(a)
General Findings. The city, California (hereinafter called the “city”)
finds that cable communication systems have the potential of benefiting
its residents if properly regulated. The city further finds that the
public convenience, safety and general welfare are served through
a franchising process that specifies certain conditions for review
but allows for future flexibility to meet cable-related needs and
interests.
(b)
Purpose. It is the city’s purpose to promote the public health,
safety and general welfare by granting one or more franchises for
the construction, upgrade, operation and repair of cable communication
systems within the city; to regulate (to the extent not expressly
prohibited by law) each cable communication system within the city;
to require each grantee to pay a franchise fee to the city for the
use of streets and public rights-of -way; to promote availability
of quality cable service to city residents, businesses, the city and
other public institutions; to encourage the development of and to
improve local programming including public, educational and governmental
access programming; to promote competitive cable rates and services;
to provide safe and efficient use of streets and rights-of -way; to
optimize the use of public property; to provide a diversity of information
to the community; to provide a wide range of programming services
which individually may not be desired by all subscribers, but collectively
improve the overall value of a cable communication system; to maximize
channel capacity, facilities and programming access for governmental
and educational agencies, as well as other groups and individual members
of the general public, so as to promote open government, educational
opportunity and a diversity of community information and opinion;
and to allow flexibility to respond to changes in technology, subscriber
interests and competitive factors within the cable communication service
market and the larger market for entertainment and information.
(Ord. 646 § 2, 2004)
The following terms, phrases, words and their derivations shall
have the meaning given herein:
means the availability of the cable system(s) (as it relates
to PEG access) for use by various agencies, institutions organizations,
groups and individuals in the community, including the city and its
designees, to acquire, create and distribute programming not under
a grantee’s editorial control, including, but not limited to:
“Public access”
means access where organizations, groups or individual members
of the general public, on a non-discriminatory basis, are the primary
or designated programmers or users having editorial control over their
programming;
“Educational access”
means access where schools are the primary or designated
programmers or users having editorial control over their programming;
“Governmental access”
means access where governmental institutions or their designees
are the primary or designated programmers or users having editorial
control over their programming; and
“PEG access”
means public access, educational access and governmental
access, collectively.
means any channel or portion thereof, designated for access
purposes or otherwise made available to facilitate or transmit access
programming.
when used in relation to any entity shall mean another person,
firm, corporation, partnership or other entity that owns or controls,
is owned or controlled by or is under common ownership or control
with such entity.
means any person who files a written application for a franchise
under this chapter.
means any service tier regularly provided to all subscribers
which includes the retransmission of local television broadcast signals
or such other definition as may be adopted by federal law. It shall
include all PEG access channels.
means the Cable Communications Policy Act of 1984, 47 U.S.C.
§ 521 et seq., as amended by the Cable Television Consumer
Protection and Competition Act of 1992 and the Telecommunications
Act of 1996 and as further amended.
means (i) the one-way transmission to subscribers of video
programming or other programming services; and (ii) subscriber interaction,
if any, which is required for the selection or use of such video programming
or other programming service; and (iii) cable internet access service.
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 television service which includes
video programming and which is provided to multiple customers within
the city, but such term does not include (i) a facility that serves
only to retransmit the television signals of one or more television
broadcast stations; (ii) a facility that serves subscribers without
using any public right-of-way, including streets or easements; (iii)
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, except
that such facility shall be considered a cable system (other than
for purposes of 47 U.S.C. 541(c)) if such facility is used in the
transmission of video programming directly to subscribers, unless
the extent of such use is solely to provide interactive on-demand
services; (iv) an open video system that complies with 47 U.S.C. 573;
or (v) any facilities of any electric utility used solely for operating
its electric utility systems. Notwithstanding the above, the term
“cable system” also includes any facility that is a community
antenna television system under California law. A reference to a cable
system refers to any part thereof, including, without limitation,
converters.
means the entity or entities designated by the city under Section 18.04.020(7).
means any new construction, reconstruction, rebuild or upgrade
of the system.
means those materials normally generated, used and retained
in the operation and management of a cable system, in whatever form
stored, including but not limited to computerized records and programs,
paper records and video or audio-taped records.
means a channel capable of carrying a transmission from the
headend to remote points on the cable system or to interconnection
points on the cable system.
means the transmission medium of optical fiber, along with
all associated electronics and equipment capable of carrying cable
services by means of electric lightwave impulses.
means the non-exclusive authorization granted pursuant to
this chapter by the city to a grantee to construct, rebuild, maintain
and operate a cable system under, on and over streets within all or
specified areas of the city. The terms and conditions of this chapter
and any franchise agreement between a grantee and the city collectively
constitute the franchise. The term “franchise” does not
include any other license, permit or agreement that may be required
for the privilege of transacting and carrying on a business within
the city or for disturbing the surface of any street.
means a contract between the city and a grantee entered into
in accordance with the terms of this chapter and which, together with
this chapter, constitute the franchise.
means the geographic area for which a franchise is issued.
The franchise area may be specified to authorize provision of service
not only in areas within the existing city limits, but also in other
areas as those areas are annexed in the future.
means any person to whom a franchise is granted by the city
council.
means all cash, credits, property or other consideration
of any kind or nature received directly or indirectly by a grantee,
its affiliates, as to revenues from operation of the cable system
or by any other entity that operates a grantee’s cable system,
from any source whatsoever arising from, attributable to or in any
way derived from the grantee’s operation of a cable system,
including the studios and other facilities associated therewith, to
provide cable services. Gross revenues include, but are not limited
to, fees charged to subscribers for basic service; fees charged to
subscribers for any optional, premium, per-channel or per-program
service; monthly fees charged to subscribers for any tier of service
other than basic service; installation, disconnection, re-connection
and change-in-service fees; leased channel fees; fees, payments or
other payment received as consideration from programmers for carriage
of programming on the cable system; converter rentals or sales; studio
rental, production equipment and personnel fees; advertising revenues,
including a per capita share of advertising revenues for advertising
carried on more than one cable system; revenues from home shopping
channels; sales of programming guides; and such other revenue sources
as may now exist or hereafter develop. The definition shall be interpreted
in a manner which permits the city to collect the maximum franchise
fee permitted by law, irrespective of the source of revenue. Gross
revenues, however, shall not include any bad debt (defined as unpaid
subscriber or advertiser accounts), any taxes on services furnished
by a grantee which are imposed directly upon any subscriber or user
by the state, city or other governmental unit and which are collected
by a grantee on behalf of said governmental unit. The franchise fee
is not a tax. The amount paid as a franchise fee shall not be deducted
from gross revenues unless required to be deducted under federal law.
means a grantee’s facility for signal reception and
dissemination on the cable system, including cable, antennas, wires,
satellite dishes, monitors, switchers, modulators, processors for
television broadcast signals, equipment for the interconnection of
the cable system with adjacent cable systems and interconnection of
any separate networks which are part of the cable system, and all
other related equipment and facilities.
means a communications system, whether physically integrated
with a cable system or not, that is constructed, operated or maintained
by a grantee whose transmissions are principally available to persons
other than cable television subscribers (i.e., government agencies,
educational institutions and hospitals).
means the provision by a grantee of technical, engineering,
physical and all other necessary components to accomplish, complete
and adequately maintain a physical linking of a grantee’s cable
system and cable services or any designated channel or signal pathway
thereof, with any other designated cable system or programmer so that
cable services of technically adequate quality may be sent to and
received from such other systems.
shall refer to the King City Cable Enabling Ordinance codified
in this chapter.
means any individual, sole proprietorship, partnership, association,
corporation or other form of organization authorized to do business
in the state of California and includes any natural person.
means any real property owned by the city or any other governmental
unit that is not otherwise defined herein as a street.
means cable services delivered to single or multiple dwelling
units.
means any accredited primary school, secondary school, college
and university.
means a category of cable service provided by a grantee and
for which a separate charge is made by the grantee.
means the surface of and the space above and below any street,
road, highway, freeway, bridge, lane, path, alley, court, sidewalk,
parkway, drive, right-of-way, easement or other public way, now or
hereafter existing within the city which may be properly used for
the purpose of installing, maintaining and operating a cable system.
means any person who is lawfully receiving, for any purpose
or reason, any cable service or services provided by a grantee by
means of or in connection with the cable system, whether or not a
fee is paid for such service.
means the sale, lease, assignment, mortgage, consolidation,
merger or any other disposition of a franchise or any change in the
ownership or control of a grantee or any person which owns, controls
or manages the grantee directly or through one or more intervening
partnerships or corporations.
means an improvement in channel capacity or other technical
aspect of cable system capacity that may be accomplished without a
rebuild of the cable system.
means a channel capable of carrying a transmission to the
headend from remote points on the cable system or from interconnection
points on the cable system.
Words not defined herein shall be given the meaning set forth
in the Cable Communications Policy Act of 1984, 47 U.S.C. § 521
et seq. as amended.
(Ord. 646 § 2, 2004)
(a)
Grantee Compliance. A grantee shall meet or exceed the programming
and channel capacity requirements set forth in this chapter.
(b)
Initial Channel Capacity.
(1)
A grantee, except a grantee operating a cable system that was constructed
prior to the date the ordinance codified in this chapter is enacted,
shall provide a cable system which uses at least seven hundred fifty-MHz
equipment of high quality and reliability. At minimum, a grantee shall
integrate optical fiber or other technology providing equivalent or
greater functionality, performance and capacity, into any cable system
construction and design in a manner which permits it to take full
advantage of the benefits of that technology, including increased
reliability and improved system performance.
(2)
At minimum a grantee, except a grantee operating a cable system that
was constructed prior to the date the ordinance codified in this chapter
is enacted, shall install and activate the return portion of the cable
system in the sub-low frequency spectrum of five MHz to thirty MHz.
(3)
A grantee shall initially include a sufficient number of downstream
and upstream channels with sufficient capability and technical quality
to enable the implementation and performance of all the requirements
of this chapter, including but not limited to, remote access transmissions
and transmissions to and from access center(s) and interconnection
points, as set forth in, but not limited to, this chapter.
(c)
Broad Programming Categories. A grantee shall provide at least the
following initial broad categories of programming:
(1)
Educational programming;
(2)
News and information;
(3)
Sports;
(4)
General entertainment (including movies);
(5)
Children/family-oriented;
(6)
Arts, culture and performing arts;
(7)
Foreign language;
(8)
Science/documentary;
(9)
Weather information;
(10)
Ethnic programming;
(11)
Minority programming;
(12)
National, state and local government affairs; and
(13)
PEG access programming.
(d)
Deletion or Reduction of Programming Categories. A grantee shall
not delete or so limit as to effectively delete any broad category
of programming identified in this section and within its control without
the consent of the city or as otherwise authorized by law.
(e)
Leased Access Channels. A grantee shall meet the leased access channel
requirements imposed by federal law.
(g)
PEG Access.
(1)
Designated PEG Access Providers.
(A)
The city may designate PEG access providers, including itself for
governmental access purposes, to control and manage the use of any
or all access facilities provided by a grantee under this chapter.
To the extent authorized by the city, the designated access provider
shall have sole responsibility for operating and managing such access
facilities.
(B)
A grantee shall cooperate with designated access providers in the
use of the cable system and access facilities for the provision of
PEG access as provided in this chapter and the franchise agreement.
A grantee may enter into operating agreements with designated access
providers under which the designated access providers will facilitate
and coordinate the provision of PEG access services.
(3)
Access Interconnections. A grantee shall ensure that technically
adequate signal quality, routing systems and switching and/or processing
equipment are initially and continuously provided for all access interconnections
required by its franchise agreement both within grantee’s cable
system and with other cable systems throughout the duration of this
chapter.
(4)
Change in Technology. In the event a grantee makes any change in
the cable system and related equipment and facilities or in the grantee’s
signal delivery technology which directly or indirectly substantially
affects the signal quality or transmission of access programming,
the grantee shall at its expense take necessary steps or provide necessary
technical assistance, including the acquisition of all necessary equipment,
to ensure that the capabilities of access programmers are not diminished
or adversely affected by such change.
(5)
Technical Quality.
(A)
A grantee shall maintain all access channels (both upstream channels
and downstream channels) and all interconnections of access channels
at the same level of technical quality and reliability required by
this chapter and all other applicable laws, rules and regulations
for residential subscriber channels.
(B)
A grantee shall have no responsibility for the production quality
or program content of the access programming distributed on the access
channel or channels.
(Ord. 646 § 2, 2004)
(a)
Franchise Required. No person may use the streets of the city to
construct, operate or repair a cable system, and no person or entity
may provide cable service within the city without a franchise. Any
person or entity may apply for a franchise. An independent contractor
does not need a franchise to install, service or repair a cable system
for a grantee.
(b)
Description of Authorization. Any non-exclusive franchise granted
pursuant to the provisions of this chapter shall authorize and permit
a grantee to engage in the business of operating and providing a cable
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 street or highway, such poles, wires, cable,
conductors, ducts, conduit, vaults, manholes, amplifiers, appliances,
attachments and other property as may be necessary and appurtenant
to the cable system; and in addition, to use, operate and provide
similar facilities or properties rented or leased from a public utility
franchised or permitted to do business in the city, except that an
encroachment permit shall be required for work or encroachment on
public property or in the public rights-of-way. The construction,
operation and repair of the cable system shall be subject to all existing
and future ordinances and regulations of the city, including zoning
ordinances and ordinances establishing construction standards or procedures
for use of the streets.
(c)
Duration. Unless a different term is specified in a grantee’s
franchise agreement, a franchise shall be for eight years. A franchise
does not confer rights other than as provided by this chapter and
the franchise agreement or as mandated by federal or state law.
The term of an existing franchise may be extended by the city
by Resolution of the city council for a period not to exceed twelve
months.
(d)
Owner Consent Required. A franchise does not authorize a grantee
to construct, operate or repair any other type of system or to provide
service to, or install its cable system upon private property without
owner consent or to use publicly or privately owned conduits or poles
without a separate agreement with the owners, except that nothing
in this section limits any rights the grantee may have to use compatible
or apportionable easements pursuant to Section 621 of the Cable Act,
47 U.S.C. § 541(a)(2) and other applicable law.
(e)
Grantee’s Expense. Unless otherwise specifically stated in
a franchise or required by law, all acts which a grantee is required
to perform under the franchise or applicable law must be performed
at the grantee’s expense.
(Ord. 646 § 2, 2004)
(a)
Filing. An application for a new franchise or for a renewal franchise must be filed with the city clerk. New franchises and renewal franchises that are not subject to the formal renewal provisions of the Cable Act, 47 U.S.C. § 546(a)-(g) shall be reviewed as provided in Section 6.1. Applicants that submit proposals subject to the formal renewal provisions of the cable act shall be reviewed as provided in Section 18.04.060(b).
(b)
Application Requirements. An application for a franchise shall contain
the following information:
(1)
The name, address and telephone number of the applicant;
(2)
A detailed statement of the form or business organization of the
applicant including but not limited to the following:
(A)
The names, residence or business addresses of all officers, directors
and associates of the applicant,
(B)
The names, residence or business addresses of all officers, persons
and entities having, controlling or being entitled to have or control
five percent or more of the ownership of the applicant and respective
ownership share of each such person or entity,
(C)
The names and addresses of any affiliate of the applicant and a statement
describing the nature of any such affiliate, including but not limited
to the cable communication systems owned or controlled by the applicant
and its affiliates, and the areas served thereby,
(D)
If the applicant is a partnership, the name, residence or business
addresses of each general partner; if a general partner is a corporation
or partnership, the name and address of such corporation or partnership,
and provide the same information for that corporation or partnership
that is required of an applicant under subsection (b) of this section
(if the partnership is scheduled to dissolve at a particular time,
the time for dissolution shall be stated), and
(E)
If the applicant is a corporation, the application shall show the
names, residence or business addresses of its officers and directors;
if the corporation is a subsidiary of another corporation or partnership,
the application shall show the name and address of such other corporation
or partnership and provide the same information for that corporation
or partnership that is required of an applicant under subsection (b)
of this section;
(3)
A listing of all city employees, officials or appointees that have
any interest, direct or indirect, in the applicant or any affiliate;
(4)
A copy of each written agreement and a description of every oral
agreement or understanding the applicant has with any other person
relating to the proposed franchise, that gives such person the right
to manage, control or to obtain the right to manage or control a grantee
or its King City cable system. If a franchise is granted to a person
acting on behalf of 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;
(5)
A detailed description of all previous experience of the applicant
in providing cable communication system service and in related or
similar fields;
(6)
A detailed and complete financial statement of the applicant, prepared
by an independent certified public accountant, for the fiscal year
just prior to the date of the application hereunder; or a letter or
other acceptable evidence in writing from a recognized lending institution
or funding source, addressed to both the applicant and the council,
setting forth the basis for a study performed by such lending institution
or funding source and a clear statement of its intent as a lending
institution or funding source to provide whatever capital shall be
required by the applicant to construct and operate the proposed cable
system in the city; or a statement from a certified public accountant,
certifying that the applicant has available sufficient free, net and
uncommitted cash resources to construct and operate the proposed cable
system in the city;
(7)
A statement identifying, by place and date, any other cable franchise(s)
awarded to the applicant or its affiliate; the status of said franchise(s)
with respect to completion thereof; the total cost of completion of
such cable system(s); and the amount of the applicant’s and
its affiliate’s resources committed to the completion thereof;
(8)
A detailed description of the proposed plan of operation of the applicant
which shall include, but not be limited to, the following:
(A)
A precise description of the franchise area for which a franchise
is sought and a map specifically showing the proposed service area
or areas within which the applicant proposes to provide cable service.
A proposed time schedule for the installation of all equipment necessary
to become operational or for the completion of upgrades or improvements
in the cable plant throughout the entire area to be served,
(B)
A statement or schedule setting forth all proposed classifications
of rates and charges to be made against subscribers and all rates
and charges as to each of said classifications, including installation
charges and service charges,
(C)
A detailed, informative and referenced statement describing the actual
equipment and operational standards proposed by the applicant and
that such standards of operations are in compliance with those contained
in Title 47, Subpart K (Section 76.601 et seq.) of the Rules and Regulations
of the Federal Communications Commission,
(D)
A detailed, informative and referenced statement describing the actual
or minimum channels/spectrum, equipment, facilities and services proposed
by the applicant to provide for PEG access for King City;
(9)
Any other details, statements, information or references pertinent
to the subject matter of such application which shall be required
or requested by the council, or by any provision of any other ordinance
of the city.
(10)
A declaration by the applicant that the application is true and complete,
that no person not shown in the application has any interest in the
application for a franchise, and that the applicant has read this
chapter and will abide by its provisions.
(c)
Application Fee Required. At the time it applies for an initial franchise,
an applicant shall submit an application fee in an amount to be set
by the city council which shall be in the form of cash, certified
or cashier’s check or money order, to pay the costs of studying,
investigating and otherwise processing such application or any part
thereof and which shall be in consideration thereof and not returnable
or refundable in whole or in part.
(d)
Grantee’s Application Incorporated. The grantee shall provide
all services specifically set forth in its application and by its
acceptance of the franchise, the grantee specifically agrees that
its application, as modified by any negotiation between the city and
grantee as expressed in the franchise agreement, is thereby incorporated
by reference and made a part of the franchise agreement. In the event
of a conflict between such proposals and the provisions of the franchise,
that provision which provides the greatest benefit to the community,
in the opinion of the city, shall prevail.
(Ord. 646 § 2, 2004)
(a)
Initial Franchise or Non-Formal Renewal. In the case of an application
for an initial franchise or for a renewal franchise that is not governed
by the formal renewal provisions of the Cable Act:
(1)
The city may advertise for additional applicants and issue a request
for proposals (hereinafter “RFP”);
(2)
The city may give public notice when it receives a properly completed
franchise proposal. After receiving a proposal that contains the required
information, the city may schedule a meeting or meetings to determine
whether a franchise should be granted. In making this determination,
the city may consider:
(A)
The extent to which an applicant for renewal has substantially complied
with the applicable law and the material terms of any existing cable
franchise for King City,
(B)
Whether the applicant for renewal’s quality of service under
its existing franchise, including signal quality, response to customer
complaints, billing practices and the like has been reasonable in
light of the needs of the community,
(C)
Where the applicant has not previously held a franchise for King
City, whether the applicant’s record in other communities indicates
that it can be relied upon to provide high-quality service throughout
any franchise term,
(D)
Whether the applicant has the financial, legal and technical ability
to provide the services, facilities and equipment set forth in a proposal
satisfying any minimum requirements established by the city,
(E)
Whether the applicant’s application is reasonable to meet the
future cable-related needs and interests of the city, taking into
account the cost of meeting such needs and in light of the requirements
established by the city, and
(F)
Whether issuance of a franchise is warranted in the public interest
considering the immediate and future effect on streets, public property
and private property that will be used by the applicant’s cable
system, including the extent to which installation or maintenance
as planned would require replacement of property, involve disruption
of property or public services or interfere with the use of streets
or public property; the effect of granting the franchise on the ability
of the proposed cable service to meet the cable-related needs and
interests of the community, including PEG access channel capacity,
facilities and financial support; and whether the applicant has the
financial, technical and legal qualifications to provide the proposed
cable service;
(3)
The city shall return any proposal that does not include information
required by this chapter.
(b)
Formal Renewal Applications. Applications for renewal governed by
the formal renewal provisions of the cable act shall be submitted
in accordance with this section and shall be considered in accordance
with the provisions of the Cable Act. A grantee which intends to exercise
rights under 47 U.S.C. § 546(a)-(g) shall submit a notice
in writing to the city in a timely manner clearly stating that it
is activating the formal renewal procedures of the Cable Act. At the
same time it submits this notice, it shall also submit the required
application fee. A grantee which has applied for renewal under the
formal renewal provision of the Cable Act shall submit all information
requested by the city within the time frame delineated by the city.
(c)
Standing Not Granted. This chapter is not intended and shall not
be interpreted to grant any applicant or grantee standing to challenge
the issuance of a franchise to another applicant or grantee. Nothing
in this section prohibits the city from relying on studies or proceedings
previously conducted in drafting an RFP, if the city attorney concludes
that those studies or proceedings continue to reflect community needs
and interests. Nothing in this section prohibits an applicant for
renewal from submitting a proposal under 47 U.S.C. § 546(h).
(d)
Final Franchise Agreement Required. If, considering the factors set
forth above and applicable law, the city determines that a franchise
should issue to an applicant, the city may promptly prepare a final
franchise agreement for approval and signature by the applicant and
the city. In addition to other matters that may or must be addressed
therein consistent with the Cable Act, the franchise agreement shall
specify, subject to applicable law, (1) the franchise area for which
the franchise is awarded and the terms and conditions under which
the grantee must extend service to persons within that franchise area;
(2) the term of the franchise; (3) requirements for cable system design
and performance; (4) equipment and facilities requirements; and (5)
requirements related to channels, facilities and equipment for PEG
access and community use (including institutional uses). The franchise
area may be larger, smaller or the same as the franchise area identified
by the grantee. No franchise shall be effective or shall issue until
the applicant has entered into a franchise agreement with the city,
the franchise agreement has been approved by the city and the grantee
has filed an unconditional acceptance of the franchise in a form acceptable
to the city attorney.
(Ord. 646 § 2, 2004)
(a)
Request For Proposal—Requirements. Every city RFP, including
a request for a renewal proposal issued pursuant to 47 U.S.C. § 546(b),
shall specify minimum requirements that an applicant must satisfy
for facilities and equipment, including access facilities and equipment;
channel capacity for PEG access use; and such other requirements as
the city may establish in an RFP under the Cable Act. The RFP shall
attach a draft franchise agreement and shall invite comments on that
draft franchise agreement. In addition, the RFP shall require each
applicant to provide at least the information necessary to determine
the degree to which granting the franchise is likely to result in
damage to streets, public property or private property or disrupt
use of or require replacement of streets, public property or private
property; and information required to permit the city to determine
whether the applicant has the financial, legal and technical qualifications
to operate a cable system in King City. The RFP shall require each
applicant to provide information required to assess its proposal.
It may also contain or refer to other information that may assist
an applicant in preparing a proposal. The information sought shall
include at least the following:
(1)
Changes to the information submitted with the application;
(2)
The names and addresses of the ten largest holders of an ownership
interest in the applicant and all persons with five percent or more
ownership interest, including the names and addresses of affiliates
holding such ownership interests directly or indirectly; the persons
who control the applicant; all officers and directors of the applicant;
and any other business affiliation and cable system ownership interest
of each named person; and a statement describing the applicant, its
officers and directors and its partners or major shareholders, indicating
business experience and other pertinent information, including experience
and performance in the cable communication system and service field
showing any interest in other franchises, the date such franchises
were granted and the status of installation and operation thereof
and the value, size and character of the operations under the other
franchises;
(3)
Information showing that the applicant, any person controlling the applicant and any other entity which will constitute a cable operator of the cable system under the Cable Act are legally qualified to hold the franchise, applying the standards set forth in Section 18.04.080;
(4)
A demonstration of the applicant’s technical and financial
ability to construct and/or operate the proposed cable system, including
identification of key personnel;
(5)
A statement prepared by a certified public accountant or certified
by the applicant’s chief financial officer regarding the applicant’s
financial ability to perform as proposed;
(6)
A detailed description of the physical facilities proposed, including
channel capacity, technical design, performance characteristics, headend
and access facilities, especially PEG access facilities; such description
should specify the model and make of the system components the applicant
intends to use or, if the applicant has not selected a particular
brand of equipment, the minimum manufacturer’s specifications
which the components used must meet;
(7)
A detailed description of the procedures the applicant intends to
follow in constructing, operating and maintaining the cable system.
If the applicant plans to upgrade or rebuild an existing cable system,
the description should explain the steps which will be taken to upgrade
the cable system, the cable service disruptions which are expected
to result, the steps the applicant intends to take in order to minimize
such service disruptions and how the applicant intends to compensate
affected subscribers for such service disruptions;
(8)
An estimate of plant mileage that will be installed and its location,
the proposed construction schedule and information on the availability
of space in conduits and on poles in the areas to be served, including
an estimate of the cost of any necessary rearrangement of existing
facilities;
(9)
A schedule of the maximum initial rates and charges to subscribers
(including late fees, disconnect fees and fees for each cable service
the applicant intends to provide) and a description of the service
that will be provided for those rates;
(10)
A narrative description of the future cable-related needs and interests
of a showing that the proposal will adequately meet those needs and
interests, including, particularly, how the proposed cable system
will provide for public access and how it will be upgraded or rebuilt
to take advantage of changes in technology during the franchise term;
and a copy of any community needs assessment conducted or relied upon
by the applicant;
(11)
Pro forma financial projections for the proposed cable system for
the term of the proposed franchise, including a statement of projected
income and a schedule of planned capital additions, with all significant
assumptions explained in notes or supporting schedules;
(12)
An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the application,
acknowledging the enforceability of application commitments and certifying
that the proposal meets all federal and state requirements;
(13)
If an applicant proposes to provide cable service to an area already
served in whole or in part by an existing cable grantee, the identification
of the area where the overbuild would occur and the potential subscriber
density in the area which would encompass the overbuild;
(14)
The effect construction of the cable system is likely to have on
streets, public property and private property that will be used by
the applicant’s cable system; the extent to which construction,
installation or maintenance as planned would require replacement of
property or involve disruption of property or public services (including
cable service) or use of streets; and the expected effect of granting
the franchise on the ability of the proposed cable service to meet
the cable-related needs and interests of the community;
(15)
A declaration by the applicant that the application is true and complete
and that no person not shown in the application has any interest in
the application for a franchise.
(b)
Request For Proposal—Authorization. The city council may authorize
the issuance of any RFP by resolution.
(c)
Request For Proposal—Instructions. The city may prepare instructions
and furnish the same to all interested persons stating how a proposal
shall be submitted.
(d)
Cable-related Needs to be Met. It is the obligation of an applicant
to submit a proposal that shows that, if granted a franchise, the
applicant will meet the reasonable cable-related needs and interests
of the community. An applicant shall submit additional information
it deems appropriate to the consideration of its proposal, whether
the information is required or not.
(e)
Bid Bond and Deadline. The city manager may establish a deadline
for the receipt of proposals from any interested applicants. Each
applicant shall submit fifteen copies of its proposal. Each proposal
shall be accompanied by a bid bond in the amount of twenty thousand
dollars. If the franchise is not awarded to an applicant, the applicant’s
bid bond will be returned. If the franchise is awarded, the bond will
be used to pay all reasonable costs incurred by the city in evaluating
the applicant’s proposal that are chargeable by law to grantee,
and the remainder shall be returned.
(f)
Additional Information. The city may request additional information
from any applicant as required to understand or evaluate the applicant’s
proposal.
(Ord. 646 § 2, 2004)
(a)
Legal Ability to Perform. In determining whether an applicant has the necessary legal ability to perform as promised and to assist the city in evaluating the past performance of the applicant under 47 U.S.C. § 546 or Section 18.04.070, the city shall evaluate the applicant’s proposal in light of this section:
(1)
The city shall not grant a franchise to any applicant which submitted a request for a franchise or for renewal of a franchise pursuant to Sections 18.04.050(a) and (b) where the request was denied, or any challenges to the franchising decision were finally resolved on a date three years or less preceding the submission of the new request where the previous denial was on grounds that the applicant failed to propose a cable system which met the needs and interests of the community; or that the applicant did not meet the requirements of this section or, in the case of a renewal request, that the applicant had failed to comply with the requirements of its franchise, or failed to provide adequate service to subscribers.
(2)
Every applicant must have the necessary authority under California
law to operate a cable communication system. An applicant shall show
that it is qualified to obtain, the necessary federal licenses or
waivers required to operate the cable system proposed.
(3)
An applicant shall not be issued a franchise if, at any time during
the five years prior to the issuance of the RFP to which the applicant
responds, the applicant has been convicted of acts or omissions of
such character that the applicant cannot be relied upon to deal truthfully
with the city and the subscribers of the cable system, or to substantially
comply with lawful obligations under the franchise or obligations
under applicable law, including obligations under consumer protection
laws and laws prohibiting anti-competitive acts, fraud, racketeering
or other, similar conduct.
(4)
An applicant shall not be issued a franchise if it files materially
misleading information in response to an RFP issued by the city, or
intentionally withholds information which the applicant lawfully is
required to provide.
(5)
For purposes of subsections (a)(1), (a)(3) and (a)(4) of this section,
the term “applicant” includes any affiliate.
(b)
Opportunity to Explain. The city may provide an opportunity to any applicant which has engaged in acts or omissions which may provide the basis for denying a request for a franchise under subsection (a)(4) of this section to show that it would be inappropriate to base a decision on the act or omission, by virtue of: the particular circumstances surrounding the act or omission and given the steps taken by the applicant to cure all harms flowing from the act or omission and to prevent its recurrence; the involvement of applicant’s principals, owners or managers; or the remoteness of the act or omission from the operation of cable communication systems.
(c)
Cable Act Renewal Provisions Prevail. This section shall not be interpreted
to require the city to take any action that would be inconsistent
with 47 U.S.C. § 546.
(Ord. 646 § 2, 2004)
(a)
No Implied Rights. No privilege or exemption shall be granted or
conferred by a franchise except those specifically prescribed therein.
(b)
Reservation of Rights. The city reserves every right and power which
is reserved to it by this chapter or by any ordinance or resolution
of the city, and a grantee, by its acceptance of a franchise, agrees
to be bound thereby and to comply with any action or requirements
of the city in its exercise of any of its rights or powers.
(Ord. 646 § 2, 2004)
(a)
Non-exclusive Franchises Only. Franchises granted under this chapter
shall be non-exclusive.
(b)
Reservation by City. The city reserves the right to grant a franchise
to another person at any time or to construct, operate and/or repair
a cable system itself. Competition among cable companies is encouraged.
(c)
Exclusive Contracts for Cable Service Prohibited. No person who holds
a franchise may enter into an exclusive contract for the provision
of cable service to any person or building or demand the exclusive
right to serve a person or building as a condition of extending service,
unless otherwise authorized by law.
(d)
Parity of Franchises. A franchise and the right it grants to use
and occupy the public right-of-way shall not be exclusive and do not
explicitly or implicitly preclude the issuance of other franchises
to operate cable systems or other communications systems within the
city, affect the city’s right to authorize use of the public
right-of-way by other persons to operate cable systems or other communications
systems or for other purposes as the city determines appropriate,
or affect the city’s right itself to construct, operate or maintain
a cable system or other communications system, with or without a franchise.
In the event that, after the effective date of a franchise,
the city grants a franchise to another person or persons to use and
occupy the public right-of-way for the purpose of operating a cable
system or other communications system that is comparable in scope
to a franchise, the material terms and conditions of such additional
franchise or franchises shall be reasonably comparable to the materials
terms and conditions of the franchise, taking into consideration all
of the circumstances in existence at the time such additional franchise
or franchises are granted, including without limitation any applicable
legal limitations on the city’s regulatory authority.
(Ord. 646 § 2, 2004)
(a)
No Expectancy of Renewal. Nothing in this chapter shall be interpreted
to create an expectancy of renewal or to in any respect entitle any
grantee to renewal or extension of a franchise, except as may be expressly
required by applicable law.
(b)
Prior Lawful Occupancy Prevails. Any privilege claimed under any franchise by a grantee in any street or other public property shall be subordinate to any prior lawful occupancy and to the city’s regulation of the street or other public property, subject to Section 18.04.140.
(c)
Delegation of Authority. The city may transfer or delegate any right,
power or duty from any officer, employee, department or body of the
city to any other officer, employee, department or body of the city.
(d)
Non-recourse Against City. A grantee shall have no recourse 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
hereunder or because of its enforcement or non-enforcement.
(e)
Grantee Subject to City Police Powers. A grantee shall at all times
be subject to the exercise of the police power of the city, including
but not limited to the power of the city to adopt consumer protection
laws regarding cable communication.
(f)
Public Interest Promoted. The provisions of any franchise shall be
liberally construed in favor of the city in order to promote the public
interest.
(Ord. 646 § 2, 2004)
(a)
Failure Not Waiver. The failure of the city, upon one or more occasions,
to exercise a right or to require compliance or performance under
a franchise or any other applicable law shall not be deemed to constitute
a waiver of such right or a waiver of compliance or performance, unless
such right has been specifically waived in writing.
(b)
Waivers Are Specific. Waiver of a breach of a franchise agreement
or this chapter is not a waiver of any similar or different breach.
Neither the granting of a franchise nor any provision herein shall
constitute a waiver or bar to the exercise of any governmental right
or power of the city, including without limitation the right of eminent
domain.
(Ord. 646 § 2, 2004)
(a)
Ordinance Not a Contract. The ordinance codified in this chapter
shall not constitute a contract between a grantee and the city. The
city may amend any provision of this chapter and may adopt regulations
consistent with this chapter. This includes, without limitation, the
right to alter the insurance and security fund requirements herein,
to account for inflation or changes in the risk to the city.
(b)
Amendment of Franchises. A franchise agreement may authorize a grantee to provide services in addition to those authorized by Section 18.04.030(c), subject to appropriate additional conditions to protect the public interest. The city may amend any franchise agreement upon the application of a grantee when necessary to enable the grantee to take advantage of developments in the field of telecommunication that, in the opinion of the city, will afford the grantee an opportunity to serve its customers more efficiently, effectively and economically. Such amendments shall be subject to such conditions as the city determines are appropriate to protect the public interest.
(Ord. 646 § 2, 2004)
(a)
Installation—Location. A cable system shall be installed only
on the property of a grantee, on existing pole or conduit facilities
that the grantee may use under a valid pole or conduit attachment
agreement or order of the city, on the property of a subscriber, in
compatible easements that the grantee is entitled to use or under
the streets of the city. Installation of new poles on the streets
is forbidden without the prior written consent of the city. A grantee’s
placement of its cable system pursuant to its franchise shall not
be deemed to give the grantee a property interest in any particular
location on the streets or upon public property. The city reserves
the right to designate where a cable system is to be placed on the
streets and upon public property including any public utility easements
controlled by the city. The cable system shall be placed in public
utility easements unless otherwise designated by the city.
(b)
Installation—Timing. A grantee shall begin the installation,
upgrade or rebuild of its cable system within a reasonable length
of time after the effective date of its franchise, which date shall
be specified in the franchise agreement. A grantee shall be obligated
to complete the construction of its cable system promptly and within
a time specified in the franchise agreement, which time shall be reasonable
in light of the nature of the construction required to build the cable
system proposed by the grantee. A grantee is obligated to obtain all
permits, licenses, approvals and contracts and pay all fees, required
in order for it to begin and complete its cable system in accordance
with its franchise agreement.
(c)
General Construction and Operational Practices.
(1)
The construction, operation and repair of every cable system in the
city and all parts thereof shall be performed in an orderly and workmanlike
manner. To this end, each person who constructs, operates or repairs
a cable system shall do so in accordance with all applicable federal,
state, local and industry codes now or hereafter in effect. Without
limiting the foregoing, the installation of any cable system shall
be in accordance with the requirements of the National Electrical
Safety Code (or any superseding code) of the American Insurance Association
(or successor organization) and all applicable laws affecting electrical
installations and buildings, now or hereafter in effect. A franchise
agreement may identify specific construction codes that a grantee
must satisfy in addition to this general requirement. In the event
of a conflict among codes and standards, the most stringent code requirement
or standard shall apply. The city may adopt reasonable additional
standards as required to ensure that work continues to be performed
in an orderly and workmanlike manner or to reflect changes in standards
which may occur over the term of a franchise, after consultation with
each affected grantee.
(2)
The construction, operation and repair of the cable system shall
be performed by experienced personnel who shall keep the cable system
in a safe and suitable condition and in good order and repair. All
installations shall be durable and use equipment of good quality.
(3)
Each grantee shall construct, operate and repair its cable system
so as not to endanger or unduly interfere with the property of the
city; any gas, electric or telephone fixture or other public utility
property, including any water or sewer lines or fixtures; or the lives
or property of persons; or to unnecessarily hinder or obstruct the
use of streets. A grantee shall protect (at its expense) public property
and private property from damage caused by the construction, operation
and repair of its cable system and promptly repair damage the grantee
causes or compensate the owner of the property for damage the grantee
causes. It shall repair damaged property or pay compensation within
no later than ten days of the date of the damage. Each grantee shall
construct, operate and maintain its cable system with due care for
the safety and integrity of persons and property and shall use appropriate
safety devices, warning signs, barricades and lights to prevent harm
to persons or property.
(4)
A grantee shall notify any person whose property is damaged by that
grantee within four hours of the time the damage is discovered. At
a minimum, this section requires a grantee to place a prominent notice
in a prominent place on the damaged property and to make diligent
efforts to contact the property owner or resident directly.
(5)
All excavation shall be performed so as to create the least inconvenience
to the public and in accordance with permits issued by the city. The
city shall have the right to supervise all excavation. The grantee
shall restore excavations to the then current standard specifications
of the city.
(6)
If a grantee disturbs any street, public property or private property
during the course of constructing, operating or repairing its cable
system, that grantee shall, at its expense, replace and restore the
street or property to as good condition as before said work was commenced
as is possible to the reasonable satisfaction of the city (in the
case of streets or public property) or the owner (in the case of private
property). Each grantee shall at all times comply with the requirements
of 47 U.S.C. § 541(a)(2)(A)-(C). If any utility property
is affected, including gas, electric, telephone, water, sewer or storm
drain, the owner shall be notified immediately and repairs shall immediately
be made under the direction of the affected utility. The streets,
public property or private property affected shall be replaced or
restored promptly, no later than within ten days of the date of the
disturbance.
(7)
In any area where any electric or telephone systems are underground,
a grantee shall install its cable system underground. If, after a
grantee installs its cable system, electric or telephone systems are
relocated so that any electric or telephone systems in an area are
underground, the grantee shall place its cable system in that area
underground. Between a street and a subscriber’s residence,
if both electric and telephone utility wiring is aerial, a grantee
may install aerial cable except where a property owner or resident
requests underground installation and agrees to bear the additional
cost of such installation over and above the cost of aerial installation.
(8)
A grantee shall maintain records of the location of its cable system
for both underground and aerial cables. A grantee shall provide information
regarding the location of its cable system upon request of the city
or any authorized governmental body for engineering design purposes.
Location information shall be provided within thirty days of request.
(9)
Notwithstanding any requirements of underground service alert, grantee
shall pothole underground facilities at its expense upon request of
the city or any authorized governmental body for engineering design
purposes to ascertain the vertical and horizontal location of said
facilities. Potholes shall be provided within thirty days of request.
Requester shall be notified forty-eight hours in advance of the pot-holing
operation and when the underground facility is exposed for measurement.
After requester obtains measurements, grantee shall fill, compact
and pave pothole to the satisfaction of the city. Grantee shall perform
all tasks of an “operator” under California Government
Code 4216 (underground Service Alert) and shall be a member of Underground
Service Alert of Northern California and Nevada.
(10)
A grantee shall initially provide to the city a map of the grantee’s
cable system within the public right-of-way. This map shall be updated
semi-annually and shall at all times be provided at no cost to the
city.
(d)
Relocation of Facilities.
(1)
For Governmental Bodies. A grantee is required to remove, relay and
relocate its cable system at its expense whenever the city (on its
own behalf or on behalf of an assessment district) or any authorized
governmental body requires it to do so for reasons of traffic conditions;
public health and safety and protection of property; or because the
city or authorized governmental body elects to change or alter the
grade, align or widen a street, or sell or vacate any street or public
property, to move any building or structure or to construct, operate
or repair any water pipes, lines or mains, sanitary and storm sewers,
watercourses, drainage ditches, conduits, playgrounds, power lines,
tracks, traffic control devices or other public improvement, public
utility, public structure or facility, which change, alteration, sale,
vacation, movement, construction, operation or repair will be aided
by removal, relaying or relocation of a grantee’s cable system.
An affected grantee shall be given written notice requesting the removal,
relaying or relocation of its cable system at least fifteen days in
advance of the date removal, relaying or relocation of the cable system
must be completed.
(2)
For Other Authorized Entities. If any removal, relaying or relocation
is required to accommodate the construction, operation or repair of
the facilities of another person which is authorized to use the streets
or public property, a grantee shall, after at least fifteen days advanced
written notice, take action to implement the necessary changes requested
by the responsible entity. The city may resolve disputes as to responsibility
for costs associated with removal, relaying or relocation of facilities
among entities authorized to install facilities in the streets or
on public property if such entities are unable to do so themselves.
(3)
For Third Persons. A grantee shall, upon the request of any person
holding a building moving permit issued by the city, temporarily raise,
lower, relay, relocate or remove its wires, cables and other facilities
to accommodate the moving of the building, as the grantee shall determine.
The expense of such temporary raising or lowering, relaying, relocation
or removal of a grantee’s facilities shall be paid by the person
requesting the same, and the grantee shall have the authority to establish
the reasonable cost of such changes and require such payment in advance.
A grantee shall temporarily move its cable system as required under
subsection (c) of this section if required payments are made and the
grantee is given at least forty-eight hours advance written notice
to arrange for such temporary changes.
(e)
Failure to Remove, Replace or Restore. If a grantee fails to remove, relay or relocate its cable system as required or within the time period specified in this section, or if a grantee fails to restore, repair or replace streets or public property as required and within the time period specified in subsection (c) of this section, the city may perform the work itself or hire someone to perform the work and the grantee shall compensate the city for all reasonable expenses it incurs. In the event a grantee fails to restore, replace or repair private property as required and within the time period specified by subsection (c) of this section the owner may perform the work itself or hire someone to perform the work and the grantee shall compensate the owner for all reasonable expenses incurred. If a grantee fails to protect streets or public property as required by its franchise, the city may do so and the grantee shall compensate the city for all reasonable expenses incurred thereby. The grantee shall pay expenses incurred by the city or property owner within ten days of receipt of an itemized account of such expenses.
(f)
Removal or Relocation in Event of Emergency. In event of emergency
or where a cable system creates or is contributing to an imminent
danger to health, safety or property, the city may remove, relocate
or relay that cable system without prior notice at grantee’s
expense.
(g)
Authority to Trim Trees. A grantee shall comply with the city tree
ordinance if and when it trims trees and shrubbery upon and overhanging
streets and other public property. If the city requests it, trimming
shall be done under the supervision and direction of the city.
(h)
No Guarantee of Accuracy of Maps. The city does not guarantee the
accuracy of any maps showing the horizontal or vertical location of
existing structures. In streets, where necessary, the location shall
be verified by excavation by grantee at its expense.
(i)
Contractors. All contractors or subcontractors shall be properly
licensed and each contractor or subcontractor shall have the same
obligations with respect to its work as a grantee would have under
its franchise and applicable laws if the work were performed by the
grantee. Each grantee shall be responsible for ensuring that the work
of its contractors and subcontractors is performed consistent with
the franchise and applicable law, shall be fully responsible for all
acts or omissions of its contractors or subcontractors and shall be
responsible for promptly correcting acts or omissions by any of its
contractors or subcontractors.
(Ord. 646 § 2, 2004)
(a)
Customer Protection Requirements. A grantee shall meet or exceed
requirements for customer protection established by the city, whether
adopted before or after its franchise was issued. The standards initially
applicable are appended to this chapter. The city manager may from
time to time propose amendments to the rules as necessary to ensure
that high-quality customer service is provided by each grantee. The
city manager shall provide a copy of amendments to the standards to
every person holding such a franchise and to every person which has
a pending application for a cable franchise at the time the draft
standards are developed. The city manager shall provide each such
person the opportunity to submit written comments on the amendments
to the standards. After reviewing the comments, the city manager shall
submit the standards to the city council for approval.
(b)
Enforcement in Franchise Agreement. In the case of any franchise issued after the effective date of the ordinance codified in this chapter, the franchise agreement shall provide for enforcement of specified customer service standards of a grantee, which standards must meet or exceed the standards established by the city under Section 18.04.060(a).
(c)
Uniform Standards. The standards developed under subsection (a) of this section shall require a uniform level of service quality to all subscribers within the city at a reasonable cost. The standards may recognize the fact that different standards may apply to smaller systems or systems serving areas of low density which may not be required to meet standards reasonably applied to larger systems, because such smaller systems and systems serving areas of low density may not be able to satisfy certain obligations without substantially increasing costs to subscribers. Moreover, the standards may recognize that a cable system serving fewer subscribers may have fewer calls or demands for service from subscribers, which difference may justify certain differences in standards.
(d)
Failure to Meet Standards. Any grantee which fails to satisfy the standards adopted by the city under subsection (a) of this section shall be given notice that it may be found to have failed to provide adequate service within the meaning of 47 U.S.C. § 546(c)(1)(A) or (B), as appropriate.
(e)
Right of Privacy. A grantee shall maintain the right of privacy of
any subscriber, programmer or any other person resulting from any
device or signal associated with the cable system. A grantee shall
not place in the building, structure or any facility of any subscriber
any equipment capable of two-way communications without the written
consent of the subscriber, revocable at the discretion of the subscriber
and shall not use the two-way communications capability of the cable
system for unauthorized or illegal subscriber surveillance of any
kind. For purposes of this subsection, tenants who occupy premises
shall be deemed to be subscribers, regardless of who actually pays
for the service. Written consent, as required herein, shall not be
required of any subscriber by a grantee as a condition of receiving
cable services.
(f)
City’s Rights Not Limited. Nothing in this section shall be
read to limit the city’s right to adopt other consumer protection
laws.
(Ord. 646 § 2, 2004)
(a)
Uniform Charges. All charges to subscribers and users shall be uniform
throughout the franchise area with a written schedule of fees for
all services offered available upon request. A grantee shall be required
to inform in writing each new subscriber of all applicable fees and
charges for providing cable-related services.
(b)
Non-Discrimination of Fees. A grantee shall not, with regard to fees,
discriminate or grant any preference or advantage to any person; provided,
however, that a grantee may establish different rates for different
classes or types of subscribers based upon cost-of-service differentials
or economic disadvantage provided that a grantee not discriminate
among subscribers of the same class.
(c)
Review of Initial Rates. All materials pertaining to the review of
initial rates or any proposed rate increase, subject the city’s
regulatory authority, shall be submitted to the city for review and
approval. Final determinations will be made by the city council and
will take into consideration public comment as required by the Cable
Act.
(d)
Rate Regulation Consistent with Law. The city may regulate rates
except to the extent it is prohibited from doing so by state or federal
law. Any regulated rate shall be adopted by resolution and shall be
processed in accordance with the provisions of city council resolution.
(Ord. 646 § 2, 2004)
(a)
Franchise Fee Rate. A grantee shall pay to the city an amount equal
to five percent of the gross revenues derived from the operation of
its cable system in the city or the maximum fee permitted by federal
law, if larger.
(b)
Payment of Franchise Fee. Unless otherwise specified in a franchise
agreement, a grantee shall pay the franchise fee due to the city on
a quarterly basis. Payment for each quarter shall be made to the city
not later than thirty days after the end of each calendar quarter.
(c)
Quarterly Statement of Gross Revenues. Unless a franchise Agreement
provides otherwise, a grantee or other entity subject to a fee under
this provision shall file with the city within thirty days of the
end of each calendar quarter a financial statement showing the grantee’s
or such entity’s gross revenues during the preceding quarter
and the number of subscribers served.
(d)
Late Payment Fee. In the event that a franchise fee payment is not received by the city on or before the due date set forth in subsection (c) of this section or is underpaid, the grantee will be charged interest from the due date at an annual interest rate equal to three percent above the rate for three-month federal treasury bills at the most recent United States Treasury Department sale of such treasury bills occurring prior to the due date of the franchise fee payment. In addition, the grantee subject to the fee will pay a late charge of five percent of the amount of the unpaid or underpaid franchise fee payment.
(e)
Franchise Fee is Separate Fee. The franchise fee shall be paid in
addition to fees, charges or assessments required by the city (including,
but not limited to, business license fees), unless such fee, charge
or assessment must be treated as a franchise fee under the Cable Act.
(f)
Audit. The city may arrange for and conduct an audit of the financial
records of a grantee, its contractors, subcontractors or affiliates
for the purpose of verifying franchise fee payments. The city shall
notify the grantee in writing at least seven days prior to the date
of the audit and the grantee shall make available for inspection and
copying its books and records and those of any affiliate it controls
as may be relevant to the determination of gross revenues and franchise
fees due. grantee shall make the records available to the city at
the grantee’s expense at the city’s administrative offices
or at another location agreed to by the grantee and the city. grantee’s
failure to make available its book and records shall be sufficient
cause to support revocation of the franchise.
(Ord. 646 § 2, 2004)
Unless otherwise provided in the franchise, the following will
prevail:
(a)
Public Liability and Property Damage Insurance. A grantee shall,
during the continuance of this chapter and at no expense to the city,
maintain public liability and property damage insurance, including
products liability and completed operations and contractual liability
coverage, in the amount of one million dollars per occurrence on account
of bodily or personal injuries, including death or on account of property
damage, arising from or caused, directly or indirectly, by the performance
under this chapter. This insurance shall be a per occurrence policy.
(b)
Business Automobile Insurance. A grantee shall during the continuance
of this chapter and at no expense to the city, maintain business automobile
insurance, in the amount of one million dollars per occurrence on
account of bodily or personal injuries, including death or on account
of property damage arising from or cause, directly or indirectly,
by the performance under this chapter. This insurance shall be a per
occurrence policy.
(c)
Additional Insured. Under the public liability, property damage and automobile liability insurance required in subsections (b) and (c) of this section, the city, its officers, agents and employees shall be named as additional insured by endorsement and as to such additional insured, the insurance herein required shall be primary and the policies shall contain by endorsement (signed by an authorized representative of the insurance provider) a cross liability clause.
(d)
Workers’ Compensation Insurance. A grantee shall during the
continuance of this chapter and at no expense to the city, maintain
workers’ compensation insurance, as required by law, for all
grantee’s officers and employees.
(e)
Certificates of Insurance.
(1)
The insurance required by subsections (b) through (d) of this section
shall be evidenced by certificate or certificates submitted to the
city which shall be executed by the insurance company or companies
involved and which shall state that the insurance evidenced thereby
may not be terminated without thirty days prior written notice thereof
being received by the city. The certificate(s) shall be submitted
to the city before or at the time a grantee executes a franchise agreement
and shall be resubmitted annually to the city on the anniversary of
the initial filing.
(2)
A grantee shall file certificates of insurance which shall certify
the total limits of coverage in effect. If such limits are higher
than the limits required by the city herein, the higher limits shall
be certified and shall apply to the coverage afforded to the city.
(f)
Additional Insurance. A grantee, in addition to all other insurance
requirements herein, shall maintain insurance in the type and amount
as may be required in any license, permit or agreement obtained in
connection with the construction, operation or repair of its cable
system and which is necessary to complete any construction, operation
or repair (e.g., highway permit, railroad crossing agreement, corps
of engineers permit), regardless of who secured the license, permit
or agreement.
(Ord. 646 § 2, 2004)
(a)
Performance Bond. Within ninety days of the effective date of a franchise
or at a time specified in a franchise, a grantee shall establish in
the city’s favor a performance bond in an amount not less than
five percent of the estimated cost of constructing, upgrading or rebuilding
the cable system required by the franchise agreement or one hundred
fifty thousand dollars whichever is greater. The city may also consider
submission of a letter-of-credit in lieu of a performance bond.
(b)
Recovery. In the event a grantee subject to such a performance bond
fails to complete the cable system construction, upgrade or other
work in the public rights-of-way in a safe, timely and competent manner
in accord with the provisions of a franchise agreement, there shall
be recoverable, jointly and severally from the principal and surety
of the bond, any damages or loss suffered by the city as a result,
including the full amount of any compensation, indemnification or
cost of removal or abandonment of any property of the grantee or the
cost of completing or repairing the cable system construction, upgrade
or other work in the public rights-of-way, plus a reasonable allowance
for attorneys’ fees, up to the full amount of the bond. The
city may also recover against the bond any amount recoverable against
the security fund where such amount exceeds that available under the
security fund.
(c)
Elimination of Bond. Upon completion of the cable system construction,
upgrade or other work in the public rights-of-way and payment of all
construction obligations of the cable system to the satisfaction of
the city, the city shall eliminate the bond or reduce its amount after
a time appropriate to determine whether the work performed was satisfactory,
which time shall be established considering the nature of the work
performed. The city may subsequently require a new bond or an increase
in the bond amount for any subsequent construction, upgrade or other
work in the public rights-of-way.
(d)
Bond Rating. The performance bond shall be issued by a surety with
an A-1 or better rating of insurance in Best’s Key Rating Guide,
Property/Casualty Edition; shall be subject to the approval of the
city; and shall contain the following endorsement:
“This bond may not be canceled or allowed to lapse, until
60 days after receipt by the city, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew.”
(Ord. 646 § 2, 2004)
An applicant for a grant of a franchise, franchise renewal,
franchise modification or franchise transfer shall, prior to the city’s
execution of the aforementioned, provide the city either a cash security
deposit or an irrevocable letter of credit. The security fund shall
be in an amount to be determined by the city manager, but not less
than twenty-five thousand dollars and shall be from a financial institution
in a form satisfactory to the city manager. The amount of the fund
shall be based on the scope of the applicant’s existing and
proposed cable operations in the city, the applicant’s technical
and financial qualifications and the applicant’s history of
compliance with its franchise agreements in the city and elsewhere.
The security deposit or letter of credit shall be used to ensure the
faithful performance of the franchise agreement; compliance with this
chapter; applicable federal, state and local law; all orders and permits;
and the payment of any claims liens, fees or taxes due the city that
arise by reason of the construction, operations, repair or maintenance
of the cable system. The city may withdraw funds from the security
deposit or make demand for payment upon the letter of credit for the
monetary amount of any remedy imposed pursuant to this chapter or
the franchise agreement.
(Ord. 646 § 2, 2004)
(a)
General Indemnity. A grantee shall agree to accept responsibility
for loss or damage to any person or entity and to defend, indemnify,
hold harmless and release the city, its officers and employees, from
actions, claims, damages, disability or the cost of litigation that
are asserted by any person or entity to the extent arising out of
the negligent acts or omissions or willful misconduct in the performance
by the grantee under a franchise, whether or not there is concurrent
negligence or willful misconduct of the city but excluding liability
due to the sole active negligence or misconduct of the city. This
indemnification obligation is not limited in any way by any limitation
on the amount or type of damages or compensation payable to or for
the grantee or its agents, under workers’ compensation acts,
disability benefits acts or other employees’ benefits acts.
(b)
City Property. A grantee shall be liable to the city for any loss
of or damage to city property arising from the grantee’s actions,
negligence or willful misconduct.
(Ord. 646 § 2, 2004)
A franchise agreement may specify liquidated damages, for the
city or third party beneficiaries of any franchise agreement.
(Ord. 646 § 2, 2004)
(a)
Removal of Cable System. Upon revocation or upon any other termination
of a franchise by passage of time or otherwise, the city shall have
the right to require the grantee to remove, at the grantee’s
expense, its cable system from streets, public property and any private
property occupied pursuant to the revoked, canceled or terminated
franchise. The city shall notify the grantee in writing that the cable
system should be removed and identify any period during which the
grantee will be required to continue to operate the cable system as
provided in the franchise. In removing its cable system, a grantee
shall refill and compact, at its expense, any excavation that shall
be made and shall leave all streets, public property and private property
in as good a condition as that prevailing prior to the grantee’s
removal of the cable system. The insurance, indemnity and damage provisions
of the grantee’s franchise shall remain in full force and effect
until the cable system is removed.
(b)
City’s Right to Purchase System. Upon revocation or cancellation
of a franchise or upon any other termination of a franchise by passage
of time or otherwise, the city shall have the alternative right to
buy the grantee’s cable system. If the franchise is terminated
for cause, the city may purchase the cable system at an equitable
price, within the meaning of the Cable Act; otherwise, the cable system
may be purchased at fair market value, less the value of the franchise,
within the meaning of the Cable Act. The grantee shall sell its cable
system subject to such warranties and terms as are appropriate under
the circumstances.
(c)
Transfer or Abandonment. If the city does not purchase a grantee’s cable system as provided in subsection (b) of this section and the grantee has failed to commence removal of its cable system within ninety days after termination of the franchise, or such other date specified by the city under the franchise or if the grantee has failed to complete such removal within six months after removal is required to have begun, the city may:
(1)
Declare all right, title and interest to the grantee’s cable
system to be in the city or its designee with all right of ownership
including, but not limited to, the right to operate the cable system
or transfer the cable system to another for operation by it (upon
such declaration by the city, the grantee shall be entitled to receive
an equitable price from the city, within the meaning of the Cable
Act, for the value of the cable system, less any costs and damages
suffered by the city as a result of the delay in removal); or
(Ord. 646 § 2, 2004)
(a)
Prior Written Approval Required. Prior written approval of the city
council shall be required before a franchise is assigned or transferred,
either in whole or in part or leased, sublet or disposed of in any
manner, directly or indirectly, either by forced or involuntary sale,
voluntary sale, merger, consolidation or otherwise; and before title
thereto, either legal or equitable or any right, interest or property
therein, passes to or vests in any person or persons. A change in
control of a grantee or any person that manages, owns or controls
the grantee is a transfer within the meaning of this section.
(b)
Applications. The proposed transferee shall make a written request
of the city for approval of the transfer. The application shall provide
complete information regarding the proposed transfer, including:
(1)
All documents embodying the transaction;
(2)
Financing documents;
(3)
Documents identifying any person who will be responsible, through
any arrangement, for managing or controlling the cable system;
(4)
Documents showing that the proposed transferee has the financial,
technical and legal ability to operate the cable system after the
transfer so as to satisfy all its obligations under a franchise without
adversely affecting subscribers;
(5)
Information regarding the length of time that a grantee has held
the franchise(s) involved in the transfer; and
(6)
The information required by Sections 18.04.050(b) and 18.04.070(a). The proposed transferee shall also pay all reasonable costs incurred by the city in reviewing and evaluating the application.
(c)
City Response. Upon receiving a transfer application, the city may
require additional information from the grantee or the proposed transferee
as required to evaluate the proposed transaction and both shall cooperate
to provide the information to the city. The city shall be under no
obligation to transfer the franchise if the grantee’s acts or
omissions make the franchise subject to revocation; nor shall the
city be required to transfer the franchise unless it is fully satisfied
that any interests it or the public has in the franchise will be fully
preserved and protected, that past non-performance will be corrected
and that the proposed transferee has the ability and is likely to
comply with the franchise in the future. Under no circumstances shall
the franchise be transferred unless the proposed transferee agrees
to accept all the terms and conditions of the franchise, agrees that
the transfer does not constitute a waiver of any rights by the city
or indication that the prior grantee is or has been in compliance
with the franchise and agrees to assume all the obligations and liabilities
of the prior grantee. The city may conduct such public hearings as
it deems appropriate to consider the transfer request.
(d)
Change in Control. A “change in control,” for purposes
of this section, includes a change in actual working control in whatever
manner exercised and shall be deemed to have occurred whenever there
is a disposition of five percent or more of any interest in a grantee
or any person that, through any arrangement, manages or controls the
grantee.
(e)
Evidence of Transfer. A grantee, upon transfer, shall within sixty
days thereafter file with the city a copy of the deed, agreement,
mortgage, lease or other written instrument evidencing transfer of
ownership control or lease of the cable system, certified and sworn
to as correct by the grantee.
(f)
Transfer Null Without Authorization. Any transfer made without the
authorization required herein renders a franchise null and void from
the time of the transfer.
(Ord. 646 § 2, 2004)
(a)
Application for an OVS franchise.
(1)
Franchise Required. Before constructing or operating an open video
(“OVS”) system, an OVS operator may be required to obtain
an OVS franchise from the city. The grant of an OVS franchise does
not obviate the obligation to obtain additional franchises, permits
and authorizations, as the city may require from time to time should
the system provide other services; or obviate the obligation to pay
such additional compensation as the city may establish for use of
the right-of-way to provide other services.
(2)
Contents of Application for Initial or Renewal OVS Franchise. In
order to obtain an initial or renewal OVS franchise, an operator of
an OVS system may be required to apply for an OVS franchise. Any application
must contain the following information, and such information as the
city may from time to time require. The franchise may not be transferred
without the prior approval of the city.
(a)
Identity of the applicant; the persons who exercise working control
over the applicant; and the persons who control those persons, to
the ultimate parent;
(b)
A proposal for construction of the OVS system that sets forth at
least the following:
(i)
A description of the services that are to be provided over the
facility,
(ii)
The location of proposed facility and facility design, including
a description of the miles of plant to be installed, where it is to
be located and the size of facilities and equipment that will be located
in, on, over or above the rights-of-way,
(iii)
Identification of the area of the city to be served by the proposed
OVS franchise, including a description of the proposed franchise area’s
boundaries;
(c)
A description of the manner in which the system will be installed
and the time required to construct the system and the expected effect
on right-of-way usage, including information on the ability of the
rights-of-way to accommodate the proposed system, including, as appropriate
given the system proposed, an estimate of the availability of space
in conduits and an estimate of the cost of any necessary rearrangement
of existing facilities.
(d)
A description, where appropriate, of how services will be converted
from existing facilities to new facilities and what will be done with
existing facilities;
(e)
Proof, attested to by a certified public accountant, that the applicant
has the financial resources to complete the proposed project and to
construct, operate and repair the proposed facility over the franchise
term. It is not the intent of the city to require an applicant to
prove that the services it proposed to offer will succeed in the marketplace;
(f)
Proof that applicant is technically qualified to construct, operate
and repair the proposed facility. At a minimum, the applicant must
show that it has experience or resources to ensure that work is to
be performed adequately and can respond to emergencies during and
after construction is complete;
(g)
Proof that the applicant is legally qualified, which proof must include
a demonstration that the applicant:
(i)
Has received or is in a position to receive, necessary authorizations
from state and federal authorities,
(ii)
Has not engaged in conduct (fraud, racketeering, violation of
antitrust laws, consumer protection laws or similar laws) that allows
city to conclude the applicant cannot be relied upon to comply with
requirements of franchise or provisions of this title,
(iii)
Is willing to enter into a franchise, to pay required compensation
and to abide by the provisions of applicable law, including those
relating to the construction, operation or maintenance of its facilities
and has not entered into any agreement that would prevent it from
doing so;
(h)
An affidavit or declaration of the applicant or authorized officer
thereof certifying the truth and accuracy of the information in the
application and certifying that the application meets all requirements
of applicable law.
(3)
Additional Information Regarding Affiliates—Presumptions. To
the extent that the applicant is in any respect relying on the financial
or technical resources of another person, including another affiliate,
the proofs required under subsection (a)(2) of this section should
be provided for that person. An applicant will be presumed to have
the requisite financial or technical or legal qualifications to the
extent such qualifications have been reviewed and approved by a state
agency of competent jurisdiction; or if applicant is a holder of a
franchise in the city for a cable system and conduct under other franchise
provides no basis for additional investigation.
(4)
Applications for Transfer. An application for a transfer of an OVS
franchise must contain same information required by this section except
that, if the transferor submitted an application under subsection
(a)(2) of this section to the extent information provided by the transferor
under that section remains accurate, the transferee may simply cross-reference
the earlier application.
(5)
City Review. The city may request
such additional information as it finds necessary and require such
modifications to the application as may be necessary in the exercise
of the city’s authority over OVS facilities. Once the information
required by the city has been provided, the application shall be promptly
reviewed and shall be granted if the city finds that:
(A)
The applicant has the qualifications to construct, operate and maintain
the system proposed in conformity with applicable law. The city shall
provide a reasonable opportunity to an applicant to show that it would
be inappropriate to deny it a franchise under subsection (a)(2)(g)
of this section, by virtue of the particular circumstances surrounding
the matter and the steps taken by the applicant to cure all harms
flowing therefrom and prevent their recurrence, the lack of involvement
of the applicant’s principals or the remoteness of the matter
from the operation of telecommunications facilities. An application
for a franchise area shall not be granted if the grantee has no plans
for constructing a system within the entire area for which the franchise
is sought;
(B)
The applicant accepts the modifications required by the city to its
proposed system. This section shall not be read to authorize the city
to exercise authority it does not otherwise have under applicable
law;
(C)
The applicant enters into a franchise agreement and complies with
any conditions precedent to its effectiveness;
(D)
In the case of a transfer, the city must also determine that:
(i)
There will be no adverse effect on the public interest or the
city’s interest in the franchise,
(ii)
Transferee agrees to be bound by all the conditions of the franchise
and to assume all the obligations of its predecessor, and
(iii)
Any outstanding compliance and compensation issues are resolved
or preserved to the satisfaction of the city;
(E)
An applicant shall not be issued a franchise if it files or in the
previous five years filed materially misleading information in a franchise
application or intentionally withheld information that the applicant
lawfully is required to provide.
(6)
Compensation. Every operator of
an OVS system shall pay compensation to the city as follows:
(A)
To the extent that the system is used to provide cable services:
a percentage of gross revenues each quarter equal to the gross revenue
percentage paid by any cable operator for the same quarter. In addition,
unless an OVS franchise agreement provides otherwise, an OVS operator
(1) shall pay to the city, at a time directed by the city, an amount
equal to the highest amount contributed by any cable operator under
its franchise for and in support of public, educational and government
use (including institutional network use) of its cable system; and
(2) to the extent that a cable operator is providing other support
for public, educational or governmental use, the operator must duplicate
that support within a time and in a manner directed by the city or
provide a cash equivalent acceptable to the city. In applying this
section, the city shall ensure that the obligations borne by the OVS
operator are no greater or lesser than the obligation imposed upon
the cable operator providing the greatest benefits to the community.
The compensation required under this section or specified in a franchise
shall increase as the compensation that a cable operator is required
to provide (in cash and in other forms) increases.
(B)
To the extent that the OVS system is used for the provision of telecommunications
services, the OVS operator shall pay such fee as may be established
from time to time by the city.
(7)
Minimum OVS Franchise Requirements. Every OVS franchise must require the applicant to comply with all provisions of this chapter, as if the OVS system were a cable system, as may be permitted by applicable law. Without limiting the foregoing, the franchise must ensure that the OVS system operator is obligated to comply with Sections 18.04.030, 18.04.140 and 18.04.170 (except as inconsistent with subsection (a)(6) of this section, compensation, above); Sections 18.04.180 through 18.04.220 as if the OVS system were a cable system; and must preserve the city’s rights to establish additional obligations from time to time and to regulate the system to the maximum extent permitted by law. Further, the OVS franchise must ensure that the relevant books and records of the OVS system, no matter who may hold them, are available for inspection and copying; and that the OVS operator will prepare and submit such relevant reports as may be required by the city.
(8)
Customer Service Standard Certification. An OVS system that enters
into an agreement to comply with the customer service standards applicable
to cable systems may be certified by the city for so long as it complies
with those requirements and may advertise its compliance with those
standards.
(Ord. 646 § 2, 2004)
(a)
Connections to a Grantee’s System—Use of Antennas. It
shall be unlawful for any person, firm or corporation to make any
unauthorized connection, whether physically, acoustically, inductably
or otherwise, with any part of a grantee’s cable system or facilities,
for the purpose of enabling the reception of any television, radio,
picture, program, sound or data signals or other services, without
payment to and authorization from the grantee, except that subscribers
shall have the right to attach devices to the grantee’s cable
system to allow them to transmit signals or services for which they
have paid to VCRs, television sets or other terminal devices; and
subscribers shall have the right to use their own remote control devices,
converters and other similar equipment and the grantee shall provide
information to subscribers which will allow them to adjust such devices
so that they may be used with the grantee’s cable system. It
shall also be unlawful for any person, without the consent of the
grantee, to willfully tamper with, remove or injure any cables, wires
or equipment of the grantee used for the distribution of television,
radio, picture, program, sound or data signals or other services,
unless the grantee fails to remove such devices from the property
of such person if the person chooses not to take service or if the
grantee places such devices on any property where it has no right
to place such devices. The grantee shall not, as a condition to providing
service, require a subscriber or potential subscriber to remove or
disconnect any existing antenna, except at the express direction of
the subscriber or potential subscriber or prohibit or discourage a
subscriber from installing an antenna switch, provided such equipment
and installations are consistent with applicable codes.
(b)
Warranties and Guarantees. The city may require a grantee to provide
guarantees and warranties from any entity that manages, owns or controls
it, as required to ensure compliance with any franchise issued to
the grantee.
(c)
Severability. If any term, condition or provision of this chapter
shall, to any extent, be held to be invalid or unenforceable, the
remainder hereof shall be valid in all other respects and continue
to be effective. In the event of a subsequent change in applicable
law so that the provision which had been held invalid is no longer
invalid, said provision shall thereupon return to full force and effect
without further action by the city and shall thereafter be binding
on the grantee and the city.
(d)
Operation of a Cable System Without a Franchise. Any person who occupies public rights-of-way for the purpose of operating or constructing a cable system and who does not hold a valid franchise from the city shall be, to the extent permitted by applicable law, subject to all provisions of this chapter including without limitation, Section 18.04.140 regarding conditions of occupancy of the streets and public rights-of-way and Section 18.04.170 regarding franchise fees. In its discretion, the city at any time may require such person to enter into a franchise agreement within thirty days of receipt of a written notice by the city that a franchise agreement is required; require such person to remove its property and restore the area to a condition satisfactory to the city within such time period; remove the property itself and restore the area to a satisfactory condition and charge the person the costs therefor; require such person to pay fair compensation to the city in the form of fees or in-kind benefits; and/or take any other action it is entitled to take under applicable law, including filing for and seeking damages for trespass. In no event shall a franchise be created unless it is issued by action of the city and is memorialized in a written franchise agreement.
(e)
Effective Date. This chapter shall become effective thirty days after
the date of passage. However, any existing grantee or its immediate
successor need not comply with all the terms and conditions set out
herein until a date mutually agreed to by the city and the grantee
in writing; in no event shall that date be later than the expiration
date of the existing franchise.
(Ord. 646 § 2, 2004)
