Barstow Municipal Code Art. II Cable Television Systems

(a) In accordance with applicable federal and state law, the city is authorized to grant one or more nonexclusive franchises to construct, reconstruct, operate, and maintain cable television systems within the city limits.

(b) The city council finds that the development of cable television and related telecommunications services may provide significant benefits for, and substantial impacts upon, the residents of the city. Because of the complex and rapidly changing technology associated with cable television, the city council further finds that the public convenience, safety, and general welfare can best be served by establishing regulatory powers to be exercised by the city. This article is intended to specify the means for providing to the public the best possible cable television and related telecommunications services, and every franchise issued in accordance with this article is intended to achieve this primary objective. It is the further intent of this article to adopt regulatory provisions that will enable the city to regulate cable television and related telecommunications services to the maximum extent authorized by federal and state law.

(Code 1969, § 5.60.040; Ord. No. 766, § 2(part), 2000)

(a) Operational standards.

(1) Unless otherwise provided in the franchise agreement, the grantee must maintain the necessary facilities, equipment, and personnel to comply with the following consumer protection and service standards under normal operating conditions:

a. Sufficient toll-free telephone line capacity during normal business hours to ensure that telephone calls are answered before the fourth ring. Telephone answer time by a customer service representative, including wait time, may not exceed 30 seconds. Callers who must be transferred may not be required to wait more than 30 seconds before being connected to a service representative.

b. Under normal, operating conditions, a caller must receive a busy signal less than three percent of the time.

c. Emergency toll-free telephone line capacity on a 24-hour basis, including weekends and holidays. After normal business hours, the telephone calls may be answered by an answering service in accordance with the telephone answering standards set forth in subsections (a)(1)a and b of this section. Calls received after normal business hours must be responded to by a trained company representative on the next business day.

d. A conveniently-located local business and service or payment office open during normal business hours at least eight hours daily on weekdays, and at least four hours weekly on evenings or weekends, and adequately staffed with trained customer service representatives to accept subscriber payments and to respond to service requests, inquiries, and complaints.

e. An emergency system maintenance and repair staff, capable of responding to and repairing major system malfunctions on a 24-hour per day basis.

f. A trained installation staff must provide service to any subscriber requiring a standard installation within seven days after receipt of a request, in all areas where trunk and feeder cable have been activated. Standard installations are those that are located up to 125 feet from the existing distribution system, unless otherwise defined in the franchise agreement.

g. Appointments.

1. The grantee must schedule, within a specified four-hour time period Monday through Saturday (legal holidays excluded), all appointments with subscribers for installation of service, service calls, and other activities at the subscriber's location. The grantee may schedule installation and service calls outside of normal business hours for the convenience of the subscriber. The grantee may not cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment.

2. If a grantee representative is delayed in keeping an appointment with a subscriber and will not be able to honor the scheduled appointment, the subscriber must be contacted prior to the time of the scheduled appointment, and the appointment must be rescheduled, as necessary, at a time that is convenient for the subscriber. The grantee must use its best efforts to contact every customer within two weeks after an installation or repair work is completed to ensure that the customer is satisfied with the work.

h. Subscribers who have experienced one missed appointment due to the fault of the grantee will receive an installation free of charge if the appointment was for an installation. If an installation was to have been provided free of charge, and for all other appointments, the subscriber will receive one month of the subscribed-to service tier, free of charge. Subscribers also will be entitled to receive a free installation, or one month free service, as provided above, if the grantee fails to complete a standard installation within five days of receiving an installation request due to its fault, its failure to schedule an appointment within a specified four-hour time period, or its failure to notify the subscriber that the grantee's representative will be late for an appointment. Subscribers who have experienced two missed appointments due to the fault of the grantee will receive two months of the subscribed-to service tier, free of charge, in addition to the free installation or free month of service provided for the first missed appointment.

i. Upon a subscriber's request, the grantee will arrange for pickup or replacement of converters or other equipment provided by the grantee at the subscriber's address within 14 days after the request is made if the subscriber is mobility-limited.

(2) The standards of subsections (a)(1)a and c of this section must be met not less than 90 percent of the time, measured on a quarterly basis.

(b) Service standards.

(1) The grantee will render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Except in emergency situations, scheduled interruptions will occur during a period of minimum use of the cable system, preferably between midnight and 6:00 a.m. Unless the scheduled interruption lasts for no more than two hours and occurs between 12:00 midnight and 6:00 a.m., in which event 24-hours prior notice must be given to the city, 48-hours prior notice must be given to subscribers.

(2) The grantee will maintain a repair force of technicians who will respond to subscriber requests for service within the following time frames:

a. For a system outage. Within two hours, including weekends, of receiving subscriber calls or requests for service that by number identify a system outage of sound or picture of one or more channels, affecting five or more subscribers of the system.

b. For an isolated outage. Within 24 hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one or more channels.

c. For inferior signal quality. No later than the following business day, excluding Sundays and holidays, after a request for service identifying a problem concerning picture or sound quality.

(3) The grantee will be deemed to have responded to a request for service under the provisions of this subsection (b) when a technician arrives at the service location and begins work on the problem. If a subscriber is not home when the technician arrives, the technician must leave written notification of arrival.

(4) The grantee may not charge for the repair or replacement of defective or malfunctioning equipment provided by the grantee to subscribers, unless the defect or malfunction was caused by the subscriber.

(5) The grantee must determine the nature of the problem within 24 hours after commencing work and resolve all cable system related problems within three business days, unless technically infeasible.

(c) Billing and information standards.

(1) Subscriber bills must be clear, concise, and understandable. Bills must be fully itemized, with itemizations, including, but not limited to, basic and premium service charges and equipment charges. Bills also must clearly delineate all activity during the billing period, including optional charges, rebates, and credits.

(2) The first billing to a subscriber after a new installation or service change must be prorated based upon when the new or changed service commenced. Subscribers must not be charged a late fee or otherwise penalized for any failure attributable to the grantee, including the failure to timely or correctly bill the subscriber.

(3) In case of a billing dispute, the grantee must respond in writing to a written complaint from a subscriber within ten days after receiving the complaint at the office specified on the billing statement for receiving that complaint.

(4) The grantee must, upon request from the affected subscriber, provide credits or refunds to subscribers whose service has been interrupted for four or more hours. For each day that service has been interrupted for four hours or more, the credit must equal a pro rata share of the monthly billing for one full day. All credits for service must be issued no later than the customer's next billing cycle following the determination that a credit is warranted. For subscribers terminating service, refunds must be issued promptly, but no later than 30 days after the return of any grantee-supplied equipment.

(5) Subject to prior review by the city, the grantee must provide written information on each of the following matters at the time of the installation of service, at least annually to all subscribers, and at any time upon request:

a. Products and services offered.

b. Prices and options for programming services and conditions of subscription to programming and other services.

c. Installation and service maintenance policies.

d. Instructions on the use of the cable service.

e. Channel positions of programming carried on the system.

f. Billing and complaint procedures, including the address and telephone number of the city's office designated for dealing with cable-related issues.

g. Consumer protection and service standards and penalties for noncompliance.

(6) Subscribers must be notified of any changes in rates, programming services, or channel positions as soon as possible through announcements on the cable system and in writing. Notice must be given to subscribers a minimum of 30 days in advance of those changes if the change is within the control of the grantee. In addition, the grantee must notify subscribers through announcements on the cable system and in writing 30 days in advance of any significant changes in the information required in subsection (c)(5) of this section.

(7) The grantee must maintain a public file containing all notices provided to subscribers under these consumer protection and service standards and all promotional offers made by grantee to subscribers. These documents must be maintained for a minimum period of four years.

(d) Verification of compliance with standards.

(1) Upon 15 days prior written notice, the city may require the grantee to provide a written report demonstrating its compliance with any of the consumer service standards specified in this section. The grantee must provide sufficient documentation to enable the city to verify compliance.

(2) A repeated and verifiable pattern of noncompliance with the consumer protection and service standards of this section, after the grantee's receipt of written notice and an opportunity to cure, may be deemed a material breach of the franchise agreement.

(e) Subscriber complaints and disputes.

(1) The grantee must establish written procedures for receiving, acting upon, and resolving subscriber complaints without intervention by the city. The written procedures must prescribe the manner in which a subscriber may submit a complaint, either orally or in writing, specifying the subscriber's grounds for dissatisfaction. The grantee must file a copy of these procedures with the city. These procedures must include a requirement that the grantee respond in writing to any written complaint from a subscriber within ten days after receiving the complaint at the office specified on the billing statement for receiving that complaint.

(2) The city has the right to review the grantee's response to subscriber complaints in order to determine the grantee's compliance with the franchise requirements.

(3) All subscribers have the right to continue receiving service so long as their financial and other obligations to the grantee are honored. If the grantee elects to rebuild, modify, or sell the system, or if the city gives notice of intent to terminate or not to renew the franchise, the grantee must act so as to ensure that all subscribers receive service while the franchise remains in force.

(4) Upon a change of control of the grantee, or if a new operator acquires the cable system, the original grantee must cooperate with the city, the new grantee, or the new operator in maintaining continuity of service to all subscribers. During that transition period, the grantee is entitled to the revenues derived from its operation of the cable system.

(f) Disconnection/downgrades.

(1) A subscriber may terminate or downgrade service at any time, and the grantee must promptly comply with the subscriber's request within five days or at any later time requested by the subscriber. No period of notice prior to voluntary termination or downgrade of service may be required of subscribers. Grantee will impose no charges for the voluntary termination or downgrade of service unless a visit to the subscriber's premises is required to remove a converter box or other equipment or property owned by grantee.

(2) The grantee may disconnect a subscriber's service if the subscriber fails to pay a monthly fee or charge, but such disconnection must not occur prior to 45 days after the fee or charge is due, plus ten days prior written notice to the subscriber of the grantee's intent to disconnect service. If the subscriber pays all past due amounts, including late charges, before the scheduled disconnection date, the grantee may not disconnect service. If service is disconnected for nonpayment of past due fees or charges, the grantee must promptly reinstate service upon payment in full by the subscriber of all such fees and charges, including late charges.

(3) Notwithstanding the requirements of subsection (f)(2) of this section, the grantee may immediately disconnect service to a subscriber if the subscriber is damaging or destroying the grantee's cable system or equipment. In the event of disconnection on such grounds, the grantee will resume service to the subscriber upon receiving adequate assurances that the subscriber has ceased the practices or conduct that resulted in disconnection and has paid all proper fees and charges, including any amounts reasonably owed the grantee for the damage caused by the subscriber.

(4) The grantee may also disconnect service to a subscriber when it causes signal leakage exceeding federal limits. If service is disconnected, the grantee will immediately resume service without charge upon the satisfactory correction of the signal leakage problem.

(5) Upon termination of service to a subscriber, the grantee will remove its equipment from the subscriber's premises within 30 days. The equipment will be deemed abandoned if it is not removed within such time period unless the grantee has been denied access to the subscriber's premises.

(g) Changes in service. Except as otherwise provided by federal law, subscribers must not be required to pay any additional fee or charge, other than the regular service fee, in order to receive the services selected (such as upgrade or downgrade charges). No charge may be imposed for any service or product that the subscriber has not affirmatively selected. Payment of the regular monthly bill will not by itself constitute an affirmative selection.

(h) Deposits. The grantee may require a reasonable, nondiscriminatory deposit on equipment provided to subscribers. Such deposits must be placed in an interest-bearing account. The deposit must be returned, with interest earned to the date of repayment, within 30 days after the equipment is returned to the grantee.

(i) Parental control option. The grantee must provide parental control devices to all subscribers who desire to block the video or audio portion of any programming that the subscriber finds objectionable. Such devices will be provided at no charge to the subscriber, unless otherwise required by federal law or unless a converter box is required to be installed for the purpose of providing the parental control device.

(j) Additional requirements.

(1) If the grantee fails to operate the system for seven consecutive days without the city's prior approval or subsequent ratification, the city may, at its sole option, operate the system or designate an operator until the grantee restores service under conditions acceptable to the city, or until a permanent operator is selected. If the city satisfies this obligation on behalf of the grantee, then during that time period the city is entitled to collect all revenues derived from the system, and the grantee will indemnify the city against any damages that the city may suffer as a result of the grantee's failure to operate the system.

(2) All officers, agents, and employees of the grantee, or of its contractors or subcontractors, who, in the normal course of work come into contact with members of the public, or who require entry onto subscribers' premises, must carry a photo-identification card in a form approved by the city. The grantee must account for all identification cards at all times. All vehicles of the grantee or its subcontractors must be clearly identified as vehicles engaged in providing services for the grantee.

(3) Additional standards relating to service, consumer protection, and response by the grantee to subscriber complaints not otherwise provided for in this section may be set forth in the franchise agreement or by separate ordinance, and the grantee must comply with those standards in the operation of the cable television system. A verified and continuing pattern of noncompliance may be deemed a material breach of the franchise agreement, provided that the grantee receives written notice and an opportunity to cure before any penalty or other remedy is imposed.

(k) Penalties for noncompliance.

(1) Purpose. The purpose of this subsection (k) is to authorize the imposition of penalties for the violation of the customer service standards established by this section in accordance with the Video Customer Service Act (Government Code § 53088 et seq.). These penalties are in addition to any other remedies provided by this chapter, the franchise agreement, or any other law, and the city has the discretion to elect the remedy that it will apply. The imposition of penalties authorized by this subsection will not prevent the city or any other affected party from exercising any other remedy to the extent permitted by law, including, but not limited to, any judicial remedy as provided in subsection (k)(2)d of this section.

(2) Administration and appeals.

a. The city manager or the city manager's designee is authorized to administer this subsection. Decisions by the city manager to assess penalties against the grantee must be in writing and must contain findings supporting the decisions. Decisions by the city manager are final, unless appealed to the city council.

b. If the grantee or any interested person is aggrieved by a decision of the city manager, the aggrieved party may, within ten days of the written decision, appeal that decision in writing to the city council. The appeal letter must be accompanied by the fee established by the city council for processing the appeal. The city council may affirm, modify, or reverse the decision of the city manager.

c. Schedule of penalties. The following schedule of monetary penalties may be assessed against the grantee for the material breach of the provisions of the customer service standards set forth in this section, provided that the breach is within the reasonable control of the grantee:

1. The maximum penalty is $200.00 for each day of material breach, but not to exceed $600.00 for each occurrence of the material breach.

2. For a second material breach of the same nature within a 12-month period for which the city has provided notice and a penalty has been assessed, the maximum penalty is $400.00 for each day of the material breach, but not to exceed $1,200.00 for each occurrence of the material breach.

3. For a third material breach of the same nature within a 12-month period for which the city has provided notice and a penalty has been assessed, the maximum penalty is $1,000.00 for each day of the material breach, but not to exceed $3,000.00 for each occurrence of the material breach.

4. The maximum penalties referenced above may be increased by any additional amount authorized by state law.

d. Judicial remedy. This subsection does not preclude any affected party from pursuing any judicial remedy available to that party without regard to subsection (k) of this section.

e. Notification of breach. The city must give the grantee written notice of any alleged breach of the consumer service standards and allow the grantee at least 30 days from receipt of the notice to remedy the specified breach. For the purpose of assessing penalties, a material breach is deemed to have occurred for each day, following the expiration of the period for cure specified herein, that any breach has not been remedied by the grantee, irrespective of the number of subscribers affected.

(l) Free service for noncompliance. Notwithstanding any other penalties or remedies provided by this section, the franchise agreement, or any other law, the grantee must provide the following months of free service to subscribers affected by the grantee's failure to comply with the specified consumer protection and service standard:

(1) One month free service. The grantee will provide one month of free service to each subscriber affected by the failure of the grantee to timely and satisfactorily comply with any of the following requirements:

a. The pickup or replacement of converters or other equipment within 14 days after subscriber request (section 5.60.080(a)(1)i);

b. 48-hour notice of service interruption (section 5.60.080(b)(1));

c. Response time for system outages and inferior signal quality (section 5.60.080(b)(2));

d. Resolution of cable system related problems within three business days (section 5.60.080(b)(5)). One additional month of free service will be provided for each seven-day period that the problem remains unresolved;

e. Written response to billing complaints (section 5.60.080(c)(3));

f. Credits and refunds (section 5.60.080(c)(4));

g. Provision of all required information to subscribers (section 5.60.080(c)(5));

h. Notification of rate, service, or channel changes (section 5.60.080(c)(6));

i. Completion of termination or downgrade of service (section 5.60.080(f)(1));

j. Provision of parental control devices (section 5.60.080(i));

(2) Three months free service. The grantee will provide three months of free service to each subscriber affected by the grantee's disconnection of subscriber service without just cause, provided that grantee fails to restore service within four hours after the disconnection (section 5.60.080(f)(2)).

(3) Definition of free service. The free service required by subsection (l) of this section relates to the service tier subscribed to by the affected subscriber.

(Code 1969, § 5.60.080; Ord. No. 766, § 2(part), 2000)