Chapter 114 — CABLE TELEVISION SYSTEM

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ADDITIONAL SUBSCRIBER SERVICE. Any service not included in basic cable service or basic radio service, including, but not limited to, pay-cable or pay-television service.

BASIC RADIO SERVICE. The provision to all subscribers of such audio programs as the retransmission of broadcast FM radio signals and the transmission of cablecast radio signals, all provided to subscribers at a monthly rate.

BASIC CABLE SERVICE. Any service tier which includes the retransmission of local television broadcast signals. BROADCAST SIGNAL. A television or radio signal that is transmitted over the air to a wide geographic audience and is received by a cable communications system off-the-air or by microwave.

CABLE COMMUNICATIONS SYSTEM, CABLE TELEVISION SYSTEM, CABLE SYSTEM, CATV SYSTEM,

COMMUNITY ANTENNA TV SYSTEM or SYSTEM. A facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

• (1) A facility that serves only to retransmit the television signals of one or more television broadcast stations;

(2) A facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless the facility or facilities uses any public right-of-way;

(3) A facility of a common carrier, except that such facility shall be considered a cable system to the extent the facility is used in the transmission of video programming directly to subscribers; or

(4) Any facilities of any electric utility used solely for operating its electric utility systems. CABLE SERVICE. The total of the following:

• (1) The one-way transmission to subscribers of video programming or other programming service; and

(2) Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.

CABLECAST SIGNAL. A nonbroadcast signal that originates within the facilities of the cable television system. CABLE-MILE. A linear mile of strandbearing cable as measured on the street or easement from pole to pole or pedestal to pedestal.

CHANNEL or CABLE CHANNEL. A portion of the electromagnetic frequency spectrum which is capable of delivering a television channel as defined by the Federal Communications Commission.

CITY. The city of Baldwin Park, a general law city, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

CLASS IV CHANNEL. A signaling path provided by a cable television system to transmit signals of any type from a subscriber terminal to another point in the cable television system.

CLOSED CIRCUIT or INSTITUTIONAL SERVICE. Such video, audio, data and other services provided to

institutional users on an individual requirement, private channel basis. These may include, but are not limited to, twoway video, audio or digital signals among institutions or from institutions to residential subscribers.

COMMENCE CONSTRUCTION. That time and date when construction of the cable television system is considered to have commenced, which shall be when the first connection is physically made to a utility pole, or

undergrounding of cables is initiated, after preliminary engineering (strand mapping) and after all necessary permits and authorizations have been obtained.

CITY MANAGER. The City Manager of the City of Baldwin Park or his designee.

COMMENCE OPERATION. That time and date when operation of the cable television system is considered to have commenced which shall be when sufficient distribution facilities have been installed so as to permit the offering of full service to at least 10% of the dwelling units located within the service area.

COMMERCIAL SUBSCRIBER. A subscriber who receives a service in a place of business, where the service may be utilized in connection with a business, trade, or profession.

COMMERCIAL USE CHANNEL. The channel(s) available for commercial use as defined by federal law and specified in the franchise agreement.

CONVERTER An electronic device which converts signal carriers from one form to another.

COUNCIL. The legislative body of the city.

EDUCATIONAL ACCESS CHANNEL or EDUCATIONAL CHANNEL. Any channel where educational institutions are the primary designated programmers.

FRANCHISE. An initial authorization, or renewal thereof, issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system.

GOVERNMENT ACCESS CHANNEL or GOVERNMENT CHANNEL. Any channel where government agencies are the primary designated programmers.

GRANTEE. The person, firm, or corporation granted a franchise by the Council pursuant to this subchapter and the lawful successor, transferee or assignee of the grantee.

GROSS RECEIPTS. Any and all compensation, in whatever form, derived by a grantee from the operation of a system including, but not limited to, all of the following:

(1) Grants, subsidies, exchanges, directly or indirectly received by a grantee. Gross receipts shall not include any refund or any tax imposed upon a subscriber collected by a grantee for a taxing entity.

(2) Any and all compensation and other consideration received directly or indirectly by the grantee from subscribers in payment of the installation fee and service charge for any furnished service of the cable television system.

(3) Any and all income, compensation and other consideration received by grantee from any advertising on its cable television system.

(4) Any and all fees or income received by a grantee for the lease or rental, and compensation for any service in connection therewith, of studio and equipment rental and production costs and air time, of any channel. INSTALLATION. The connection of the system to subscribers' terminals, for the provision of service.

LOCAL ORIGINATION CHANNEL. Any channel where a grantee is the primary designated programmer, and provides video programs to subscribers.

MONITORING. Observing a communication signal, or the absence of a signal, where the observer is neither the subscriber nor the programmer, whether the signal is observed by visual or electronic means, for any purpose whatsoever. MONITORING shall not include systemwide, nonindividually addressed sweeps of the system for purposes of verifying system integrity, controlling return paths transmissions, or billing for pay-cable.

NONBROADCAST SIGNAL. A signal that is transmitted by a cable television system and that is not involved in an over-the-air broadcast transmission path.

OPEN CHANNEL. Any channel that can be received by all subscribers, without the necessity for special equipment.

PAY-CABLE or PAY-TELEVISION. The delivery to subscribers, over a cable television system, of television signals for a fee or charge to subscribers over and above the charge for basic subscriber service, on a per program, per channel, or other subscription basis.

PENETRATION. The result expressed in the percentage obtained by dividing the total number of potential subscribers in the service area into the number of subscribers receiving service.

PERSON. Any natural person and all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, business or common law trusts, and societies.

PRIVATE CHANNEL or CLOSED-CIRCUIT CHANNEL. Any channel which is available only to subscribers who are provided with special converter or terminal equipment to receive signals on that channel.

PROGRAMMER. A person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital, or other signals, either live or from recorded tapes or other storage media, to subscribers, by means of a cable television system.

PUBLIC ACCESS CHANNEL or COMMUNITY ACCESS CHANNEL. Any channel where any member of the general public or any noncommercial organization may be a programmer, without charge, on a first-come, first-served, nondiscriminatory basis, in accordance with the terms of the franchise agreement.

PUBLIC, EDUCATIONAL OR GOVERNMENT ACCESS FACILITIES or PEG ACCESS FACILITIES. The total of the following:

• (1) Channel capacity designated for public, educational or governmental use; and

• (2) Facilities and equipment for the use of such channel capacity.

SERVICE AREA. That geographical area of the city throughout which a grantee, pursuant to its franchise, shall provide cable service to subscribers.

SERVICE TIER. A category of cable service or other services provided by a grantee for which a separate rate is charged by the grantee.

SPECIAL SERVICE AREA. Any area of the city designated by the Council, if it so elects, in the franchise, where the grantee may charge different rates, or provide different services, than in the remainder of its service area.

STREETS. Those public streets, alleys, easements and other publicly owned property, designated in a franchise as areas within which a grantee may place its facilities utilized by it in operating its system.

TAPPING. Observing a two-way communications signal exchange, where the observer is neither of the communicating parties, whether the exchange is observed by visual or electronic means, for any purpose whatsoever. ('83 Code, § 5.24.010) (Ord. 912, passed - -85)

Nonexclusive franchises to install, construct, operate and maintain a system within all or a specific portion of the city, as described in the franchise, may be granted by the Council to any person, who offers to furnish and provide such system under and pursuant to the terms and provisions of this subchapter, and applicable state and federal law. No provision of this chapter shall be deemed or construed as to require the granting of a franchise when in the opinion of the City Council it is in the public interest not to grant such franchise. ('83 Code, § 5.24.020) (Ord. 912, passed - -85)

A system permitted to be installed and operated pursuant to a franchise shall be designed and installed to meet all of the standards and shall offer all of the services as required by this chapter and the franchise. These services shall be

offered to all subscribers in accordance with this chapter and its franchise. The grantee shall not reduce nor change the level of required services without prior City Council approval.

(A) Interconnection of services. Each grantee shall make all reasonable efforts to electrically interconnect its system with systems in adjacent communities for the purposes of sharing locally originated subscriber and institutional services. Such an interconnect shall be effected by coaxial cable, fiber optic cable, microwave or other bidirectional signal transportation means as appropriate to permit services interchange in compliance with the technical provisions of this chapter. Within a reasonable time as set by the city, each grantee shall contact all franchised operators in the communities adjacent to the city for the purposes of exploring and securing a mutually acceptable system interconnect agreement and report the results of the activity to the City Manager. The report shall state each contacted operator's name, city and response, list all programming and services activity available to subscribers via an interconnect agreement as well as list programming and services to similarly be transmitted from the city to such adjacent communities; and an explanation of the substance of the governing business agreement reached with the other operators.

(1) If an adjacent operator is responsive to a grantee's inquiry for interconnect, the City Council regulating the franchise of the adjacent operator, and the City Council must first approve all details, plans and other agreements before implementation of the interconnect, which consent shall not be unreasonably withheld.

(2) If an adjacent operator is not responsive to a grantee's inquiry, a letter report, describing the reasonable attempts made to obtain an interconnect agreement and indicating why the agreement was unsuccessful, shall be filed with the City Manager.

(3) In the case of new systems constructed in adjacent communities after the system in this city is operative, a grantee shall have six months after the new system becomes operational to make the required inquiries and attempt to obtain an interconnect agreement.

(4) In the case of systems operated in adjacent communities by a grantee of a franchise issued pursuant to this chapter, the grantee shall provide a plan to interconnect with the system operated under such franchise, the implementation of which shall be mutually acceptable by each affected city. The plan shall be submitted to the city within the time set by the City Manager.

• (B) System construction standards.

(1) General construction schedule.

(a) Within the time set in its franchise, a grantee shall commence, and thereafter, shall proceed with due diligence, to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility joint use attachment agreements, microwave carrier licenses, and other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable television systems, associated microwave transmission/reception facilities and/or satellite communications facilities.

(b) Within the time set in its franchise, a grantee shall commence construction and installation of its system. (c) Each franchise shall set a construction schedule for the completion of the installation of the system throughout the proposed service area. Failure of a grantee to complete the installation of its system in the time and manner set forth in its franchise shall result in the imposition of liquidated damages, and, in the sole discretion of city, shall be grounds for termination of the franchise. The proposed construction schedule shall not, in any event, exceed two years, except that, by resolution, pursuant to division (d) below, the Council, in its discretion, may extend the time for the commencement and completion of installation and construction for additional periods in the event grantee, acting in good faith, experiences delays by reason of circumstances beyond his control.

(d) Any requests for extensions of the proposed construction schedule approved as part of a franchise, due to acts of God, acts of the public enemy, fires, floods, epidemics, quarantine restrictions, strikes, lockouts, freight

embargoes, unusually severe weather, or from any other cause beyond the reasonable control of a grantee and/or its employees, agents or contractors, must be requested from the City Manager in writing within 14 days after the cause for such delay first occurs. The request must specify the exact reason for the delay and the total number of extension days requested. A grantee shall provide written substantiation supporting such a request. Within 14 days of receipt of a grantee's request for an extension the City Manager shall respond to the grantee with approval, partial approval, or denial, of the request for extension.

(e) By acceptance of a franchise granted hereunder, each grantee shall be deemed to have agreed that failure to comply with any time requirements referred to in divisions (a), (b) and (c) above, shall result in the imposition of liquidated damages, pursuant to the franchise, and may, in the discretion of the city be grounds for termination of the franchise.

(2) Use of poles. A grantee shall be authorized to utilize existing poles, conduits, and other facilities of a public utility, but shall not be authorized to construct or install any new, different, or additional poles, whether on public or privately-owned property, unless the franchise expressly so provides.

(3) Undergrounding of system. In a grantee's service area where the transmission or distribution facilities of the respective public utilities providing telephone, communication and electric services are underground, or hereafter are placed underground, or whenever the city shall undertake a program designed to cause such facilities to be undergrounded in all or a part of the service area, the grantee shall likewise construct, place or replace, reconstruct, and thereafter operate and maintain, all of its system underground, with the exception of "active electronic" equipment which may be placed above ground. The grantee shall have the option of sharing or not sharing public utility trenches. However, at no time shall the grantee place cable underground without appropriate conduit. The entire cost of undergrounding required pursuant to this section shall be borne by the grantee. [Underground utility lines and districts, see §§ 97.060 et seq. of this code of ordinances.]

(4) Required approvals. The design and location of all surface or above ground mounted equipment shall be approved by the City Engineer. Such equipment shall be located so as not to endanger the persons or property, nor physically detract from the surroundings. The method of underground construction to be utilized by a grantee, whether by trenching, boring, cutting or other method and the restoration of streets utilized for the placement of the grantee's property shall be submitted to the City Engineer for approval. The construction shall be subject to the required permit fees and city inspection as may be required by other applicable laws or regulations heretofore or hereafter adopted, including, but not limited to, those pertaining to works and activities in, on, under or over streets.

(5) Submission of drawings. Each grantee shall furnish the city with as-built drawings of its entire system within the time set therefor by the City Engineer. In the event a grantee desires to make any changes or modifications to its system that would alter the as-built plans, the grantee shall first obtain approval therefor from the City Engineer and then file revised as-built drawings which reflect the changes within 30 days of completion of the drawings.

(6) City use of facilities. The city shall have the right, free of charge, to make additional use, for any public or municipal purpose, whether governmental or proprietary, of any facilities erected, controlled, or maintained exclusively by or for a grantee, provided the use does not unreasonably interfere with the use thereof by the grantee. (7) Identification required. Each grantee shall provide, at its sole expense, a method of employee/subcontractor identification, acceptable to the city, for all such individuals who may make personal contact with residents of the city for the purposes of construction, marketing, or other matters relating to its system.

the use does not unreasonably interfere with the use thereof by the grantee. (7) Identification required. Each grantee shall provide, at its sole expense, a method of employee/subcontractor identification, acceptable to the city, for all such individuals who may make personal contact with residents of the city for the purposes of construction, marketing, or other matters relating to its system.

(8) Maintenance, removal, abandonment. Each grantee at its sole expense shall protect, support, temporarily disconnect, relocate or remove its property when, in the opinion of the City Engineer, the same is required by reason of traffic conditions, public safety, street vacation, freeway or strict construction projects. Each such grantee shall be permitted, subject to the approval of the City Engineer, to abandon any of its property in place. Work required by a

grantee hereunder shall not be deemed a taking of the property of the grantee, and the grantee shall not be entitled to reimbursement by reason of action required hereunder.

(a) Upon the failure, refusal or neglect of any grantee to perform any work or other act required by this section to be properly completed within the time prescribed therefor by the City Manager, the City Manager may cause such work or other act to be completed in whole or in part by city forces or others, and upon so doing shall submit to the grantee an itemized statement of the costs thereof. The grantee shall, within 30 days after receipt of the statement, pay to the city the entire amount thereof, without off-set or deduction.

• (b) In the event that:

1. The use of any part of a system is discontinued for any reason for a continuous period of 30 days, without prior written approval by the city;

2. Any part of such system has been installed in any street or other area without complying with the requirements of this chapter or the franchise; or

3. Any franchise is terminated, cancelled, or has expired; then the grantee shall, at the option of the city, and at the sole expense of the grantee, upon demand of the city, promptly remove or, with the prior approval of the City Engineer, abandon in place, all of its property referred to in divisions 1., 2. above or this division 3. Upon abandonment of any such property in place, grantee shall cause to be executed, acknowledged and delivered to the city, such instruments as the City Attorney shall prescribe and approve, transferring and conveying the ownership of such property to the city.

the prior approval of the City Engineer, abandon in place, all of its property referred to in divisions 1., 2. above or this division 3. Upon abandonment of any such property in place, grantee shall cause to be executed, acknowledged and delivered to the city, such instruments as the City Attorney shall prescribe and approve, transferring and conveying the ownership of such property to the city.

(C) Technical performance and maintenance standards. Each system shall be designed, installed, and maintained in accordance with the technical performance standards contained in the franchise. In addition, should the Federal Communications Commission (FCC), or any other state or federal authority having jurisdiction, impose on CATV systems technical performance standards either outside the scope of the technical performance standards contained in a franchise or requiring a higher level of system performance, those standards shall be complied with by each grantee. If, for any reason, the technical standards imposed by the FCC or other authority, shall be reduced in scope or service level, the more stringent standards imposed by the franchise shall be deemed to be in full force and effect.

(D) Maintenance of system. Each grantee shall maintain its system so it consistently operates within substantial compliance of the technical standards applicable thereto, substantial compliance being defined as 95% of the channels to be received shall meet all applicable technical standards simultaneously at the time of measurement, and 100% of the local origination equipment shall meet all applicable technical standards specified herein.

(E) New developments. Each grantee shall continue to upgrade its system and service so that its system is as advanced as the then current state of technology will allow. The grantee shall install additional channel capacity as required to keep channel capacity in excess of the reasonable demand thereof by users. At all times the system shall be no less advanced than any other system of comparable size, excepting only systems which are experimental, pilot, or demonstration.

(F) Local business office.

(1) Each grantee shall maintain a local business office within the city for the purpose of conducting its local activities. Each grantee shall maintain a 24-hour toll-free answering service for service related problem calls, as well as separate toll-free telephone numbers for the system manager, the sales marketing department, and service department. A minimum of three lines shall be maintained for service and sales, and, in the event the city determines through subscriber complaints that number is insufficient to meet current demands, the grantee shall add such additional lines as may be necessary in the opinion of the City Manager, to provide prompt, efficient response to subscriber inquiries.

(2) All such required telephone lines shall be listed in directories of the telephone company serving the city, and be so operated that complaints and requests for repairs or adjustments may be received at any time, day or night, seven

days a week. All complaints shall be acknowledged within 24 hours of receipt.

• (G) Complaint procedure and remedies for inadequate service.

• (1) Complaint procedure. The following procedure shall be utilized to address subscriber complaints.

• (a) Each franchise application shall include a proposed written procedure for receiving, acting upon and resolving subscriber complaints.

(b) Each grantee shall furnish a copy of the approved complaint procedures to each subscriber at the time of the initial subscription.

(c) Each grantee shall maintain a written record, or "log," listing date and time of all customer complaints, identifying the subscriber and determining the nature of the complaints and when and what action was taken by the grantee in response thereto; such record shall be kept at each grantee's local office, reflecting the operations to date for a period of at least three years, and shall be available for inspection during regular business hours without further notice or demand by the City Manager.

(d) In the event that a subscriber complaint is not resolved to the mutual satisfaction of the subscriber or the grantee, either may submit the matter to the City Manager for resolution of the dispute. The City Manager's determination shall be final.

• (2) Inspection orders.

(a) When there have been a substantial number of similar complaints made or where there exists other evidence which, in the judgment of the City Manager, casts doubt on the reliability or quality of cable service, or the grantee's ability to meet the technical standards herein adopted, the City Manager shall have the right and authority to compel the grantee to test, analyze, and report on the performance of that part of its system involved in the problem. Such test or tests shall be made and the reports of the test or tests shall be delivered to the City Manager within the time set by the City Manager. The report shall include the following information.

1. The nature of the complaint which precipitated the special test.

2. What system component was tested.

3. The equipment used and procedures employed in such testing.

4. The names of the individuals performing and witnessing the testing.

5. The date, time, and location of testing.

6. The results of the test.

7. Any other information pertinent to the special test.

(b) If, in the judgment of the City Manager, the resultant tests indicate the service problem(s) are preventable and within the grantee's control, the City Manager shall issue a written order to the grantee directing that the problem be remedied within a reasonable period set by the City Manager. A failure by a grantee to comply with any order issued pursuant to this section shall result in the imposition of liquidated damages as set forth in its franchise and other remedies set forth herein or in the franchise.

(3) Remedies for inadequate service. The following remedies for inadequate or untimely service to subscribers are established.

(a) In the event that service to any subscriber is interrupted, without fault of the subscriber, for 24 or more consecutive hours, except for acts of God, and except in circumstances for which prior approval of the interruption is obtained from the City Manager, a grantee shall provide a pro rata rebate of the monthly fees during which the interruption occurs, to each affected subscriber. If either the grantee or the subscriber is dissatisfied with the amount of the rebate, either may request a hearing before an arbitrator selected by the City Council. The arbitrator may award a pro rata rebate, plus assess a penalty upon the grantee, not to exceed $200 for any one month of interrupted service.

(b) In the event that the system fails to meet any performance standards specified herein for a period of 90 or more consecutive days, grantee shall reduce all subscribers' fees by an amount set by the City Manager, until all such

performance standards are met. The City Manager shall notify a grantee in writing during the first month of the threemonth period that the system has failed to meet performance standards.

(H) Periodic testing and reporting. Each grantee shall test its system, and report the results to the city, on a scheduled basis as specified below.

(1) Quarterly system tests. On the last regular working day of each of the first three operating quarters of each year, each grantee shall submit system performance data taken within the last quarter to the City Manager. The specific data to be required in the quarterly test report shall be set forth in the franchise.

(2) Annual system tests. During the last month of the fourth operating quarter of each year, each grantee shall perform annual performance tests of system.

• (a) Such tests shall be in full compliance with applicable FCC regulations and technical standards, and regulations and technical standards included in the franchise.

• (b) Such tests shall be independently witnessed and the resultant data analyzed by a representative of the city if so directed by the City Manager.

(c) All necessary test instrumentation shall be supplied by each grantee. A current certificate of calibration by an independent calibration laboratory shall be supplied for each test instrument. All costs for instrumentation and calibration shall be borne by each grantee.

(d) 1. Measurement locations for system compliance with division (1) above, except those requirements regarding 24-hour visual signal amplitude and channel amplitude characteristics, shall include:

• a. End of each system major trunk; and

b. End of each system trunk branch four or more trunk amplifiers deep.

2. Actual test locations shall be selected to measure performance of the system in the service area and shall be (or as closely as possible to simulate) actual subscriber locations.

(e) Measurements regarding 24-hour visual signal level and channel amplitude characteristics shall be made as required by the FCC.

(f) Measurement for system compliance with division (1) above, shall be made where practical on all origination equipment employed in the system.

• (g) Measurement techniques shall be those suggested by each grantee, and approved by the city.

(h) Concurrent with annual performance tests, the city representative shall inspect all system headed facilities and outside plant for adherence to best industry installation, workmanship and safety practice.

(i) If the performance tests show that the system is below the performance standards required in this chapter or the franchise, the city shall give notice thereof to grantee and such grantee shall correct the deficiency within the time set by the city. Grantee shall notify the city when the correction has been made and shall retest to ensure compliance. In the event the resultant tests reveal grantee has failed to correct the deficiency, or if the time for correction has elapsed and grantee has not attempted to correct the deficiency, the city may employ independent engineers to demonstrate, at the grantee's cost, the appropriate correction to the grantee. Grantee shall then have a reasonable time, as set by the city, to correct the deficiency.

• (3) Annual service report. The following information shall be reported by each grantee to the city on an annual basis on a date designated by the City Manager.

(a) Existing service area. A description of the service area with comments on any portion thereof not actually served, areas where certain services are not yet available, or areas where special conditions exist. All special service areas shall be indicated.

• (b) Work in progress. An indication on the map of areas where system construction or reconstruction is in progress with a statement on its present status and anticipated schedule of completion of such work.

• (c) Statistics on subscribers. The following statistics shall be supplied:

1. Single-family homes passed.

2. Single-family subscribers.

3. Multiple-dwelling unit subscribers.

4. Commercial subscribers.

5. Additional television outlets.

6. Saturation (total subscribers divided by total dwelling units passed).

(d) Statistics on system expansion. A listing of any expansion of the system in the service area including a measure, in miles of cable, of the expansion. Designations shall be included to identify expansions to new developments.

(e) Technical standards. A detailed, informative, and referenced statement describing the actual equipment and operational standards of each grantee and the corresponding standards required by this subchapter.

• (f) Subscriber agreements. Copies of new or revised subscriber agreements, if any.

• (I) PEG access facility management.

(1) Intent. It is the intent of the city to insure that access facilities and channels provided for in any franchise, are managed in the best public interest, so that programming on such channels will be free of censorship, open to all residents, and available for all forms of public expression, community information and debate of public issues. Pursuant to these objectives, the city may delegate the responsibility for PEG access facility management to a nonprofit entity which may include, but not be limited to, any of the following:

t public interest, so that programming on such channels will be free of censorship, open to all residents, and available for all forms of public expression, community information and debate of public issues. Pursuant to these objectives, the city may delegate the responsibility for PEG access facility management to a nonprofit entity which may include, but not be limited to, any of the following:

• (a) A nonprofit public corporation;

• (b) A PEG access facility management commission or committee, the members of which shall be appointed by the city, so as to represent a broad spectrum of the community; or

• (c) An established nonprofit entity with special or cablecasting capability, such as a local or regional community college.

• (2) Functions. The entity designated to manage the access facilities and channels shall have the following functions.

(a) Responsibility for program production for and management of the public access facilities channel and all other community channels as may be designated in the franchise for community-based programming. Community channels may include government and educational access channels, as designated in the franchise.

(b) To assure that the public access facilities and channels are made available to all residents of the franchise service area on a non-discriminatory, first-come, first-served basis.

(c) To assure that no censorship facilities or control over program content of the public access facilities and channels exists, except as is necessary to comply with FCC prohibition of material that is obscene; or contains commercial advertising, or constitutes the conduct of a lottery; or otherwise violates a valid law or regulation.

(d) To devise, establish, and administer reasonable rules, regulations, and procedures pertaining to the use and scheduling of the public access facilities and channels.

• (e) To prepare, in conjunction with the grantee, such regular or special reports as may be required or desirable.

• (f) To hire and supervise its staff.

• (g) To make all purchases of materials and equipment that may be required.

• (h) To develop sources of funding, such as foundation or federal or state grants, to further its functions.

• (i) To perform such other functions relevant to the public access facilities and channels as may be appropriate.

• (j) Establishment of budgets on an annual basis.

(3) Access rules. The PEG access facility management entity shall complete a set of rules for the use of the access facilities and channels which shall be promptly forwarded to the grantee for review. The rules, after review by grantee, shall be submitted to the City Manager for approval.

• (a) Access on a first-come, first-served, nondiscriminatory basis for all residents of the franchise service area.

• (b) Prohibition of commercial or political use.

• (c) Prohibition of any presentation of lottery information, or obscene or indecent material.

• (d) Public inspection of the log of producers, which shall be retained by the grantee for a period of four years.

• (e) Procedures by which individuals or groups who violate any rule may be prevented from further access to the channel.

• (f) Free use of such reasonable amounts of channel time, cablecasting facilities, and technical support.

(4) PEG access facility management entity reports to city. The PEG access facility management entity shall provide a report to the city, at least annually, indicating achievements in community- based programming and services, and, if required by the City Manager, shall provide a special report each time grantee requests an increase in rates, indicating the level and quality of grantee's support during the period elapsed since any previous rate increase was implemented.

('83 Code, § 5.24.030) (Ord. 912, passed - -85) Penalty, see § 10.99

(A) Each grantee granted a franchise pursuant to this chapter shall pay to the city, during the life of the franchise, a sum equal to 5% of its annual total gross receipts. If, during any part of the term of any franchise, a federal or state litigation is imposed on the amount of the franchise fee required hereunder, such limitation shall apply only for the time period the limitation is legally operational.

(B) Franchise fee payments by each grantee to the city shall be made periodically as set forth in each franchise. All such fees shall be paid to the City Treasurer. Franchise payments required hereunder shall be in lieu of any business license tax.

(C) In the event the preceding payments are not received by the city at the specified times, each grantee shall pay to the city, in addition to the principal sums due, interest thereon in the maximum amount then allowed by law on the unpaid balance.

(D) Each grantee shall file with the City Manager within 90 days after the expiration of each grantee's fiscal year or portion thereof during which its franchise is in force, a balance sheet and statement of profit and loss showing in detail the gross receipts, as defined herein, received by the grantee during each such fiscal year, or portion thereof. The manner of preparation of the financial reports shall be set forth in the franchise.

('83 Code, § 5.24.040) (Ord. 912, passed - -85) Penalty, see § 10.99

(A) Fiscal records; audits. The city shall have the right to inspect and audit each grantee's fiscal records. If an independent audit of any grantee's records, directed by the city, shows a franchise fee underpayment of 2% or more, the grantee shall bear all costs of the audit. No acceptance of any payment shall be construed as a release or as an accord and satisfaction as to any claim the city may have for further additional sums payable, or for the performance of any other obligation of a grantee pursuant to this chapter or its franchise.

(B) Other records.

(1) The city shall have the right to inspect at any time during normal business hours, all books, records, maps, plans, financial statements, service complaint logs, performance test results and other like materials of any grantee, which relate to the operation under the franchise and are maintained at the local office of a grantee.

(2) If any of the books or records are not kept in the local office, the books or records, upon reasonable request, shall be made available to the city, at grantee's expense.

(C) Copies of federal and state reports. The grantee shall submit to the city copies of all pleadings, applications, reports, communications and documents of any kind, submitted by the grantee to, as well as copies of all decisions, correspondence and actions by, any federal, state and local courts, regulatory agencies and other government bodies relating to its cable television operations pursuant to its franchise. Grantee shall submit such documents to the city simultaneously with their submission to the courts, agencies and bodies; and within five days after their receipt from the courts, agencies and bodies. The grantee hereby waives any right to claim confidential, privileged or proprietary rights to the documents unless such confidential rights are determined to be confidential by law or by the practices of federal or state agencies. The confidential data exempt from public disclosure shall be retained in confidence by the city and its authorized agents and shall not be made available for public inspection.

(D) Miscellaneous reports. Grantee shall submit to the city such other information or reports in the forms and at such times as the city may reasonably request or require.

(E) Income tax returns. If considered necessary in rate disputes, and if not incorporated with parent company returns, the grantee shall submit to the city copies of all income tax returns and reports which are filed with the local, state or federal governments pertaining to its cable system, pursuant to its franchise, upon city request. The returns, to the extent deemed confidential by state or federal agencies, shall not be disclosed to the public.

(F) Inspection of facilities. The grantee shall allow the city to make inspections of any of the grantee's facilities and equipment at any time upon reasonable notice, or, in case of emergency, upon demand without prior notice, to allow the city to verify the accuracy of any submitted report.

(G) Failure to file report. The refusal, failure, or neglect of the grantee to file any of the reports required, or such other reports as the city reasonably may request, or follow inspection of its facilities, shall be deemed a material breach of terms of its franchise, and shall subject the grantee to all remedies, legal or equitable, which are available to the city under the franchise or otherwise.

(H) False statements. Any materially false or misleading statement or representation knowingly made by the grantee in any report required hereunder shall be deemed a material breach of the franchise and shall subject the grantee to all remedies, legal or equitable, which are available to the city under the franchise or otherwise.

(I) Cost of reports. All reports and records required under this or any other section shall be furnished to the city at the sole expense of the grantee.

('83 Code, § 5.24.050) (Ord. 912, passed - -85) Penalty, see § 10.99

(A) (1) Each application for a franchise to construct, operate, and maintain a system in this city shall be filed with the City Clerk on forms provided by the city.

(2) Each application shall be accompanied by a nonrefundable application fee, in an amount set by the City Manager, to defray the cost of filing and processing the application, which shall be in the form of a certified or cashier's check or a money order.

(B) The Council shall, by advertisement or any other means, solicit and call for applications for cable television system franchises, and may determine and fix any date upon which the same shall be received by the city, and may make any other determination and specify any other terms or conditions, respecting the soliciting and calling for the applications.

(C) Upon receipt of an application for a franchise, the City Manager shall expeditiously prepare a report (hereafter "report") including his recommendations respecting the application, which shall be filed with the Council and each applicant.

(D) (1) Upon receipt of the report and recommendations of the City Manager, the Council shall adopt a resolution of intention which shall:

• (a) Set a time and place for a public hearing to consider the granting of a franchise;

• (b) Give notice of receipt of the applications, and describe the character of the franchise desired; and

• (c) The terms and conditions upon which the franchise is proposed to be granted.

(2) Copies of the application and the report shall be available for public inspection at the office of the City Clerk. The City Clerk shall publish the resolution at least once in a newspaper of general circulation within the city at least ten days prior to the hearing.

(E) (1) At the time set for the hearing, or at any adjournment thereof, the Council shall proceed to hear all interested persons, including any objections or protests to the granting of the franchise.

(2) In making any determination hereunder as to any application, the Council shall give due consideration to the quality of the service proposed, rates to subscriber, income to the city, experience, character, technical and financial responsibility of the applicant, and any other considerations deemed pertinent by the Council for safeguarding the interests of the city and public. The Council, at its discretion, shall determine whether to award a franchise on the basis of such considerations.

(F) The Council may at any time prior to the close of the hearing, demand and the applicant shall provide, such supplementary, additional or other information as the Council may deem reasonably necessary to determine whether the requested franchise should be granted.

• (G) After the public hearing the Council shall make one of the following determinations.

• (1) That one or more of the applications for a franchise be denied; or

• (2) That one or more of the applications for a franchise be granted upon appropriate terms and conditions.

• (H) If the Council shall deny an application for a franchise, the determination shall be final and conclusive.

(I) If the Council shall determine that an application for a franchise shall be granted, the franchise shall be granted by ordinance, naming the grantee, and setting forth the terms and conditions thereof.

(J) Any grantee, prior to the effective date of its franchise, shall reimburse the city for its actual engineering, administrative, publication and legal expenses incurred in connection with the processing, evaluation, and preparation of documents relating to the franchise, in excess of the prepaid nonrefundable application fee.

('83 Code, § 5.24.060) (Ord. 912, passed - -85) Penalty, see § 10.99

(A) Duration. Any franchise granted under this subchapter shall be for a term not to exceed 15 years, as determined by the City Council. The term of a franchise shall commence the date of its acceptance by the grantee.

(B) Termination.

(1) Pursuant to the procedures set forth in this chapter and any applicable state and federal law, the city may terminate any franchise granted pursuant to the provisions of this chapter in the event of the failure, refusal or neglect by grantee to do or comply with any material requirement or limitation contained in this chapter, in the franchise, in any rule or regulation adopted by the Council, or in any lawful order issued for or on behalf of the city (hereinafter referred to, collectively, as "requirement").

(2) The City Manager shall make written demand upon a grantee to do or comply with any such requirement. If the failure, refusal or neglect of a grantee to so comply continues following the written demand, the City Manager shall advise the City Council thereof. The Council shall set a public hearing to consider whether the franchise should be terminated. The City Clerk shall cause to be served upon the grantee, at least 30 days prior to the date of the Council hearing, a written notice of the request for such termination, and the time and place of the hearing. The City Clerk shall also publish a notice of hearing, setting forth a time and place when and where any persons having any interest therein may appear before the Council and be heard, at least ten days prior to the hearing in a newspaper of general circulation within the city.

(3) The Council shall consider the matter and shall hear any persons interested therein, and shall determine whether or not any failure, refusal or neglect by the grantee occurred as charged.

(4) If such failure, refusal or neglect by the grantee is found by the Council to have occurred, but is found to be the result of excusable neglect by grantee, the Council shall order the grantee to comply with the requirement within the time and in the manner as it deems reasonable.

(5) If the Council shall determine such failure, refusal or neglect by the grantee occurred, but was not due to excusable neglect by grantee, then the Council shall, by resolution, impose liquidated damages, and may declare that the franchise of the grantee shall be terminated unless there be compliance by the grantee with the requirement in the time and manner as the Council shall fix.

('83 Code, § 5.24.070) (Ord. 912, passed - -85)

(A) Security fund.

(1) Contemporaneously with an applicant's filing its acceptance of a franchise, it shall deposit with the city, and during the term of the franchise granted, maintain on deposit, a security fund in a sum set by the franchise. Funds from the security fund shall be utilized for the purposes provided in this chapter, and in each franchise.

(2) Within 15 days after written notice to a grantee by the city that the city has withdrawn any amount from its security fund, the grantee shall deposit with the city a sum of money sufficient to restore the security fund to the original amount as set by the franchise.

(3) If any grantee fails to pay the city any moneys due within the time fixed in this chapter or the franchise; or fails to pay to the city within ten days' written notice, any damages, costs or expenses which the city may be compelled to pay by reason of any act, omission or default of the grantee; or fails after ten days' written notice to comply with any provision of this chapter or its franchise which the city reasonably determines can be remedied or partially cured by an expenditure from the security fund, the city may immediately, without prior notice to grantee, withdraw the amount thereof from the security fund. Upon such withdrawal, the city shall in writing notify the grantee of the amount, date and purpose thereof. In the event the security fund is insufficient to pay and/or repay the city for its lawful costs, damages, or obligations incurred, any other funds or assets of the grantee, may be drawn upon by the city for any such amounts due the city.

(4) Each franchise issued pursuant hereto shall contain a liquidated damage provision, the terms of which shall be agreed upon by the city and the grantee. Sums due to city, as and for liquidated damages, shall be a proper charge against the security fund.

(5) A grantee shall be entitled to the return of all moneys remaining in the security fund, including any accrued interest, at the expiration or termination of its franchise, provided there is then no outstanding obligation owing on the part of the grantee to the city.

(6) The rights reserved to the city with respect to the security fund are in addition to all other rights of the city, whether reserved by this chapter, the franchise or authorized by law, and no action, proceeding or exercise of a right with respect to the security fund shall affect any other right the city may have.

(B) Hold harmless agreement.

(1) Each grantee in its acceptance of its franchise shall acknowledge and agree to indemnify and hold harmless the city, its officers, agents and employees, against and from any and all claims, demands, causes of action, actions, suits, proceedings, damages (including, but not limited to, damage to city property and damages arising out of copyright infringements, and damages arising out of any failure by grantee to secure consents from the owners or authorized distributors or licensees of programs delivered by grantee's system), costs or liabilities of every kind and nature whatsoever, including but not limited to, damages for injury or death of a person or damage to property, caused

by the act or omission of such grantee, its officers, agents, and employees in the exercise of its rights and privileges under its franchise.

(2) Definition. For the purpose of this division, the following definition shall apply.

COSTS OR LIABILITIES. Includes, but is not limited to, reasonable attorney fees, reasonable accountant fees, reasonable expert witness and consultant fees, reasonable per diem expenses and traveling expenses for witnesses, and court costs of any trial.

(C) Defense of litigation.

(1) Each grantee in its acceptance of its franchise shall acknowledge and agree, at the sole risk and expense of grantee, upon demand of the city, made by and through the City Attorney, to appear in and defend any and all suits, actions, or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative, or otherwise, brought or instituted by third persons or duly constituted authorities, against or affecting the city, its officers, agents or employees, arising out of or pertaining to the exercise by such grantee of its rights and privileges under its franchise including, but not limited to, the act of granting such franchise by the city. Where the city determines, reasonably, that its interests are best served by appearing in the action or proceeding by and through its own counsel, it may do so at the grantee's sole expense.

(2) Grantee shall pay and satisfy or shall cause to be paid and satisfied any judgment, decree, order, directive, or demand rendered, made or issued against grantee, the city, its officers, agents or employees, in any of these premises; and such indemnity, as expressed in this section, shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder, or otherwise provided. No grantee shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit, or other proceeding without first obtaining the written consent of the city, which consent shall not be unreasonably withheld.

(D) Expenses of litigation. In the event of any legal action between grantee and the city arising out of any alleged breach by grantee of any term of condition or provisions of this subchapter or the franchise, the prevailing party shall be entitled to reasonable attorney fees, and court costs related to the litigation.

(E) Insurance required.

(1) Not in derogation of a grantee's obligation pursuant to divisions (B) and (C) hereof, each grantee at all times during the term of its franchise, shall maintain in full force and effect, at its sole cost and expense, a general comprehensive liability insurance policy, including coverage for, premises operations, explosion and collapse hazard, underground hazard, contractual insurance, broad form property damage, independent contractors and personal injury and automobile liability comprehensive form. The City Manager shall have the right of approval as to coverages, companies and policy limits of all such policies.

(2) The city, its officers and employees, shall be named as additional insureds in all of the insurance policies. Where such insurance is provided by a policy which also covers grantee or any other entity or persons, it shall contain the standard cross-liability endorsement. These policies shall contain a provision that a written notice of cancellation or any alteration of the policy shall not be effective except upon 90 days prior written notice thereof to the city.

(3) Insurance policies required hereunder shall contain the following endorsements.

(a) The naming of an additional insured as herein provided shall not affect any recovery to which the additional insured would be entitled under this policy if not named as the additional insured.

(b) The additional insured named herein shall not be held liable for any premium or expense of any nature on this policy or any extension thereof.

(c) The additional insured named herein shall not by reason of being so named be considered a member of any mutual insurance company for any purpose whatsoever.

(d) Any other insurance held by the additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance which is referred to by this certificate.

(4) Each grantee shall maintain during the term of its franchise, at its own cost and expense, a policy of Worker's Compensation Insurance, in minimum amounts as required by law.

(5) Each grantee shall, concurrently, with the filing of its acceptance of its franchise, and thereafter periodically during the term of its franchise, furnish to the City Clerk certificates of insurance evidencing the existence of insurance coverage required hereunder. Such certificates shall provide that the coverage may not be cancelled, substantially altered or terminated except upon 30-days written notice to the city.

(6) If a grantee fails to maintain any of the insurance coverage required hereunder, the city may, forthwith, terminate its franchise and/or obtain, at grantee's expense, such insurance coverage. ('83 Code, § 5.24.080) (Ord. 912, passed - -85) Penalty, see § 10.99

(A) No franchise granted under this chapter shall become effective for any purpose unless and until written acceptance thereof by the named grantee shall have been filed with the City Clerk. The written acceptance, in the form as approved by the City Attorney, shall be and operate as an acceptance of each and every term and condition and limitation contained in this subchapter and in the franchise.

(B) The written acceptance shall be filed by the proposed grantee not later than 12:01 p.m. of the 25th calendar day following the effective date of adoption of the ordinance constituting the franchise.

(C) In default of the filing of the written acceptance as herein required, the prospective grantee shall be deemed to have rejected and repudiated the franchise as offered. Thereafter, the acceptance of the grantee shall not be received nor filed by the City Clerk. The grantee shall have no rights, remedies, or redress under that franchise unless and until the Council, by resolution, shall determine that the failure to timely file the acceptance was excusable, shall order that the acceptance be received or filed, upon such terms and conditions as the Council may impose. ('83 Code, § 5.24.090) (Ord. 912, passed - -85)

(A) Every franchise granted under this chapter shall be nonexclusive. Neither the granting of any franchise hereunder nor any of the provisions contained herein shall be construed to prevent the city from granting any identical or similar franchise to any other qualified person, firm, or corporation, within all or any portion of the city.

(B) No privilege or exemption is granted or conferred by any franchise granted under this chapter except those specifically described in this chapter or in its franchise.

(C) Any privilege claimed under any such franchise by a grantee to occupy a portion of any street shall be subordinate to the use thereof by the city or any person authorized by the city to the street.

(D) Time shall be of the essence as to any franchise granted hereunder. A grantee shall not be relieved of its obligation to comply promptly with any of the provisions of this chapter or the franchise by any failure of the city to enforce prompt compliance.

(E) Any right or power in, or duty impressed upon, any officer, employee, department, or board of the city shall be subject to transfer by the city to any other officer, employee, department, or city board.

(F) Any such franchise granted hereunder shall not relieve the grantee of any obligations involved in obtaining pole or conduit space from any department of the city, utility company, or from others who maintain utilities in the streets. (G) No grantee shall have any recourse whatsoever against the city for any loss, cost, expense or damage arising out of any provision or requirement of this chapter or of any franchise issued hereunder or because of enforcement by

the city of the provisions thereof.

(H) Each grantee shall be subject to all requirements of city laws, rules, regulations, and specifications heretofore, or hereafter enacted or established.

('83 Code, § 5.24.100) (Ord. 912, passed - -85)

(A) Transfer of franchise. Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. The franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to, by forced or voluntary sale, merger, consolidation, receivership, or other means without the prior consent of the city, and then only under such conditions as the city may establish; however, consent shall not be unreasonably withheld.

(B) Ownership or control.

(1) The grantee shall promptly notify the city of any proposed change in, or transfer of, or acquisition by any other party of control of the grantee. The word CONTROL as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or transfer by any person or group of persons of 10% of the voting shares of the grantee. Every change, transfer, or acquisition of control of the grantee shall make the franchise subject to cancellation unless and until the grantor shall have consented thereto, which consent shall not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the city may inquire into the qualifications of the prospective controlling party, and the grantee shall assist the city in any such inquiry.

(2) In seeking the city's consent to any change in ownership or control, the grantee shall have the following responsibility:

(a) To show to the satisfaction of the city whether the proposed purchaser, transferee, or assignee (hereafter referred to as the "proposed transferee"), which in the case of a corporation, shall include all officers, directors, employees and all persons having a legal or equitable interest in 5% or more of its voting stock, or any of the proposed transferee's principals:

1. Has ever been convicted of, or held liable for, acts involving moral turpitude including, but not limited to any violation of federal, state or local law, or is presently under an indictment or investigation complaint charging such acts; or

2. Has ever had a judgment in an action for fraud, deceit or misrepresentation entered against it, her, him, or them by any court of competent jurisdiction.

(b) To establish, to the satisfaction of the city, the financial solvency of the proposed transferee by submitting all current financial data for the proposed transferee which the grantee was required to submit in its franchise application; and such other data as the city may request. Financial statements shall be audited and certified by an independent certified public accountant.

(c) To establish to the satisfaction of the city that the financial and technical capability of the proposed transferee is such as to enable it to maintain and operate the system for the remaining term of the franchise under the existing franchise terms.

(C) The grantor agrees that any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the city that it or its designee satisfactory to the city will take control and operate the system, in the event of a grantee default in its financial obligations. Further, the financial institution shall also submit a plan for such operation that will insure continued service and compliance with all franchise requirements during the term the financial institution exercises

control over the system. The financial institution shall not exercise control over the system for a period exceeding one year unless extended by the city in its discretion and during this period of time it shall have the right to petition the city to transfer franchise to another grantee. If the city finds that the transfer, after considering the legal, financial, character, technical and other public interest qualities of the applicant, is satisfactory, the city will transfer and assign the rights and obligations of the franchise as in the public interest. The consent of the city to the transfer shall not be unreasonably withheld.

(D) Waiver. The consent or approval of the city to any transfer of the grantee shall not constitute a waiver or release of the rights of the city in and to the use of streets, and any transfer shall by its terms, be expressly subordinate to the terms and conditions of the franchise.

(E) Prohibition on early transfer. In the absence of extraordinary circumstances, the city will not approve any transfer or assignment of the franchise prior to substantial completion of construction of the proposed system.

(F) Acceptance. In no event shall a transfer of ownership or control be approved without the successor in interest accepting, in writing, the franchise.

('83 Code, § 5.24.110) (Ord. 912, passed - -85) Penalty, see § 10.99

(A) (1) Nothing in this chapter, or any franchise issued pursuant hereto, shall be deemed or construed to impair or affect, in any way, to any extent, the right of the city to acquire any property of the grantee, either by direct purchase or through the exercise of its right of eminent domain. The franchise itself and all of the rights or privileges granted by the franchise, shall have no value assigned to it in the event of the acquisition of the system by an entity having the power of eminent domain.

(2) In the event of acquisition by the city of a system, or a change of grantee, the current grantee shall cooperate with the city, or with a representative appointed by the city, to operate its system for a temporary period in order to maintain continuity of service to all subscribers.

(B) There is reserved to the city every right and power which is required to be herein reserved or provided by any ordinance of the city, and each grantee by its acceptance of a franchise, agrees to be bound thereby and to comply with any action or requirement of the city in its exercise of such rights or power, heretofore or hereafter enacted or established, provided that such requirements are not inconsistent with the terms of this chapter and its franchise.

(C) The granting of a franchise hereunder shall not constitute a waiver or bar to the exercise of any governmental right or power of the city.

('83 Code, § 5.24.120) (Ord. 912, passed - -85)

The Council may at any time adopt rules and regulations implementing the provisions of this chapter, and may amend, modify, delete, or otherwise change any such rules and regulations previously adopted, in the following manner:

(A) The Council shall pass a resolution of intention stating or describing the rules and regulations to be adopted, amended, modified, deleted, and fixing and setting forth a day, hour and place certain when and where any persons having any interest therein or objection thereto may appear before the Council and be heard.

(B) The resolution shall direct the City Clerk to publish the resolution at least once within ten days of the passage thereof in a newspaper of general circulation within the city, and to mail a copy of the resolution to any grantee or applicant for a franchise, not more than 30 days nor less than 15 days prior to the time fixed for hearing thereon. The

Council may order each grantee to make public service announcements regarding the time, place and subject matter of the hearings.

(C) At the time set for the hearing, or at any adjournment thereof, the Council shall proceed to hear and pass upon such comments as may be presented. Thereafter, the Council, by resolution, may adopt, amend, modify or delete such rules and regulations. The determination by the Council shall be final and conclusive.

(D) Any rule or regulation as adopted, amended, modified, deleted or otherwise changed by the Council shall become effective upon the tenth day following the adoption of the Council resolution, unless a longer period shall be expressly provided in the resolution.

('83 Code, § 5.24.130) (Ord. 912, passed - -85)

(A) Regulatory authority. The city shall exercise appropriate regulatory authority under the provisions of this chapter and other applicable law. If the grantee by its cable television system also serves other continuous or neighboring communities, the city may, at its sole option, participate in a joint regulatory agency, with delegated responsibility in the area of cable and related communications.

(B) Regulatory responsibility. The city, acting alone or acting jointly with other grantors, may exercise or delegate any or all of the following regulatory responsibilities:

• (1) Administering and enforcing the provisions of all franchises.

• (2) Coordination of the operation of PEG access facilities.

• (3) Providing technical, programming and operational support to public agency users, such as government departments, schools and health care institutions.

• (4) Establishing procedures and standards for use of channels dedicated to public use sharing of public facilities, if provided for in any franchise.

• (5) Planning expansion and growth of public benefit cable services.

• (6) Analyzing the possibility of integrating cable communications with other local, state or national telecommunications networks.

(7) Formulating and recommending long-range telecommunications policy. ('83 Code, § 5.24.140) (Ord. 912, passed - -85)

The city may intervene in any suit or proceeding in which a grantee is a party, if the city reasonably determines that its interests are not adequately represented.

('83 Code, § 5.24.150) (Ord. 912, passed - -85)

(A) The initial service rates, installation charges, connection charges, disconnection charges, reconnection charges, equipment rental charges and any other type of system charges (hereafter collectively referred to as "rates") for each system, shall be set forth in the franchise. To the extent local regulation of rates is permitted under federal and state law, existing rates may be changed from time to time only by resolution of the City Council pursuant to this section. Failure to enforce this section by the city shall not amount to a waiver of its provisions.

(B) Applications. All rate increase requests submitted or proposed by a grantee shall contain the following:

(1) The amount of adjustment in rates requested.

(2) Written financial material showing that the adjustment in rates is justified by increased expenses incurred by the grantee in the operation of its system.

(3) Copies of financial reports and income statements prepared in accordance with generally accepted accounting standards and practices and certified by an independent certified public accountant (CPA) for at least the preceding three years or from the date of acceptance of the franchise whichever is the lesser (hereafter referred to as "term"). If the grantee is a subsidiary of another firm, similar financial data shall be furnished for the parent corporation.

(4) An itemization of capital assets, both tangible and intangible, the accounting basis for depreciation and the depreciation schedule. If intangible assets such as goodwill are being amortized, the amortization periods shall be stated.

• (5) A detailed breakdown of operating, marketing and general administrative costs by category for the term.

• (6) The number of subscribers for service for the term.

• (7) The number of cable plant-miles and dwelling units passed by the cable plant for the term and preceding years.

(8) A statement as to any allocation of funds to parent company overhead or operating costs, and the basis for the allocation.

(C) Council action.

(1) Upon receipt of a rate increase request, accompanied by all of the supporting information above, it shall be the obligation of the Council to act upon the request expeditiously. Prior to taking action on the request at least one noticed public hearing shall be held upon the request. The Council shall approve, partially approve, or disapprove, the request based upon all of the following criteria.

• (a) Performance of the grantee.

• (b) Whether the grantee has adequately served the subscribers and the city.

• (c) Comparability of rates in surrounding communities.

• (d) Whether the profits from services offered are reasonable.

• (e) Operating and construction expenses of the grantee.

• (f) Completeness and accuracy of the information submitted by grantee in support of its request for increases.

• (2) The decision shall be in resolution form. Any approved increase in rates shall become effective not earlier than 30 days after the date of approval by the Council.

(D) Time of applications. Applications for rate increases shall not be submitted more often than once in any 12month period.

(E) Public hearing. Before approving any rate increase, the City Council shall conduct at least one public hearing thereon. The hearing shall be noticed as directed by the City Council, which may include, but not be limited to, the use of public service announcements by grantee on its system.

('83 Code, § 5.24.160) (Ord. 912, passed - -85)

(A) In the event any territory shall be annexed to the city which is not served by a system pursuant to franchise issued by a governmental agency, the territory may become a part of the service area of a grantee if so ordered by the Council after conducting a public hearing.

(B) In the event any portion of territory annexed to the city is covered by an existing franchise or license granted by a governmental agency other than the city and if the grantee of the franchise or license has not commenced installation of a system within the territory, it shall be deemed not to be served by a system, and all rights acquired by the grantee under its franchise or license shall terminate by operation of law as of the date on which the annexation to the city becomes effective.

(C) If the annexed area is served by a franchise or license issued by another public entity, such services may continue, subject to the provisions of the franchise or license and the provisions of this chapter during the balance of the term of the franchise or license, provided all franchise fees shall be paid to the city. ('83 Code, § 5.24.170) (Ord. 912, passed - -85)

(A) Each grantee shall at all times employ reasonable care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public.

(B) Each grantee shall install and maintain its wires, cables, fixtures, and other equipment in accordance with the requirements of applicable laws and in such manner that they will not interfere with any installations of the city or of a public utility serving the city.

(C) All structures and all lines, equipment, and buildings and structures, used by grantee directly or indirectly in its system, wherever situated or located, shall at all times be kept and maintained in a safe, suitable substantial condition, and in good order and repair.

(D) Each grantee shall strictly adhere to the building and zoning regulations set forth in Title XV of this code of ordinances. Each grantee shall locate and maintain its lines, cables, and other appurtenances on both public and private property, in such a manner as to cause no unreasonable interference with the use of said public or private property by any person.

('83 Code, § 5.24.180) (Ord. 912, passed - -85) Penalty, see § 10.99

(A) Each grantee shall strictly observe and protect the rights of privacy and of property of subscribers and users at all times. Information on individual subscribers, individual subscriber preferences of any kind, viewing habits, political, social or economic philosophies, beliefs, creeds, religions or names, addresses or telephone numbers shall not be revealed to any person, governmental unit, private agency or company, unless upon the authority of a court of law, by statute, or, upon prior written permission of the subscriber. The request for permission must be contained in a separate document with a prominent statement that the subscriber is authorizing the permission in full knowledge of its provision. Such authorization shall not in any event be required as a condition of receiving service.

(B) A grantee may release the number of its subscribers but only as a total number and as a percentage of the potential subscribers throughout its service area. When indicating the number of subscribers viewing a particular channel at a particular time, a grantee shall indicate only the total number of subscribers viewing during the relevant time and the percentage of all subscribers which they represent, but never the identity of a particular subscriber.

(C) A grantee may maintain only the information, relating to subscribers, as is necessary to bill subscribers for the use of any of its services.

(D) Neither a grantee nor any other person shall initiate in any form, the discovery of any information on or about a subscriber's premises without prior valid authorization from the subscriber. As used in this division, VALID AUTHORIZATION means written approval from the subscriber expressly valid for a period of time not to exceed one year.

(E) A subscriber may, at any time, revoke any authorization previously made, by delivering to a grantee in writing, by mail or otherwise, his/her decision to so revoke. Any such revocation shall be effective upon receipt by franchisee. (F) No monitoring of any subscriber terminal shall take place without specific prior written authorization by the user of the terminal in question, provided, however, a grantee may conduct systemwide or individually addressed

"sweeps" for the purpose of verifying system integrity, security monitoring, and/or other addressable premium service implementation or verification which the subscriber has contracted for. In no event shall residential aural or visual monitoring of any kind take place without a clear indication to the subscriber that such monitoring is taking place.

(G) A grantee may, without prior subscriber approval, monitor those subscriber terminals which are connected to utility monitoring devices which measure utility usage and which have been first approved by the City Council.

(H) Prior to implementation of any interactive subscriber response mechanism, a grantee must first demonstrate to the City Manager that such a mechanism can operate effectively and provide absolute protection against any invasion of privacy.

(I) A grantee shall not tabulate any test results, nor permit the use of its system for such tabulation, which would reveal the commercial product preferences or opinions of subscribers, members of their families or their invitees, licensees or employees, without prior authorization of the subscriber.

(J) Each compilation, publication, tabulation or other dissemination of each piece of information made or permitted to be made in violation of this section shall result in the imposition of liquidated damages, pursuant to the grantee's franchise.

(K) The rights accorded subscribers pursuant to this section shall be in addition to any other privacy right accorded subscribers pursuant to federal or state law.

('83 Code, § 5.24.190) (Ord. 912, passed - -85) Penalty, see § 10.99

Upon termination of service to any subscriber, each grantee shall promptly remove all its facilities and equipment from the premises of the subscriber upon subscriber's request.

('83 Code, § 5.24.200) (Ord. 912, passed - -85) Penalty, see § 10.99

Notwithstanding any other provision of this chapter, when necessary to aid in the analysis of matters relating to an evaluation of a grantee's operation pursuant to a franchise, including, but not limited to, rate increase requests, technical standards, construction supervision or market surveys in the city, the city shall be entitled to employ the services of qualified consultants. All reasonable costs so incurred by the city shall be paid by grantee regardless of the nature or outcome of any specific matter under consideration. The terms of this section shall not apply to any research cost incurred by the city in connection with the right of the city to purchase the system. ('83 Code, § 5.24.210) (Ord. 912, passed - -85)

(A) Upon the foreclosure or other judicial sale of all or a substantial part of a system, or upon the termination of any lease covering all or a substantial part of the system, the grantee shall notify the City Clerk of such fact, and the notification shall be treated as a notification that a change in ownership of the grantee has taken place and the provisions of this chapter governing such changes shall apply.

(B) The city shall have the right to revoke a franchise 120 days after the appointment of a receiver, or trustee, to take over and conduct the business of the grantee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless the receivership or trusteeship shall have been vacated prior to the expiration of the 120 days, or unless:

(1) Within 120 days after his election or appointment, the receiver or trustee shall have fully complied with the provisions of this chapter and the franchise and remedied all defaults thereunder; and

(2) The receiver or trustee, within the 120 days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby the receiver or trustee assumes and agrees to be bound by each and every provision of the franchise.

('83 Code, § 5.24.220) (Ord. 912, passed - -85)

(A) Right to services.

(1) It shall be the right of all subscribers who pay the lawful charges therefor, to receive all available services to which they are legally entitled pursuant hereto.

(2) The grantee shall make available to all subscribers, upon demand, at a charge approved by the City Manager, parental control devices to control the viewing of programming.

(B) Continuity of service. In the event that a grantee elects to rebuild, modify, or sell its system, or the city revokes or fails to renew its franchise, a grantee shall do everything in its power to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances during the term of the franchise.

(C) Tenant rights. The grantee shall be required to provide service to tenants in individual dwelling units in a multiple housing facility with all services offered to other dwelling units within its service area, so long as the owner of the facility consents in writing to the following:

(1) To grantee's providing of the service to units in the facility.

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

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

(D) An owner shall not discriminate in rental charges, or otherwise, between subscribers who receive cable service and those who do not.

('83 Code, §§ 5.24.230, 5.24.250I.) (Ord. 912, passed - -85) Penalty, see § 10.99

(A) Any person, partnership or corporation employed by the city for the purposes of advising the city on matters relating to cable television, or reviewing and evaluating, or assisting the city in reviewing and evaluating, proposals for franchises, or regulating, or assisting the city in regulating a cable television system, shall, as a condition of their employment, file within ten days of the date of employment with the City Clerk, a statement containing the following: (1) A listing and description of any financial and/or ownership interest held by the consultant in any cable television company, any subsidiary or affiliate of any cable television company, any company which is a supplier or customer of any cable television company, or in other company which owns stock or has any interest in any of those types of companies which are described in this section. If the consultant is a partnership, the financial and/or ownership interests in cable television companies, affiliates, subsidiaries, suppliers, and customers of any partner must be disclosed. If the consultant is a corporation, the financial and/or ownership interests in cable television companies, affiliates, subsidiaries, suppliers, and customers of any shareholder, officer or directors must be disclosed.

(2) A listing and description of any cable television company, affiliate, subsidiary, supplier or customer which the consultant has represented, on a compensated or noncompensated basis within the last 15 years.

(B) The statement filed pursuant to this section shall be a public document open to inspection by any person. Failure to file this statement, or the inclusion of a material misrepresentation or omission within the statement, shall constitute grounds for the city's termination of the employment contract.

('83 Code, § 5.24.240) (Ord. 912, passed - -85) Penalty, see § 10.99

(A) A franchise granted to provide service within the city shall authorize and permit the grantee to solicit, sell, distribute, and make a charge to subscribers within the city for connection to the cable television system of grantee, and shall also authorize and permit the grantee to traverse any portion of the city in order to provide service outside the city.

(B) An easement, license or other permit granted to anyone, other than a grantee, to traverse any portion of the city in order to provide service outside the city shall not authorize nor permit the person to solicit, sell, distribute, or make any charge to subscribers within the city, nor to render any service or connect any subscriber within the city to the cable television service system of grantee.

('83 Code, § 5.24.250A.) (Ord. 912, passed - -85) Penalty, see § 10.99

Each grantee shall be prohibited from directly or indirectly doing any of the following:

(A) Engaging in the business of selling at retail, leasing, renting, repairing or servicing of television sets or radios.

(B) Imposing a fee or charge for repair to subscriber owned receiving devices except for the connection of its service or for the determination by grantee of the quality of the signal to the recipients thereof.

(C) Soliciting, referring, or causing or permitting the solicitation or referral of any subscriber by persons engaged in any business herein prohibited to be engaged in by grantee.

('83 Code, § 5.24.250B.) (Ord. 912, passed - -85) Penalty, see § 10.99

(A) If the Federal Communications Commission or the Public Commission of the State of California or any other Federal or State body or agency shall now or hereafter lawfully exercise jurisdiction over the subject matter of any franchise granted pursuant to this chapter, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the city the jurisdiction of the city shall be suspended during such time as such other jurisdiction shall lawfully exist. The preemption or preclusion of the exercise of the city of any of its police power shall not diminish, impair, alter or affect any benefit nor any obligation of the city or a grantee under any franchise issued hereunder.

(B) Any and all minimum standards governing the operation of a system and any and all maximum rates and charges specified herein or in any franchise issued hereunder existing now and at any time in the future, including such time as any paramount jurisdiction shall preempt or preclude that of the city to determine, establish, or fix any of the same, are each and all declared by the city and by a grantee accepting any franchise hereunder to be contractual in nature and to be for the benefit of the city.

('83 Code, § 5.24.250D.) (Ord. 912, passed - -85)

Before providing cable television service to any subscriber, a grantee shall provide a written notice to the subscriber substantially as follows:

Subscriber is hereby notified that in providing cable television service (name of company) is making use of public rights-of-way within the City of Baldwin Park and that the continued use of such rights-of-way is in no way guaranteed. In the event the continued use of such rights-of-way is denied to (name of company) for any reason, (name of company) will take every reasonable effort to provide service over alternate routes. By accepting cable television service, subscriber agrees he will make no claim nor undertake any action against the City of Baldwin Park, its officers, or its employees, if the service to be provided hereunder is interrupted or discontinued. ('83 Code, § 5.24.250H.) (Ord. 912, passed - -85)

When not otherwise prescribed herein, all matters herein required to be filed with the city shall be filed with the City Clerk.

('83 Code, § 5.24.250G.) (Ord. 912, passed - -85)

(A) From and after the effective date of the ordinance codified in this chapter, it shall be unlawful for any person to construct, install or maintain within any public street or alley in the city, or within any other public property of the city, or within any privately-owned area within the city which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the city, any equipment or facilities for distributing any television signals or radio signals, through a system, unless a valid franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this chapter or, unless specifically permitted, pursuant to this chapter.

(B) It shall be unlawful for any person to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise within this city for the purpose of enabling himself or others to receive or use any television signals, radio signals, picture, program or sound, without payment to the owner of said system.

(C) It shall be unlawful for any person, without the consent of a grantee, to willfully tamper with, remove or injure any cables, wires, or equipment used for distribution of television signals, radio signals, pictures, programs or sound. ('83 Code, § 5.24.260) (Ord. 912, passed - -85) Penalty, see § 10.99