Atwater Municipal Code Ch. 5.20 Community Antenna Television System

For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meaning given in this section:

A. "City" means the City of Atwater, a municipal corporation of the State, in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form.

B. "Commence installation" means the completion of at least one of the following:

1. The stringing of at least one-half mile of coaxial cable on utility or other poles in the public ways of this City; or

2. The installation of a receiving antenna, and facilities capable of satisfactorily receiving and re-transmitting according to the technical standards herein, the television signals from at least one San Francisco Television Station.

C. "Community antenna television system" or "CATV" means coaxial cables, wave guides or other conductors and equipment for providing television service and audio communication services by cable or through its facilities as herein contemplated. CATV does not mean or include the use of any system of "Pay TV" as defined in subsection H of this section.

D. "Council" means the present governing body of the City or any future board constituting the legislative body of the City.

E. "Franchisee" means the person(s) or corporation(s) to whom or which a franchise under this chapter is granted by the City Council and the lawful successor or assignee of the person(s) or corporation(s).

F. "Gross receipts" means any and all compensation and other consideration in any form whatever and any contributing grant or subsidy received directly or indirectly from subscribers, users, television stations, or others, in payment for the franchisee's services in providing television signals or electrical impulses to subscribers within the City, and gross receipts shall be taken to mean all those yearly gross receipts of the franchisee collected by the franchisee which the franchisee would not have received but for the grant of the franchise and such figure shall not be abated by any formula, or in any way, to reflect the percentage of such receipts attributable to the use of the City's public ways in relation to the capital investment of the franchisee in the remainder of the franchisee's facilities, nor shall such figure be abated pursuant to the provisions of Section 6011 of the Public Utilities Code (which provides for abatement of franchise fees for the first five years of an initial franchise).

"Gross receipts" shall not include any taxes on the services furnished by the grantee imposed directly on any subscriber by the City, State or other governmental unit collected by the franchisee for such governmental unit.

G. "Local television station" means a television station licensed by the Federal Communications Commission to operate in Madera, Merced, Stanislaus, or Fresno Counties and which delivers a Grade A signal to the City and serves the community with news of local and public affairs.

H. "Pay TV" means any system for the transmission and receipt of television signals in which the subscriber or set owner pays a fee or charge based upon the particular program or programs received.

I. "Public way" means any street, highway, road, walk, freeway, parkway, lane, alley, court or drive, in which the public has a right-of-way, or any easement which the City controls and the terms of which are broad enough to include the passage of transmission lines for CATV cables, now or hereafter existing as such. Included in this definition shall be the areas on, above or below the surface of such ways insofar as the public right extends thereto.

J. "Subscribers" means any person or entity receiving for any purpose the CATV service of the franchisee herein.

K. "TV" means television.

(Prior Code Appx. I, § 1)

The ordinance codified in this chapter shall be referred to and incorporated by reference in any advertising which invites proposals for the granting of a nonexclusive franchise to construct, erect, operate and maintain upon the public ways of this City a CATV system, and shall be referred to and incorporated by reference in any franchise which may hereafter be granted by this City. However, the ordinance codified in this chapter shall not bind this City to the granting of any such franchise if this Council does not find that such a franchise grant is in the public interest.

(Prior Code Appx. I, § 2(a))

Any franchise granted by the City shall be nonexclusive. This Council may after public hearing and a finding of public convenience and necessity grant other franchises to competing franchisees.

(Prior Code Appx. I, § 2(b))

Any franchise granted under this chapter shall be based on the powers set forth in Section 53066 of the Government Code of the State, and such other provisions of the general law of this State as are not in conflict with this chapter.

(Prior Code Appx. I, § 2(c))

Any franchise granted pursuant to the provisions of this chapter shall authorize and permit the franchisee to engage in the business of providing and operating a CATV system in the City, and for that purpose to construct, erect, install, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public way, such poles, wires, cables, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the CATV system; and, in addition, so to use, operate and provide similar facilities on properties rented or leased from a public utility franchised or permitted to do business in the City.

(Prior Code Appx. I, § 3)

No franchise, or any renewal thereof, granted by the City Council under this chapter shall be for a term longer than 20 years following the date of acceptance of such franchise or the renewal thereof, by the franchisee. Any such franchise may be terminated prior to its date of expiration by the City Council in the event that after 30 days' notice to franchisee by the City of franchisee's failure to comply with a material provision of this chapter or notice to cease violation by act or omission of any term or after the Council has found after notice and public hearing, that: (a) the franchisee has failed to comply with any material provisions of this chapter, or has, by act or omission, violated any term or condition of any franchise or permit issued under this chapter; or (b) the provisions of this chapter have become invalid or unenforceable, and the Council further finds that such provisions constitute a consideration material to the grant of the franchise; provided, however, that the franchisee shall be given at least 30 days' notice of any proposed termination proceedings.

(Prior Code Appx. I, § 3)

No provision in this chapter shall be construed to preclude the franchisee from introducing program material into a franchised CATV system or portion thereof.

(Prior Code Appx. I, § 3)

The franchisee of a CATV franchise granted under this chapter shall pay to the City during the life of the franchise the lump sum of at least $100.00 per month in advance, payable on or before the fifth of the month, and by the twenty-fifth of the following month a sum equal to at least two percent of the total monthly gross receipts under the franchise granted, less the minimum lump sum previously paid for the month. The minimum monthly lump sum of $100.00 per month may be increased under the terms of any proposal entered for the franchise, and the minimum percentage of two percent of gross receipts may also be increased by such a proposal.

(Prior Code Appx. I, § 4)

The City will not entertain any proposal based upon a definition of gross receipts different from that contained in subsection F of Section 5.20.010. Pursuant to the powers granted the Council, the Council declares that although the power to grant a franchise may be based upon the City's control over the public way, a franchisee may be charged more than the two percent of the gross receipts derived from the use of such franchise; provided, further, that nothing in this chapter shall be construed so as to apply to gross receipts of franchisee received from subscribers under a franchise for areas outside the City limits, or for operations of franchisee unrelated to CATV.

(Prior Code Appx. I, § 4)

A. Within 90 days after the expiration of the franchisee's fiscal year during which the franchise is in force, franchisee shall file with the City Clerk a financial statement prepared by a certified public accountant showing in detail the total gross receipts, as defined in subsection F of Section 5.20.010, of franchisee, its successors or assigns, during the preceding 12-month period. Franchisee shall pay, within 15 days of the filing of the report, any balance due on its gross receipts percentage, and the City shall credit to future lump sum monthly payments due any excess payments made during the previous year, but in no event shall franchisee pay less than $1,200.00 per year.

B. The City shall have the right of inspection of franchisee's records from which its gross receipts totals are computed.

C. The franchise fee shall be in lieu of any occupation tax, license tax or similar levy, so long as the basis for defining the term "gross receipts" is that set forth in this chapter.

(Prior Code Appx. I, § 4)

No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically prescribed herein.

(Prior Code Appx. I, § 5(a))

Any privilege claimed in any public way by the franchisee under such franchise shall be subordinate to any prior lawful occupancy of the public way, or other public property.

(Prior Code Appx. I, § 5(b))

Any franchise shall be a privilege to be held in personal trust by the original franchisee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without prior consent of the City expressed by resolution, and then only under such conditions as may be therein prescribed; provided, however, that no such consent shall be required for any transfer in trust, mortgage or other hypothecation, as a whole, to secure an indebtedness. The consent of the City may not be arbitrarily refused; provided, however, the proposed assignee must show financial responsibility and must agree to comply with the provisions of this chapter.

(Prior Code Appx. I, § 5(c))

Time shall be of the essence of any franchise granted under this chapter. The franchisee shall not be relieved of its obligation to comply promptly with any of the provisions of this chapter, or by any failure of the City to enforce prompt compliance.

(Prior Code Appx. I, § 5(d))

Any right or power in, or duty impressed upon, any officer, employee, department or board of the City, is subject to transfer by the City Council to any other officer, employee, department or board of the City.

(Prior Code Appx. I, § 5(e))

The franchisee shall have no recourse whatsoever against the City for any loss, cost, expense or damage, arising out of any provision or requirement of this chapter or its enforcement.

(Prior Code Appx. I, § 5(f))

The franchisee is subject to all requirements of City ordinances, rules, regulations and specifications of the City heretofore or hereafter enacted or established, including but not limited to those concerning street work, street excavations, use, removal and relocation of property within a street, and other street work.

(Prior Code Appx. I, § 5(g))

Any franchise granted under this chapter shall not relieve the franchisee of any obligation involved in obtaining pole space from any department of the City, the utility companies, or from others maintaining poles in the public ways of the City.

(Prior Code Appx. I, § 5(h))

There is reserved to the City every right and power which is required to be reserved or provided by any ordinance of the City or by general law, and the franchisee, by his acceptance of the franchise, agrees to be bound thereby, and to comply with any action or requirement of the City in its exercise of any such right or power, heretofore or hereafter enacted or established.

(Prior Code Appx. I, § 6)

The franchisee shall proceed within 30 days after any franchise is granted to secure all pole attachment agreements necessary for the installation; shall commence installation within 150 days after all necessary pole attachment agreements are granted; shall accomplish 30 percent coverage of the City within 180 days after installation is begun; and shall complete installation within two years of the franchise grant so that any subscriber located within the City limits may have a CATV connection on demand at that time (a work order designating specific locations on a specific pole shall not be deemed a necessary permit for purposes of this section). The Council may extend the time for beginning the installation for additional periods in the event that the franchisee can demonstrate that delays are caused by reason or circumstances beyond his control and cannot be overcome by the exercise of reasonable diligence on his part; provided further, that the extensions rest entirely within the discretion of the Council and any failure to comply with the within set-out time limits not thus excused shall be deemed a material failure to perform under the terms of the contract and the franchise may be forfeited on declaration thereof by the Council.

(Prior Code Appx. I, § 7)

Any poles, wires, cable lines, conduits or other properties of the franchisee to be constructed or installed in the public ways shall be so constructed or installed only at such locations and in such manner as shall be approved by the City manager acting in the exercise of his reasonable discretion.

(Prior Code Appx. I, § 8(a))

The franchisee may install or erect any facilities or apparatus on public property or rights-of-way within the City upon obtaining written approval of the City manager in advance.

(Prior Code Appx. I, § 8(b))

In those areas and portions of the City where either the transmission and distribution facilities of the public utility providing telephone service, or those of the utility providing electric service, are underground or hereafter may be placed underground, then the franchisee shall likewise construct, operate and maintain all of its transmission and distribution facilities underground. Amplifiers in franchisee's transmission and distribution lines may be in concrete boxes or vaults and where technically feasible, must be below the surface of the ground.

(Prior Code Appx. I, § 8(c))

Construction or installation of the franchisee's cable lines or conduits in all other public places, owned or controlled by the City, shall be subject to approval of and regulation by the City Council in advance.

(Prior Code Appx. I, § 8(d))

In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of 12 months, or in the event such system or property has been in stalled in any public way or public place without complying with the requirements of its franchise, or the franchise has been terminated, or canceled or has expired, the franchisee upon being given notice shall promptly remove from the streets or public places all such property and poles of such system, other than any which the City manager may permit to be abandoned in place. In the event of any such removal, the franchisee shall promptly restore the public way or other area from which such property has been removed, to a condition satisfactory to the City manager.

(Prior Code Appx. I, § 9(a))

Any property of the franchisee remaining in place 90 days after the termination of the franchise shall be considered permanently abandoned. The City Manager may extend this time not to exceed an additional 30 days.

(Prior Code Appx. I, § 9(b))

Any property of the franchisee abandoned in place shall be abandoned in such manner as the City manager shall prescribe. Upon permanent abandonment of the property of the franchisee in place, the property becomes that of the City, and the franchisee shall submit to the City manager an instrument, to be approved by the City Attorney, transferring to the City the ownership of such property.

(Prior Code Appx. I, § 9(c))

The franchisee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street, public way or public place, or remove from the public way or public place, any property of the franchisee when required by the City manager by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity, or any other structures of public improvements; provided, however, that the franchisee shall in all such cases have the privilege and be subject to the obligation to abandon any property of the franchisee in place, as provided in Sections 5.20.250 through 5.20.270.

(Prior Code Appx. I, § 10)

Upon failure of the franchisee to complete any work required by law or by the provisions of this chapter to be done in any public way, within the time prescribed and to the satisfaction of the City manager, the City manager may cause such work to be done and the franchisee shall pay to the City the cost thereof in the itemized amounts reported by the City manager to the franchisee, within 30 days after receipt of such itemized report.

(Prior Code Appx. I, § 11)

A. The franchisee shall concurrently with the filing of and acceptance of award of any franchise granted under this chapter, file with the City Clerk, and at all times thereafter, maintain in full force and effect for the term of this franchise, at franchisee's sole expense, a corporate surety bond, in a company approved by and in a form to be approved by the City Attorney, in the amount of $10,000.00 renewable annually, provided that the bond may be reduced to $5,000.00 on demonstration to the satisfaction of the Council that the net worth and the ability of the company to perform justify same. The bond shall be conditioned upon the faithful performance of the franchisee and that in the event upon the faithful performance of the franchisee and that in the event the franchisee fails to comply with any one or more of the provisions of this chapter, that there shall be recoverable jointly and severally from the principal and surety of such bond, any damages or loss suffered by the City as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the franchisee as prescribed hereby which may be in default, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond; the condition to be a continuing obligation for the duration of the franchise and thereafter until the franchisee has liquidated all of its obligations with the City that may have arisen from the acceptance of the franchise by the franchisee or from its exercise of any privilege herein granted. The bond shall provide that 30 days' prior written notice of intention not to renew, cancellation or material change, be given to the City.

B. Neither the provision of this section, any bond accepted by the City pursuant thereto, nor any damages recovered by the City thereunder shall be construed to excuse faithful performance by the franchisee or limit the liability of the franchisee under the franchise or for damages, either to the full amount of the bond or otherwise.

(Prior Code Appx. I, § 12)

A. The franchisee agrees that at all times during the existence of the franchise it will maintain in force, furnish and file with the City, at its own expense, a general comprehensive liability insurance policy, in protection of the City, its boards, commissions, officers, agents and employees, in a company authorized to do business in the State, and in form to be approved by the City Attorney, protecting the City and persons against liability for loss or damages for personal injury, death and property damage occasioned by the operations of franchisee under the franchise or civil suits with minimum liability limits of $300,000.00 for personal injury or death of any one person, and $600,000.00 for personal injury or death of two or more persons in any one occurrence and $50,000.00 for damage to property resulting from any one occurrence; provided, that nothing in this section shall restrict the Council from amending these minimums at any time after two years from date of granting franchise.

B. The policies mentioned in subsection A of this section shall name the City as an additional insured, and shall also contain a provision that a written notice of any cancellation or reduction in coverage of the policy shall be delivered to the City not less than ten days in advance of the effective date thereof. If such insurance is provided in either case by a policy which also covers the franchisee or any other entity or person than those above named, then such policy shall contain the standard cross-liability endorsement.

C. No franchise granted under this chapter shall be effective unless and until each of the foregoing policies of insurance as required in this section has been delivered to the City.

(Prior Code Appx. I, § 13)

The CATV system shall be installed and maintained in accordance with the highest and best accepted standards of the industry to the effect that the subscriber shall receive the highest possible service. In determining the satisfactory extent of such standards the following will apply:

A. The system shall be installed using all band equipment capable of passing the entire television and FM spectrum.

B. The system shall have the further capability of converting UHF signals to VHF for distribution to the subscribers' sets on the VHF band.

C. The system shall provide a minimum signal level of 1,000 microvolts at the input terminals of each of the TV receivers.

D. The system and all equipment shall be designed and rated for 24-hour-per-day continuous operation.

E. The system signal-to-noise ratio shall be not less than 46 decibels.

F. Hum modulation of picture signal be less than five percent.

G. The system shall use components having UVWR of 1.4 or less. Methods of measuring above standards, where necessary, will be established by the City Council.

H. The system as installed shall be capable of passing color TV signals without a material degradation of the color fidelity or color burst intelligence information.

(Prior Code Appx. I, § 14)

All notices provided for in this chapter shall be dispatched by certified mail to parties concerned as follows: for the City, "City Clerk, City of Atwater, City Hall, Atwater, California," with a copy to the City Attorney, City Hall, Atwater, California; for the franchisee, as provided by any franchise granted pursuant to the provisions of this chapter. All matters herein provided to be filed with the City shall be filed with the City Clerk.

(Prior Code Appx. I, § 15(a))

In any proposal submitted for a franchise under this chapter, the applicant shall set forth a complete installation and service charge schedule and prospective service agreement as a maximum amount which the applicant would charge subscribers for installation and service for the first two years after the granting of the franchise, and the maximums shall be binding on a successful applicant during the first two years. For unusual circumstances, such as underground cable required, other than as provided in Section 5.20.230, or more than 150 feet of distance from cable to connection of service to subscribers, an additional installation charge over that normally charged for installation as specified in the applicant's proposal may be charged, with easements to be supplied by subscribers. For remote, relatively inaccessible subscribers within the City, service will be made available on the basis of cost of materials, labor and easements if required. Thereafter, the rate schedule for any service agreement, or increase thereto to subscribers, must have written approval of the City Council. Irrespective of any rate regulation by the City, the franchisee shall file all changes it proposes to make in its rate schedule for installation and service charges, or in its customer services agreements, with the City Clerk at least 24 days in advance of the effective date of the change, and shall publish details of the change in a newspaper of general circulation within the City at least once, not less than ten days prior to the effective date of the change.

(Prior Code Appx. I, § 15(b))

If the franchisee should fail to operate its system for a period of 24 months from date such service begins, the subscribers who have paid installation charges shall be entitled to a refund of the installation charges less 1/24th of each charge for each month elapsing from the time service was first started to that subscriber and during which time service was available to him.

(Prior Code Appx. I, § 15(c))

The CATV system shall be installed and maintained in accordance with the best accepted standards of the industry to the effect that the subscriber shall receive a minimum signal strength of 1,000 microvolts per meter at his television set. The provisions of this section are a "material provision hereof" as these words are used in Sections 5.20.050 through 5.20.070.

(Prior Code Appx. I, § 15(d))

The franchisee shall assume the cost of publication of the ordinance codified in this chapter and all subsequent ordinances implementing the ordinance codified in this chapter or establishing rates or regulations under this chapter. A bill for publication costs incurred to date shall be presented to the franchisee by the City upon the franchisee's filing of acceptance and shall be paid within 30 days thereof.

(Prior Code Appx. I, § 15(e))

The franchisee shall maintain an office in the City with service crew and vehicles so that CATV maintenance service shall be promptly available to subscribers upon telephone request during all hours that the franchisee is transmitting signals to subscribers.

(Prior Code Appx. I, § 15(f))

The franchisee shall not within the City or within one mile of the City limits thereof engage in the business of selling television or other receivers which make use of signals transmitted by its system, or any other system, nor shall franchisee engage in the repair of such receivers or the sale of parts for the same.

(Prior Code Appx. I, § 15(g))

Nothing in a franchise granted under this chapter shall be construed as a franchise to distribute services commonly known as "Pay TV."

(Prior Code Appx. I, § 15(h))

The franchisee shall comply with all FCC regulations to protect local television. There shall be no noticeable degradation of any picture signal received by the CATV subscriber. When it occurs that there is simultaneous duplication of the program being broadcast by a local station which is duly licensed by the Federal Communications Commission, and authorized to furnish free television service to the area within the City limits, and when such programs being duplicated are identical in all respects as to color, time, and program content, then for that period of time as such duplication exists, the signals of the outlying station shall not be transmitted to subscribers of the CATV system and only those signals broad cast by the local station shall be used by the franchisee to furnish service to its subscriber, provided the local TV station notifies the franchisee 24 hours in advance of such duplication.

(Prior Code Appx. I, § 15(i))

In the event the Public Utilities Commission of the State or the Federal Communications Commission takes jurisdiction over the operation and rates of the franchisee, then the authority of the City to approve rates and charges shall cease.

(Prior Code Appx. I, § 15(j))

The franchisee shall deliver adequate television signals from at least one educational television channel, so long as there is such a channel, and at least ten other channels from outlying metropolitan areas of this State, provided that all local television stations shall be delivered. The signals of local television stations shall be carried and delivered without degradation of quality, and there shall be no deliberate degradation of any nonlocal channels.

(Prior Code Appx. I, § 15(k))

Programs being carried on any channel shall not be interrupted or altered except as required by civil defense or public emergency, or as otherwise provided by law, or as provided herein.

(Prior Code Appx. I, § 15(l)

Application for a franchise under this chapter shall be filed with the City Clerk in a form approved by the City and shall contain the following information:

A. The name and address of applicant;

B. A general description of applicant's proposed CATV operation, which shall include complete CATV service through out the entire area within the City limits;

C. A statement or schedule in a form approved by the City of proposed rates and charges to subscribers for installation and services as set forth in Section 5.20.340;

D. A statement of the corporate organization of applicant, if any, including the names and addresses of its officers, directors, and associates, and the names and addresses of all of those owning any interest by stock, options, or otherwise in the applicant, together with a showing of percentage ownership, in the case of corporations where stock is publicly traded, the aforementioned list of all those owning stock or options is not required; the statement shall also set forth the names of subsidiary companies or holding companies affiliated with applicant, and a listing of other CATV areas being served by applicant or affiliates;

E. A statement setting forth all agreements and under standings, whether written, oral, or implied, existing between the applicant and any person, firm, group or corporation with respect to the franchise and the proposed operations; if a franchise is granted to a person, firm, group, or corporation acting as a front or representative for another person, firm, group, or corporation, and such information is not disclosed in the original application, such franchise shall be revoked automatically, and the Council shall consider awarding the franchise to another qualified applicant;

F. Applicant shall also furnish a financial statement prepared by a certified public accountant as to the company's or corporation's financial ability to complete installation and operation of the CATV system;

G. A statement of proposed percentage franchise fee payment to the City referred to in Section 5.20.080.

(Prior Code Appx. I, § 16(a))

Upon consideration of any application, the City Council may grant a nonexclusive franchise for CATV to such applicant as may appear from the application to be in its opinion best qualified to render proper and efficient CATV service to television viewers and subscribers in the City, based on quality of service, character, financial position, best rate to subscriber, income to the City and experience in the cable TV field. The Council's decision in the selection will be final.

(Prior Code Appx. I, § 16(b))

A. Any franchise issued pursuant to this chapter shall include the following condition:

"The CATV system herein franchised shall be used and operated solely and exclusively for the purpose expressly authorized by ordinance of the City of Atwater and no other purpose whatsoever."

B. The inclusion of the foregoing statement in any such franchise shall not be deemed to limit the authority of the City Council to include any other reasonable condition, limitation or restriction which it may deem necessary to impose in connection with such franchise pursuant to the authority conferred by this chapter.

(Prior Code Appx. I, § 16(c))

When any portion of the CATV system is to be installed on public utility poles and facilities, certified copies of the agreements for such joint use of poles and facilities shall be filed with the City Clerk. Regulations imposed upon the utility companies by the Public Utilities Commission for joint use of poles and facilities shall apply to the franchisee.

(Prior Code Appx. I, § 17)

No franchise issued under this chapter shall become effective until all the requirements of this chapter are fully met, including the filing with the City Clerk of the certificates of insurance required in Section 5.20.310.

(Prior Code Appx. I, § 18)