§ 114.15 ENFORCEMENT AND REMEDIES.

(A) 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:

(1) The city shall notify a cable communications system operator in writing of any alleged violation (“violation notice”) of a franchise or this chapter. The violation notice shall:

• (a) Identify the violation;

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

(c) State the time for the cable communications system operator's response, which shall be at minimum 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.

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

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

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

(c) 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 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.

(3) 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 20 days prior to the hearing (“hearing notice”).

• (4) The hearing notice shall indicate:

• (a) The time and place of the violation hearing;

• (b) The nature of the violation; and

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

(5) At the violation hearing, the City Council shall hear and consider evidence from the 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.

(6) If, based upon the evidence presented at the violation hearing, the City Council finds that cable communications system operator has violated a franchise, this chapter 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 division (B) of this section and the terms of the cable communications system operator's franchise, revoke or shorten the franchise.

(B) Revocation and termination . The City Council may revoke a franchise or reduce the term of a franchise if it finds, after complying with procedures set forth above, that a cable communications system operator has violated this chapter or its franchise or license; has defrauded or attempted to defraud the city or subscriber; or has attempted to evade the requirements of this chapter or its franchise or license. Except as to violations that are impossible to cure, and as provided in divisions (C) and (D) of this section, the franchise may only be revoked if the franchisee:

• (1) Was given notice of the default; and

• (2) Thirty days to cure the default; and

• (3) 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 30 days.

(C) Exception for certain acts . No opportunity to cure is required for repeated violations, and fraud and attempted fraud shall be deemed incurable. Further, the city may declare a franchise forfeited without opportunity to cure where a franchisee:

• (1) Voluntarily stops providing service it is required to provide; or

• (2) Transfers the franchise without the prior consent of the city.

• (D) Exception for bankruptcy .

(1) A franchise will terminate automatically by force of law 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 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.

(2) 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 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.

(E) Effect of termination or forfeiture . Upon termination or forfeiture of a franchise, whether by action of the city as provided above, or if a franchise expires and is not renewed, 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's property, and restore affected property to its same or better condition. This provision does not permit the city to remove facilities that are used to provide another service for which the franchisee holds a valid franchise issued by the city or if the franchisee's facilities are otherwise lawfully located on the city property pursuant to applicable local, state or federal law.

(F) 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.

(G) Liquidated damages required in franchise . A franchise granted pursuant to this chapter shall require liquidated damages, in an amount to be specified in the franchise, for specified breaches of the franchise, including but not limited to, failure to commence construction, failure to meet construction plan benchmarks, failure to comply with rebuild plan benchmarks, failure to commence service, and material breach of franchise obligation(s). The franchise shall also provide that the city may withdraw liquidated damages owed from the grantee's security deposit, after complying with the procedures set forth in division (A) of this section. Liquidated damages shall commence on that date that performance was due and/or failed, and continue until the grantee

demonstrates to the satisfaction of the city that the grantee has fully performed its obligations giving rise to the payment of liquidated damages. Any obligation to pay liquidated damages does not in any way affect the grantee's obligation to pay franchise fees or perform other franchise obligations and such liquidated damages do not constitute franchise fees and are not subject to any limitations on franchise fees contained in 47 U.S.C. § 542(b). The grantee acknowledges that any obligation to pay liquidated damages are not costs of satisfying franchise requirements as provided in 47 C.F.R. § 76.925. The grantee agrees it will not pass the cost of any liquidated damages to subscribers through subscriber rates or itemize or otherwise identify on subscriber bills any obligation the grantee may have to pay liquidated damages.

(H) Penalties, fines and other monetary sanctions .

(1) Penalties . In addition to any other remedies provided for in this chapter or otherwise available by law, the city shall have the power to impose monetary penalties in the event a grantee violates any provision of this chapter, a franchise, or any regulation lawfully adopted thereunder. The amounts of such penalties shall be specified in the franchise and shall be based on the following principles:

(a) Penalties shall exceed the financial benefits to a grantee delaying or failing to comply with the applicable requirement;

(b) Even where such benefits are not easily discernible, the penalties shall be high enough to have a significant deterrent effect on a grantee; and

(c) Penalties shall be sufficient to protect the city and other affected parties against loss of revenues resulting from violations.

(2) Other monetary sanctions . A franchise shall also provide for fines, liquidated damages and other monetary sanctions, the amounts of which shall also reflect the foregoing principles.

(3) Private suit against a grantee .

(a) Any person or organization adversely affected by a violation, or by a pattern and practice of violations, shall have the right to sue a grantee in a court of competent jurisdiction for damages and for injunctive and other relief to require enforcement of the franchise. Organizations shall be entitled to sue on behalf of themselves or their members.

(b) The remedy herein provided shall be in addition to any remedies provided by law.

(c) Except in emergency situations in which immediate relief is required, private litigants shall notify the City Attorney not fewer than ten days prior to filing suit. However, suit by the city shall not preempt the private litigant's right to proceed.

(4) Except as otherwise provided herein, any person who violates any provisions of this chapter shall be subject to a fine not to exceed $500 for each offense; each day of said violation shall constitute a separate offense. (Ord. 678-C.S., passed 4-20-04)