Part 5 — ENFORCEMENT

6938. • Remedies for franchise violations.

If grantee fails to perform in a timely manner any obligation required by this chapter or a franchise granted hereunder following notice from grantor and an opportunity to cure such nonperformance in accordance with provisions of this chapter, grantor may at its option and in its sole discretion:

(a)

Cure the violation and recover actual costs thereof from the security fund established herein if such violation is not cured within five (5) days after written notice to grantee of grantor's intention to cure and draw upon the security fund;

(b)

Assess against grantee a liquidated damages penalty in an amount set forth in the franchise agreement for any such violation(s) if such violation is not cured within five (5) days after written notice to grantee of grantor's intention to assess liquidated damages. By acceptance of a franchise hereunder, grantee hereby agrees to pay any assessment to be levied against the security fund hereinabove provided and collected by grantor immediately upon such assessment. Such assessment shall not constitute a waiver by grantor of any other right or remedy it may have under the franchise or under applicable law, including without limitation, its right to recover from grantee such additional damages, losses, costs, and expenses, including actual attorneys' fees, as may have been suffered or incurred by grantor by reason of or arising out of such breach of the franchise;

(c)

For violations which have materially degraded quality of service, order and direct grantee to issue rebates or credits to subscribers, in an amount to be determined by grantor to be reasonably related to the nature of the degradation in service and measured by the period of the degradation, to provide monetary relief substantially equal to the reduced quality of service resulting from grantee's failure to perform;

(d)

Require grantee to cure all defaults and breaches of its obligations hereunder or under its franchise before grantee is entitled to increase any rate or charge to its subscribers; or

(e)

Terminate the franchise, for any cause stated herein as set forth in section 6942.

(Ord. No. 198, § 1, 10-9-91)

6939. • Grantor's power to revoke.

Grantor reserves the right to revoke any franchise granted pursuant to this chapter and rescind all rights and privileges associated with it in the following circumstances, each of which shall represent a default by grantee and material breach under the franchise grant:

(a)

If grantee shall default in performance of its material obligations under this chapter or under such documents, contracts, or other terms and provisions entered into by and between grantor and grantee;

(b)

If grantee shall fail to provide or maintain in full force and effect the insurance coverage or security fund as required herein;

(c)

If grantee shall violate any order or ruling of any regulatory body having jurisdiction over grantee relative to grantee's franchise, unless such order or ruling is being contested by grantee by appropriate proceedings conducted in good faith;

(d)

If grantee attempts to evade any provision of this chapter or practices any fraud or deceit upon grantor;

(e)

If grantee persistently fails to remedy defaults for which lesser penalties have previously been imposed;

(f)

If grantee becomes insolvent, unable, or unwilling to pay its debts, or is adjudged a bankrupt; or

(g)

If grantee's application or application contents are later found to contain any material misstatement or omission which is determined to be materially misleading and knowingly made by grantee.

Termination and forfeiture of grantee's franchise shall in no way affect any right of grantor to pursue any remedy under the franchise or any provision of law.

(Ord. No. 198, § 1, 10-9-91)

6940. • Procedure for remedying franchise violations.

Prior to imposing any remedy or other sanction against grantee specified in this chapter, grantor shall give grantee notice and opportunity to be heard on the matter, in accordance with the following procedure:

(a)

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

(b)

At the public hearing, council shall hear and consider all relevant evidence, and thereafter render findings and its decision.

(c)

In the event council finds that grantee has corrected the violation or has diligently commenced correction of such violation after notice thereof from grantor and is diligently proceeding to fully remedy such violation, or that no violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.

(d)

In the event council finds that alleged violations exist and that grantee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation after notice thereof from grantor or is not diligently proceeding to fully remedy such violation, grantor may impose one (1) or more of the remedies specified herein as it, in its discretion, deems appropriate under the circumstances.

(Ord. No. 198, § 1, 10-9-91)

6941. • Force majeure; grantee's inability to perform.

In the event grantee's performance of any of the terms, conditions or obligations required by this chapter or a franchise granted hereunder is prevented by a cause or event not within grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof; provided, however, that such inability to perform shall not relieve a grantee from the obligations imposed by section 6947(f), pertaining to refunds and credits for interruptions in service. For purposes of this section, causes or events not within control of grantee shall include without limitation acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires, but shall not include financial inability of grantee to perform or failure of grantee to obtain any necessary permits or licenses from other governmental agencies or the right to use facilities of any public utility where such failure is due solely to acts or omissions of grantee, or the failure of grantee to secure supplies, services, or equipment necessary for the installation, operation, maintenance, or repair of the cable communications system where grantee has failed to exercise reasonable diligence to secure such supplies, services, or equipment.

(Ord. No. 198, § 1, 10-9-91)

6942. • Abandonment or removal of franchise property.

(a)

In the event that use of any franchise property or portion thereof is discontinued for a continuous period of twelve (12) months, grantee shall be deemed to have abandoned that franchise property.

(b)

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

(c)

Upon abandonment of any franchise property in place, grantee, if required by grantor, shall submit to grantor an instrument, satisfactory in form to the city attorney, transferring to grantor ownership of the franchise property abandoned.

(d)

At the expiration of the term for which the franchise is granted, or upon its revocation or earlier expiration, as provided for herein, in any such case without renewal, grantor shall have the right to require grantee to remove, at its own expense, all above-ground portions of the cable television system from all streets and public ways within the city within a reasonable period of time, which shall not be less than one hundred eighty (180) days.

(e)

Notwithstanding anything to the contrary set forth in this chapter, grantee may abandon any underground franchise property in place so long as it does not materially interfere with use of the street or public rights- of-way in which such property is located or with use thereof by any public utility. Grantee shall not be required to remove any franchise property which has been abandoned or deemed abandoned in accordance with provisions of this chapter unless it constitutes a substantial portion of the franchise property.

(Ord. No. 198, § 1, 10-9-91)

6943. • Restoration by grantor; reimbursement of costs.

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

(Ord. No. 198, § 1, 10-9-91)

6944. • Extended operation and continuity of services.

Upon either expiration or revocation of the franchise, grantor shall have discretion to permit grantee to continue to operate the cable television system for an extended period of time not to exceed twelve (12) months from the date of such expiration or revocation, unless extended by resolution of grantor. Grantee shall, as trustee for its successor-in-interest, continue to operate the system under the terms and conditions of this chapter and the franchise agreement and to provide regular subscriber service and any and all services that may be provided at that time. It shall be the right of all subscribers to continue to receive all available services provided their financial and other obligations to grantee are honored. Grantee shall use reasonable efforts to provide continuous, uninterrupted service to its subscribers, including operation of the system during transitional periods following franchise expiration or termination.

(Ord. No. 198, § 1, 10-9-91)

6945. • Receivership and foreclosure.

(a)

A franchise granted hereunder shall, at the option of grantor, cease and terminate one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of grantee, whether in a receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: (1) Such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all terms and provisions of this chapter and the franchise granted pursuant hereto, and the receivers or trustees within said one hundred twenty (120) days shall have remedied all faults under the franchise or provided a plan to remedy such faults which is satisfactory to grantor; and (2) Such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision, and limitation of any franchise granted.

(b)

In the case of a foreclosure or other judicial sale of franchise property, or any material part thereof, grantor may serve notice of termination upon grantee and the successful bidder at such sale, in which event the franchise granted and all rights and privileges of grantee shall cease and terminate thirty (30) days after

service of such notice, unless: (1) Grantor shall have approved transfer of the franchise, as and in the manner that this chapter provides; and (2) Such successful bidder shall have covenanted and agreed with grantor to assume and be bound by all terms and conditions of any franchise.

(Ord. No. 198, § 1, 10-9-91)

6946. • Rights reserved to grantor.

(a)

In addition to any rights specifically reserved to grantor by this chapter, grantor reserves to itself every right and power which is required to be reserved by a provision of any city ordinance or under the franchise, and grantee by accepting a franchise hereunder agrees to be bound thereby and to comply with any action or requirement of grantor in its exercise of any such right or power.

(b)

Grantor shall have the right to waive any provision of the franchise, except those required by federal or state regulation, if grantor determines (1) that it is in the public interest to do so, and (2) that enforcement of such provision will impose an undue hardship on grantee or subscribers. To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of grantor. Waiver of any provision in one instance shall not be deemed a waiver of such provision subsequent to such instance nor be deemed a waiver of any other provision of the franchise unless the statement so recites.

(c)

Grantor shall have the right to order grantee to increase the security fund at such times and in such amounts as are set forth in grantee's franchise agreement.

(Ord. No. 198, § 1, 10-9-91)

6947. • Rights of individuals.

(a)

Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, age, or sex. Grantee shall comply at all times with all other applicable federal, state, and local laws and regulations, and all executive and administrative orders relating to non-discrimination, including without limitation Section 51 of the California Civil Code which is incorporated herein by reference.

(b)

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

(c)

Neither grantee, nor any person, agency, or entity shall, without the subscriber's consent, tap, or arrange for the tapping, of any cable, line, signal input device, or subscriber outlet or receiver for any purpose

except routine maintenance of the system, detection of unauthorized service, polling with audience participation, or audience viewing surveys to support advertising research regarding viewers, where individual viewing behavior cannot be identified.

(d)

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

(e)

No cable line, wire, amplifier, converter, or other piece of equipment owned by grantee shall be installed by grantee in a subscriber's premises without first securing any required consent. If a subscriber requests service, permission to install upon subscriber's property shall be presumed.

(f)

Grantee shall credit or refund to the subscriber upon request, for interruptions in service, as provided in grantee's franchise agreement.

(g)

A subscriber bill of rights approved by grantor shall be provided to each subscriber by grantee upon initial installation of service. Subscribers shall be notified of any material change in such rights.

(h)

Grantee, or any of its agents or employees, shall not sell or otherwise make available to any party:

(1)

Any list of names and addresses of subscribers containing names and addresses of subscribers who request in writing to be removed from such list; and

(2)

Any list which identifies viewing habits of individual subscribers, without prior written consent of such subscribers. This does not prohibit grantee from providing composite ratings of subscriber viewing to any party.

(Ord. No. 198, § 1, 10-9-91)

6948. • Fair employment practices.

(a)

Grantee shall not make any discrimination, distinction, or restriction on account of color, race, religion, ancestry, or national origin contrary to the provisions of Section 51 of the California Civil Code which is incorporated herein by reference.

(b)

All provisions of Section 1410 through 1431 of the California Labor Code (California Fair Employment Practice Act) are incorporated herein by reference.

(c)

Grantee shall provide notice to grantor prior to operating under a fictitious name other than that stated in the franchise. Any fictitious name shall be filed with the city clerk.

(Ord. No. 198, § 1, 10-9-91)

6949. • Tenant rights.

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

(a)

To grantee's providing of service to units of the facility for such term and subject to such conditions as are reasonably acceptable to grantee;

(b)

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

(c)

To reasonable conditions promulgated by grantee to protect grantee's equipment and to encourage wide- spread use of the cable television system;

(d)

To not demand or accept payment from grantee for permitting grantee to provide service to the facility and to not discriminate in rental charges, or otherwise, between tenants who receive cable television service and those who do not.

(Ord. No. 198, § 1, 10-9-91)