall submit to the city such other information or reports in such forms and at such times as the city may reasonably request; provided, that such information or reports shall relate directly to information or reports which the city is entitled to receive under the terms of this chapter or the grantee’s franchise and, provided further, that the grantor shall bear the reasonable expense of preparing such information or reports. [Ord. 619-88, 11-8-88. Prior code § 19-58].

5.15.590 Inspection of facilities.

The grantee shall allow the city to make inspections of any of the grantee’s distribution facilities and equipment at any time during the grantee’s normal business hours upon reasonable notice or, in case of emergency, upon demand without prior notice, to allow the city to verify the accuracy of any submitted report. [Ord. 619-88, 11-8-88. Prior code § 19-59].

5.15.600 Public inspection.

All reports subject to public disclosure and maintained in the city’s records shall be available for public inspection at a designated city office during normal business hours. [Prior code § 19-60].

5.15.610 Failure to report.

The refusal, failure, or neglect of the grantee to file any of the reports required under this chapter or the grantee’s franchise shall be deemed a material breach of the franchise if the grantee fails to file such report, after receipt of written notice from the city with respect thereto, within the period of cure allowed under this chapter for an event of default by the grantee in the performance of any of its material obligations under this chapter, and shall subject the grantee to all remedies, legal or equitable, which are available to the city under the grantee’s franchise or otherwise. [Ord. 619-88, 11-8-88. Prior code § 19-61].

5.15.620 False statements.

Any materially false or misleading statement or representation made knowingly by the grantee in any report required under this chapter or the franchise shall be deemed a material breach of the franchise and shall subject the grantee to all remedies, legal or equitable, which are available to the city under the grantee’s franchise or otherwise. [Ord. 619-88, 11-8-88. Prior code § 19-62].

5.15.630 Cost of reports.

All reports and records required under this or any other section shall be furnished at the sole expense of the grantee, except with respect to miscellaneous information and reports as set forth herein. [Ord. 619-88, 11-8-88. Prior code § 19-63].

Article X. Miscellaneous Provisions

5.15.640 Severability.

If any term, covenant, condition, or provision of this chapter or any franchise granted pursuant to this chapter or the application thereof to any person or circumstance is, to any extent, invalid or unenforceable, the remaining terms, covenants, conditions, and provisions of this chapter or such franchise, or the application of such term, covenant, condition, or provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, condition, and provision of this chapter or such franchise shall be valid and enforced to the fullest extent permitted by law. [Ord. 619-88, 11-8-88. Prior code § 19-64].

5.15.650 Notices.

The grantee shall maintain within Butte or Glenn Counties throughout the term of the franchise an address for service of notices by mail. [Ord. 619-88, 11-8-88. Prior code § 19-65].

5.15.660 Nonenforcement by the city.

The grantee shall not be relieved of its obligation to comply with any of the provisions of this chapter by reason of any failure of the city to enforce prompt compliance. [Ord. 619-88, 11-8-88. Prior code § 19-66].

5.15.670 Theft of services and tampering.

No person, whether or not a subscriber to the cable communications system, may intentionally or knowingly damage or cause to be damaged any wire, cable, conduit, equipment, apparatus, or appurtenance of the grantee, or commit any act with intent to cause damage, or to tap, tamper with, or otherwise connect any wire or device to a wire, cable, conduit, equipment, apparatus, or appurtenance of the grantee with the intent to obtain a signal or impulse from the cable communications system without authorization from or compensation to the grantee, or to obtain cable or other communication services with intent to cheat or defraud the grantee of any lawful charge to which it is entitled. [Ord. 619-88, 11-8-88. Prior code § 19-67].

5.15.680 Force majeure.

In the event the grantee’s performance of any of the terms, conditions, obligations, or requirements of its franchise, including such terms, conditions, obligations, or requirements as are set forth in this chapter, is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof; provided, that the grantee has notified the city in writing within 30 days of its discovery of the occurrence of such an event. Such causes beyond the grantee’s reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God and civil emergencies. [Ord. 619-88, 11-8-88. Prior code § 19-68].