Emeryville Municipal Code Part 4 Consumer Protection And Service Standards

(a) Grantee must maintain the necessary facilities, equipment, and personnel to comply with the following consumer protection and service standards under "normal operating conditions" as that term is defined below in paragraph (d):

(1) Provide sufficient toll-free telephone line capacity during normal business hours to ensure that telephone calls are answered promptly. Telephone answer time by a customer service representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. Callers who must be transferred may not be required to wait more than thirty (30) seconds before being connected to a service representative.

(2) Under normal operating conditions, callers may not receive a busy signal more than three percent of the time, measured on a quarterly basis.

(3) Provide emergency toll-free telephone line capacity on a twenty-four-hour basis, including weekends and holidays. After normal business hours, the telephone calls may be answered by a service or an automated response system, including an answering machine. Calls received after normal business hours must be responded to by a trained company representative on the next business day.

(4) Provide a conveniently-located service and payment office within a reasonable distance from the City open during normal business hours at least eight hours daily on weekdays, and at least four hours weekly on evenings or weekends, and adequately staffed with trained customer service representatives to accept subscriber payments and to respond to service requests, inquiries, and complaints.

(5) Provide an emergency system maintenance and repair staff, capable of responding to and repairing major system malfunctions on a twenty-four-hours per day basis.

(6) Maintain a trained installation staff to provide service to any subscriber requiting a standard installation within seven days after receipt of a request, or such longer time as may be requested by the subscriber, in all areas where trunk and feeder cable have been activated. "Standard installations" are those that are located up to one hundred fifty (150) feet from the existing distribution system, unless otherwise defined in the franchise agreement.

(7) The grantee must schedule, within a specified four-hour time period Monday through Saturday (legal holidays excluded), all appointments with subscribers for installation of service, service calls, and other activities at the subscriber's location. The grantee may schedule installation and service calls outside of normal business hours for the convenience of the subscriber. The grantee may not cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment. If a grantee representative is delayed in keeping an appointment with a subscriber and will not be able to honor the scheduled appointment, the subscriber must be contacted prior to the time of the scheduled appointment, and the appointment must be rescheduled, as necessary, at a time that is convenient for the subscriber. The grantee must undertake appropriate quality control measures to ensure. that the customer is satisfied with the work.

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

(b) Under normal operating conditions, the standards of subparagraphs (1), (2), (3), (6) and (7) above must be met not less than ninety percent of the time, measured on a quarterly basis.

(c) As used in this paragraph (a), the term "normal business hours" means those hours during which most similar businesses in the community are open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours.

(d) As used in this paragraph (a), the term "normal operating conditions" means those service conditions that are within the control of the cable operator. Conditions that are not within the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Conditions that are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) The grantee will render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Except in emergency situations, scheduled interruptions will occur during a period of minimum use of the cable system, preferably between midnight and 6:00 a.m. Unless the scheduled interruption lasts for no more than two (2) hours and occurs between midnight and 6:00 a.m. (in which event twenty-four hours' prior notice must be given to the City), forty-eight hours' prior notice must be given to subscribers.

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

(1) For a system outage: Within two (2) hours, including weekends, of receiving subscriber calls or requests for service that by number identify a system outage of sound or picture of one or more channels, affecting five (5) or more subscribers of the system.

(2) For an isolated outage: Within twenty-four (24) hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one or more channels.

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

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

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

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

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

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

(c) In case of a billing dispute, the grantee must respond in writing to a written complaint from a subscriber within ten (10) days after receiving the complaint at the office specified on the billing statement for receiving that complaint.

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

(e) The grantee must provide written information on each of the following matters at the time of the installation of service, at least annually to all subscribers, and at any time upon request:

(1) Products and services offered.

(2) Prices and options for programming services and conditions of subscription to programming and other services.

(3) Installation and service maintenance policies.

(4) Instructions on the use of the cable service.

(5) Channel positions of programming carried on the system.

(6) Billing and complaint procedures, including the address and telephone number of the City's office designated for dealing with cable-related issues.

(7) Consumer protection and service standards and penalties for noncompliance.

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

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) Upon thirty (30) days' prior written notice, the City may require the grantee to provide a written report demonstrating its compliance with any of the consumer service standards specified in this section. The grantee must provide sufficient documentation to enable the grantor to verify compliance.

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) The grantee must establish written procedures for receiving, acting upon, and resolving subscriber complaints without intervention by the City. The written procedures must prescribe the manner in which a subscriber may submit a complaint, either orally or in writing, specifying the subscriber's grounds for dissatisfaction. The grantee must make available a copy of these procedures to the City. These procedures must include a requirement that the grantee respond in writing to any written complaint from a subscriber within ten (10) days after receiving the complaint at the office specified on the billing statement for receiving that complaint, as provided for above in Section 5-22.33(a)(4).

(b) Upon request, and subject to applicable law protecting subscriber privacy rights, the City has the right to review the grantee's response to subscriber complaints.

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

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

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

(b) Grantee may, in accordance with applicable law, charge a fee to downgrade service if a service call is required.

(c) The grantee may disconnect a subscriber's service in compliance with paragraphs (i), (j), and (k) of Section 53088.2 of the California Government Code. If service is disconnected for nonpayment of past due fees or charges, the grantee must promptly reinstate service upon payment in full by the subscriber of all such fees and charges, including late charges.

(d) Notwithstanding the requirements of paragraph (c) above, the grantee may immediately disconnect service to a subscriber if the subscriber is damaging or destroying the grantee's cable system or equipment.

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

(f) The grantee may also disconnect service in those cases where customers are stealing service or have threatened grantee's personnel with physical violence.

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

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

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

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) Purpose. The purpose of this paragraph is to authorize the imposition of monetary penalties for violations of the customer service standards established by this chapter. The imposition of penalties authorized by this Section 5-22.43 will not prevent the City or any other affected party from exercising any other remedy to the extent permitted by law, including, but not limited to, any judicial remedy as provided below in subsection (b)(4) or otherwise by this chapter.

(b) Administration and Appeals.

(1) The City Manager or the City Manager's designee is authorized to administer this Section 5-22.43. Decisions by the City Manager to assess monetary penalties against the grantee must be in writing and must contain findings supporting the decisions. The written decision shall be filed with the City Clerk and a copy thereof shall be served on the appellant in accordance with Section 1094.6 of the California Code of Civil Procedure.

(2) If the grantee or any interested person ("appellant") is aggrieved by a decision of the City Manager made pursuant to this section, the aggrieved party may, within ten (10) days of the written decision, appeal that decision in writing to the City Clerk. Such appeal shall be in a form prescribed by the City Clerk. The appeal letter must be accompanied by the fee established by the City Council for processing the appeal. The City Clerk will refer the matter to the City Manager who will set the matter for hearing before the City Council or, with the concurrence of the City Council, refer the matter to a hearing officer in accordance with the administrative hearing process outlined below:

a. The hearing officer shall be selected by the City Manager and compensated for the time expended in providing such service based upon a written agreement for that purpose. The hearing officer's employment or compensation shall not be based on the outcome rendered by the hearing officer. If the appellant so elects in writing prior to the hearing, the appellant shall be entitled to pay for one half (1/2) of the costs of the services of the hearing officer.

b. The hearing shall be conducted by the hearing officer on the date, time and place specified by the hearing officer. The hearing shall proceed solely on the issues or defenses raised in the request for a hearing filed by the appellant, and all matters not contested in said request shall be deemed admitted.

c. The appellant shall have the burden to establish, by a preponderance of the evidence, that either: (1) the City Manager has proceeded without, or in excess of jurisdiction; (2) there was not a fair trial; or (3) there was any prejudicial abuse of discretion. Abuse of discretion is established if the City Manager has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. The City Manager's written decision and findings shall be admitted into evidence and shall constitute prima facie evidence of all matters contained therein. The parties may present such other evidence and reports as may be necessary or helpful to the hearing officer to resolve the issues raised by the citee.

d. The parties shall be given the opportunity to testify and to present evidence relevant to the matters raised in the appeal.

e. The City Manager's written decision and findings, and other reports prepared by the City Manager, or at his or her request, concerning the alleged violation or violations or their attempted correction shall be accepted by the hearing officer as prima facie evidence of the violation or violations.

f. The hearing shall be conducted informally and the rules of evidence need not be followed; provided however that the decision of the hearing officer on any material issue may not be based upon hearsay evidence alone. The hearing officer may adopt such supplementary rules of procedure and evidence as may be useful in a determination of the issues involved, to the extent such rules are not otherwise provided for herein.

g. The failure of the appellant to appear at the hearing shall constitute a waiver of his or her contest to the City Manager's decision and a failure to exhaust administrative remedies concerning the City Manager's decision. Such failure to appear shall constitute an admission of the truth of all matters contained in the City Manager's decision, which shall be ordered in the decision of the hearing officer.

h. The hearing officer may continue the hearing upon the request of the appellant, or the appellant's representative, or the representative of the City, or on the hearing officer's own motion, upon a showing of good cause. All continuance requests shall be made in writing. If the continuance is granted, a new hearing date shall be set, which continued hearing date shall be within fifteen days.

i. After considering all the evidence and testimony submitted at the hearing, the hearing officer shall issue his or her written decision within five business days following the conclusion of the hearing. The decision of the hearing officer shall either uphold or deny the City Manager's decision or any portion thereof and state the facts and reasons supporting the decision. The hearing officer also shall order any remedy necessary to effectuate the hearing officer's decision, including, but not limited to, a revision of the amount of money owed by the grantee after due consideration of the circumstances pursuant to subparagraph (B)(6)(b), below. The written decision shall be filed with the City Clerk and a copy thereof shall be served on the appellant in accordance with Section 1094.6 of the California Code of Civil Procedure.

j. All decisions and orders of a hearing officer shall become final unless appealed as provided herein.

k. The appellant or the City may seek judicial review of the decision of the hearing officer by filing an appeal with the Superior Court within ninety (90) days in accordance with the provisions of California Code of Civil Procedure Section 1094.6. No appeal shall be permitted from a decision based upon the failure of the appellant to appear at the administrative hearing or upon any other waiver of the administrative hearing by the appellant.

1. If an appeal of any decision or order of a hearing officer that ordered the appellant to pay any amount due is affirmed by the reviewing court, in whole or part, the court shall enter an order requiting the appellant to pay such amount and said order shall constitute a money judgment.

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

a. The maximum penalty for a first material violation is two hundred dollars ($200.00) for each day of the material violation, except with respect to an entity receiving a state franchise, the maximum penalty shall be five hundred dollars ($500.00) for each day of each material breach, but not to exceed one thousand five hundred dollars ($1,500.00) for each occurrence of the material violation.

b. For a second material violation of the same nature within a 12-month period for which the City has provided notice and a penalty has been assessed, the maximum penalty is four hundred dollars ($400.00) for each day of the material violation, except with respect to an entity receiving a state franchise, the maximum penalty shall be one thousand dollars ($1,000.00) for each day of each material breach, but not to exceed three thousand dollars ($3,000.00) for each occurrence of the material violation.

c. For a third or further material violation of the same nature within a twelve (12) month period for which the City has provided notice and a penalty has been assessed, the maximum penalty is one thousand two hundred fifty dollars ($1,250.00) for each day of the material violation, except with respect to an entity receiving a state franchise the maximum penalty shall be twenty-five hundred dollars ($2,500.00) not to exceed seven thousand five hundred dollars ($7,500.00) for each occurrence of the material violation.

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

(5) Notice of Violation. The City must give the grantee written notice of any alleged violation of the consumer service standards and allow the grantee at least thirty (30) days from receipt of the notice to remedy the specified violation.

(6) Assessment of Monetary Penalties.

a. If a violation has not been corrected or cured by grantee within the time specified by the City, the monetary penalties specified above in subparagraph (c) may be assessed from the date of delivery to grantee of the City's written notice of violation.

b. In assessing monetary penalties under this paragraph (b), the City Manager, hearing officer, or City Council, as applicable, may take into account the nature, circumstances, extent and gravity of the violation and, with respect to the grantee, the degree of culpability, any history of prior violations, and such other matters as may be relevant. If warranted under the circumstances, the monetary penalty to be assessed may be less than the maximum penalty amount specified above in subparagraph (c).

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) In addition to the consumer protection and service standards that are specified above in Sections 5-22.33 to 5-22.44, the franchise agreement with a grantee may require compliance with the following to the extent they are more stringent:

(1) Federal statutes, and the rules, regulations, and orders of the Federal Communications Commission., including the following:

a. The provisions of Section 76.309(c) of Title 47 of the Code of Federal Regulations, as it now exists or may later be amended.

b. The provisions of Section 76.630 of Title 47 of the Code of Federal Regulations, as it now exists or may later be amended.

c. The provisions of Section 551 of Title 47, United States Code, as it now exists or may later be amended.

(2) The provisions of California Government Code Sections 53054, et seq., entitled the "Cable Television and Video Provider Customer Service and Information Act."

(3) The provisions of California Government Code Section 53088, et seq., entitled the "Video Customer Service Act."

(4) The provisions of California Civil Code Section 1722(b)(1) – (6) relating to service or repair transactions between cable television companies and their subscribers.

(5) The provisions of California Penal Code Section 637.5 relating to subscribers' rights to privacy protection.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)

(a) The grantee shall not scramble or otherwise encrypt signals carried on the basic service tier. Requests for waivers of this prohibition must demonstrate either a substantial problem with theft of basic tier service or a strong need to scramble basic signals for other reasons.

(b) The grantee shall comply with equipment compatibility rules and commercial availability of navigation equipment rules of the FCC.

(Sec. 1 (part), Ord. 06-016, eff. Nov. 17, 2006)