For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
“Community antenna television system (CATV)”
means a system of antenna, coaxial cables, wires, wave guides or other conductors, equipment or facilities designed, constructed or used for the purpose of providing television or FM radio service by cable or through its facilities as herein contemplated.
“Consumer Price Index”
means the United States Department of Labor, Bureau of Labor Statistics, Los Angeles/Long Beach/Anaheim Consumer Price Index (1967 = 100), All Items for Urban Wage Earners and Clerical Workers.
“Franchise”
means any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a CATV system in the City. Any such authorization, in whatever term granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the City in accordance with Chapter 5.04 of this Code.
“Grantee”
means the person to whom a franchise, as defined in this section, is granted by the City Council under this article, and the lawful successor, transferee or assignee of such person.
“Gross annual receipts”
means all compensation and other consideration, in any form whatever, and any contributing grant or subsidy received, directly or indirectly, by a grantee from subscribers or users in payment for television or FM radio signals or service received within the City.
“Property of grantee”
means all property owned, installed or used by a grantee in the conduct of a CATV business in the City under the authority of a franchise granted pursuant to this article.
“Street”
means the surface of and the space above and below any public street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway or drive, now or hereafter existing as such within the City.
“Subscriber”
means any person or entity receiving for any purpose the CATV service of a grantee.
(Prior code § 112.01)
When and in the event that the grantee of any franchise granted under this article constructs, operates and maintains a CATV system exclusively through telephone company facilities constructed, operated and maintained pursuant to a state-granted telephone franchise and offers satisfactory proof that in no event during the life of such franchise shall the grantee make any use of the streets independently of such telephone company facilities, such grantee shall be required to comply with all of the provisions hereof as a “licensee,” and in such event whenever the term grantee is used in this article, it shall be deemed to mean and include “licensee.”
(Prior code § 112.02)
A. 
A nonexclusive franchise to construct, operate and maintain a CATV system within all or any portion of the City may be granted by the City Council to any person, whether operating under an existing franchise or not, who offers to furnish and provide such system under and pursuant to the terms and provisions of this article.
B. 
No provision of this chapter may be deemed or construed as to require the granting of a franchise when, in the opinion of the City Council, it is in the public interest to restrict the number of grantees to one or more.
(Prior code § 112.03)
A. 
Any franchise granted pursuant to the provisions of this article shall authorize and permit the grantee to engage in the business of operating and providing a CATV system in the City, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain, in, on, over, under, upon, across and along any public street, such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system; and in addition, so to use, operate and provide similar facilities or properties rented or leased from other persons, including but not limited to any public utility or other grantee franchised or permitted to do business in the City.
B. 
The grantee may make a charge to subscribers for installation or connection to its CATV system and a fixed monthly charge as filed and approved as herein provided.
C. 
No increase in the basic rates or charges to subscribers may be made in excess of the percentage increase in the Consumer Price Index since April 1, 1984, or since the most recent rate increase following that date, without prior approval of the Council expressed by resolution.
D. 
The grantee shall notify the City at least 30 days prior to implementing any rate increase.
(Prior code § 112.04)
No franchise granted by the City Council under this article shall be for a term longer than 20 years following the date of acceptance of such franchise by the grantee or the renewal thereof. Any such franchise granted under this chapter may be terminated prior to its date of expiration by the City Council in the event that the City Council shall have found, after 45 days written notice to the grantee and one published notice at least 14 days prior to a public hearing on the matter, or following any regular review hearing, that:
A. 
The grantee has failed to comply with any provision of this article, or has, by act or omission, violated any term or condition of any franchise or permit issued under this article;
B. 
Any provision of this article has become invalid or unenforceable and the City Council further finds that such provision constitutes a consideration material to the grant of such franchise; or
C. 
The City acquires the CATV system property of the grantee.
(Prior code § 112.05)
A. 
Any grantee granted a franchise under this article shall pay to the City, during the life of the franchise, a sum equal to five percent of the total gross annual receipts, payable in monthly installments. Total gross annual receipts shall include all income from all sources, including but not limited to installation and connection charges, basic subscriber fees, expanded service fees, pay subscription fees (for HBO, Movie Channel, Cinemax, and the like), and equipment rental. Such payment by the grantee to the City shall be made by delivery of the same to the Finance Director.
B. 
The grantee shall file with the City, within 45 days after the expiration of any calendar year or portion thereof during which such franchise is in force, a financial statement prepared by a certified public accountant or person otherwise satisfactory to the City Council, showing in detail the gross annual receipts of the grantee during the preceding calendar year or portion thereof. It shall be the duty of the grantee to pay to the City, within 30 days after the time for filing such statements, the sum hereinabove prescribed or any unpaid balance thereof for the calendar year or portion thereof covered by such statements.
C. 
In any year or portion thereof following the first full year in which service has been provided and during which payments under this section amount to less than $1,000 per year, the grantee shall pay the City a minimum fee of $1,000 per year.
D. 
The City shall have the right to inspect the grantee’s records showing the gross receipts from which its franchise payments are computed and the right of audit and recomputation of all amounts paid under this chapter. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under this chapter or for the performance of any other obligation hereunder.
E. 
In the event of any holding over after expiration or other termination of any franchise granted under this chapter, without the consent of the City, the grantee shall pay to the City reasonable compensation and damages, of not less than 100 percent of its total gross profits during such period.
(Prior code § 112.06)
A. 
Any franchise granted under this article shall be nonexclusive.
B. 
No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically prescribed in this chapter.
C. 
Any privilege claimed under any such franchise by the grantee in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property.
D. 
Any such franchise shall be a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without the prior consent of the City Council, expressed by resolution, and then only under such conditions as may therein be prescribed. Any such transfer or assignment shall be made only by an instrument in writing, a duly executed copy of which shall be filed in the office of the City Manager within 30 days after any such transfer or assignment. Such consent of the City Council may not be arbitrarily refused, provided that the proposed assignee shall show financial responsibility and shall agree to comply with all provisions of this chapter, provided, further, that no such consent shall be required for a transfer in trust, mortgage or other hypothecation as a whole, to secure an indebtedness.
E. 
Time shall be of the essence of any such franchise granted under this chapter. The grantee shall not be relieved of his or her obligation to comply promptly with any of the provisions of this chapter or by any failure of the City to enforce prompt compliance.
F. 
Any right or power in, or duty impressed upon, any officer, employee, department or board of the City shall be subject to transfer by the City to any other officer, employee, department or board of the City.
G. 
The grantee shall have no recourse whatsoever against the City for any loss, cost, expense or damage arising out of any provision or requirement of this chapter or of any franchise issued under this chapter or because of its enforcement.
H. 
The grantee shall be subject to all requirements of this Code and other City ordinances, rules, regulations and specifications heretofore or hereafter enacted or established.
I. 
Any franchise granted under this chapter shall not relieve the grantee of any obligation involved in obtaining pole space from any department of the City, utility company or from others maintaining poles in streets.
J. 
Any franchise granted under this chapter shall be in lieu of any and all other rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by the grantee, or any successor to any interest of the grantee, of or pertaining to the construction, operation or maintenance of any CATV system in the City; and the acceptance of any franchise under this chapter shall operate, as between the grantee and the City, as an abandonment of all such rights, privileges, powers, immunities and authorities within the City, to the effect that, as between the grantee and the City, all construction, operation and maintenance by any grantee of any CATV system in the City shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to such franchise, and not under or pursuant to any other right, privilege, power, immunity or authority whatsoever.
(Prior code § 112.07)
A. 
Nothing in this article shall be deemed or construed to impair or affect, in any way, to any extent, the right of the City to acquire the property of the grantee, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted, and nothing contained in this chapter shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the City’s right of eminent domain.
B. 
There is reserved to the City every right and power which is required to be herein reserved or provided by this Code or any other ordinance of the City, and the grantee, by its acceptance of any franchise, agrees to be bound thereby and to comply with any action or requirements of the City in its exercise of such rights or power, heretofore or hereafter enacted or established.
C. 
Neither the granting of any franchise under this article, nor any of the provisions contained in this chapter shall be construed to prevent the City from granting any identical or similar franchise to any other person, within all or any portion of the City.
D. 
There is reserved to the City the power to amend any section or part of this article so as to require additional or greater standards of construction, operation, maintenance or otherwise on the part of the grantee.
E. 
Neither the granting of any franchise nor any provision of this chapter shall constitute a waiver or bar to the exercise of any governmental right or power of the City.
F. 
The City Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter, and may determine any question of fact which may arise during the existence of any franchise granted under this chapter. The City Manager is authorized and empowered to adjust, settle or compromise any controversy or charge arising from the operations of any grantee under this chapter, either on behalf of the City, the grantee or any subscriber, in the best interest of the public. Either the grantee or any member of the public who may be dissatisfied with the decision of the City Manager may appeal the matter by filing a written appeal to the City Clerk within 15 days of the City Manager’s decision. The appeal shall be conducted in accordance with the applicable sections of Chapter 4.36 of the Desert Hot Springs Municipal Code, as may be amended. The Hearing Officer may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provision of this chapter. The decision of the Hearing Officer shall be final.
(Prior code § 112.08; Ord. 695 10-15-19)
A. 
Within 30 days after acceptance of any franchise under this article, the grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility joint use attachment agreements, microwave carrier licenses and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of CATV systems or their associated microwave transmission facilities.
B. 
Within 90 days after obtaining all necessary permits, licenses and authorizations, the grantee shall commence construction and installation of the CATV system.
C. 
Within 90 days after the commencement of construction and installation of the system, the grantee shall proceed to render service to subscribers, and the completion of the construction and installation shall be pursued with reasonable diligence thereafter, so that service to all areas designated on the map accompanying the application for a franchise, as provided in Section 5.08.240 of this article, shall be provided within 180 days from the date that service was first provided.
D. 
Failure on the part of the grantee to commence and diligently pursue each of the foregoing requirements and to complete each of the matters set forth in this section shall be grounds for termination of such franchise, under and pursuant to the terms of Section 5.08.050 of this article, provided, that the City Council, in its discretion, may extend the time for the commencement and completion of construction and installation for additional periods in the event the grantee, acting in good faith, experiences delays by reason of circumstances beyond his or her control.
(Prior code § 112.09)
A. 
Any poles, wires, cable lines, conduits or other properties of the grantee to be constructed or installed in streets shall be so constructed or installed only at such locations and in such manner as shall be approved by the Director of Public Works, acting in the exercise of his or her reasonable discretion.
B. 
The grantee shall not install or erect any facilities or apparatus in or on other public property, places or rights-of-way, or within any privately owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the City, except those installed or erected upon public utility facilities now existing, without obtaining the prior written approval of the Director of Public Works.
C. 
In those areas and portions of the City where the transmission or distribution facilities of both the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the grantee shall likewise construct, operate and maintain all of its transmission and distribution facilities underground. For the purposes of this subsection, underground shall include a partial underground system, for example, streamlining. Amplifiers in the grantee’s transmission and distribution lines may be in appropriate housings upon the surface of the ground as approved by the Director of Public Works.
(Prior code § 112.10)
A. 
In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of 12 months, or in the event such system or property has been installed in any street or public place without complying with the requirements of the grantee’s franchise or this chapter, or the franchise has been terminated, canceled or has expired, the grantee shall promptly, upon being given 30 days notice, remove from the streets or public places all property and poles of such system, other than any which the Director of Public Works may permit to be abandoned in place. In the event of such removal, the grantee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the Director of Public Works.
B. 
Any property of the grantee remaining in place 30 days after the termination or expiration of the franchise shall be considered permanently abandoned. The Director of Public Works may extend such time not to exceed an additional 30 days.
C. 
Any property of the grantee to be abandoned in place shall be abandoned in such manner as the Director of Public Works shall prescribe. Upon permanent abandonment of the property of the grantee in place, the property shall become that of the City, and the grantee shall submit to the Director of Public Works an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property.
(Prior code § 112.11)
Each grantee shall, at his or her expense, protect, support, temporarily disconnect, relocate in the same street or other public place, or remove from the street or other public place, any property of the grantee when required by the Director of Public Works by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines and tracks or any other type of structures or improvements by public agencies, provided, that the grantee shall in all such cases have the privileges and be subject to the obligations to abandon any property of the grantee in place, as provided in Section 5.08.110 of this article.
(Prior code § 112.12)
Upon failure of a grantee to commence, pursue or complete any work required by law or by the provisions of this chapter or by his or her franchise to be done in any street or other public place, within the time prescribed and to the satisfaction of the Director of Public Works, the Director of Public Works may, at his or her option, cause such work to be done, and the grantee shall pay to the City the cost thereof in the itemized amounts reported by the Director of Public Works to the grantee within 30 days after receipt of such itemized report.
(Prior code § 112.13)
A. 
Each grantee shall, concurrently with the filing of and acceptance of award of any franchise granted under this article, file with the City Manager, and at all times thereafter maintain in full force and effect for the term of such franchise or any renewal thereof, at the grantee’s sole expense, a corporate surety bond in a company and in a form approved by the City Attorney, in the amount of $10,000, renewable annually, and conditioned upon the faithful performance of the grantee, and upon the further condition that in the event the grantee shall fail to comply with any one or more of the provisions of this chapter, or of any franchise issued to the grantee under this chapter, there shall be recoverable, jointly and severally from the principal and surety of such bond, any damages or loss suffered by the City as a result thereof, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the grantee as prescribed hereby which may be in default, plus a reasonable allowance for attorney’s fees and costs, up to the full amount of the bond. Such condition shall be a continuing obligation for the duration of such franchise and any renewal thereof and thereafter until the grantee has liquidated all of his or her obligations with the City that may have arisen from the acceptance of such franchise or renewal by the grantee or from the exercise of any privilege therein granted. The bond shall provide that 30 days prior written notice of intention not to renew, cancellation or material change be given to the City.
B. 
Neither the provisions of this section, nor any bond accepted by the City pursuant hereto, nor any damages recovered by the City thereunder, shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise issued under this chapter or for damages, either to the full amount of the bond or otherwise.
(Prior code § 112.14)
A. 
A grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this article, furnish to the City and file with the City Manager, and at all times during the existence of any franchise granted under this chapter, maintain in full force and effect, at its own cost and expense, a liability insurance policy in the amount of $100,000 in a company approved by the City Manager and in a form satisfactory to the City Attorney, indemnifying and saving harmless the City, its officers and employees from and against all claims, demands, actions, suits and proceedings by others, against all liability to others, including but not limited to any liability for damages by reason of or arising out of any failure by the grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee’s CATV system, and against any loss, cost, expense and damages resulting therefrom, including reasonable attorney’s fees, arising out of the exercise or enjoyment of its franchise, irrespective of the amount of the comprehensive liability insurance policy required hereunder.
B. 
The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, furnish to the City and file with the City Manager, and at all times during the existence of any franchise granted under this chapter, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy in protection of the City, its officers, boards, commissions, agents and employees, in a company approved by the City Manager and a form satisfactory to the City Attorney, protecting the City and all persons against liability for loss or damage for personal injury, death and property damage, occasioned by the operations of grantee under such franchise, with minimum liability limits of $500,000 for personal injury or death of any one person and $1,000,000 for personal injury or death of two or more persons in any one occurrence, and $50,000 for damage to property resulting from any one occurrence.
C. 
The policies mentioned in subsection B of this section shall name the City, its officers, boards, commissions, agents and employees, as additional insured, and shall contain a provision that a written notice of cancellation or reduction in coverage of such policy shall be delivered to the City 15 days in advance of the effective date thereof. If such insurance is provided by a policy which also covers the grantee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement.
(Prior code § 112.15)
A. 
At all reasonable times, each grantee shall permit any duly authorized representative of the City to examine all property of the grantee, together with any appurtenant property of the grantee situated within or without the City, and to examine and transcribe any maps and other records kept or maintained by the grantee or under its control which deal with the operations, affairs, transactions or property of the grantee with respect to its franchise. If any such maps or records are not kept in the City, or upon reasonable request made available in the City, and if the City Council shall determine that an examination thereof is necessary or appropriate, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by the grantee.
B. 
The grantee shall prepare and furnish to the Director of Public Works and the Treasurer, at the times and in the form prescribed by either of such officers, such reports with respect to its operations, affairs, transactions or property as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the City or any of its officers in connection with the franchise.
C. 
The grantee shall at all times make and keep in the City full and complete plans and records showing the exact location of all CATV system equipment installed or in use in streets and other public places in the City.
D. 
The grantee shall file with the Director of Public Works, on or before the last day in December of each year, a current map or set of maps drawn to scale, showing all CATV system equipment installed and in place in streets and other public places of the City.
(Prior code § 112.16)
Each CATV system shall be installed and maintained in accordance with the highest and best accepted standards of the industry, to the effect that subscribers shall receive the highest possible service. In determining the satisfactory extent of such standards, the following, among others, shall be considered:
A. 
That the system be installed using all band equipment capable of passing the entire VHF and FM spectrum; and that it have the further capability of converting UHF for distribution to subscribers on the VHF band.
B. 
That the system, as installed, be capable of passing standard color TV signals without the introduction of material degradation on color fidelity and intelligence.
C. 
That the system and all equipment be designed and rated for 24-hour per day continuous operation.
D. 
That the system provides a nominal signal level of 2,000 microvolts at the input terminals of each television receiver.
E. 
That the system signal-to-noise ratio is not less than 40 decibels.
F. 
That hum modulation of the picture signal is less than five percent.
G. 
That the system use components having a VSWR of 1.4 or less.
(Prior code § 112.17)
A. 
To ensure compliance with the obligations imposed under Section 5.08.170 and this article, including the obligation to provide quality service to subscribers and to upgrade service as technology evolves, the City Council shall, during March of even-numbered years, hold a review hearing on the efforts of the grantee to keep the system up to current industry standards and maintain high quality service to subscribers.
B. 
Topics for review shall include, but not be limited to:
1. 
Rate structure;
2. 
Application of new technologies;
3. 
System performance;
4. 
Programming;
5. 
Subscriber and user complaints;
6. 
Rights of privacy; and
7. 
Community service channel implementation.
C. 
The session shall be open to the public. Notice of the hearing shall be given by publication one time at least 14 days before the hearing. In addition, the grantee shall announce the date, time and location of the hearing on each of five successive days immediately preceding the hearing date at six regularly scheduled intervals on at least one channel and shall notify all subscribers by including notice with the previous monthly billing at its sole expense.
D. 
Following the review hearing, the City Council may adopt such rules, regulations or ordinance amendments, or take such other action as it deems necessary, provided such rules, regulations, ordinance amendments, or such other actions as the City Council may deem necessary, are consistent with current industry standards in the Southern California area, the maintenance of high quality service to subscribers and do not obligate the grantee to modify its facilities or services in a manner which is financially infeasible considering the size and other characteristics of franchisee’s system.
(Prior code § 112.18)
When not otherwise prescribed in this article, all matters herein required to be filed with the City shall be filed with the City Manager.
(Prior code § 112.19)
Each grantee shall pay to the City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise pursuant to the provisions of this article. Such payment shall be made within 30 days after the City furnishes the grantee with a written statement of such expenses by delivery of same to the City Treasurer.
(Prior code § 112.20)
A grantee shall maintain an office within the City or at a location which subscribers may call without incurring added message or toll charges, so that CATV maintenance service shall be promptly available to subscribers.
(Prior code § 112.21)
A. 
Application for a franchise under this chapter shall be in writing, shall be filed with the City Manager and shall contain the following information:
1. 
The name and address of the applicant. If the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application shall also state the names and addresses of its directors, main offices, major stockholders and associates and the names and addresses of parent and subsidiary companies.
2. 
A statement and description of the CATV system proposed to be constructed, installed, maintained or operated by the applicant; the proposed location of such system and its various components; the manner in which the applicant proposes to construct, install, maintain and operate the same; and, particularly, the extent and manner in which existing or future poles or other facilities of other public utilities will be used for such system.
3. 
A description, in detail, of the public streets, public places and proposed public streets within which the applicant proposes or seeks authority to construct, install or maintain any CATV equipment or facilities; a detailed description of the equipment or facilities proposed to be constructed, installed or maintained therein; and the proposed specific location thereof.
4. 
A map specifically showing and delineating the proposed service area or areas within which the applicant proposes to provide CATV services and for which a franchise is requested.
5. 
A statement or schedule, in a form approved by the City Manager, of proposed rates and charges to subscribers for installation and services, and a copy of the proposed service agreement between the grantee and its subscribers shall accompany the application. For unusual circumstances such as underground cable required, or more than 150 feet of distance from cable to connection of service to subscribers, an additional installation charge over that normally charged for installation as specified in the applicant’s proposal may be charged, with easements to be supplied by subscribers.
6. 
A copy of any contract, if existing, between the applicant and any public utility providing for the use of facilities of such public utility, such as poles, lines or conduits.
7. 
A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any other person with respect to the proposed franchise or the proposed CATV operation. If a franchise is granted to a person posing as a front or as the representative of another person, and such information is not disclosed in the original application, such franchise shall be deemed void and of no force and effect whatsoever.
8. 
A financial statement prepared by a certified public accountant or person otherwise satisfactory to the City Council, showing the applicant’s financial status and his or her financial ability to complete the construction and installation of the proposed CATV system.
9. 
The City Council may, at any time, demand, and the applicant shall provide, such supplementary, additional or other information as the City Council may deem reasonably necessary to determine whether the requested franchise should be granted.
B. 
Upon consideration of any such application, the City Council may refuse to grant the requested franchise, or the City Council may by ordinance grant a franchise for a CATV system to any such applicant as may appear from such application to be, in its opinion, best qualified to render proper and efficient CATV service to television viewers and subscribers in the City. The City Council’s decision in the matter shall be final. If favorably considered, the application submitted shall constitute and form part of the franchise as granted.
C. 
1. 
Any franchise granted pursuant to this chapter shall include the following condition:
The CATV system herein franchised shall be used and operated solely and exclusively for the purpose expressly authorized by Ordinance of the City of Desert Hot Springs and no other purpose whatsoever.
2. 
Inclusion of the foregoing statement in any such franchise shall not be deemed to limit the authority of the City to include any other reasonable condition, limitation or restriction which it may deem necessary to impose in connection with such franchise pursuant to the authority conferred by this chapter.
(Prior code § 112.24)
Any franchise granted under this chapter is renewable at the application of the grantee, in the same manner and upon the same terms and conditions as required herein for obtaining the original franchise, except those which are by their terms expressly inapplicable, provided, that the City Council may, at its option, waive compliance with any or all of the requirements of Section 5.08.240 of this article.
(Prior code § 112.25)
A. 
No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance granting same has become effective and, in addition, unless and until all things required in this section, Sections 5.08.140 and 5.08.150(A) and (B) are done and completed, all of such things being declared to be conditions precedent to the effectiveness of any franchise granted under this chapter. In the event any of such things are not done and completed in the time and manner required, the City Council may declare the franchise null and void.
B. 
Within 30 days after the effective date of the ordinance awarding a franchise, or within such extended period of time as the City Council, in its discretion, may authorize, the grantee shall file with the City Manager his or her written acceptance, in form satisfactory to the City Attorney, of the franchise, together with the bond and insurance policies required by Sections 5.08.140 and 5.08.150(A) and (B), respectively, of this article, and his or her agreement to be bound by and to comply with and do all things required by the provisions of this chapter and the franchise. Such acceptance and agreement shall be acknowledged by the grantee before a notary public, and shall in form and content be satisfactory to and approved by the City Attorney.
(Prior code § 112.26)
It is unlawful for any person to establish, operate or to carry on the business of generating or distributing to any person in this City any television signals or radio signals by means of a CATV system, either underground or upon telephone company or other public utility facilities, including, but not limited to, lease services, channel services or other forms of lease arrangements as presented by telephone or other public utility companies, unless a franchise or license therefor, as the case may be, has been first obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.
(Prior code § 112.27)
It is unlawful for any person to construct, install or maintain within any public street in the City, or within any other public property of the City, or within any privately owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the City, any equipment or facilities for distributing any television signals or radio signals through a CATV system, unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.
(Prior code § 112.28)
A. 
It is unlawful for any person to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system with this City for the purpose of taking or receiving television signals, radio signals, pictures, programs or sound.
B. 
It is unlawful for any person to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this City for the purpose of enabling him or herself or others to receive any television signal, radio signal, picture, program or sound, without payment to the owner of such system.
(Prior code § 112.29)
The purpose of this article is to implement and expand upon the powers and duties created by the state Video Customer Service Act (California Government Code Sections 53088 et seq., or as hereafter amended). Any provision of this article not directly authorized by the Video Customer Service Act is based on the City’s general police powers.
(Prior code § 112.40)
For the purpose of this article, the definitions of the Video Customer Service Act (California Government Code Sections 53088 et seq., or as hereafter amended) are incorporated herein by this reference.
(Prior code § 112.41)
A. 
All customer service standards and consumer protection provisions of the state Video Customer Service Act (California Government Code Sections 53088 et seq.), as it now exists or may be amended, are incorporated herein by this reference.
B. 
As authorized by State law, the City Council may from time to time adopt additional customer service standards and consumer protection provisions that exceed those of the Video Customer Service Act, as it deems necessary, in order to ensure that residents of the City receive high quality service from video providers.
(Prior code § 112.42)
There is established the Video Customer Dispute Board of the City, whose purpose shall be to resolve disputes between video providers and residents of the City regarding the provider’s compliance with the provisions of the Video Customer Service Act and/or this article. Members of the Board shall be appointed by the Mayor and shall then serve at the pleasure of the City Council. Members may be removed from office, with or without just cause, by a majority vote of a quorum of the Council.
(Prior code § 112.43)
The City Clerk shall act as Secretary to the Video Customer Dispute Board and in that capacity shall receive complaints from aggrieved parties pursuant to this article, set hearings on those complaints before the Board, provide notice to interested parties of hearing dates and final decisions of the Board, maintain records of all Board proceedings, and perform such other services as the Board deems necessary to its proper functioning.
(Prior code § 112.44)
A. 
Generally. In reliance on State law and its general police powers, the City does impose a filing fee in order to recover its costs of providing dispute resolution services pursuant to the Video Customer Service Act and/or this article.
B. 
Filing Fee. Parties filing complaints with the Video Customer Dispute Board shall pay an up-front filing fee in the amount deemed necessary by the City Council to defray and/or recover the City’s estimated costs of providing dispute resolution services. The exact amount of the fee shall be set by resolution of the City Council.
C. 
Fee Shifting. If the Video Customer Dispute Board concludes that a video provider committed a nonmaterial breach of the Video Customer Service Act and/or this article, then the Board shall order the video provider to pay the complaining party one-half of any filing fee paid by the complaining party. If the Video Customer Dispute Board concludes that a video provider committed a material breach of the Video Customer Service Act and/or this article, then the Board shall order the video provider to pay the complaining party the full filing fee paid by the complaining party.
D. 
Fee Waiver. Any individual may petition the City Council for a fee waiver based on practical inability to pay or on the apparent factual merits of a given case. If a fee waiver is granted and the complaining party subsequently prevails, then the Board shall order the video provider to pay the City an amount equal to the portion of the filing fee that would have been imposed on the video provider had a waiver not been granted.
(Prior code § 112.45)
A. 
Parties wishing to submit a dispute to the Video Customer Dispute Board shall file a written complaint with the Board’s Secretary on a form to be provided by the City. Complaint forms shall be available at City Hall and shall at a minimum require the complaining party to provide all of the following information:
1. 
Identification of the parties to the dispute, including their names, addresses and phone numbers (if available).
2. 
Brief description of the factual background of the dispute.
3. 
Identification of the specific provisions of the state Video Customer Service Act or this article that were allegedly violated by the video provider.
4. 
Signature of the complaining party, verifying that the information contained therein is believed to be true and correct and stating that the complaining party has previously made at least one reasonable attempt to notify the video provider of the alleged violations and to resolve the dispute amicably.
B. 
The complaining party shall also provide the Secretary with additional copies of the complaint, one for each member of the Board and one for each party named in the complaint. Upon receipt of a properly completed complaint form, and sufficient number of copies, the Secretary shall set a date and time for a hearing on the matter. The hearing date shall be set no sooner than 30 days from the date the complaint is filed. Complaints not in proper form or lacking the sufficient number of additional copies may be rejected by the Secretary. The Secretary shall notify members of the Board and parties named in the complaint of the hearing date and shall mail or deliver copies of the complaint to them. The Secretary shall also post public notice of scheduled hearing dates in a conspicuous place at City Hall within 24 hours of any hearing date.
(Prior code § 112.46)
Any video provider named in a complaint may, but is not required to, submit to the Board a written answer to the complaint, responding to the charges therein. Such answer shall not exceed ten pages, double-spaced, not including exhibits thereto. The answer shall be filed with the Board’s Secretary during normal business hours, on or before the tenth calendar date preceding the hearing date. The video provider shall also supply the Secretary with additional copies of the answer, one for each member of the Board and one for each party named in the complaint. Answers not proper in form or lacking the sufficient number of additional copies may be rejected by the Secretary. Upon receipt of properly completed answer and sufficient number of copies thereof, the Secretary shall mail or deliver copies of the answer to members of the Board and to parties named in the original complaint.
(Prior code § 112.47)
Any party named in a complaint may attend and participate in a hearing before the Board, however, such attendance and participation is not mandatory nor shall a party’s failure to appear automatically result in a default finding against that party. Members of the public who are not named in a complaint may also attend Board hearings but may not participate therein unless specifically requested to participate by a party to the proceeding or by the Board itself.
(Prior code § 112.49)
A quorum of the Board members must be physically present at a hearing in order for the Board to formally hear and evaluate a complaint. If a quorum does not exist, then the hearing shall be continued by the attending Board member or by the Board’s Secretary until the next available date, to be specified by the Secretary. The quorum of the Board in attendance at a given hearing shall select a presiding officer from its own members for that hearing.
(Prior code § 112.50)
A. 
Commencement. When a quorum of the Board is present, the presiding officer shall officially open the hearing by calling the subject matter and ascertaining which parties to the dispute are present and wish to orally address the Board during the hearing. The time guidelines provided by this section for presentation of arguments and evidence may be modified by the Board in its discretion so long as both sides to a given proceeding have an equal opportunity to present their case.
B. 
Oral Argument. Having ascertained the parties in attendance and desiring to address the Board, the presiding officer shall allow any complaining party (if in attendance) to make an opening statement to the Board if he or she so desires. The statement shall be limited to ten minutes per complaining party, unless the Board directs otherwise. Upon completion of the complaining party’s statement, the presiding officer shall allow the representative of the video provider (if in attendance) an equal amount of time to respond to the opening statements. The Board shall then allow each side a rebuttal of five minutes or such other period of time as the Board deems appropriate. After all evidence has been presented to the Board, representatives of each side may then make closing statements to the Board of no more than five minutes per statement.
C. 
Presentation of Evidence. No formal rules of evidence shall apply and the Board may consider any evidence it considers relevant to the dispute, whether or not presented by the parties. Tangible evidence shall be presented by the parties during their oral arguments. Each side may also present the live testimony of two other persons in support of their position. Such testimony shall not exceed five minutes per person called to testify and shall not be counted against the time otherwise allotted to that side for argument of their case.
D. 
Deliberation. Upon conclusion of the parties’ closing statements, the Board members shall then deliberate openly among themselves and may ask questions of any person in attendance. The Board may render a decision at that time or may continue the hearing until another date to continue their deliberations. All decisions shall be made by a majority vote of the quorum present at the original hearing. If the quorum deadlocks on any aspect of the decision, then the entire matter shall automatically be referred to the City Council for a new hearing and final disposition.
E. 
Termination. When the Board has reached a decision or deadlock, the presiding officer shall announce the decision or deadlock for the record and terminate the proceedings. The Board may also terminate proceedings at any time prior to reaching a decision or deadlock, upon the request of a complaining party. The Secretary shall provide notice of the Board’s decision or deadlock to all parties to the proceeding.
(Prior code § 112.51)
In any given case, the Board’s inquiry shall be limited to determining, by a preponderance of the evidence, whether or not a video provider has breached a provision of the Video Customer Service Act and/or this article. If a breach is found, the Board shall also determine whether the breach was material. Unless otherwise defined by the Video Customer Service Act, “material breach” means any substantial and repeated failure to comply with the consumer standards set forth in the Video Customer Service Act and/or this article.
(Prior code § 112.52)
Upon a finding by the Board of a material breach by a video provider, the Board shall give the video provider written notice of the material breach and allow the video provider at least 30 days from the receipt of the notice to remedy the specified breach. In the case of a Board finding of non-material breach by a video provider, the Board shall place a written record of its finding in the Board’s and City’s files regarding that video provider. The Board shall also provide the video provider and all parties to the proceeding with written notice of its finding.
(Prior code § 112.53)
A. 
Generally. If the video provider does not remedy a specified material breach within 30 days from the receipt of notice to remedy the same, then the Board may in its discretion impose a monetary penalty on the video provider consistent with the Video Customer Service Act and/or this section. However, no monetary penalties shall be assessed for a material breach where the breach is out of the reasonable control of the video provider.
B. 
First Failure to Remedy. Upon a video provider’s first failure to remedy a specified breach within the 30-day period provided by this section, the Board may impose a monetary penalty of $200 for each day of breach following the expiration of the time allotted by this article. However, the total penalty for a first-time failure to remedy a specified breach shall not exceed $600.
C. 
Second Failure to Remedy. Where the Board has previously imposed a monetary penalty on a provider for failure to remedy a specified material breach, if a video provider commits a subsequent material breach of the same nature within 12 months of imposition of the first monetary penalty and fails to remedy it within the 30-day period provided by this section, then the Board may impose a monetary penalty of $400 for each day of breach following the expiration of the time allotted by this article. However, the total penalty for a second failure to remedy a specified breach shall not exceed $1,200.
D. 
Third or Further Failures to Remedy. Where the Board has twice previously imposed a monetary penalty on a provider for failure to remedy a specified material breach, if a video provider commits a third or further material breach of the same nature within 12 months of imposition of the second monetary penalty and fails to remedy it within the 30-day period provided by this section, then the Board may impose an additional monetary penalty of $1,000 for each day of breach following the expiration of the time allotted by this article. However, the total penalty for such additional failures to remedy a specified breach shall not exceed $3,000 per occurrence.
(Prior code § 112.54)
A. 
Decisions of the Video Customer Dispute Board may be appealed to the City Council upon request by the Board, the City Manager, Mayor, or any Councilmember. Dates for appeal hearings before the City Council shall be set by the City Clerk. Absent such an appeal, decisions of the Video Customer Dispute Board shall be final with respect to the administrative process provided by this article.
B. 
The appellate hearing shall be a new hearing and shall be conducted by the Council in substantial conformity with the procedures provided by this article for hearings before the Board, unless otherwise directed by the Council. After the hearing and the Council’s arrival at a decision, the City Clerk shall provide all parties to the proceeding with notice of the Council’s decision.
C. 
In the event that the Council finds a breach by the video provider, the City Clerk shall give notice of the same to all parties to the proceeding, consistent with the procedures provided herein for findings of breach by the Board. Upon a finding of breach, the Council may also shift all or half of the original filing fee to the video provider consistent with this article. If a specified material breach found by the Council has not been corrected by the video provider within 30 days of receipt of notice thereof, then the Council may impose a monetary penalty on the video provider consistent with this article.
(Prior code § 112.55)
Consistent with the Video Customer Service Act, nothing in this article shall preclude a party affected by the Video Customer Service Act and/or this article from utilizing any judicial remedy available to that party without regard to this article. Actions taken by the Video Customer Dispute Board or the City Council pursuant to the Video Customer Service Act and/or this article shall not be binding upon a court of law. For this purpose a court of law may conduct a de novo review of any issues presented.
(Prior code § 112.56)