Brisbane Municipal Code Ch. 5.40 Cable Television Regulations

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

A. "Agreement" means a franchise award ordinance, or a contractual agreement, containing the specific provisions of the franchise granted, including referenced specifications, franchise applications, franchise requirements, ordinances and other related materials, and all amendments thereof.

B. "Cable television system," also referred to as "system" or "cable system," means a facility, consisting of 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 transmit the television signals of one (1) or more television broadcast stations;

2. A facility that serves only subscribers in one (1) or more multiple unit dwellings under common ownership, control, or management, unless such 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 such 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.

C. "City" means the city of Brisbane, California, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

D. "Franchise" means a franchise award ordinance, or a contractual agreement, containing the specific provisions of the franchise granted, including referenced specifications, franchise applications, franchise requirements ordinances and other related materials. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the city as required by other ordinances and laws of this city.

E. "Grantee" means any "person" receiving a franchise pursuant to this agreement and its lawful successor, transferee or assignee.

F. "Grantor" means the city of Brisbane and any legal designate.

(Ord. 363 § 2(part), 1991).

Grantor may at any time in accordance with applicable law grant one (1) or more nonexclusive revocable franchises to construct, operate, maintain, and reconstruct a cable system within a franchise area defined by the city. Said franchise shall constitute both a right and an obligation to provide a cable system as required by the provisions of the agreement, which may include those provisions of the grantee's "franchise proposal" which are finally negotiated and accepted by the grantor and grantee.

Any franchise granted under the terms and conditions contained herein shall be consistent with federal laws and regulations and state general laws and regulations.

Any franchise granted is hereby made subject to the general ordinance provisions now in effect or hereinafter made effective. Nothing in this franchise shall be deemed to waive the requirements of other grantor codes and ordinances regarding permits, fees to be paid or manner of construction.

(Ord. 363 § 2(part), 1991).

This chapter shall apply to all franchises and franchise renewals granted or renewed after the effective date of the ordinance codified in this chapter. It shall further apply to the extent permitted by applicable federal or state law to all existing franchises granted or renewed prior to the effective date of said ordinance.

(Ord. 363 § 2(part), 1991).

No cable system shall be allowed to occupy or use the streets within the limits of the city or in any franchise area within the city or be allowed to operate without a franchise in accordance with the provisions of this chapter and the agreement.

(Ord. 363 § 2(part), 1991).

Grantor may establish appropriate requirements for new franchises or franchise renewals, and may modify these requirements from time to time to reflect changing conditions and state of the art in the cable television industry. Such requirements shall not be retroactive to franchises then in effect, except for franchise obligations which are subject to periodic review as provided in the agreement.

(Ord. 363 § 2(part), 1991).

The franchise area to be served shall be all or any portion of the territory within the geographic boundaries of the city, as defined in the agreement, subject to any line extension policies set forth in the agreement.

(Ord. 363 § 2(part), 1991).

For the purpose of operating and maintaining a cable television system in the franchise area, the grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the public rights-of-way and public utility easements within the franchise area such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the cable system. Grantee shall comply with all applicable grantor construction codes and procedures.

Nothing in the agreement shall abrogate the right of grantor to perform any public work or public improvement of any description, including, without limitation to, all work authorized by applicable law. In the event that the system interferes with the construction, operation, maintenance, or repair of any such public work or improvement, the grantee, after reasonable notice from grantor, shall, at its own cost and expense, promptly protect, alter, or relocate the system, or any part thereof, as directed by grantor.

In the event that the grantee refuses or neglects to so protect, alter, or relocate all or any part of the system, grantor shall have the right, in connection with the performance of such public work or public improvement, to break through, remove, alter or relocate all or any part of the system without any liability to the grantor except for grantor's willful misconduct and the grantee shall promptly pay to grantor the costs incurred by such breaking through, removal, alteration or relocation.

(Ord. 363 § 2(part), 1991).

The term of any franchise granted hereunder and all rights, privileges, obligations and restrictions pertaining thereto shall be as provided in the franchise agreement.

(Ord. 363 § 2(part), 1991).

Any franchise granted shall be nonexclusive. Grantor reserves the right to grant, at any time, such additional franchises for a cable system as it deems appropriate.

(Ord. 363 § 2(part), 1991).

Any franchise granted hereunder cannot be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation, or otherwise without the prior consent of the council expressed by resolution, and then only under such reasonable conditions as may therein be prescribed. In the event that grantee is a corporation, such prior approval of the council shall be required where there is an actual change in control. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised.

The grantee shall promptly notify grantor of any proposed change in, or transfer of, or acquisition by any transfer, or acquisition of control of the grantee and shall make the franchise subject to cancellation unless and until the grantor shall have consented thereto, which consent shall not be unreasonably withheld.

In seeking grantor's consent to any change in ownership or control, the grantee shall be required to show to the satisfaction of grantor that the proposed transferee is legally, technically, and financially qualified to maintain and operate the cable system for the remaining term of the franchise under the existing franchise terms.

(Ord. 363 § 2(part), 1991).

Franchise renewal shall be in accordance with applicable law.

(Ord. 363 § 2(part), 1991).

In accepting a franchise, the grantee acknowledges that its rights hereunder are subject to the police power of the city to adopt and enforce general ordinances necessary to the health, safety and welfare of the public, and it agrees to comply with all applicable general laws and ordinances enacted by the city pursuant to such power.

(Ord. 363 § 2(part), 1991).

If any area of regulatory authority is preempted from local regulation by federal or state law, and such preemption later ceases, grantor reserves the right to resume local regulation to the extent permitted, provided that such regulation shall not conflict with the express terms and conditions of any existing franchise agreement.

(Ord. 363 § 2(part), 1991).

For either an initial franchise grant, a franchise renewal or a franchise transfer, grantee shall reimburse grantor, within sixty (60) days of receipt of an itemization of costs from grantor, for grantor's reasonable out-of-pocket processing costs, including but not limited to consultant and special legal costs.

(Ord. 363 § 2(part), 1991).

All other terms, conditions, procedures, rights and obligations of the grantor and grantee for any franchise granted pursuant to this chapter shall be specified and set forth in a written agreement between the grantor and the grantee.

(Ord. 363 § 2(part), 1991).