Brea Municipal Code § 5.208.050 Authority and findings

A. In accordance with applicable federal and state law, the city is authorized to grant one (1) 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 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 II is intended to specify the means for providing to the public the best possible cable television services, and every franchise issued in accordance with this Article II is intended to achieve this primary objective. It is the further intent of this Article II to adopt regulatory provisions that will enable the city to regulate cable television services to the maximum extent authorized by federal and state law.

(Ord. 1082, 11-16-2004)

A. Franchise purposes. A franchise granted by the city under the provisions of this Article II may authorize the grantee to do the following:

1. To engage in the business of providing cable television services that are authorized by law and that the grantee elects to provide to its subscribers within the designated franchise service area;

2. To erect, install, construct, repair, rebuild, reconstruct, replace, maintain and retain cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along and across streets and public rights-of-way within the designated franchise service area; and

3. To maintain and operate the franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals, and for the delivery of cable services and such other services as may be authorized by law.

B. Franchise required. It is unlawful for any person to construct, install, or operate a cable television system within any street or public way in the city without first obtaining a franchise under the provisions of this Article II.

C. Term of the franchise.

1. A franchise granted under this Article II will be for the term specified in the franchise agreement, commencing upon the effective date of the resolution adopted by the City Council that authorizes the franchise.

2. A franchise granted under this Article II may be renewed upon application by the grantee in accordance with the then-applicable provisions of state and federal law and this Article II.

D. Franchise service area. A franchise is effective within the territorial limits of the city, and within any area added to the city during the term of the franchise, unless otherwise specified in the resolution granting the franchise or in the franchise agreement.

E. Federal or state jurisdiction. This Article II will be construed in a manner consistent with all applicable federal and state laws, and it applies to all franchises granted or renewed after the effective date of this chapter, to the extent authorized by applicable law.

F. Franchise non-transferable.

1. Grantee may not sell, transfer, lease, assign, sublet, or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation, or otherwise, the franchise or any of the rights or privileges therein granted, without the prior written consent of the City Council, which consent may not be unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign, or otherwise dispose of the franchise without the written consent of the City Council is null and void. The granting of a security interest in any assets of the grantee, or any mortgage or other hypothecation, will not be deemed a transfer for the purposes of this paragraph F. A transfer to a person or entity owned or controlled by or under common ownership or control of grantee shall not be deemed a transfer for the purposes of this subparagraph F.1.

2. The requirements of subparagraph F.1. apply to any change in control of grantee. The word “control” as used herein is not limited to the ownership of major stockholder or partnership interests, but includes actual working control in whatever manner exercised. If grantee is a partnership or a corporation, prior authorization of the City Council is required where ownership or control of twenty-five percent (25%) or more of the partnership interests or of the voting stock of grantee, or any company in the tier of companies controlling the grantee, whether directly or indirectly, is acquired by a person or a group of persons acting in concert, none of whom, individually or collectively, owns or controls those partnership interests or that voting stock of the grantee, or grantee’s upper tier of controlling companies, as of the effective date of the franchise.

3. Unless precluded by federal law, grantee must give prior written notice to the city of any proposed foreclosure or judicial sale of all or a substantial part of the grantee’s franchise property. That notification will be considered by the city as notice that a change in control of ownership of the franchise will take place, and the provisions of this paragraph that require the prior written consent of the City Council to that change in control of ownership will apply.

4. For the purpose of determining whether it will consent to an acquisition, transfer, or change in control, the city may inquire about the qualifications of the prospective transferee or controlling party, and grantee must assist the city in that inquiry. In seeking the city’s consent to any change of ownership or control, grantee or the proposed transferee, or both, must complete Federal Communications Commission Form 394 or its equivalent. This application must be submitted to the city not less than one hundred twenty (120) days prior to the proposed date of transfer. The transferee must establish that it possesses the legal, financial, and technical capability to remedy all then-existing defaults and deficiencies, and, during the remaining term of the franchise, to operate and maintain the cable system and to comply with all franchise requirements. If the legal, financial, and technical qualifications of the proposed transferee are determined to be satisfactory, then the city will consent to the transfer of the franchise.

5. Any financial institution holding a pledge of the grantee’s assets to secure the advance of money for the construction or operation of the franchise property has the right to notify the city that it, or a designee satisfactory to the city, will take control of and operate the cable television system upon grantee’s default in its financial obligations. Further, that financial institution must also submit a plan for such operation within ninety (90) days after assuming control. The plan must ensure continued service and compliance with all franchise requirements during the period that the financial institution will exercise control over the system. The financial institution may not exercise control over the system for a period exceeding one (1) year unless authorized by the city, in its sole discretion, and during that period of time it will have the right to petition the city to transfer the franchise to another grantee.

6. Unless prohibited by applicable law, grantee must reimburse the city for the city’s reasonable review and processing expenses incurred in connection with any transfer or change in control of the franchise. These expenses may include, without limitation, costs of administrative review, financial, legal, and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by these experts), notice and publication costs, and document preparation expenses. The total amount of these reimbursable expenses may be subject to maximum limits that are specified in the franchise agreement between the city and the grantee. No reimbursement may be offset against any franchise fee payable to the city during the term of the franchise.

G. Geographical coverage.

1. Unless otherwise provided in the franchise agreement, grantee must design, construct, and maintain the cable television system to have the capability to pass every dwelling unit and commercial building in the franchise service area, subject to any service-area line extension requirements or territorial restrictions set forth in the franchise agreement.

2. After service has been established by activating trunk or distribution cables for any service area, grantee must provide standard installations to any requesting subscriber within that activated part of the service area within seven (7) days from the date of request, or such longer time as may be requested by the subscriber, provided that the grantee is able to secure on reasonable terms and conditions all rights-of-way and permits necessary to extend service to that subscriber within that period. Standard installations are defined as installations that are located up to one hundred twenty-five (125) feet from the existing distribution system and do not require trenching to serve.

H. Nonexclusive franchise. Every franchise granted is nonexclusive. The city specifically reserves the right to grant, at any time, such additional franchises for a cable television system that it deems appropriate, subject to applicable state and federal law. If an additional franchise is proposed to be granted to a subsequent grantee, a noticed public hearing must first be held if required by the provisions of Cal. Gov’t Code § 53066.3.

I. Multiple franchises.

1. The city may grant any number of franchises, subject to applicable state and federal law. The city may limit the number of franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and the following specific local considerations:

a. The capacity of the public rights-of-way to accommodate multiple cables in addition to the cables, conduits, and pipes of the existing utility systems, such as electrical power, telephone, gas, and sewerage.

b. The benefits that may accrue to subscribers as a result of cable system competition, such as lower rates and improved service.

c. The disadvantages that may result from cable system competition, such as the requirement for multiple pedestals on residents’ property, and the disruption arising from numerous excavations within the public rights-of-way.

2. The city may require that any new grantee be responsible for its own underground trenching and the associated costs if, in the city’s opinion, the rights-of-way in any particular area cannot reasonably accommodate additional cables.

(Ord. 1082, 11-16-2004)

A. Filing of applications. Any person desiring an initial franchise for a cable television system must file an application with the city. An application fee deposit in an amount established by resolution of the City Council must accompany the application. That application fee deposit will cover all anticipated costs associated with reviewing and processing the application, including without limitation costs of administrative review, financial, legal, and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by those experts), notice and publication requirements, and document preparation expenses. If actual costs exceed the application fee deposit, the applicant must pay the difference to the city within thirty (30) days following receipt of an itemized statement of those costs. If actual costs are less than the application fee deposit, the remaining balance will be refunded to the applicant.

B. Applications; contents. An application for an initial franchise for a cable television system must contain, as applicable:

1. A statement describing the proposed franchise service area and an explanation whether this proposed service area is, or will be, part of a larger regional cluster of franchise service areas.

2. A resume of the applicant’s prior history, including the applicant’s experience and expertise in the cable television industry.

3. A list of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each stockholder, if a closely-held corporation. If the applicant is a publicly-owned partnership or corporation, each owner of ten percent (10%) or more of the partnership interests, or of the issued and outstanding capital stock, must be identified. If the applicant is a limited liability company, the following information must be provided: the address of its principal executive office; the name and business or residence address of each member and of each holder of an economic interest in the limited liability company, together with the contribution and the share in profits and losses of each member and holder of an economic interest; the name and business or residence address of any manager or managers and the chief executive officer, if any, appointed or elected in accordance with the articles of organization or operating agreement.

4. A list of officers, directors, and managing employees of the applicant, and a description of the background and qualifications of each such person.

5. A statement specifying the number of people employed by the applicant, whether on a full-time or part-time basis.

6. The names and addresses of any parent or subsidiary of the applicant, or any other business entity owning or controlling applicant in whole or in part, or that is owned or controlled in whole or in part by the applicant.

7. Financial statements prepared in accordance with generally accepted accounting principles that demonstrate the applicant’s financial ability to:

a. Construct, operate, maintain and remove any new physical plant that is proposed to be constructed in the city;

b. Comply with the city’s public, educational, and governmental access requirements; and

c. Comply with the city’s requirement that franchise fees be paid on the applicant’s gross revenues derived from the operation of the cable system to provide cable services.

8. An accurate map showing the location of any existing telecommunications facilities in the city that the applicant intends to use, to purchase, or to lease.

9. A description of the cable services and any other services that will be offered by the applicant using existing or proposed facilities.

10. The proposed construction and service schedule, the proposed rate structure for cable services, and the proposed commitment to provide public, educational, and governmental access capacity, services, facilities, and equipment.

11. Any additional information that the city deems to be reasonably necessary to evaluate the applicant’s qualifications.

C. Consideration of initial applications.

1. Upon receipt of an application for an initial franchise, the City Manager or the City Manager’s designee must prepare a report and make recommendations to the City Council concerning that application.

2. A public hearing will be noticed prior to any initial franchise grant, at a time and date approved by the City Council. Within thirty (30) days after the close of the hearing, the City Council will make a decision, based upon the documents and testimony received at the hearing, whether the franchise should be granted, and, if granted, subject to what conditions. The City Council may grant one (1) or more franchises, or may decline to grant any franchise.

D. Franchise renewal. Franchise renewals will be processed in accordance with then-applicable law and with the renewal terms, if any, of the franchise agreement. The city and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise. Unless prohibited by applicable law, a renewal application fee deposit in an amount established by resolution of the City Council must accompany the renewal application or the renewal request. That renewal application fee deposit will cover all anticipated costs associated with reviewing and processing the renewal application, including the review of grantee’s prior compliance with the franchise, the ascertainment of the community’s cable-related needs and interests, the engagement of technical and legal consultants, and expenses related to negotiations and document preparation. If actual costs exceed the renewal application fee deposit, the grantee must pay the difference to the city within thirty (30) days following receipt of an itemized statement of those costs. If actual costs are less than the renewal application fee deposit, the remaining balance will be refunded to the grantee. No renewal application fee may be offset against any franchise fee payable to the city during the term of the franchise. The City Council may authorize the renewal of a cable television franchise agreement by resolution.

(Ord. 1082, 11-16-2004)

A. The provisions of a franchise agreement for the operation of a cable television system may relate to or include, without limitation, the following subject matters:

1. The geographical area, duration, and nonexclusive nature of the franchise.

2. The applicable franchise fee to be paid to the city, including the percentage amount, the method of computation, and the time for payment.

3. Requirements relating to compliance with and implementation of state and federal laws and regulations pertaining to the operation of the cable television system.

4. Requirements relating to the construction, upgrade, or rebuild of the cable television system, as well as the provision of special services, such as outlets for public buildings, emergency alert capability, and parental control devices.

5. Requirements relating to the maintenance of a performance bond, a security fund, a letter of credit, or similar assurances to secure the performance of the grantee’s obligations under the franchise agreement.

6. Requirements relating to comprehensive liability insurance, workers’ compensation insurance, and indemnification.

7. Requirements relating to consumer protection and customer service standards, which requirements may include, without limitation, compliance with the statutes, rules and regulations set forth in § 5.208.090.

8. Requirements relating to the grantee’s support of local cable usage, including the provision of public, educational, and governmental access channels, the coverage of public meetings and special events, and financial support for the required access channels.

9. Requirements relating to the grantee’s obligation to provide an institutional network, and channel capacity on that institutional network for educational or governmental use, subject to the city’s rules and procedures for the use of such channel capacity and for compatibility with any telecommunications network that has been or may be developed by the city.

10. Requirements relating to construction, operation, and maintenance of the cable television system within the city’s streets and public rights-of-way, including compliance with all applicable building codes and permit requirements of the city, the abandonment, removal, or relocation of facilities, and compliance with FCC technical standards.

11. Requirements relating to recordkeeping, accounting procedures, reporting, periodic audits, performance reviews, the inspection of grantee’s books and records, and reimbursement for technical audits and franchise fee audits under specified circumstances.

12. Acts or omissions constituting material breaches of or defaults under the franchise agreement, and the applicable penalties or remedies for such breaches or defaults, including fines, penalties, liquidated damages, suspension, revocation, and termination.

13. Requirements relating to the sale, assignment, or other transfer or change in control of the franchise.

14. The grantee’s obligation to maintain continuity of service and to authorize, under certain specified circumstances, the city’s operation and management of the cable system.

15. Such additional requirements, conditions, policies, and procedures as may be mutually agreed upon by the parties to the franchise agreement and that will, in the judgment of city staff and the City Council, best serve the public interest and protect the public health, welfare, and safety.

B. If there is any conflict or inconsistency between the provisions of a franchise agreement authorized by the City Council and provisions of this Article II, the provisions of the franchise agreement will control.

(Ord. 1082, 11-16-2004)

A. Operational standards.

1. 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 promptly. Telephone answer time by a customer service representative, including wait time, may not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time must not exceed thirty (30) seconds.

b. A caller must receive a busy signal less than three percent (3%) of the time, measured quarterly.

c. Emergency toll-free telephone line capacity on a twenty-four (24)-hour basis, including weekends and holidays. After normal business hours, the telephone calls may be answered by a service or an automated response system, including an answering machine. 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 (8) hours daily on weekdays, and at least four (4) 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 twenty-four (24)-hour per day basis.

f. A trained installation staff must provide service to any subscriber requiring a standard installation within seven (7) days after receipt of a request, or such longer time as may be requested by the subscriber, in all areas where trunk and feeder cable have been activated.

g. The grantee must schedule, within a specified four (4)-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. 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 undertake appropriate quality control measures to ensure that the customer is satisfied with the work.

h. Subscribers who have experienced a late or a missed appointment due to the fault of the grantee will receive either a free installation or a twenty dollar ($20) credit.

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 fourteen (14) days after the request is made if the subscriber is mobility-limited.

2. Under normal operating conditions, the standards of subparagraphs A.1.a., c., f. and g. above must be met not less than ninety percent (90%) of the time, measured on a quarterly basis, and the grantee must submit to the city quarterly reports setting forth its compliance with those standards.

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 (2) hours and occurs between midnight and 6:00 a.m., in which event twenty-four (24) hours’ prior notice must be given to the city, forty-eight (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 (2) hours, including weekends, after receiving subscriber calls or requests for service that by number identify a system outage of sound or picture on one (1) or more channels, affecting five (5) or more subscribers to the system.

b. For an isolated outage: Within twenty-four (24) hours, including weekends, after receiving requests for service identifying an isolated outage of sound or picture on one (1) 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 paragraph B. when a technician arrives at the service location and begins work on the problem if the problem cannot be corrected remotely. 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 twenty-four (24) hours after commencing work and resolve all cable system related problems within three (3) 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 thirty (30) days after receiving the complaint at the office specified on the billing statement for receiving that complaint.

4. Upon request by a subscriber, credits or refunds must be provided by grantee to subscribers who experience an outage, interruption, or disconnection of service of four (4) or more consecutive hours, provided that such loss of service is neither caused by the subscriber nor attributable to scheduled repairs, maintenance, or construction in circumstances where grantee has provided advance written notice to subscriber, and the loss of service does not exceed the time period specified by grantee. For subscribers terminating service, credits or refunds must be issued promptly, but no later than thirty (30) days after the return of any grantee-supplied equipment.

5. 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; and

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

6. Subscribers must be notified in writing of any changes in rates, programming services, or channel positions as soon as possible. Notice must be given to subscribers a minimum of thirty (30) days in advance of those changes if the change is within the control of the grantee. In addition, grantee will endeavor to notify grantor of those changes at least five (5) working days before subscribers are notified.

7. The grantee must maintain a public file containing all written notices provided to subscribers under these consumer protection and service standards and all published promotional offers made by grantee to subscribers. These documents must be maintained for a minimum period of two (2) years.

D. Verification of compliance with standards.

1. Upon thirty (30) 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 consistent with § 5.208.090.C.3.

2. Upon request, and subject to applicable law protecting subscriber privacy rights, the city has the right to review the grantee’s response to subscriber complaints.

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 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 and downgrades.

1. A subscriber may terminate or downgrade service at any time, and the grantee must promptly comply with the subscriber’s request within seven (7) 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 of all services unless a visit to the subscriber’s premises is required to remove a converter box or other equipment or property owned by grantee. Grantee may, in accordance with applicable law, charge a fee to downgrade service if a service call is required.

2. The grantee may disconnect a subscriber’s service in compliance with Cal. Gov’t Code § 53088.2(i), (j) and (k). 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 subparagraph F.2. above, the grantee may immediately disconnect service to a subscriber if the subscriber is damaging or destroying the grantee’s cable system or equipment.

4. The grantee may also disconnect service to a subscriber when service 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 if the signal leakage problem is attributable to the grantee.

5. The grantee may also disconnect service in cases where customers are stealing service or have made threats of physical violence upon grantee’s personnel.

6. Upon termination of service to a subscriber, the grantee will endeavor to remove its equipment from the subscriber’s premises within thirty (30) days.

G. Negative option bill prohibited. No charge may be imposed for any service or equipment that the subscriber has not affirmatively selected. Payment of the regular monthly bill will not by itself constitute an affirmative selection.

H. Deposits. 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 thirty (30) days after the equipment is returned to the grantee.

I. Parental control option. Grantee must provide parental control devices at no charge to all subscribers who desire to block the video or audio portion of any pay channels providing adult programming that the subscriber finds objectionable. For other programming, such devices will be provided at a reasonable charge to the subscriber.

J. Additional requirements.

1. 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 display a photo identification card. 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.

2. In addition to the consumer protection and service standards specified in this section, the grantee must comply with all applicable consumer protection and service standards that are imposed upon cable operators by the following:

a. Federal statutes, and the rules, regulations, and orders of the Federal Communications Commission, including the following:

(1) The provisions of 47 C.F.R. 76.630, as it now exists or may later be amended, which relate to compatibility with consumer electronics equipment; and

(2) The provisions of 47 U.S.C. § 551, as it now exists or may later be amended, which relate to the protection of subscriber privacy;

b. The provisions of Cal. Gov’t Code §§ 53054, et seq., entitled the “Cable Television and Video Provider Customer Service and Information Act;”

c. The provisions of Cal. Gov’t Code § 53088, et seq., entitled the “Video Customer Service Act;”

d. The provisions of Cal. Civ. Code § 1722(b)(1)-(6), which relate to service or repair transactions between cable television companies and their subscribers; and

e. The provisions of Cal. Penal Code § 637.5, which relate to subscribers’ rights to privacy protection.

3. If there is any conflict or inconsistency between a consumer protection and service standard specified in this section, and a standard set forth in the statutes, rules, regulations, and orders that are referenced above in subsection J.2., then the standard that is specified in this section will apply to the extent authorized by applicable law.

K. Penalties for noncompliance.

1. Purpose. The purpose of this paragraph K. is to authorize monetary penalties for the violation of the customer service standards established by this section in a manner consistent with the Video Customer Service Act (Cal. Gov’t Code §§ 53088 et seq. ) and pursuant to the city’s inherent police powers. The imposition of penalties authorized by this paragraph K. will not prevent the city or any other affected party from exercising any other remedy to the extent permitted by law.

2. Administration and appeals.

a. The City Manager or the City Manager’s designee is authorized to administer this paragraph K. Decisions by the City Manager to assess monetary 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 (10) 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.

3. 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:

a. For a first material breach: the maximum penalty is two hundred dollars ($200) for each day of material breach, but not to exceed a cumulative total of six hundred dollars ($600) for each occurrence of the material breach.

b. For a second material breach of the same nature within a twelve (12)-month period for which the city has provided notice and a penalty has been assessed, the maximum penalty is four hundred dollars ($400) for each day of the material breach, but not to exceed a cumulative total of one thousand two hundred dollars ($1,200) for each occurrence of the material breach.

c. For a third or further material breach of the same nature within a twelve (12)-month period for which the city has provided notice and a penalty has been assessed, the maximum penalty is one thousand dollars ($1,000) for each day of the material breach, but not to exceed a cumulative total of three thousand dollars ($3,000) for each occurrence of the material breach.

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

4. Judicial remedy. This paragraph does not preclude any affected party from pursuing any judicial remedy available to that party without regard to this paragraph K.

5. 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 thirty (30) days, or such longer time as may be reasonably necessary to cure, 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.

6. Limitations. With respect to any grantee that operates under a franchise or license agreement with the city, any monetary penalties assessed under this paragraph K. must be reduced dollar for dollar to the extent that any liquidated damage or penalty provision of the franchise or license agreement imposes a monetary obligation on the grantee for the same customer service failure, and no other monetary damages may be assessed for that customer service failure.

(Ord. 1082, 11-16-2004)

A. A fee paid to the city is hereby established for the support of public, educational, and governmental access facilities and activities within the city. Unless a higher percentage is authorized by applicable state or federal law, this fee shall be one percent (1%) of a grantee's gross revenues, as that term is defined in the grantee's franchise agreement, or in applicable provisions of state or federal law. This fee is also applicable to a state video franchise holder operating within the city, which shall pay to the city one percent (1%) of its gross revenue, as defined in Cal. Pub. Util. Code § 5860.

B. The City Council hereby reauthorizes and readopts the fee on state-franchised video service providers to support public, educational, and governmental channel facilities codified in this section, which shall remain unchanged and in full effect as to all state-franchised video service providers.

(Ord. 1099, 4-17-2007; Ord. 1192, 2-21-2017; Ord. 1193, 3-7-2017; Ord. 1199, 11-21-2017)

A. Franchise fee. A state video franchise holder operating in the city shall pay to the city a franchise fee that is equal to five percent (5%) of the gross revenues of that state video franchise holder. The term "gross revenues" shall be defined as set forth in Cal. Pub. Util. Code § 5860.

B. Audit authority. Not more than once annually, the city may examine and perform an audit of the business records of a holder of a state video franchise to ensure compliance with all applicable statutes and regulations related to the computation and payment of franchise fees.

C. Customer service penalties under state video franchises.

1. The holder of a state video franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

2. The city shall monitor a state video franchise holder's compliance with state and federal customer service and protection standards. The city will provide to the state video franchise holder written notice of any material breaches of applicable customer service and protection standards, and will allow the state video franchise holder thirty (30) days from receipt of the notice to remedy the specified material breach. Material breaches not remedied within the thirty (30)-day time period will be subject to the following monetary penalties to be imposed by the city in accordance with state law:

a. For the first occurrence of a violation, a monetary penalty of five hundred dollars ($500) shall be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars ($1,500) for each violation.

b. For a second violation of the same nature within twelve (12) months, a monetary penalty of one thousand dollars ($1,000) shall be imposed for each day the violation remains in effect, not to exceed three thousand dollars ($3,000) for each violation.

c. For a third or further violation of the same nature within twelve (12) months, a monetary penalty of two thousand five hundred dollars ($2,500) shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars ($7,500) for each violation.

3. A state video franchise holder may appeal a monetary penalty assessed by the city within sixty (60) days. After relevant evidence and testimony is received, and staff reports are submitted, the City Council will vote to either uphold or vacate the monetary penalty. The City Council's decision on the imposition of a monetary penalty shall be final.

D. City response to state video franchise applications.

1. Applicants for state video franchises within the boundaries of the city must concurrently provide to the city complete copies of any application or amendments to applications filed with the California Public Utilities Commission. One completed copy must be provided to the City Clerk.

2. The city will provide any appropriate comments to the California Public Utilities Commission regarding an application or an amendment to an application for a state video franchise.

E. PEG channel capacity. A state video franchise holder that uses the public rights-of-way shall designate sufficient capacity on its network to enable the carriage of at least three (3) public, educational, or governmental (PEG) access channels.

1. PEG access channels shall be for the exclusive use of the city or its designees to provide public, educational, or governmental programming.

2. Advertising, underwriting, or sponsorship recognition may be carried on the PEG access channels for the purpose of funding PEG-related activities.

3. The PEG access channels shall be carried on the basic service tier.

4. To the extent feasible, the PEG access channels shall not be separated numerically from other channels carried on the basic service tier, and the channel numbers for the PEG access channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law.

5. After the initial designation of PEG access channel numbers, the channel numbers shall not be changed without the prior written consent of the city, unless the change is required by federal law.

6. Each PEG access channel shall be capable of carrying a National Television System Committee (NTSC) television signal.

F. Interconnection. Where technically feasible, a state video franchise holder and incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG access channel programming. Interconnection may be accomplished by direct cable, microwave link, satellite, or other reasonable method of connection. State video franchise holders and incumbent cable operators shall provide interconnection of the PEG access channels on reasonable terms and conditions and may not withhold the interconnection. If a state video franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the city may require the incumbent cable operator to allow the state video franchise holder to interconnect its network with the incumbent's network at a technically feasible point on the holder's network as identified by the holder. If no technically-feasible point for interconnection is available, the state video franchise holder shall make an interconnection available to the channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state video franchise holder requesting the interconnection unless otherwise agreed to by the parties.

G. Emergency Alert System and emergency overrides. A state video franchise holder must comply with the Emergency Alert System requirements of the Federal Communications Commission in order that emergency messages may be distributed over the holder's network. Provisions in city-issued franchises authorizing the city to provide local emergency notifications shall remain in effect, and shall apply to all state video franchise holders in the city for the duration of the city-issued franchise, or until the term of the franchise would have expired had it not been terminated pursuant to Cal. Pub. Util. Code § 5840(m), or until January 1, 2009, whichever is later.

H. Use of public rights-of-way. A state video franchise holder is subject to the provisions of § 5.208.170 as set forth in Article V of this chapter.

(Ord. 1099, 4-17-2007)