Carpinteria Municipal Code Ch. 5.70 Cable Systems and Open Video Systems

Footnotes:

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Editor's note— Appendices A and B to Chapter 5.70, "Customer Service Standards" and the "Application for OVS Franchise", are incorporated by reference and available in the city clerk's office.

For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. The words "shall" and "will" are mandatory, and "may" is permissive. Words not defined in this chapter shall have the same meaning as in Title VI of Title 47 of the United States Code, and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

(1) "Access," "TEG access," or "PEG use" refers to the availability of a cable system or open video system for public, education or government use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals, including the city and its designated access providers, to acquire, create, and distribute programming not under a franchisee's editorial control, including, but not limited to:

(a) "Public access" or "public use" means access where organizations, groups, or individual members of the general public are the primary or designated programmers or users having editorial control over their programming;

(b) "Education access" or "education use" means access where accredited educational institutions are the primary or designated programmers or users having editorial control over their programming;

(c) "Government access" or "government use" means access where government institutions or their designees are the primary or designated programmers or users having editorial control over their programming;

(2) "Affiliate" means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person.

(3) "Basic service" means any service tier that includes the retransmission of local television broadcast signals.

(4) "Cable Act" means the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time.

(5) "Cable communications system" refers to open video systems (OVS) and cable systems,

(6) "Cable system" means 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:

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

(B) A facility that serves subscribers without using, or connecting to a facility that uses. any public right-of-way within the city;

(C) A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system (other than for purposes of 47 U.S.C. § 541(c) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

(D) Any facilities of any electric utility used solely for operating its electric utility systems; or

(E) An OVS that complies with 47 U.S.C. § 573. Any reference to a cable system includes the cable system as a whole, or any part thereof, including all pedestals, equipment cabinets, electronic equipment and devices appurtenant to the system.

(7) "Cable service" means:

(a) The one-way transmission to subscribers of (i) video programming, or (ii) other programming service; and

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

(8) "Channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system or OVS and which is capable of delivering a television signal whether in an analog or digital format. The definition does not restrict the use of any channel to the transmission of analog television signals.

(9) "City" means the city of Carpinteria and all departments. divisions, and agencies thereof.

(10) "City manager" means the city manager or the city manager's designee.

(11) "Construction, operation or repair" and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready and excavation.

(12) "Downstream channel" means a channel designed and activated to carry a transmission from the headend to other points on a cable communications system, including interconnections.

(13) "FCC" means the Federal Communications Commission.

(14) "Franchise" refers to an authorization granted by the city to the operator of a cable communications system giving the operator the non-exclusive right to occupy the space, or use facilities upon, across, beneath, or over public rights-of-way in the city, to provide specified services within a franchise area.

(15) "Franchise area" means the area of the city that a franchisee is authorized to serve by the terms of its franchise or by operation of law.

(16) "Franchisee" refers to a person holding a cable communications system franchise granted by the city.

(17) "Gross revenues" means any and all revenue, of any kind, nature or form derived from the operation of the system to provide cable service. Gross revenues include, by way of example and not limitation, revenues from equipment sales and rentals, services, installation, late fees and other subscriber charges, fees for carriage of programming, advertising, and shopping services. Gross revenues shall be construed broadly to include revenues of affiliates (other than those revenues that are already treated as the revenues of the franchisee), to prevent avoidance of fees owed on gross revenues.

(18) "Institutional network" or "I-Net" means a communication network which is constructed or operated by the cable operator and which is generally available only to subscribers who are not residential subscribers.

(19) "Operator" when used with reference to a system, refers to a person:

(a) Who directly or through one or more affiliates provides service over a cable communications system and directly or through one or more affiliates owns a significant interest in such facility; or

(b) Who otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility.

(20) "OVS" or "open video system" means a system for dissemination of video signals as defined by the Telecommunications Act of 1996. A reference to an OVS includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the OVS, or installed in conjunction with the OVS.

(21) "Person" includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the city.

(22) "Public rights-of-way" means the surface of and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, or right-of-way or easement, now or hereafter existing within the city which may be properly used for the purpose of installing, maintaining, and operating a cable communications system; and any other property that a franchisee is entitled by state or federal law to use by virtue of the grant of a franchise.

(23) "Public property" means any property that is owned or under the control of the city that is not a public right-of-way, including, fur purposes of this chapter, but not limited to, buildings, parks, poles, structures in the public rights-of-way such as utility poles and light poles, or similar facilities or property owned by or leased to the city.

(24) "School" means any accredited primary school, secondary school, college, and university.

(25) "Subscriber" means the city or any person who is lawfully receiving, for any purpose or reason, any cable service via a cable communications system, whether or not a fee is paid for such service.

(26) "Upstream channel" means a channel designed and activated to carry transmissions from a point on the cable system, other than the headend, to the headend or another point on the cable system.

(27) "User" means a person or the city utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.

(Ord. 594 § 2 (part), 2003)

No person may construct or operate a cable communications system in the city without first obtaining a city franchise therefor unless the person has been awarded a state video franchise under the Digital Infrastructure and Video Competition Act of 2006, Public Utilities Code Section 5800 et seq., in which case the provisions of Chapter 5.71 shall apply to that person upon the expiration of the person's existing franchise granted by the city.

(Ord. 594 § 2 (part), 2003)

(Ord. No. 720, § 1, 5-14-2018)

Any franchise shall be issued in the form of an ordinance, and must be accepted by the franchisee to become effective.

(Ord. 594 § 2 (part), 2003)

(1) Scope. A franchise granted pursuant to this chapter shall authorize and permit a franchisee to construct, operate and repair a cable system, or an OVS (as applicable) to provide cable service in a designated franchise area, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain facilities appurtenant to such system in, on, over, under, upon, across, and along those public rights-of-way that the city may authorize a franchisee to use.

(2) Nothing Passes by Implication. A franchise shall not convey rights other than as specified in this chapter or in a franchise agreement; no rights shall pass by implication.

(3) Franchise Not In Lieu of Other Authorizations. A franchise shall not include, or be a substitute for:

(a) Complying with requirements for the privilege of transacting and carrying on a business within the city, including but not limited to complying with the conditions the city may establish before constructing facilities for, or providing, non-cable services;

(b) Any permit, agreement or authorization required in connection with operations on or in public rights-of-way or public property, including by way of example and not limitation, street cut permits;

(c) Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the franchise.

(4) Franchisee Must Comply With Other Laws. A franchise does not relieve a franchisee of its duty to comply with all city ordinances and regulations, and every franchisee must comply with the same. The rights granted under a franchise are subject to the exercise of police and other powers that the city now has or may later obtain, including, but not limited to, the power of eminent domain.

(5) Franchise Not a Grant of Property Rights. A franchise does not convey title, equitable or legal, in the public rights-of-way. Rights granted may not be subdivided or subleased.

(6) Franchise Non-exclusive. No franchise shall be exclusive, or prevent the city from issuing other franchises or authorizations, or prevent the city from itself constructing, operating, or repairing its own cable communications system, with or without a franchise.

(7) Franchise Term. Every franchise shall be for a term of years, which term shall be eight (8) years, unless a franchise specifies otherwise.

(8) Costs Borne By Franchisee. Unless otherwise specifically stated in a franchise or required by law, all acts which a franchisee is required to perform under the franchise or applicable law must be performed at the franchisee's expense.

(9) Failures to Perform. If a cable communications system operator, after receiving written notice to do so from the city manager, fails to perform work that it is required to perform within the time provided in the notice for performance, the city may perform the work and bill the operator therefor. The operator shall pay the amounts billed within thirty (30) days.

(Ord. 594 § 2 (part), 2003)

(1) Adoption of Regulations. The city may from time to time adopt regulations to implement the provisions of the ordinance codified in this chapter. This chapter, and any regulations adopted pursuant to it are not contracts with any franchisee, and may be amended at any time. Nothing in this section shall affect a franchisee's right to challenge the lawfulness of a future city exercise of the police or legislative power as it affects an existing franchise.

(2) Delegation. The city manager or its designee is hereby authorized to administer the provisions of this ordinance and any franchise issued pursuant thereto, and to provide any notices (including noncompliance notices) and to take any action on the city's behalf that may be required hereunder or under applicable law.

(3) No Waiver. The failure of the city, upon one or more occasions. to exercise a right or to require compliance or performance under a franchise or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing.

(4) Administration of Public, Educational and Government Access. The city may designate one or more entities, including itself, to control and manage the use of public, educational and government access channels, facilities and equipment.

(Ord. 594 § 2 (part), 2003)

(1) Prior Approval Required. Every franchise shall be deemed to be held in trust, and to be personal to the franchisee. Any transfer that is made without the prior approval of the city shall be invalid. A transfer is any transaction pursuant to which:

(a) A cable communications system is sold or assigned (except the term does not include sale of portions of the cable system that are removed);

(b) There is any change, acquisition, or transfer of control of the franchisee or its direct or indirect parents, whether by merger, consolidation, sale of assets or ownership interests, or by any other means. A transfer will be deemed to have occurred whenever there is a change, acquisition or transfer of control of more than a ten percent (10%) ownership in the franchisee or its direct or indirect parents by any entity, or a group of entities acting in concert. However, a transfer also occurs whenever there is a change in actual working control, in whatever manner exercised, over the affairs of a franchisee or its direct or indirect parents. Without limiting the above, any change in the general partners of a franchisee will be presumed a change in control;

(c) The rights and/or obligations held by the franchisee under the franchise are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party.

(2) Exception for Mortgages. Notwithstanding any other provision of this chapter, pledges in trust or mortgages of the assets of a cable communications system to secure the construction, operation, or repair of the system may be made without application and without the city's prior consent. However, no such arrangement may be made without the city's prior written consent if it would:

(A) Prevent the cable communications system operator or any successor from complying with the franchise or applicable law; or

(B) Permit a third party to succeed to the interest of the operator, or to own or control the system, without the prior consent of the city. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the city under any franchise, this chapter, or other applicable law.

(Ord. 594 § 2 (part), 2003)

(1) Franchisee Must Follow Local Rules. The construction, operation, and repair of cable communications systems shall be performed in compliance with all laws, ordinances, departmental rules, regulations, and practices affecting such system. By way of example, and not limitation, this includes zoning and safety codes, construction standards, regulations for providing notice to persons that may be affected by system construction, and directives governing the time, place and manner in which facilities may be installed in the rights-of-way. Persons engaged in the construction, operation, or repair of communications facilities shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.

(2) No Permit Without Franchise. A franchise is required before a permit may be issued for work associated with the construction of a cable communications system. Any permit issued for such work to a person that does not hold a franchise shall vest no rights in the permittee; the permit may be revoked at will, and the permittee shall remove all facilities installed under the permit upon the city's demand.

(3) Permits Must Be Obtained. Construction, operation, or repair of a cable communications system shall not commence until all required permits have been obtained from the proper city officials and all required fees have been paid. All work performed will be performed in strict accordance with the conditions of the permit. Upon order of the city, any work and/or construction undertaken that is not completed in compliance with the city's requirements, or which is installed without obtaining necessary permits and approvals shall be removed.

(4) No Interference. Interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems, must be minimized. The city may require a person using the rights of way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the rights-of-way.

(5) Existing Poles to be Used. To the extent possible, operators of cable communications systems shall use existing poles and conduit. Additional poles may not be installed in the right-of-way, nor may pole capacity be increased by vertical or horizontal extenders, without the permission of the city manager.

(6) Undergrounding.

(a) Whenever existing telephone or electric utilities are located underground in an area in the city, every cable communications system operator that wishes to place its facilities in the same area must locate its cable communications system underground.

(b) Whenever the owner of a pole locates or relocates underground within an area of the city, every cable communications system operator in the same area shall concurrently relocate its facilities underground.

(c) The city manager may, for good cause shown, exempt a particular system or facility or group of facilities from the obligation to locate or relocate facilities underground, where relocation is impractical, or where the interest in protecting against visual blight can be protected in another manner. Nothing in this section prevents the city from ordering communications facilities to be located or relocated underground under other provisions of the city code.

(7) Prompt Repairs. Any and all public rights-of-way, other public property, or private property that is disturbed or damaged during the construction, operation or repair of a cable communications system shall be promptly repaired by the operator, within timeframes required by the city public works director or his representative. Public property and public rights-of-way must be restored, to the satisfaction of the city, to a condition as good or better than before the disturbance or damage occurred.

(8) Movement of Facilities for Government.

(a) A cable communications system operator shall within a time specified by the city, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the city by reason of traffic conditions, public safety, public right-of-way construction and repair (including regrading, resurfacing or widening), public right-of-way vacation, construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned system or utility, public work, public facility, or improvement, or for any other purpose where the work involved would be aided by the removal or relocation of the cable communications system. Collectively, such matters are referred to below as the "public work."

(b) The city shall provide written notice describing where the public work is to be performed at least thirty (30) days prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities, provided that, in an emergency, or where a cable communications system creates or is contributing to an imminent danger to health, safety, or property, the city may protect, support, temporarily disconnect, remove, or relocate any or all parts of the cable communications system without prior notice, and charge the cable communications system operator for costs incurred.

(9) Movement for Others.

(a) To accommodate the construction, operation, or repair of the facilities of another person authorized to use the streets or public property, a franchisee shall, by a time specified by such person or by the city, protect, support, temporarily disconnect, relocate or remove its facilities. The franchisee must be given written notice describing where the construction, operation or repair is to be performed at least thirty (30) days prior to the time by which its work must be completed. The city may, as it deems appropriate, resolve disputes as to responsibility for costs associated with removal, relaying, or relocation of facilities among entities authorized to install facilities in the streets or on public property if such entities are unable to do so themselves. Such resolution by the city shall have the force and effect of binding arbitration upon the entities. Alternatively, the city may designate a neutral arbiter, whose decision shall be final.

(b) A cable communications system operator shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires by a time specified to permit the moving of buildings or other objects. A cable communications system operator shall be given not less than seven (7) days advance notice to arrange for such temporary wire changes. The expense of such temporary removal or raising or lowering of wires shall be paid in advance by the person requesting the same.

(10) Abandonment in Place.

(a) A cable communications system operator may abandon any property in place in the public rights-of-way upon written notice to the city. However, if within ninety (90) days of the receipt of written notice of abandonment, the city determines that the safety, appearance, functioning or use of the public right-of-way and facilities in the public right-of-way will be adversely affected, the property must be removed by a date specified by the city.

(b) A cable communications system operator that abandons its property must, upon request, transfer ownership of the properties to the city at no cost, and execute necessary quit claim deeds and indemnify the city against future costs associated with mitigating or eliminating any environmental hazard associated with the abandoned property.

(11) Systems Subject to Inspection. Every cable communications facility shall be subject to inspection and testing by the city. Each operator must respond to requests for information regarding its system and plans for the system as the city may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated, or repaired. Each operator shall cooperate and assist fully in facilitating the inspection of equipment permitted by this section, including, without limitation, any disassembly required to allow inspection of interior portions of the facility.

(12) Underground Services Alert. Each operator of a cable communications system that places facilities underground shall be a member of the regional notification center for subsurface installations (Underground Services Alert) and shall field mark the locations of its underground communications facilities upon request. The operator shall locate its facilities for the city at no charge.

(13) Plan for Construction. Each cable communications system operator shall provide the city a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected.

(14) Use of Facilities by City. The city shall have the right to install and maintain, free of charge, upon any poles or in any conduit owned by a franchisee any wire and pole fixtures that do not unreasonably interfere with the cable service operations of the franchisee.

(15) Provision for Future Expansion. Each cable communications system operator shall provide sufficient empty conduit, fiber, and cabling to meet the projected needs of the communications system operator and any anticipated co-user of any facilities to be constructed or refurbished within the city, in order to prevent unnecessary disturbance to public facilities and the community at a future date.

(Ord. 594 § 2 (part), 2003)

(1) Indemnity Required. No franchise shall be valid or effective until and unless the city manager approves the indemnity and insurance to be provided by the franchisee. At a minimum, the indemnity must:

(a) Release the city from and against any and all liability and responsibility in or arising out of the construction, operation or maintenance of the cable communications system. Each cable communications system must further agree not to sue or seek any money or damages from the city in connection with the above mentioned matters.

(b) Indemnify and hold harmless the city, its trustees, elected and appointed officers, agents, and employees, from and against any and all claims, demands, or causes of action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders, judgments, or decrees sustained by the city or any third party arising out of, or by reason of, or resulting from, the acts, errors, or omissions of the cable communications system operator, or its agents, independent contractors or employees related to, or in any way arising out of, the construction, operation or repair of the system.

(2) Insurance Required. A franchisee (or those acting on its behalf) shall not commence construction or operation of the system without obtaining insurance in amounts and of a type satisfactory to the city. The required insurance must be obtained and maintained for the entire period that the franchisee has facilities in the rights-of-way. If the franchisee, its contractors, or subcontractors do not have the required insurance, the city may order such entities to stop operations until the insurance is obtained and approved.

(3) Proof. Certificates of insurance, reflecting evidence of the required insurance and naming the city as an additional insured, and other proofs as the city may find necessary, shall be filed with the city. For persons issued franchises after the effective date of the ordinance codified in this chapter, certificates and other required proofs shall be filed within thirty (30) days of the issuance of a franchise, once a year thereafter, and whenever there is any change in coverage. For entities that have facilities in the rights-of-way as of the effective date of this chapter, the certificate shall be filed within sixty (60) days of the effective date of this chapter, annually thereafter, and whenever there is any change in coverage, unless a pre-existing franchise provides for filing of certificates in a different manner.

(4) Certificate Contents. Certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least thirty (30) days' prior written notice has been given to the city. Policies shall be issued by companies authorized to do business under the laws of the state of California. Financial Ratings must be no less than "A VII" in the latest edition of "Best's Key Rating Guide", published by A.M. Best Guide.

(5) Insurance Amounts. A cable communications system operator, and those acting on its behalf to construct or operate the system shall maintain the following minimum insurance.

(a) Comprehensive general liability insurance to cover liability bodily injury and property damage. Exposures to be covered are premises, operations, products/completed operations, and certain contracts. The city shall be named as an additional insured and the policy shall contain a cross-liability clause. Coverage must be written on an occurrence basis, with the following limits of liability:

Completed operations and products liability shall be maintained for two (2) years after the termination of the franchise or license in the case of the cable communications system owner or operator, or completion of the work for the cable communications system owner or operator, in the case of a contractor or subcontractor.

Property damage liability insurance shall include coverage for the following hazards: X - explosion, C - collapse, U - underground.

(b) Workers' compensation insurance shall be maintained during the life of this contract to comply with statutory limits for all employees, and in the ease any work is sublet, each cable communications system operator shall require the subcontractors similarly to provide workers' compensation insurance for all the latter's employees unless such employees are covered by the protection afforded by each cable communications system operator. Each cable communications system operator and its contractors and subcontractors shall maintain during the life of this policy employers liability insurance. The following minimum limits must be maintained:

(c) Comprehensive auto liability insurance shall be maintained during the life of this contract. The city shall be named as an additional insured and the policy shall include a cross-liability clause.

Coverage shall include owned, hired, and non-owned vehicles.

(6) Performance Bond. Every operator of a cable communications system shall obtain and maintain a performance bond to ensure the faithful performance of its responsibilities under this chapter and any franchise. The amount of the performance and payment bonds shall be set by the city manager or may be set in a franchise ordinance in light of the nature of the work to be performed but shall not be less than ten percent (10%) of the estimated cost of constructing or upgrading the system. The bond is not in lieu of any additional bonds that may be required through the permitting process. The bond shall be in a form acceptable to the city attorney. Bonds must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.

(7) Security Fund. Every cable communications system operator shall establish and maintain a cash security fund or provide the city an irrevocable letter of credit in the amount of fifty thousand dollars ($50,000) to secure the payment of fees owed, to secure any other performance promised in a franchise, and to pay any taxes, fees or liens owed to the city. The letter of credit shall be in a form and with an institution acceptable to the city's director of finance and in a form acceptable to the city attorney. Should the city draw upon the cash security fund or letter of credit, the cable communications system operator shall, within fourteen (14) days, restore the fund or the letter of credit to the full required amount. This security fund/letter of credit may be waived or reduced by the city where the city determines in its discretion that a particular franchisee's operations are sufficiently limited that a security fund/letter of credit is not necessary to secure the required performance. The city may from time to time require a franchisee to change the amount of the required security fund/letter of credit to reflect changed risks to the city and to the public, including delinquencies in taxes or other payments to the city. The cash security fund or letter of credit must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.

(Ord. 594 § 2 (part), 2003)

(1) Franchise Violation—Notice and Procedures. Before revoking a franchise or issuing an order to assess liquidated damages, the city shall follow the procedures set forth below:

(a) The city shall notify a cable communications system operator in writing of any alleged violation ("violation notice") of a franchise or the enabling ordinance. The violation notice shall:

(1) Identify the violation;

(2) Direct the cable communications system operator to cure the violation or show cause why the violation cannot or should not be cured; and

(3) State the time for the cable communications system operators response, which shall be at minimum thirty (30) days from the date of issuance of the violation notice, except for violations that present a danger to public health, safety or welfare, in which case the time for response may be shortened.

(b) Within the time period designated for response, the cable communications system operator shall respond in writing to the city indicating that:

(1) The cable communications system operator intends to contest the violation notice and describing all facts relevant to its claim; or

(2) The cable communications system operator has completely cured the violation, in which case the cable operator shall provide documentation demonstrating that the violation has been completely cured; or

(3) The cable communications system operator has begun to correct the violation, however, the violation cannot be corrected immediately despite the cable communications system operator's continued due diligence, in which case the cable operator shall describe in detail the steps already taken and operator's proposed plan and time schedule for completely curing the violation. Correction of the violation is not complete until all damages and penalties owed are paid in full.

(c) If the cable communications system operator contests the violation notice or the city determines that the cable communications system operator has failed to completely cure the violation, to submit an acceptable plan to cure the violation, or to work diligently to cure the violation, the city shall schedule a hearing before the city council ("violation hearing"). The city shall provide the cable communications system operator written notice of the violation hearing at least twenty (20) days prior to the hearing ("hearing notice").

(d) The hearing notice shall indicate:

(1) The time and place of the violation hearing;

(2) The nature of the violation; and

(3) The cable communications system operator's right to present oral and written testimony at an open and public meeting.

(e) At the violation hearing, the city council shall hear and consider evidence from cable communications system operator, city staff and members of the public regarding the alleged violation. The cable communications system operator shall be given an opportunity to present any and all evidence relating to the alleged violation.

(f) If, based upon the evidence presented at the violation hearing, the city council finds that cable communications system operator has violated a franchise, the enabling ordinance or any applicable state or federal law, the city council may issue an order assessing liquidated damages if provided for by the cable communications system operator's franchise, or, subject to Section 5.70.090(2) of the enabling ordinance and the terms of the cable communications system operator's franchise, revoking the franchise.

(2) Revocation and Termination. The city council may, after thirty (30) days' written notice, revoke a franchise or reduce the term of a franchise if it finds, after a hearing, that a cable communications system operator has violated this chapter or its franchise, has defrauded or attempted to defraud the city or subscribers, or has attempted to evade the requirements of this chapter or its franchise. Except as to violations that are impossible to cure, and as provided in Section 5.70.090(3)—(4) the franchise may only be revoked if the franchisee was given:

(A) Written notice of the default;

(B) Thirty (30) days to cure the default;

(C) A violation hearing before city council; and

(D) The franchisee failed to cure the default, or to propose a schedule for curing the default acceptable to the city where it is impossible to cure the default in thirty (30) days.

(3) Exception for Certain Acts. No opportunity to cure is required for repeated violations, fraud and attempted fraud. Further, the city may declare a franchise forfeited without opportunity to cure where a franchisee:

(A) Intentionally stops providing service it is required to provide; or

(B) Transfers the franchise without the prior written consent of the city.

(4) Exception for Bankruptcy. A franchise will terminate automatically by force of law one hundred twenty (120) calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the franchise may be reinstated within that one hundred twenty (120) day period, if:

(A) Such assignment, receivership or trusteeship has been vacated; or

(B) Such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the franchise, and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise. In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the city may revoke the franchise following a public hearing before the city council, by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges thereunder will be revoked and will terminate thirty (30) calendar days after serving such notice, unless:

(A) The city has approved the transfer of the franchise to the successful bidder; and

(B) The successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the franchise and this chapter.

(5) Effect of Termination or Forfeiture. Upon termination or forfeiture of a franchise, whether by action of the city as provided above, or by passage of time, the franchisee must stop using the cable communications system for the purposes authorized by the franchise. The city may take possession of some or all of franchisee's facilities, or require the franchisee or its bonding company to remove some or all of the franchisee's facilities from the city, and restore affected property to its same or better, condition. This provision does not permit the city to remove or take possession of facilities that are used to provide another service for which the franchisee holds a valid franchise issued by the city.

(6) Remedies Cumulative. Remedies provided for under this chapter or under a franchise shall be cumulative. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, does not limit a franchisee's duty to indemnify the city, or relieve a franchisee of its franchise obligations, or limit the amounts owed to the city.

(7) Penalties. Any person violating the provisions of this article shall be deemed guilty of a misdemeanor and upon conviction thereof shall punished as specified in California Penal Code Section 19, as amended.

(Ord. 594 § 2 (part), 2003)

(1) Generally. Each cable communications system operator shall provide the city access to books and records related in whole or in part to the construction, operation, or repair of the cable communications system, or a group of systems of which the system is a part, so that the city may inspect and copy these books and records, which are hereby acknowledged to be of a confidential and proprietary nature. The records include, but are not limited, to revenue records and other records related to compliance with any provision of this chapter or a franchise granted by the city. A franchisee is responsible for obtaining or maintaining the necessary possession or control of all such books and records so that it can produce the documents upon request. Books and records must be maintained for a period of five (5) years, except that a franchise may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials. The phrase "books and records" shall be read expansively to include information in whatever format stored.

(2) Production. Books and records requested shall be produced to the city by a time and at a location in the city designated by the city manager. However, if the requested books and records are too voluminous, or for security reasons cannot be copied and moved, then the franchisee may request that the inspection take place at some other location mutually agreed to by the city and the franchisee, provided that:

(1) The franchisee must make necessary arrangements for copying documents selected by the city after its review; and

(2) The franchisee must pay all travel and additional copying expenses incurred by the city in inspecting those documents or having those documents inspected by its designee.

(Ord. 594 § 2 (part), 2003)

(1) Obligation to Submit. In addition to those reports required by this chapter, the city manager may from time to time direct a franchisee to prepare and submit reports by a certain date in a format prescribed by the city manager.

(2) Quarterly Reports. Unless an exemption is granted by the city manager, a franchisee shall submit a report to the city containing the following information:

(a) The number of service calls requiring a truck roll received during the prior quarter and the percentage of service calls compared to the subscriber base; and

(b) The total estimated hours of known outages as a percentage of total hours of operation. An outage is a loss of sound or video on any signal, or a significant deterioration of any signal affecting two (2) or more subscribers.

(3) Annual Reports. Unless an exemption is granted by the city manager, no later than ninety (90) days after the end of its fiscal year, a franchisee shall submit the following information, except that the information required by Section 5.70.110(3)(c) need only be provided where there has been a change from the preceding year:

(a) A fully audited or certified revenue report from the previous calendar year for the cable communications system, and a certified statement setting forth the computation of gross revenues used to calculate the franchise fee for the preceding year and a detailed explanation of the method of computation showing:

(i) Gross revenues by category (e.g., basic, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); and

(ii) What, if any, deductions were made from gross revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction. Revenues and deductions shall be reported in a format and in categories approved by the city manager.

(b) A report showing, for each applicable customer service standard (Appendix A of this chapter), the franchisee's performance with respect to that standard for each quarter of the preceding year. In each case where franchisee concludes it did not comply fully, the franchisee will describe the corrective actions it is taking to assure future compliance. In addition, the report should identify the number and nature of the customer service complaints received and an explanation of their dispositions.

(c) An ownership report, indicating all persons who at the time of filing control or own an interest in the franchisee of ten percent (10%) or more.

(4) Contemporaneous Reports. Within ten (10) days of their receipt or in the case of documents created by the operator or its affiliate filing, a franchisee shall provide the city:

(a) Notices of deficiency or forfeiture related to the operation of the system; and

(b) Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly.

(Ord. 594 § 2 (part), 2003)

Each franchisee shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the public rights-of-way and any power supply sources, including voltages and connections. Maps shall be based upon post-construction inspection to verify location. Each franchisee shall, upon request provide a map to the city showing the location of its facilities, in such detail and scale as may be directed by the city engineer and update the map at least annually, and whenever the facility expands or is relocated. Copies of maps shall be provided on disk, in a commercially available electronic format specified by the city engineer.

(Ord. 594 § 2 (part), 2003)

Unless the city manager waives the requirement, a franchisee shall at all times maintain:

(1) Complaint Records. Records of all complaints received, their nature and resolution. The term "complaints" refers to complaints about any aspect of the franchisee's operations.

(2) Outage Records. Records of outages known to the Franchisee, their cause and duration.

(3) Service Call Response. Records of service calls for repair and maintenance indicating the date and time service was requested. the date of acknowledgment and date and time service was scheduled, and the date and time service was provided, and the date and time the problem was solved;

(4) Installation Records. Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment. and the date and time service was extended.

(5) Customer Service. Records sufficient to show whether the franchisee has complied with each customer service standard that applies to it.

(Ord. 594 § 2 (part), 2003)

A franchisee shall take all reasonable steps required so that it is able to provide reports, books and records to the city, including appropriate subscriber privacy notices. Each franchisee shall be responsible for redacting data that applicable law prevents it from providing to the city. Nothing in this section shall be read to require a franchisee to violate state or federal subscriber privacy laws.

(Ord. 594 § 2 (part), 2003)

(1) Fees Paid Quarterly. The franchise fee paid pursuant to Section 5.70.220, or fee in lieu of franchise fee paid pursuant to Section 5.70.320 shall be paid quarterly unless otherwise specified in a franchise. Payment for each quarter shall be made to the city not later than forty-five (45) days after the end of each calendar quarter.

(2) Quarterly Statement. Unless a franchise provides otherwise, a franchisee or other entity subject to a fee under Section 5.70.220 or Section 5.70.320 shall file with the city within forty-five (45) days of the end of each calendar quarter a statement showing gross revenues during the preceding quarter and the number of subscribers served.

(3) Acceptance of Payment Not a Release. No acceptance by the city of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such payment be construed as a release of any claim the city may have for additional sums payable.

(4) Fee Not In Lieu of Taxes. Neither the franchise fee under Section 5.70.220, nor the fee paid in lieu of the franchise fee under Section 5.70.220, is a payment in lieu of any tax, fee or other assessment of general applicability, including any such tax, fee or assessment imposed on both utilities and cable operators or their services, but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscribers.

(5) Failure to Pay Franchise Fee. In the event that a fee payment is not received by the city on or before the due date set forth in this section or in a franchise, or the fee owed is not fully paid, (including when such failure to pay results from non-compliance with any prescribed methodology for the unbundling of combined cable services), the person subject to the fee will be charged interest from the due date at an interest rate equal to three percentage points (3%) above the rate for three (3) month Federal Treasury Bills at the most recent United States Treasury Department sale of such Treasury Bills occurring prior to the due date of the franchise fee payment. In addition, nothing in this section shall be construed to supercede or limit in any way assessment of liquidated damages related to the payment of franchise fees where such liquidated damages are called for within a franchise agreement.

(6) Final Statement of Gross Revenues. Within ninety (90) days of the date a franchisee ceases operations under a franchise , the franchisee shall file a final statement of gross revenues covering the period from the beginning of the calendar year in which the operations ceased to the date operations ceased. The statement shall contain the information and be certified as required by Section 5.70.110(3).

(Ord. 594 § 2 (part), 2003)

(1) Application Required. An application must be filed for an initial and renewal cable system franchise, or for approval of a transfer. A request for renewal filed under 47 U.S.C. § 546(h) need not contain the information required by Section 5.70.170(2)(a)—(b).

(2) Application Contents.

(a) The city manager may specify the information that must be provided in connection with an application, and the form in which the information is to be provided.

(b) At a minimum each application must identify the applicant, show that the applicant is financially, technically and legally qualified to construct, maintain and operate the cable system, contain a pro forma showing capital expenditures and expected income and expenses for the first five (5) years the applicant is to hold the franchise. and show that the applicant is willing to comply unconditionally with its franchise obligations. In addition, any application for an initial or renewal franchise must describe in detail the cable system that the applicant proposes to build, show where it will be located, set out the system construction schedule, and show that the applicant will provide adequate channels, facilities and other support for public, educational and government use, including institutional network use, of the cable system. To be accepted for filing, an original and six (6) copies of a complete application must be submitted. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

(c) An applicant, and the transferor and transferee, in the case of a transfer, shall respond to any request for information from the city, by the time specified by the city.

(3) Incomplete Applications. An application may be rejected if it is incomplete, or if the response to requests for information is not timely and complete.

(Ord. 594 § 2 (part), 2003)

(1) Scope. This section establishes additional provisions that apply to an application for an initial franchise, or a renewal franchise application that is not governed by 47 U.S.C. § 546(a)—(h).

(2) Process. Any person may apply for an initial or renewal franchise by submitting an application therefore on that person's own initiative, or in response to a request for proposals issued by the city. If the city receives an unsolicited application, it may choose to issue a request for additional proposals, and require the applicant to amend its proposal to respond thereto. The city shall promptly conduct such investigations as are necessary to act on an application.

(3) Consideration of Application. In determining whether to grant a franchise, the city may consider:

(a) The extent to which an applicant for renewal has substantially complied with the applicable law and the material terms of any existing cable franchise;

(b) Whether a renewal applicants for renewal's quality of service under its existing franchise, including but not limited to signal quality, response to customer complaints, billing practices has been reasonable in light of the needs of the community;

(c) Where the applicant has not previously held a cable system franchise in the city, whether the applicant's record in other communities indicates that it can be relied upon to provide high-quality service throughout any franchise term;

(d) Whether the applicant has the financial, legal, and technical ability to provide the services, facilities, and equipment set forth in an application, and to satisfy any minimum requirements established by the city;

(e) Whether the applicant's application is reasonable to meet the future cable-related needs and interests of the city, taking into account the cost of meeting such needs and interests;

(f) Whether issuance of a franchise is warranted in the public interest considering the immediate and future effect on streets, public property, and private property that will be used by the applicant's cable system;

(g) Whether issuance of the franchise would reduce competition in the provision of cable service in the city;

(h) Such other matters as the city is authorized or required to consider.

(4) Issuance of Franchise. If the city determines that issuance of a franchise would be in the public interest considering the factors described above, it may offer a franchise agreement to the applicant. No franchise shall become effective until the applicant unconditionally accepts the franchise, and the franchise agreement is signed.

(Ord. 594 § 2 (part), 2003)

(1) Scope. This section establishes additional provisions that apply to applications for renewal governed by 47 U.S.C. § 546(a)—(g).

(2) Process. A franchisee that intends to exercise rights under 47 U.S.C. § 546(a)—(g) shall submit a notice in writing to the city in a timely manner clearly stating that it is activating the procedures set forth in those sections. The city shall thereafter commence any proceedings that may be required under federal law, and upon completion of those proceedings. the city may issue a request for proposals and an application may be submitted for renewal. The city may preliminarily deny the application by resolution, and if the application is preliminarily denied, the city may conduct such proceedings and by resolution establish such procedures and appoint such individuals as may be necessary to conduct any proceedings to review the application.

(Ord. 594 § 2 (part), 2003)

(1) Scope. This section establishes additional provisions that apply to applications for transfer approval.

(2) Information. An application for transfer must contain all the information required by the city manager, by Section 5.70.170, and all information required by any FCC transfer form.

(3) Consideration of Application. In determining whether a transfer application should be granted, denied, or granted subject to conditions, the city may consider the legal, financial, and technical qualifications of the transferee to operate the cable system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in compliance with its franchise; whether the transferee owns or controls any other cable system in the city, whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the city; and whether operation by the transferee or approval of the transfer would otherwise adversely affect subscribers, the public, or the city's interest under this chapter, the franchise, or other applicable law. The proposed transferee shall pay all reasonable costs incurred by the city in reviewing and evaluating the applications.

(4) Minimum Conditions. In order to obtain approval of a transfer, an applicant must show, at a minimum, that: the transferee is qualified; the transfer will not adversely affect the interests of subscribers, the public, or the city; and that non-compliance issues have been resolved. No application shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee for all purposes.

(Ord. 594 § 2 (part), 2003)

(1) Standards.

(a) The applicant must be willing to comply with the provisions of this chapter and applicable laws and to comply) with such requirements of a franchise as the city may lawfully require.

(b) The applicant must not have had any cable system or OVS franchise validly revoked, including any appeals, by the city within three (3) years preceding the submission of the application.

(c) The applicant may not have had an application to the city for an initial or renewal cable system franchise denied on the ground that the applicant failed to propose a cable system meeting the cable-related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved, including any appeals adversely to the applicant within three (3) years preceding the submission of the application, and may not have had an application for an initial or renewal OVS franchise denied on any ground within three (3) years of the application.

(d) The applicant shall not be issued a franchise if, at any time during the ten (10) years preceding the submission of the application, applicant was convicted of fraud, racketeering, anticompetitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the city and the subscribers, or to substantially comply with its obligations.

(e) The applicant must have the necessary authority under California and federal law to operate a cable system, or show that it is in a position to obtain that authority.

(f) The applicant shall not be issued a franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide.

(g) For purposes of Section 5.70.210(1)(b)—(d), the term "applicant" includes any affiliate of applicant.

(2) Exception. Notwithstanding Section 5.70.210(1), an applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of Section 43-21(l)(c)—(d) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system.

(Ord. 594 § 2 (part), 2003)

A cable operator shall pay to the city a franchise fee in an amount equal to five percent (5%) of gross revenues, or such other amount as may be specified in the franchise, provided, however, that if the franchise specifies an amount, that amount shall be subject to increase should federal limits on fee payments be eliminated or changed and other cable operators are subject to a higher fee.

(Ord. 594 § 2 (part), 2003)

(a) A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service. However, nothing herein prevents a franchisee from entering into an otherwise lawful, mutually desired, exclusive arrangement with a building owner or manager of a multiple dwelling unit or commercial subscriber.

(b) No franchisee shall enter into or cooperate with any agreement with any other utility, cable system, OVS or other entity which provides for the exclusive right to attach equipment to utility poles or use underground conduit. This provision is not intended, however, to interfere with any utility, cable system, OVS or other entity from obtaining reasonable compensation for the use of their facilities by other entities.

(Ord. 594 § 2 (part), 2003)

In addition to satisfying such additional or stricter conditions as the city finds necessary based on its investigations, the following elements shall be required in every franchise serving more than one thousand (1000) subscribers: An operator who provides service in an area which is defined as "isolated rural" maybe exempted from the minimum franchise requirements for that area.

(1) System Design. Each franchisee shall provide a cable system that uses at least seven hundred fifty (750) MHz equipment of high quality and reliability. Each franchisee shall install and activate the return portion of the cable system in the sub-low frequency spectrum of five (5) MHz to thirty (30) MHz.

(2) Public, Educational and Government Use of the System.

(a) A franchisee shall provide channels for PEG access to each subscriber; the number of channels shall be specified in the franchise.

(b) Each franchisee shall install, maintain, and replace as necessary, a dedicated, hi-directional fiber optic link between its head end and a location designated by the city as the primary access center.

(c) Each franchisee shall install. maintain. and replace activated two-way cable plant and all head end, cable plant, and node equipment required to make it operable so that the city, schools, and all designated PEG access centers and access facilities located within the franchise area will be able to send and receive video, audio, and data signals using the activated two-way cable plant.

(d) Each franchisee shall ensure that technically adequate signal quality, routing systems, and switching and/or processing equipment are initially and continuously provided for all access interconnections both within franchisee's cable system and with other cable systems throughout the duration of its franchise.

(e) In the event a franchisee makes any change in the cable system and related equipment and facilities or in the franchisee's signal delivery technology which directly or indirectly substantially affects the signal quality or transmission of access programming, the franchisee shall at its expense take necessary steps or provide necessary technical assistance, including the acquisition of all necessary equipment, to ensure that the capabilities of access programmers are not diminished or adversely affected by such change.

(f) A franchisee shall maintain all access channels, both upstream channels and downstream channels, and all interconnections of access channels at the same level of technical quality and reliability as the best commercial channels carried on the system.

(3) Service to Franchise Area. It is the policy of the city to ensure that every cable system provides service in its franchise area upon request to any person or any government building. Each franchisee shall extend service upon request within its franchise area, provided that, a franchise may permit a franchisee to require a potential subscriber to contribute a fair share of the capital costs of installation or extension as a condition of extension or installation in cases where such extension or installation may be unduly expensive. Service must be provided within time limits specified in Section 5.70.240(4).

(4) Time for Extension. Except as a franchise otherwise provides, service must be extended upon request to any person or to any government building in a franchisee's franchise area:

(i) Within seven (7) days of the request, where service can be provided by activating or installing a drop;

(ii) Within ninety (90) days of the request where an extension of one-half (½) mile or less is required; or

(iii) Within six (6) months where an extension of one-half (½) mile or more is required.

(5) Technical Standards. A cable system within the city shall meet or exceed the technical standards set forth in 47 C.F.R. § 76.601 and any other applicable technical standards.

(6) Testing. Each cable operator shall perform, at its sole cost and expense, such tests as may be necessary to show whether or not the franchisee is in compliance with its obligations under applicable FCC standards, this chapter or a franchise.

(7) Interconnection. Upon request of the city, every cable system shall be required to interconnect with every other cable system within the city, or adjacent to the city, on fair and reasonable terms for purposes of providing PEG and I-Net services.

(8) Continuity of Service. Each franchisee shall. during the term of the franchise, ensure that subscribers are able to receive continuous service. In the event the franchise is revoked or terminated, the franchisee may be required to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity. A franchise may establish more particular requirements under which these obligations will be satisfied.

(Ord. 594 § 2 (part), 2003)

(1) All Rates Subject to Regulation. The city may regulate any of the cable operator's rates and charges, except to the extent it is prohibited from doing so by law. The city will regulate rates in accordance with FCC rules and regulations, where applicable. Except to the extent FCC rules provide otherwise, all rates and charges that are subject to regulation, and changes in those rates or charges must be approved in advance. The city manager may take any required steps to file complaints, toll rates, issue accounting orders or take any other steps required to comply with FCC regulations. The city council shall be responsible for issuing rate orders that establish rates or order refunds.

(2) No Rate Discrimination. Except to the extent the city may not enforce such a requirement, a cable operator is prohibited from discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential subscribers, provided, however, that a franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such discounts are offered on a non-discriminatory basis to similar classes of subscribers throughout the franchise area; and a franchisee may offer discounts for the elderly, the disabled, or the economically disadvantaged; and such other discounts as it is expressly entitled to provide under federal law, if such discounts are applied in a uniform and consistent manner.

(3) Redlining Prohibited. A cable operator shall not deny access or charge different rates for the same services to any group of subscribers or potential subscribers because of the income of the residents of the local area in which such group resides.

(4) Customer Service.

(a) Each cable operator must satisfy FCC, state and city cable customer service standards or consumer protection standards. City cable customer service standards may be adopted by resolution. In the case of a conflict among standards. the stricter standard shall apply.

(b) For violation of cable customer service standards (Appendix A), penalties will be imposed as follows:

(i) Two hundred dollars ($200) for each day of each material breach, not to exceed six hundred dollars ($600) for each occurrence of material breach.

(ii) If there is a subsequent material breach of the same provision within twelve (12) months, four hundred ($400) for each day of each material breach, not to exceed twelve hundred dollars ($1,200) for each occurrence of the material breach.

(iii) If there is a third or additional material breach of the same provision within twelve (12) months of the first, one thousand dollars ($1,000) for each day of each material breach, not to exceed three thousand dollars ($3,000) for each occurrence of the material breach.

(c) Any penalty assessed under this section will be reduced dollar for dollar to the extent any liquidated damage provision of a franchise imposed a monetary obligation on a franchisee for the same customer service failures, and no other monetary damages may be assessed. The city will provide notice, and impose penalties, under this section pursuant to the procedures established by California Government Code § 53088.2(r).

(Ord. 594 § 2 (part), 2003)

(1) "OVS agreement" means a contract entered into in accordance with the provisions of this chapter between the city and an OVS franchisee setting forth the terms and conditions under which the franchise will be exercised.

(Ord. 594 § 2 (part), 2003)

(1) Initial and Renewal Franchise—Application.

(a) A written application shall be filed with the city for grant of an initial or renewal franchise.

(b) To be acceptable for filing, a signed original of the application shall be submitted together with six (6) copies. The application must conform to any applicable request for proposals, and contain all information required under this chapter for cable TV or OVS franchises. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

(2) Contents of Applications. The city manager may specify the information that must be provided in connection with a request for proposals or an application for an initial or renewal franchise. At a minimum, each application must: identify the applicant, where it plans to construct its system, and the system construction schedule; show that the applicant will provide adequate channels, facilities and other support for public, educational and government use, including institutional network use, of the OVS; and show that the applicant is financially, technically and legally qualified to construct and operate the OVS.

(3) Procedure for Applying for Grant of a Franchise.

(a) A person may apply for an initial or renewal franchise on its own initiative or in response to a request for proposals. Upon receipt of an application the city shall promptly offer the applicant a proposed OVS agreement, which shall be mailed to the person requesting its issuance and made available to any other interested party. The city may request such additional information as it deems appropriate.

(b) An applicant shall respond to requests for information completely, and within the time directed by the city, and must strictly comply with procedures, instructions, and requirements the city may establish.

(c) An application may be rejected if it is incomplete or the applicant fails to follow procedures or respond fully to information requests.

(4) Evaluation. In evaluating a franchise application, the city may consider the following:

(a) The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing city OVS franchise;

(b) Whether the applicant has the financial, technical, and legal qualifications to hold an OVS franchise;

(c) Whether the application satisfies any minimum requirements established by the city for public, educational, governmental use capacity, and facilities, or financial support, including with respect to institutional networks;

(d) Whether issuance of a franchise would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way;

(e) Whether the approval of the application may eliminate or reduce competition in the delivery of cable service in the city.

(5) Issuance. If the city finds that it is in the public interest to issue a city franchise considering the factors above, and such other matters as it is required or entitled to consider, and subject to the applicant's entry into an appropriate OVS agreement, it shall issue a franchise. Prior to deciding whether or not to issue a franchise, the city may hold one or more public hearings or implement other procedures under which comments from the public on an application may be received.

(6) Legal Qualifications. In order to be legally qualified:

(a) The applicant must be willing to comply with the provisions of this chapter and applicable laws, and to comply with such requirements of an OVS agreement as the city may lawfully require.

(b) The applicant must not hold a cable system franchise in the city, or have pending an application for a cable system franchise in the city.

(c) The applicant must not have had any cable system or OVS franchise validly revoked, including any appeals, by the city within three (3) years preceding the submission of the application.

(d) The applicant may not have had an application for an initial or renewal cable system franchise to the city denied on the ground that the applicant failed to propose a cable system meeting the cable-related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved, including any appeals, adversely to the applicant, within three (3) years preceding the submission of the application, and;

(e) The applicant may not have had an application for an initial or renewal OVS franchise denied on any grounds within three (3) years of the applications.

(f) The applicant shall not be issued a franchise if, at any time during the ten (10) years preceding the submission of the application, applicant was convicted of fraud, racketeering, anticompetitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the city and the subscribers, or to substantially comply with its obligations.

(g) The applicant must have the necessary authority under California and federal law to operate an OVS, and must be certified by the FCC under Section 653 of the Cable Act.

(h) The applicant shall not be issued a franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide.

(i) For purposes of Section 5.70.270(6)(b)—(e), the term "applicant" includes any affiliate of applicant.

(7) Exception. Notwithstanding Section 5.70.270(6), an applicant shall be provided a reasonable opportunity to show that, a franchise should issue even if the requirements of Section 5.70.270(6)(d)—(e) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system.

(Ord. 594 § 2 (part), 2003)

(1) City Approval Required. No transfer shall occur without prior written notice to and approval of the city council.

(2) Application.

(a) A franchisee shall promptly notify the city of any proposed transfer, and submit an application for its approval.

(b) The city manager may specify information that must be provided in connection with a transfer application. At a minimum, an application must: describe the entities involved in the transaction and the entity that will hold the franchise; describe the chain of ownership before and after the proposed transaction; show that the entity that will hold the franchise will be legally, financially, and technically qualified to do so; attach complete information on the proposed transaction, including the contracts or other documents that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein; and attach any shareholder reports or filings with the Securities and Exchange Commission ("SEC") that discuss the transaction.

(c) For the purposes of determining whether it shall consent to a transfer, the city or its agents may inquire into all qualifications of the prospective transferee and such other matters as the city may deem necessary to determine whether the transfer is in the public interest and should be approved, denied, or conditioned. If the transferee or franchisee refuses to provide information, or provides incomplete information, the request for transfer may be denied.

(3) Determination by City.

(a) In deciding whether a transfer application should be granted, denied or granted subject to conditions, the city may consider the legal, financial, and technical qualifications of the transferee to operate the OVS; whether the incumbent OVS operator is in compliance with its OVS agreement and this chapter and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other OVS or cable system in the city, and whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the city; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the public, or the city's interest under this chapter, the OVS agreement, or other applicable law.

(b) In order to obtain approval of a transfer, an applicant must show, at a minimum, that: the transferee is qualified; the transfer will not adversely affect the interests of subscribers, the public, or the city; and that any existing non-compliance issues have been resolved. No application shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee for all purposes. The proposed transferee shall pay all reasonable costs incurred by the city in reviewing and evaluating the applications.

(Ord. 594 § 2 (part), 2003)

(1) PEG Access. No OVS operator shall be issued a franchise, or may commence construction of an OVS system, until (A) it agrees to match in all respects the highest PEG obligations borne by any cable operator in the city; or (B) it agrees to PEG obligations acceptable to the city.

(2) Institutional Network. Any OVS operator that constructs an I-Net must match in all respects the highest I-Net obligations borne by any cable operator in the city, unless it agrees to alternative I-Net obligations acceptable to the city.

(3) Construction Provisions. Every OVS agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the OVS. The schedule shall provide for prompt completion of the project, considering the amount and type of construction required.

(4) Testing. Each OVS operator shall perform at its expense such tests as may be necessary to show whether or not the franchisee is in compliance with its obligations under this chapter or a franchise.

(5) Consumer Protection Provisions. Every franchisee must satisfy customer service consumer protection requirements established from time to time under state or local law and applicable to OVS.

(Ord. 594 § 2 (part), 2003)

If a franchisee's FCC certification is revoked or otherwise terminates as a result of the passage of time or as a matter of law, the city may revoke the OVS franchise after a hearing. The OVS franchise may also be revoked if federal regulations or statutory provisions governing OVS are declared invalid, unenforceable, or are repealed.

(Ord. 594 § 2 (part), 2003)

The city may regulate a franchisee's rates and charges except as prohibited by law, and may do so by amendment to this chapter, separate ordinance, by amendment to an OVS agreement, or in any other lawful manner.

(Ord. 594 § 2 (part), 2003)

(1) OVS Operators. In lieu of the franchise fee required by Section 5.70.220, an OVS franchisee shall pay a fee of five percent (5%) of the gross revenues of the franchisee, its affiliates or any OVS operator of the OVS.

(2) Persons Leasing OVS Capacity.

(a) A person leasing capacity from an OVS operator, other than a person whose revenues are included in the payment made under Section 5.70.160 shall pay the city a fee in lieu of the franchise fee required by Section 5.70.220 of five percent (5%) of the gross revenues of such person.

(b) Notwithstanding the foregoing, where franchisee charges a person, other than an affiliate, to use its OVS (the "use payments"), and that person recovers those use payments through charges to its subscribers that are included in that person's gross revenues, and that person fully recovers the use payments through the charges to its subscribers and pays a fee on those charges pursuant to Section 5.70.160, then franchisee may deduct from its gross revenues the use payments it receives from that person.

(Ord. 594 § 2 (part), 2003)

A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service, nor may a franchisee enter into any arrangement that would effectively prevent other persons from using the OVS to compete in the delivery of cable services with a franchisee or its affiliates.

(Ord. 594 § 2 (part), 2003)

The captions to sections throughout this chapter are intended solely to facilitate reading and reference to the sections and provisions of this chapter. Such captions shall not affect the meaning or interpretation of this chapter.

(Ord. 594 § 2 (part), 2003)

Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this chapter or any franchise, and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time.

(Ord. 594 § 2 (part), 2003)

If any term, condition, or provision of this chapter shall, to any extent, be held to be invalid or unenforceable by a valid order of any court or regulatory agency, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision which had been held invalid is no longer invalid, said provision shall thereupon return to full force and effect without further action by the city and shall thereafter be binding on the franchisee and the city.

(Ord. 594 § 2 (part), 2003)

(1) Subscriber Right to Attach. To the extent consistent with federal law, subscribers shall have the right to attach VCR's, receivers, and other terminal equipment to a franchisee's cable system. Subscribers also shall have the right to use their own remote control devices and converters, and other similar equipment.

(2) Removal of Existing Antennae. A franchisee shall not, as a condition of providing service, require a subscriber or potential subscriber to remove any existing antenna, or disconnect an antenna except at the express direction of the subscriber or potential subscriber, or prohibit installation of a new antenna, provided that such antenna is connected with an appropriate device and complies with applicable law.

(Ord. 594 § 2 (part), 2003)

(1) No Retaliatory Actions. A cable communications system operator shall not discriminate among persons or the city or take any retaliatory action against a person or the city because of that entity's exercise of any right it may have under federal, state, or local law, nor may the operator require a person or the city to waive such rights as a condition of taking service.

(2) Employment and Hiring Practices. A cable communications system operator shall not refuse to employ, discharge from employment, or discriminate against any person in compensation or in terms, conditions, or privileges of employment because of race, color, creed, national origin, sex, age, disability, religion, ethnic background. or marital status. A cable system operator shall comply with all federal, state, and local laws and regulations governing equal employment opportunities, and hiring practices, as the same may be amended from time to time.

(Ord. 594 § 2 (part), 2003)

(1) Persons Operating Without a Franchise. The operator of any facility installed as of the effective date of this chapter, for which a franchise is required under this chapter and for which a previous franchise has not been granted, shall have three (3) months from the effective date of this chapter to file one (1) or more applications for a franchise. Any operator timely filing such an application under this section shall not be subject to a penalty for failure to have such a franchise so long as said application remains pending, provided, however, nothing herein shall relieve any cable communications system operator of any liability for its failure to obtain any permit or other authorization required under other provisions of the city of Carpinteria code, and nothing herein shall prevent the city from requiring removal of any facilities installed in violation of the city of Carpinteria code.

(2) Persons Holding Franchises. Any person holding an existing franchise for a cable communications system may continue to operate under the existing franchise to the conclusion of its present term, but not any renewal or extension thereof, with respect to those activities expressly authorized by the franchise, and provided further that, such person shall be subject to the other provisions of this chapter to the extent permitted by law.

(3) Persons with Pending Applications. Pending applications shall be subject to this chapter. A person with a pending application shall have thirty (30) days from the effective date of this chapter to submit additional information to comply with the requirements of this chapter governing applications.

(Ord. 594 § 2 (part), 2003)