Fresno Municipal Code Art. 2 Cable Communication Systems

This article shall be known as the Cable Communication Systems Ordinance of the City of Fresno. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) The city has the authority to regulate the use of streets, public rights-of-way, and other city property, and to grant access thereto upon certain terms and conditions.

(b) The right to place privately-owned facilities and fixtures in such rights-of-way for the business of providing cable, open video and related services for hire is a valuable economic right to use a unique public resource that has been acquired and is maintained at great expense to the city and its taxpayers, the economic benefit of which should be shared with the taxpayers of the city.

(c) The city wishes to promote the availability of high-quality and diverse cable and open video services to residents, businesses, and public institutions and entities within the city's service area; and to promote the availability of diverse information resources to the community, including through the development of advanced systems that can support public, educational, and governmental programming, networking and high-speed access to the Internet.

(d) The city wishes to provide opportunities to the public to obtain access to communications facilities for the purpose of disseminating and receiving information; to promote competitive cable rates and services; to take advantage of opportunities presented by cable and open video systems to provide for more open government; to enhance educational opportunities throughout the community and provide opportunities for building a stronger community; and to allow flexibility to respond to changes in technology, subscriber interests, and competitive factors that will affect the health, welfare, and well-being of the community.

(e) The city has reviewed its authority under state and federal law and reviewed and considered how it may exercise its authority to best protect the public health, safety, and welfare; effect responsible management of the public rights-of-way; meet the obligations of the city to manage and maintain the public rights-of-way; minimize disruption and inconvenience to the use of the public rights-of-way for transportation purposes; and ensure reasonable nondiscriminatory access to the public rights-of-way by secondary users.

(f) The city has reviewed its authority under state and federal law and reviewed and considered how it may exercise its authority to best protect the public health, safety, and welfare; effect responsible management of the public rights-of-way; meet the obligations of the city to manage and maintain the public rights-of-way; minimize disruption and inconvenience to the use of the public rights-of-way for transportation purposes; and ensure reasonable nondiscriminatory access to the public rights-of-way by secondary users.

(g) The city finds that it is in the interest of the public to franchise and to establish standards for franchising such operators in a manner that promotes these objectives and otherwise protects the public interest.

(h) In pursuit of the foregoing the city finds that it is necessary to enact the following requirements and further finds it appropriate to apply the provisions hereof to existing cable and open video franchisees, permittees, and licensees as far as is possible and to apply it to those with pending or new applications to place facilities in public rights-of-way for cable, open video and other related services. (Added Ord. 2004-105, § 2, eff. 11-30-04).

The purposes of this article include, but are not limited to, the promotion of the general welfare of the citizens of the Fresno community by:

(a) Establishing a regulatory framework for the administration of franchises in order to ensure that the potential recreational, educational, social, economic and other advantages of cable communication services will in fact inure to the benefit of the Fresno community and the citizens thereof;

(b) Regulating the operations of franchisees for the purpose of protecting and promoting the public health, peace, safety and welfare;

(c) Establishing a local policy concerning the franchising of cable systems, open video systems, and private communication systems that use the public rights-of-way;

(d) Promoting the availability of diverse, multimedia information resources to the community;

(e) Providing for enhanced educational opportunities throughout the community and building a stronger community;

(f) Encouraging the provision of advanced and competitive cable or open video system services on the widest possible basis to the businesses, institutions and residents of the city;

(g) Encouraging economic development while preserving aesthetic and other community values and preventing proliferation of above-ground facilities;

(h) Universal access to video programming services is encouraged for all residents and businesses.

The provisions of this section shall not be deemed to confer any right upon a franchisee which is not otherwise conferred by another express provision of this chapter. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) Unless the particular provision or the context requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this article, provided that to the extent a particular word or phrase is otherwise specifically defined in this section, the definitions and provisions contained in article 2 (commencing with Section 1-201) of chapter 1 of this Code shall also govern the construction, meaning, and application of words and phrases used in this article, and further provided that a particular word or phrase that is not specifically defined in this section and article 2 (commencing with Section 1-201) of chapter 1 of this Code shall have the same meaning as in Title VI of Title 47 of the United States Code, or if not defined therein, their common and ordinary meaning. The definition of each word or phrase shall constitute, to the extent applicable, the definition of each word or phrase which is derivative from it, or from which it is a derivative, as the case may be. 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. 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

(b) "Access," "PEG 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, and advertising to the extent authorized by law, including without limitation channel capacity designated for public, educational, or governmental use, and facilities and equipment for the use of such channel capacity.

(c) "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.

(d) "Application" means any application, proposal submission, or request filed pursuant to the requirements of this article to obtain, modify, transfer, extend or renew a franchise, including any and all documents and materials included therein and/or required by the Federal Communications Commission.

(e) "Application Fee" means a charge to recover, to the maximum extent allowable by law, the city's actual costs of processing applications hereunder.

(f) "Basic Service" means any service tier regularly provided to all subscribers that includes the retransmission of local television broadcast signals.

(g) "CAO" means the Chief Administrative Officer of the City of Fresno.

(h) "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.

(i) "Cable Communications System" refers to open video systems (OVS), and/or cable systems.

(j) "Cable Service" means: the one-way transmission to subscribers of:

(i) video programming, or

(ii) other programming service, and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service, or

(iii) any other programming or service which may lawfully be characterized as a cable service.

(k) "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 of Fresno;

(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 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;

(E) an OVS that is certified by the FCC.

Any reference to a cable system includes the cable system as a whole, or any part thereof, including all facilities, pedestals, equipment cabinets, electronic equipment and devices appurtenant to the system.

(l) "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 or one-way transmission.

(m) "City" means the City of Fresno and all departments, divisions, and agencies thereof.

(n) "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.

(o) "Council" means the City Council of the City of Fresno.

(p) "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.

(q) "Education Access" or "Education Use" means access where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications.

(r) "Facilities" includes any physical element used in connection with, or designed to be used in connection with, the provision of cable services, whether or not located in the public rights-of-way, including, without limitation, pedestals, cabinets, ducts and conduits (whether empty or occupied), transformers, equipment, drains, handholds, lines, line extensions, service drops, manholes, poles, power supplies and generators, splice boxes, surface location markers, vaults, tunnels, amplifiers, power guards, nodes, cables, and fiber optics (whether active or dark.)

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

(t) "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 and portions thereof in the city, to provide specified services within a franchise area.

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

(v) "Franchise Documents" with respect to a franchise for a cable communication system issued pursuant to the provisions of this article, mean the provisions of this article, the map defining any imposed service area for the franchise as adopted by resolution, the provisions of any request for proposals issued pursuant to the provisions of this article in connection with that franchise, the provisions of the application for the franchise submitted by the franchisee, the provisions of the resolution offering the franchise, the provisions of the certificate of acceptance by the franchisee of the franchise and all necessary documents and instruments approved by city . Any amended and restated resolution regarding a franchise issued to any franchisee, adopted subsequent to the issuance of such franchise, shall be considered one of the franchise documents in lieu of the resolution offering the franchise to that franchisee, consistent with applicable law.

(w) "Franchisee or Grantee" refers to a person holding a cable communications system franchise granted by the City of Fresno.

(x) "Franchise Fee" means the fee payable to the city as provided in this article and the franchise in consideration of the grant and exercise of a franchise to construct, install, operate, or provide services using, facilities in the public rights-of-way, expressed as a percentage of gross revenues or some other measure.

(y) "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 communications.

(z) "Gross Revenues" means all cash, credits, property, or other consideration of any kind or nature, and any contributing grant or subsidy, received directly or indirectly by a grantee and its affiliates, from any source whatsoever arising from, attributable to, or in any way derived from a grantee's operation of a cable communication system within the franchise area, including but not limited to, fees charged to subscribers for basic service; fees charged to subscribers for any optional, premium, per-channel, or per-program service; monthly fees charged to subscribers for any tier of service other than basic service; installation, disconnection, re-connection, and change-in-service fees; leased channel fees; fees, payments, or other payment received as consideration from programmers for carriage of programming on the cable system; converter rentals or sales; studio rental, production equipment, and personnel fees; advertising revenues, including a per capita share of advertising revenues for advertising carried on more than one cable system; revenues from home shopping channels; sales of programming guides; and such other revenue sources as may now exist or hereafter develop. The definition shall be interpreted and applied in a manner that permits the city to collect the maximum franchise fee permitted by law, irrespective of the source of revenue. Gross Revenues, however, shall not include any bad debt (defined as unpaid subscriber or advertiser accounts), any taxes on services furnished to a grantee and imposed directly upon any subscriber or user by the state, city, or other governmental unit and collected by a grantee on behalf of said governmental unit. The amount paid as a franchise fee shall not be deducted from gross revenues unless required to be deducted under federal law.

(aa) "License" refers to the non-franchise, revocable, legal authorization to use a particular, discrete, and limited portion of the public rights-of-way to construct, operate, or repair a cable communications facility, applied for and issued in the form, manner and upon terms and conditions provided by the city, subject to the city's fee schedule and the license.

(bb) "Operator" when used with reference to a system, refers to a person or group of persons (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 system; or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a system.

(cc) "OVS" means an open video system certified by the FCC prior to commencement of service. 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.

(dd) "Person" includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the City of Fresno.

(ee) "Public Access" or "Public Use" means access where organizations, groups, or individual members of the general public, on a non-discriminatory basis, are the primary or designated programmers or users having editorial control over their communications.

(ff) "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, utility right of way, right-of-way easement or any other easement primarily granted or dedicated to travel, public or quasi-public services, 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.

(gg) "Public Property" means any property that is owned or under the control of the city that is not a public right-of-way, including, for purposes of this article, 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.

(hh) "Revocation" means the city's affirmative act of terminating a franchise.

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

(jj) "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.

(kk) "Termination" means the conclusion of a franchise by any means, including, but not limited to, by expiration of its term, abandonment, or revocation.

(ll) "Transfer" means any transaction in which: (1) all or a portion of any facilities or any rights to use or operate facilities located in the public rights-of-way are sold, conveyed, transferred, assigned, encumbered (except the term does not include sale of portions of the cable system that are removed from service) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise; or (2) there is any change, acquisition, or transfer of control of the franchisee or its direct or indirect parents, or transfer in the identity of the person in control of the grantee, or any person that controls grantee, including, without limitation, forced or voluntary sale, merger, consolidation, or receivership; or (3) the rights or obligations under the franchise are sold, conveyed, transferred, assigned, encumbered (except as set forth herein) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise. It will be presumed, for purposes of clause (2) above, that any transfer or cumulative transfer of a voting interest by a person or group of persons acting in concert of ten percent (10%) or more of grantee, or of a person that controls grantee, or of any change in the managing general partners of a grantee is a change of control. "Transfer" does not include: (1) a lease to a UVPP pursuant to 47 U.S.C. Sections 532 or 573; (2) the transmission of a commodity or electronic signal using facilities on a common carrier basis; (3) a lease or other right to use facilities mandated pursuant to 47 U.S.C. Section 224, or (4) a pledge in trust, mortgage or other encumbrance against the facilities, or any portion thereof, given to a bona fide institutional lender in connection with a loan or other financing required to secure the construction, operation, or repair of the facilities ("Loan") provided that such Loan is subject to the rights and powers of the city pursuant to the franchise and applicable law, including, without limitation, the right of the city to approve any transfer upon assignment or foreclosure. "Transferring" and "Transferee" shall have correlative meanings.

(mm) "Unaffiliated Video Programming Provider" or "UVPP" means any person who uses capacity on a franchised cable communication system to deliver cable service or other communications service (as that term is used in 47 U.S.C. Section 542(h)) to subscribers and who is not an affiliate of the grantee.

(nn) "UVPP Fees" means fees payable by a UVPP that provides services using a cable system for which charges are assessed to subscribers, but are not received by the cable system grantee, payable to city in lieu of a franchise fee on such service pursuant to the franchise fee calculation contained in the cable communication system franchise.

(oo) "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.

(pp) "User" means a person or the city utilizing a channel, capacity or equipment and facilities for purposes other than in the capacity of a subscriber. (Added Ord. 2004-105, § 2, eff. 11-30-04).

No person may construct or operate a cable communications system in the city including any portion thereof without first obtaining a city franchise. No provision of this article may be deemed or construed to require the granting of a franchise when in the opinion of the Council it is in the public interest to restrict the number of grantees to one or more. When and in the event that the grantee of any franchise granted hereunder uses in its cable communication system distribution channels furnished to the grantee by a telephone company pursuant to tariff or contract on file with a regulatory body having jurisdiction and said grantee makes no use of the streets independent of such telephone company-furnished facilities, said grantee shall be required to comply with all of the provisions hereof as a "licensee" in addition to its obligations under this article and in such event whenever the term "grantee" is used herein it shall be deemed to mean and include "licensee." (Added Ord. 2004-105, § 2, eff. 11-30-04).

The following shall not be required to obtain a franchise under this article:

(a) The City of Fresno;

(b) An UVPP that is only delivering cable service or other communications service (as that term is used in 47 U.S.C. Section 542(h)) to subscribers. (Added Ord. 2004-105, § 2, eff. 11-30-04).

All terms, conditions and provisions of the contract shall be deemed to be embodied in the franchise documents, and conflicts in terms, conditions or provisions of the documents shall be resolved as follows:

(a) The express terms of this article shall prevail over conflicting or inconsistent provisions in any other franchise document;

(b) The express terms of any amended and restated resolution regarding a franchise issued to any franchisee shall prevail over conflicting or inconsistent provisions in any other franchise document, (including any prior amended and restated resolution), except the express terms of this article;

(c) The express terms of the resolution offering the franchise shall prevail over conflicting or inconsistent provisions in any other franchise document, except the express terms of this article and any subsequently adopted, amended and restated resolution regarding the franchise;

(d) The express terms of the request for proposals shall prevail over conflicting or inconsistent provisions in either the application for the franchise or the certificate of acceptance of the franchise; and

(e) The express terms of the application for the franchise shall prevail over inconsistent or conflicting provisions in the certificate of acceptance of the franchise.

(f) Nothing in this section is intended to unlawfully impair vested rights of franchisee with respect to enforcement of the terms and conditions of the franchise. There shall be preserved to franchisee all legal right to challenge any provision of a subsequent ordinance or resolution as an unlawful impairment of franchisee's vested rights. (Added Ord. 2004-105, § 2, eff. 11-30-04).

Consistent with law including the Cable Act, the franchise documents and the requirements of due process, a person's failure to obtain and maintain a franchise as required by this article may, in the city's discretion, result in:

(a) Forfeiture, by operation of law, of the person's facilities located in the public rights-of-way that are not authorized by an existing franchise; and/or

(b) A requirement that the facilities be removed and sites restored, and that costs, penalties and damages be paid. (Added Ord. 2004-105, § 2, eff. 11-30-04).

Grantees of franchises existing as of the effective date of this article shall, in addition to all the obligations and duties prescribed by the terms of their existing franchises, be subject to the requirements of this article, except as prohibited by applicable law and/or this article, in which event such requirements shall be regarded as statements of city policy. Nothing herein is intended to invalidate a lawful, existing franchise or to waive any obligations imposed by such a franchise. Notwithstanding the foregoing, provisions of this article that expressly refer to a "franchise granted pursuant to this article" shall not apply to franchises initially granted prior to the effective date of this article. (Added Ord. 2004-105, § 2, eff. 11-30-04).

Any franchise shall be issued in the form of an ordinance, and must be accepted by the franchisee to become effective. Such acceptance shall be and operate as an acceptance of each and every term and condition and limitation contained in this article, in such franchise, or otherwise specified as herein provided. Such written acceptance certificate shall be so filed by grantee not later than 12:01 p.m. of the thirtieth calendar day next following the effective date of the ordinance granting such franchise; and in default of the filing of such written acceptance as herein required, grantee shall be deemed to have rejected and repudiated the same; and thereafter, the acceptance of any such grantee shall not be received nor filed by the City Clerk, and such grantee shall have no rights, remedies, or redress in the premises, unless and until the Council shall, by resolution, determine that such acceptance be received or filed, and then upon such terms and conditions as the Council may impose; provided, that in any case and in any instance, all rights, remedies, and redress in these premises which may or shall be available to the city, shall at all times be so available to the city, and shall be preserved and maintained and shall continuously exist in and to the city, and shall not be in any manner or means modified, abridged, altered, restricted, or impaired by reason of any of these premises, or otherwise. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) A franchise granted pursuant to this article shall authorize and permit a franchisee to construct, operate, maintain and repair a cable system, or an OVS (as applicable) to provide cable service in the city, 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.

(b) A franchise shall not convey rights other than as specified in this ordinance, or in a franchise agreement; no rights shall pass by implication.

(c) A franchise shall not include, or be a substitute for:

(1) 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;

(2) Any permit, license, 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, encroachment and/or street works permits;

(3) 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.

(d) A franchise does not relieve a franchisee of its duty to comply with all governmental and regulatory requirements including the Charter and all city ordinances and regulations, and every franchisee must comply with the same. Likewise, the rights granted under a franchise are subject to the exercise of legislative, police and other powers city now has or may later obtain, including but not limited to the power of eminent domain. Any conflict between the provisions of this article and any other present or future lawful exercise of the city's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to any cable communication system franchise which contains provisions inconsistent with this chapter shall prevail only if upon such exercise the city finds an emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law.

(e) A franchise does not convey title, equitable or legal, in the public rights-of-way. Rights granted may not be subdivided or subleased.

(f) 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.

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

(h) 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.

(i) If a cable communications system operator fails to perform or cause to be performed work required to be performed within the time provided for performance including any required notice and cure period, the city may perform the work and bill the operator therefor. The operator shall pay the amounts billed within 30 days.

(j) The grant of any privilege by any franchise hereunder shall be subordinate to any prior lawful occupancy of any street or public property or to the grant of any privilege under any other franchise of prior date, whether hereunder or otherwise, insofar as there shall be any conflict respecting such privilege rendering the same unable to be exercised by all of any number of grantees.

(k) In the event any new territory shall become annexed to the city which shall be contiguous to any franchise area in the city, or if there be at the time of the annexation of such new territory only one franchise area in the city, such new territory shall become, by operation of law, a part of said franchise area(s) immediately upon the date such annexation becomes final, and said franchise area(s) shall thereafter be deemed enlarged to include the addition of such new territory, unless the Council shall direct grantee(s) of a franchise hereunder and any interested parties to submit applications for such new territory. In the event any new territory shall become annexed to the city which shall not be contiguous to any franchise area and there be more than one franchise area in the city, then the Council shall direct grantees of a franchise hereunder and any interested parties to submit applications for such new territory. Such applications shall be reviewed and acted upon as provided in this article and such new territory shall become a part of the franchise area of the applicant(s) determined by the Council to be best suited to provide service to such territory. The appropriate grantee(s) shall diligently and promptly make cable communication services available to any new territory after the annexation thereof becomes final.

(l) For each franchise issued pursuant to the provisions of this article, one or more environmental analysis shall be undertaken as required by the provisions of the California Environmental Quality Act commencing at Section 21000 of the Public Resources Code. The franchise documents shall be subject to amendment for the purpose of implementing any changes dictated by the environmental analysis. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) The city shall exercise regulatory authority under and administer this ordinance and any franchise granted thereunder, and may from time to time modify this ordinance, as authorized by applicable law. If the cable communication system operated by franchisee also serves other contiguous or neighboring communities, city may, at its sole option, participate in a joint regulatory agency, with delegated responsibility in the area of cable and related communications.

(b) The CAO 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, consistent therewith.

(c) The CAO may from time to time adopt regulations to implement the provisions of this ordinance. This ordinance, and any regulations adopted pursuant to this ordinance are not contracts with any franchisee, and may be amended at any time.

(d) 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.

(e) 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. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) Any person seeking to obtain, modify (to expand services offered), transfer, extend, or renew a franchise shall submit a signed original of its application and six (6) copies to the City Clerk. The city shall make applications available for public inspection consistent with applicable law. The application must conform to all of the requirements of law, this article and any implicated franchise. Requests for other types of franchise modifications may be processed by city without an application, and submitted for approval. However, nothing herein shall prevent the city from requiring an application in the event the city determines, based on the nature of the requested modification, that the public interest would best be served by the submission of an application pursuant to this article.

(b) An applicant, to the maximum extent allowable by law, shall pay all reasonable costs incurred by the city related to the processing of any application. Processing costs shall include, but not be limited to, the costs of services rendered by any city employee, agent or representative, including consultants and attorneys. The initial franchise application fee deposit shall be $5,000.00, provided the city may increase this initial deposit amount from time to time, which deposit shall be submitted with the application. The city may, as costs are incurred, draw upon the deposit to recover its administrative costs allowed by law, including, but not limited to, the reasonable cost of outside consultants retained by the city related to the city's consideration and processing of an application. The CAO, at any time, may require the applicant to deposit additional sums if it appears that the initial deposit or subsequent deposits will be exhausted prior to the final action by the city. The applicant will not be entitled to further consideration by city of its requested action until such time as the additional deposit required by the CAO has been deposited with the city. In the event the amount of the deposit of an applicant is in excess of the amount of the administrative expenses of the city related to the action requested, then the applicant shall be entitled to a return of any such excess amount. In addition, an applicant that is awarded a franchise shall reimburse the city for for all publication expenses allowed by law incurred by city in connection with the granting of a franchise. Such payment shall be made to the city within 30 days after the city furnishes the franchisee with a statement of such expenses. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) Except as specifically provided in this article, an application must be filed to obtain, modify (to expand services offered), transfer, extend, or renew a cable communication system franchise. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application. A request for renewal filed under 47 U.S.C. § 546(h) need not contain the information required below.

(b) Application Contents.

(1) The CAO may specify the information that must be provided in connection with an application, and the form in which the information is to be provided. 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 communication 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.

(2) Any application for an initial or renewal franchise or rebuild of the system and/or facilities, must describe in detail the cable communication 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/capacity, facilities and other support for public, educational and government use (including institutional network use) of the cable system. A detailed description of the physical facilities proposed, which shall include at least the following:

(i) A description of the channel capacity, technical design, performance characteristics, headend, access (and institutional network) facilities and equipment;

(ii) The location of proposed facility and facility design, including a description of the miles of plant to be installed, and a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of the same; provided, however, that, if some of the descriptive data is not available at the time of application, the city may grant the franchise subject to conditions that the data be filed and approved by the city before construction begins and that the franchise will be deemed to be forfeited if the data is not supplied and approved; provided, further, that the foregoing proviso does not authorize the grant of a franchise where there is not sufficient information to appraise the impact of the applicant's proposal;

(iii) A map of the general route the facility will follow; a designation of the portions of the system that will be placed above ground and the portions that will be placed underground, and the construction techniques that the operator proposes to use in installing the system above ground and underground; a schedule for construction of the facility, describing when and where construction will begin, how it will proceed, benchmarks indicating the schedule competition of portions of the system and when construction will be completed; and the expected effect on right-of-way usage, including information on the ability of the public rights-of-way to accommodate the proposed system, including, as appropriate given the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities.

(3) The application must include a description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities.

(4) A applicant must demonstrate how it will reasonably meet the future cable-related needs and interests of the community, including descriptions of the capacity, facilities and support for public, educational, and governmental use of the system (including institutional networks) applicant proposes to provide and why applicant believes that the proposal is adequate to meet the future cable-related needs and interests of the community.

(5) The applicant must demonstrate financial qualifications, including at least the following: (i) the proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services; (ii) a statement regarding the applicant's financial ability to complete the construction to meet the time frame proposed and to operate the cable communication system proposed certified by the applicant's chief financial officer.

(6) The applicant must demonstrate its technical ability to construct and/or operate the proposed cable communication system.

(7) The applicant must demonstrate it is legally qualified, which proof must include a demonstration that the applicant:

(i) Has received, or is in a position to receive, necessary authorizations from State and Federal authorities;

(ii) Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows the city to conclude the applicant cannot be relied upon to comply with requirements of a franchise, or provisions of this title;

(iii) Is willing to enter into a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or repair of its facilities; and has not entered into any agreement that would prevent it from doing so; and

(iv) The applicant must not have submitted an application for an initial or renewal franchise to the city, which was denied on the ground that the applicant failed to propose a cable communication 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 years preceding the submission of the application.

(8) An applicant may show that it would be inappropriate to deny it a franchise by virtue of: the particular circumstances surrounding the acts or omissions at issue; the steps taken by the applicant to cure all harms flowing there from and to prevent their recurrence; and the lack of involvement of the applicant's principals, or the remoteness of the acts or omissions from the operation of cable communications systems.

(9) The extent that the applicant is in any respect relying on the financial or technical resources of another person, including another affiliate, proofs should be provided for that person.

(10) A description of the applicant's prior experience in cable communication system ownership, construction, and operation, and identification of cities and counties in California in which the applicant or any of its principals have a cable franchise or any interest therein, provided that an applicant that holds a franchise for the city and is seeking renewal of that franchise need only provide this information for other cities and counties in California where its franchise is scheduled to expire during the 12-month period prior to the date its application is submitted to the city and for other cities and counties in California where its franchise had been scheduled to expire during the 12-month period after the date its application is submitted to the city. If an applicant has no other franchise in California, it shall provide the information for its operations in other states.

(11) An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.

(c) An applicant (and the transferor and transferee, in the case of a transfer) shall respond to any lawful request for information from city, by the time specified by the city. An application may be rejected if it is incomplete, or if the response to requests for information is not timely and complete. For purposes of this section the term applicant includes any affiliate of applicant.

(d) 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.

(e) 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:

(1) Each franchisee shall provide a cable system, which uses at least 750MHz 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 5 MHz to 30 MHz.

(2) Public, educational and government use of the system.

(i) A franchisee shall provide as a minimum the greater of 3 channels or 18 MHz of bandwidth for PEG access to each subscriber.

(ii) Each franchisee shall install, maintain, and replace as necessary, a dedicated, bi-directional fiber optic link (or link with equivalent or superior functionality, capacity and reliability) between its headend and a location designated by the city as the primary access center.

(iii) Each franchisee shall install, maintain, and replace activated two-way cable plant and all headend, 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 signals (video, audio, and data) using the activated two-way cable plant.

(iv) 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 communication system and with other cable communication systems throughout the duration of its franchise.

(v) In the event a franchisee makes any change in the cable communication 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.

(vi) 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 franchisee's system.

(f) It is the policy of the city to ensure that every cable communication 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 immediately below.

(g) 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 mile or less is required; or (iii) within six (6) months where an extension of one-half mile or more is required.

(h) A cable communication system within the City of Fresno shall meet or exceed the technical standards set forth in 47 U.S.C. § 544 (e); 47 C.F.R. § 76.601 and any other applicable technical standards.

(i) Each cable 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 applicable FCC standards, this article or a franchise.

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

(k) 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.

(l) 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 CAO 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 Council shall be responsible for issuing rate orders that establish rates or order refunds.

(m) Except to the extent the city may not legally 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.

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

(o) Each cable operator must satisfy all applicable FCC, state and the city's cable customer service standards or consumer protection standards, including 47 CFR 76.309. The city may establish from time to time by resolution cable customer service standards that exceed or are additional to federal and state requirements and that are not specifically preempted. In the case of a conflict among standards, the stricter standard shall apply.

(1) As subscribers are connected or reconnected to the cable communication system, and at least once annually thereafter, the franchisee shall provide each subscriber with written information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed, and also furnish information concerning the city office responsible for administration of the franchise with the name and telephone number of the office. The notice shall also indicate franchisee's business hours and procedures for responding to inquiries after normal business hours. The franchisee shall provide all subscribers and the city written notice no less than thirty (30) days prior to any proposed change in these policies. Under normal circumstances, the franchisee shall provide all subscribers and the city with at least thirty (30) days written notice prior to the implementation of any change in rates or programming services. Copies of all notices provided to subscriber shall be filed concurrently with the city.

(2) For violation of cable customer service standards, 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 ($1200) 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 ($1000) for each day of each material breach, not to exceed three thousand dollars ($3000) for each occurrence of the material breach;

(iv) Any penalty assessed under this section will be reduced dollar for dollar to the extent any other penalty or liquidated damage provision of a franchise imposes 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 consistent with the procedures established by California Government Code § 53088.2(r). (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) 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)-(g).

(b) Any person may apply for an initial or renewal franchise by submitting an application therefor on that person's own initiative, or in response to a request for proposals issued by the city, without limiting the foregoing a franchisee may apply for a renewal of an existing franchise in accordance with and in the manner provided by law including the Cable Act and section 626 thereof. 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.

(c) In determining whether to grant the application the city may consider:

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

(2) Whether an applicant for renewal's quality of service under its existing Franchise, including signal quality, response to customer complaints, billing practices, and the like has been reasonable in light of the needs of the community;

(3) Where the applicant has not previously held a cable communication 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;

(4) 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;

(5) 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;

(6) 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 communication system;

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

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

(d) The Council shall receive such report and recommendations of the CAO, shall consider the same together with such application, and shall make its determination either that such application should be accepted upon such terms and conditions as the Council shall determine, and as herein provided, or that such application should be rejected. In making any determination hereunder as to any application, the Council shall give due consideration to the quality of the service proposed, rates to subscribers, income to the city, experience, character background, and financial responsibility of the applicant and its management and owners, the technical and performance quality of the equipment to be used, the willingness and ability of the applicant to meet construction and physical requirements, policy conditions, franchise limitations, and requirements imposed by this article or pursuant hereto, and any other considerations deemed pertinent by the Council for safeguarding the interest of the city and the public. The Council may determine that the award of any franchise shall be made on the basis of such considerations with or without competitive bidding, or otherwise, in its discretion.

(e) If the Council shall determine that such application should be rejected, such determination shall be final and conclusive, and the same shall be deemed rejected. If the Council shall determine such application should be accepted, the following shall be done and caused to be done:

(1) The Council shall decide and specify the terms and conditions of any franchise to be granted hereunder and as herein provided;

(2) The Council shall pass its resolution of intention to grant such franchise, stating the name of the proposed grantee, the character of the franchise, the terms and conditions upon which such franchise is proposed to be granted, fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or objection to the granting thereof may appear before the Council and be heard, and directing the City Clerk to publish said resolution at least once, within fifteen days of the passage thereof;

(3) Within fifteen days after the passage of said resolution, the City Clerk shall cause the same to be published in a newspaper of general circulation within the city, and the same shall be published at least ten days prior to the date specified for hearing thereon. Copies of such resolution shall be mailed to any person requesting same in writing.

(f) At the time set for such hearing, or at any adjournment thereof, the Council shall proceed to hear and pass upon all protests, and its decision thereon shall be final and conclusive. Thereafter, the Council shall make one of the following determinations:

(1) That such franchise be denied; or

(2) That such franchise be granted upon the terms and conditions as specified in the resolution of intention to grant the same; or

(3) That such franchise be granted, but upon the terms and conditions different from those specified in the resolution of intention to grant the same.

(g) If the Council shall determine that such franchise be denied, such determination shall be by resolution and shall be final and conclusive. If the Council shall determine that such franchise be granted, such determination shall be by ordinance, granting such franchise upon such terms and conditions as specified therein.

(h) If the city determines that issuance or informal renewal of a franchise would be in the public interest considering the factors described above, following public hearing and adoption of any required resolution of intention and the public notice and comment period thereunder, it may proffer a franchise agreement to the applicant. No franchise shall become effective until the applicant unconditionally accepts the franchise, and the franchise agreement is signed. (Added Ord. 2004-105, § 2, eff. 11-30-04).

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

(b) 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. (Added Ord. 2004-105, § 2, eff. 11-30-04).

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

(b) No transfer shall occur without prior written notice to and approval of the city.

(c) An application for transfer must contain all the information required by the CAO, by this article and all information required by any FCC transfer form. 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.

(d) 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 communication 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 article, the franchise, or other applicable law. The proposed transferee shall pay all reasonable costs incurred by the city in reviewing and evaluating the applications to the maximum extent allowable by law.

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

(2) 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;

(3) 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 franchise denied on any ground within three (3) years of the application;

(4) 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 city and the subscribers, or to substantially comply with its obligations;

(5) Applicant must have the necessary authority under California and federal law to operate a cable communication system, or show that it is in a position to obtain that authority;

(6) 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.

(e) 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 title 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.

(f) 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 deemed to impair that trust.

(g) Notwithstanding any other provision of this article, 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 if it would in any respect under any condition: (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 article, or other applicable law. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) A cable system operator shall pay to the City of Fresno a franchise fee in an amount equal to 5 percent of gross revenues, or such other amount as may be specified in the franchise documents; provided, however, that the 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.

(1) For purposes of calculating the franchise fee, gross revenues shall include a fair proportion of all revenues attributable to franchised cable services which are delivered by the franchisee, regardless of method. If a franchisee bundles, ties or combines the sale of some or all of its services, whether or not authorized by this franchise, and assesses its subscribers only one charge, the combined revenue therefrom shall be allocated to gross revenues to the full extent which would have been charged by franchisee if the subscriber had received only franchised cable services. In no event shall the amount allocated to franchised cable services under the foregoing calculation exceed the lesser of (1) the total amount of combined revenue actually received by a franchisee for unbundled services, or (2) the net revenue derived when mandatory tariff rates (if any) imposed by a governmental authority for components of the bundled, tied or combined services are deducted from the combined revenue. A franchisee may not alter or change any payments or amounts of compensation to the city which may be dictated by another franchise, ordinance, agreement or by applicable law and which are related to use of the public rights-of-way in the provision of non-franchised cable services in the city.

(2) In the event that a franchisee bundles services that are included in the definition of gross revenue with other services not included, the unbundled amount of gross revenue will be based on the published rate for any service provided for in a cable communications system franchise. Exception can be made with a clear showing by the franchisee that services offered pursuant to a franchise were discounted along with an accounting of the amount of said discount.

(3) If a franchisee offers its subscribers any kind of discount for receipt of both franchised cable and non-cable services (which are not included in the definition of gross revenues), the discount may be applied proportionately to franchised cable services and non-cable services upon notification to the city of such discount methodology. Such notification shall include the amount of the discount being applied to each service and documentation demonstrating the promotion and billing of such discount.

(4) The definition of gross revenue is to be as inclusive as possible consistent with existing applicable law. If a change in federal law occurs subsequent to the effective date of this ordinance, such change shall not impact the gross revenues definition in such a way to reduce gross revenues - unless the change specifically preempts the affected portion of the definition above. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) In addition to the other requirements of this article, the application must contain the following information:

(1) Identity of the applicant; the persons who exercise working control over the applicant; and the persons who control those persons, to the ultimate parent.

(2) Evidence satisfactory to the city that the applicant is legally qualified, which proof must include a demonstration that the applicant:

(i) Has received, or is in a position to receive, necessary authorizations from state and federal authorities;

(ii) Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows city to conclude the applicant cannot be relied upon to comply with requirements of franchise, or provisions of this title;

(iii) Is willing to enter into a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or maintenance of its facilities, and has not entered into any agreement that would prevent it from doing so.

(3) An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.

(4) To the extent that the applicant is in any respect relying on the financial or technical resources of another person, including another Affiliate, the proofs should be provided for that person. An applicant will be presumed to have the requisite financial, or technical or legal qualifications to the extent such qualifications have been reviewed and approved by a state agency of competent jurisdiction; or if applicant is a holder of a franchise in the city for a cable system or open video system, and conduct under such other franchise provides no basis for additional investigation.

(5) 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.

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

(b) In addition to the other requirements of this article, in evaluating a franchise application, the city may consider the following:

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

(2) Whether the applicant has the financial, technical, and legal qualifications to hold an OVS franchise including:

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

(ii) The applicant must not hold a cable system franchise, or have pending an application for a cable system franchise;

(iii) 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;

(iv) 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

(v) 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.

(3) Whether the application satisfies any minimum requirements established by the city for, or will otherwise provide adequate public, educational, and governmental use channels/capacity, facilities, or financial support (including with respect to institutional networks);

(4) 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;

(5) Whether the approval of the application may eliminate or reduce competition in the delivery of cable communication service in the city;

(6) Whether the applicant has the necessary authority under California and federal law to operate an OVS, and is certified by the FCC under Section 653 of the Cable Act.

(c) 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.

(d) An applicant shall be provided a reasonable opportunity to show that, a franchise should issue even if the requirements of this section 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.

(e) An applicant may show that it would be inappropriate to deny it a franchise by virtue of: the particular circumstances surrounding the acts or omissions at issue; the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and the lack of involvement of the applicant's principals, or the remoteness of the acts or omissions from the operation of open video system facilities.

(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) Minimum conditions for grant of OVS franchise.

(1) 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) An OVS 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.

(3) 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

(4) Every OVS franchise 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.

(5) 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 article or a franchise.

(6) Every franchisee must satisfy customer service consumer protection requirements established from time to time under state, local law or resolution and the franchise and applicable to OVS.

(h) For purposes of this section the term applicant includes any affiliate of applicant. (Added Ord. 2004-105, § 2, eff. 11-30-04).

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 of Fresno may revoke the OVS franchise after a public hearing. The OVS franchise may also be revoked if federal regulations or statutory provisions governing OVS are declared invalid or unenforceable, or are repealed. (Added Ord. 2004-105, § 2, eff. 11-30-04).

The city of Fresno may regulate a franchisee's rates and charges except as prohibited by law, and may do so by amendment to this article, separate ordinance, by amendment to an OVS Agreement, or in any other lawful manner. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) Fee in lieu of franchise fee.

(1) In lieu of the franchise fee required by section 9-218 of this article, an OVS operator 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.

(i) A person leasing capacity from an OVS operator, other than a person whose revenues are included in the payment made by an OVS operator under subsection (1) above, shall pay the city a fee in lieu of the franchise fee required by section 9-218 of this article of five percent (5%) of the gross revenues of such person. The city may require the OVS operator to collect this fee and remit it so city.

(ii) 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 this subsection (2); then franchisee may deduct from its gross revenues the use payments it receives from that person (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) The franchise fee paid pursuant to section 9-218 of this article, or fee in lieu of franchise fee paid pursuant to section 9-222 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.

(b) Unless a franchise provides otherwise, a franchisee or other entity subject to a fee under sections 9-218 and/or 9-222 of this article 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.

(c) 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.

(d) Neither the franchise fee under section 9-218 of this article nor the fee paid in lieu of the franchise fee under section 9-222 of this article, 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).

(e) 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, the person subject to the fee will be charged interest on fee overdue from the due date at the lesser of the maximum rate then allowable by law or three percent (3%) above the rate for three-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.

(f) Within ninety (90) days of the date a franchisee ceases operations under a franchise (whether because of franchise termination, transfer, bankruptcy or for any other reason), 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 this ordinance. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) 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.

(b) 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 at its sole cost shall remove all facilities installed under the permit upon the city's demand.

(c) 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 at permittee's sole cost.

(d) 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 CAO 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.

(e) Work shall be publicized as CAO may direct from time to time. The publication of work may be used to notify the public and operators of other communications systems of the impending work, in order to minimize inconvenience and disruption to the public.

(1) Each franchisee shall provide 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.

(2) The CAO may from time to time, when the city receives application for a permit to use a particular route, or upon the city's own initiative, designate by published order a route or proposed route for installation of communications facilities and may (i) require all persons who wish to emplace underground facilities along that route or any part thereof to install them during a specified period and (ii) otherwise prohibit emplacement of such facilities along the route or any part thereof for 24 months or after such other, longer period as is necessary to protect the public.

(f) Failure on the part of the grantee to commence and diligently pursue and complete construction within the timeframe(s) provided in the franchise shall be grounds for termination of such franchise. By acceptance of the franchise granted hereunder, grantee agrees that failure to comply with any time requirements referred to in subsections (a), (b) and (c) of this section will result in damage to the city and that it is and will be impracticable to determine the actual amount of such damage in the event of delay; and grantee therefore agrees that, in addition to any other damage suffered by city, he will pay to city liquidated damages specified in the franchise documents for each and every day's delay beyond the time prescribed, plus authorized extensions thereof, for completion of any of the acts required to be done by this section.

(g) 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 CAO.

(1) To minimize disruption of public passage or infrastructure, to forestall or relieve exhaustion of rights-of-way capacity, or to protect environmentally sensitive areas, the city may require as a condition of issuing any rights-of-way permit for erection of new poles or construction of underground conduit, the installation of which requires excavation of or along any traveled way that the franchisee, licensee, or holder of the rights-of-way permit emplace pole space or empty conduits in excess of its own present and reasonably foreseeable requirements for the purpose of accommodating the city and/or other franchisees and licensees.

(h) Undergrounding.

(1) In those areas and portions of the city where existing utilities are underground or hereafter may be placed underground, or are to be placed underground by a builder, developer or subdivider as part of a development or subdivision, then the grantee shall likewise construct, operate and maintain all of its cable communication system facilities unless the CAO in his/her sole discretion determines that doing such would impair functionality of the cable communication system.

(2) 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.

(3) In new developments or subdivisions, the grantee shall be responsible for the performance of all necessary trenching and backfilling of main line and service trenches, including furnishing of any imported backfill material required or participate in joint trench construction with other utilities. The grantee will be responsible for the conduct of the engineering and labor to put the cable conduit in the trench. The grantee will be responsible for pulling in the cable, and providing the plant electronics and drops to individual homes, after occupancy.

(4) In those areas and portions of the city heretofore designated by the city as local improvement districts and where utility service facilities are currently located underground, the grantee shall be responsible for the undergrounding of cable facilities including the performance of all necessary trenching and backfilling of main line and service trenches, and the furnishing of any imported back-fill material required.

(5) Subject to approval by the CAO, incidental appurtenances such as amplifier boxes and pedestal mounted terminal boxes may be placed above ground, but shall be of such size and design and shall be so located as not to be unsightly or hazardous to the public.

(6) The CAO 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 city and the subscriber's interest can be protected in another manner. Nothing herein prevents the city from ordering communications facilities to be located or relocated underground under other provisions of the city's Municipal Code.

(i) The cable communication system operator, at its sole cost shall promptly repair any and all public rights-of-way, other public property, or private property that is disturbed or damaged during the construction, operation, maintenance or repair of a cable communications system. Public property and public rights-of-way must be restored to the satisfaction of city or to a condition as good or better than before the disturbance or damage occurred.

(j) Movement of facilities for government.

(1) A cable communications system operator shall, at its sole cost and by 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 CAO in his/her sole discretion determines that the work involved necessitates the removal or relocation of the cable communications system. Collectively, such matters are referred to below as the "public work."

(2) Except in the case of emergency, the city shall provide written notice describing where the public work is to be performed at least one week 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.

(k) Movement for others.

(1) To accommodate the construction, operation, or repair of the facilities of another person authorized to use the streets or public property, a cable communication system operator shall, at its sole cost unless otherwise mutually agreed between the cable communication system operator and the authorized person requesting movement, and by a time specified by such person, protect, support, temporarily disconnect, relocate or remove its facilities. The cable communications system operator must be given written notice describing where the construction, operation or repair is to be performed at least fifteen (15) days prior to the time by which its work must be completed. The city may 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.

(2) 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 by the person requesting the same.

(l) Abandonment in place.

(1) 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 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.

(2) 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 quitclaim deeds and indemnify the city against future costs associated with mitigating or eliminating any environmental hazard associated with the abandoned property.

(m) Every cable communications system and 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.

(n) 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.

(o) Every franchise shall specify for the city a construction schedule that will apply to any required construction, upgrade, or rebuild of the cable communications system. The schedule shall provide for the prompt completion of the project, shall show its timetable for construction of each phase of the project, with benchmarks for deliverables and the areas of the city that will be affected. The city may impose penalties on the operator for a failure to meet the accepted timetable and benchmarks where allowed by the franchise and applicable law.

(p) 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. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) No franchise shall be valid or effective until and unless the city obtains an adequate indemnity from the franchisee in a form acceptable to the City Attorney and the City's Risk Manager. Without limitation the indemnity must:

(1) 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 operator must further agree not to sue or seek any money or damages from the city in connection with the above-mentioned matters.

(2) To the furthest extent allowed by law, hold city completely harmless and indemnify, protect and defend city and city's officials, members, employees, volunteers and agents and each of its officers, officials, employees, agents and volunteers against any and all claims, judgments, fines, penalties, forfeitures, damages, demands, liabilities, suits, notices, costs and expenses (including all reasonable costs and expenses for investigation and defense thereof [including, but not limited to attorney fees, court costs and expert fees]), or any one, more or all of these, of any nature whatsoever, arising or allegedly arising, directly or indirectly, out of, as a result of, or incident to, or in any way connected with the construction, operation or maintenance of the cable communications system, franchisee's exercise of any one, more or all of the rights and privileges herein granted, any breach or default in the performance of any obligation on franchisee's part to be performed hereunder, and/or any act(s) or omission(s) on the part of franchisee and/or any officer(s), agent(s), employee(s), contractor(s), sub-contractor(s), servant(s), or representative(s) of franchisee, except for any claims, judgments, fines, penalties, forfeitures, damages, demands, liabilities, suits, notices, costs and expenses, or any of these, caused solely by the active negligence or by the willful misconduct of city or any of its officials, officers, or employees acting within the scope of their duties for city.

(3) Provide that franchisee shall conduct all defense at its sole cost and expense. City shall be reimbursed for all costs and attorney's fees incurred by city in enforcing this obligation. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of franchisee and its officials, officers, employees, agents and volunteers.

(4) Provide that the covenant and representations relating to the indemnification provision shall survive the term of the franchise or other authorization and continue in full force and effect as to the party's responsibility to indemnify.

(b) 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 and approved by the city's Risk Manager. The required insurance must be obtained and maintained for the entire period the franchisee has facilities in the public right-of-way and for any additional period required by this ordinance and the franchise. If the franchisee, its contractors, or subcontractors do not obtain and maintain the required insurance, city may order such entities to stop operations until the insurance is obtained and approved.

(1) Certificates of insurance, endorsement and declarations reflecting 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 this ordinance, certificates and other required proofs shall be filed within 30 days of the issuance of a franchise, prior to the commencement of construction, once a year thereafter as to insurance certificates, and whenever there is any change in coverage. For entities that have facilities in the public right-of-way as of the effective date of this ordinance, certificates and other required proofs shall be filed within 60 days of the effective date of this ordinance, annually thereafter, and whenever there is any change in coverage, unless a pre-existing franchise provides for filing of certificates in a different manner. In the event that the insurance certificates and other required proofs provided indicate that the insurance shall terminate or lapse during the term of the franchise, then in that event, the communications system operator shall furnish, at least 30 days prior to the expiration of the date of such insurance, a renewal certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the franchise under which the cable communications system operates.

(2) Policies shall be issued by an insurance company (ies) either:

(i) admitted by the California Insurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's Insurance Rating Guide; or

(ii) authorized by the City Risk Manager.

(3) A cable communications system operator (and those acting on its behalf to construct or operate the system) shall purchase and maintain the following minimum insurance. The following policies of insurance are required:

(i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad as Insurance Services Office (ISO) General Liability Coverage Form CG 00 01 and shall include coverage for Premises and Operations (including the use of owned and non-owned equipment), Products and Completed Operations, Personal Injury and Advertising Liability, Explosion, Collapse, and Underground Hazards and Blanket Contractual Liability with limits of liability of not less than $1,000,000 per occurrence and 2,000,000 general aggregate for bodily injury and property damage; $1,000,000 for personal and advertising injury; and $2,000,000 aggregate for products and completed operations.

(ii) COMMERCIAL AUTOMOBILE LIABILITY insurance, which shall be at least as broad as Insurance Services Office (ISO) Business Auto Coverage Form CA 00 01 and endorsed for "any auto" with combined single limits of liability of not less than $1,000,000 per accident for bodily injury and property damage.

(iii) WORKERS' COMPENSATION insurance as required under the California Labor Code; and in the case 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.

(iv) EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee of franchisee and its contractors and subcontractors.

(4) Additional Insurance Coverage Requirements.

(i) Defense costs shall be provided as an additional benefit and not included within the above limits of liability. Franchisee shall be responsible for payment of any deductibles contained in any insurance policies required hereunder. completed operations and products liability shall be maintained for two years after the termination of the franchise (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).

(ii) The above described policies of insurance shall be endorsed to provide an unrestricted 30-day written notice in favor of city, of policy cancellation, change or reduction of coverage, except for the workers' compensation policy which shall provide a 10-day written notice of such cancellation, change or reduction of coverage.

(iii) Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, franchisee shall file with city a certified copy of the new or renewal policy and certificates for such policy.

(iv) The general liability and automobile liability insurance policies shall be written on an occurrence form and shall name the city, its officers, agent and employees as an additional insured. Such policy(s) of insurance shall be endorsed so franchisee's insurance shall be primary and no contribution shall be required of city. Any workers' compensation insurance policy shall contain a waiver of subrogation as to city, its officers, officials, agents, employees and volunteers.

(v) Franchisee shall furnish city with copies of the actual policies upon the request of City's Risk Manager at any time during the life of the franchisee, and this requirement shall survive termination or expiration of the franchise.

(vi) Any failure to maintain the required insurance shall be sufficient cause for city to terminate the franchise.

(vii) In every franchise agreement the city shall reserve the right to require any other insurance coverage it deems necessary depending upon exposures. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) Every operator of a cable communications system shall obtain and maintain performance (as to the franchise) and payment (as to the work of the communication system facilities) bonds to ensure the faithful performance of its responsibilities under this ordinance and any franchise. The amount of the bonds shall be set by the CAO or may be set in a franchise ordinance in light of the nature of the work to be performed, but shall be at least the greater of the amount required by law or 10 per cent of the estimated cost of constructing or (in the case of existing systems) upgrading the system, and including a sufficient amount to cover the removal of facilities and/or restoration of city facilities within the right-of-way. The bonds are not in lieu of any additional bonds that may be required through the permitting process unless the city expressly agrees in writing. The bond shall be in a form acceptable to the City Attorney and the City Risk Manager. Bonds must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.

(b) Every cable communications system operator shall establish and maintain a cash security fund or provide the city an irrevocable letter of credit benefiting the city in the amount of $500,000 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 Controller and the City Attorney. Should the city draw upon the cash security fund or letter of credit, the cable communications system operator shall, within 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 CAO where it 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. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) In addition to remedies available under law, franchise and this article including penalties and liquidated damages imposed administratively, the Council may 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 article or its franchise; has defrauded or attempted to defraud the city or subscribers; or has attempted to evade the requirements of this article or its franchise. Except as to violations that are impossible to cure, and as provided hereinafter, the franchise may only be revoked or shortened if the franchisee (i) was given notice of the default; and (ii) 30 days to cure the default; and (iii) 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. The CAO may cause to be placed upon the agenda of a regular session of the Council his request for termination or reduction and in such case, the CAO shall cause to be served upon such grantee, at least five days prior to the date of such session of the Council, a written notice of his intent to request such termination or reduction at the time and place of such session. At such session of the Council, or at any adjournment thereof, the Council shall consider the request of the CAO, and shall hear any persons interested therein, and shall determine whether or not any such failure, refusal or neglect by grantee was with just cause. If the Council shall determine such failure, refusal or neglect by grantee was with just cause, it shall direct grantee to comply within such time and manner and upon such terms and conditions as the Council shall determine to be reasonable. If the Council shall determine such failure, refusal or neglect by grantee was without just cause, then the Council may pass its resolution declaring that the franchise of such grantee shall be terminated and forfeited, or reduced unless there be compliance by grantee within ten days, and such resolution shall operate to declare such franchise terminated and forfeited or reduced on the tenth day next following the passage thereof, and without further notice to grantee, unless grantee shall so comply within such ten day period, such termination and forfeiture, or term reduction to become effective for all purposes one hundred eighty days thereafter. At any time after the effective date of such termination and forfeiture, and by operation of law, the city shall have the right, upon a finding by resolution of the Council that service is not being satisfactorily rendered to subscribers and without further notice or process, to enter and take possession of all properties, facilities, records and files of grantee, and to exercise all of the rights, privileges, powers, authorities and immunities of grantee, which are a part of the system of grantee, and to operate the system, and to provide the services thereof, in the same manner, and to the same extent, in all respects, as existed in grantee, and grantee shall not cause or permit any avoidance, hindrance, interference, or delay, in the exercise of such right by city. Within one hundred eighty days after such declaration of termination and forfeiture, and regardless of the exercise of any right of city hereunder, grantee may sell, remove, or (by means divesting grantee of all right, title, and interest) transfer the entire system of grantee, subject to the provisions of this article, and upon any such sale or transfer in addition to any other rights hereunder or otherwise, city shall have a lien (next in order of preference to any liens or encumbrances existing of record on the date of such termination and forfeiture) against any and all proceeds thereof, and against the system of grantee, in the full amount of any loss, cost, expense or other financial detriment incurred by city in the exercise of any right hereunder, or by reason of such termination and forfeiture. In the event grantee shall fail or refuse to sell, remove or transfer the entire system of grantee, as hereinabove provided, and regardless of the exercise of any other right of city hereunder, then by operation of law, all of the properties, facilities, records, files, rights, privileges, powers, authorities, and immunities of grantee, which are part of the system of grantee, shall become the property of the city, subject to any and all valid liens or encumbrances of record, and the system shall belong to the city; and grantee shall cause to be executed, acknowledged, and delivered to the city, upon demand therefor, such instruments as the City Attorney shall prescribe and approve, evidencing or affecting the ownership or control of any of the same in the city. In the event the system of grantee shall become the property of the city, as herein provided, then city may solicit and call for offers to purchase such system, by bid process; provided, that city may, in the manner provided in this article, solicit and call for offers and applications for franchise, and may specify, as a term and condition thereof, that any such offer and application shall include the purchase of such system from city. Nothing herein shall be construed to obligate or require city to exercise any right of city hereunder, and city shall at no time be obligated or required to undertake or assume the ownership or operation of any cable communication system, or to provide any cable communication service.

(b) 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 (i) voluntarily stops providing service it is required to provide; (ii) transfers the franchise without the prior consent of the city.

(c) 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, liquidation, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the franchise may be reinstated by the city within that 120 day period, if: (i) such assignment, receivership or trusteeship has been vacated; or (ii) such assignee, receiver or trustee has fully complied with the terms and conditions of this article 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 title and the franchise.

(d) In the event of foreclosure or other public or 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 Council by serving notice upon the franchisee and (if applicable) 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: (i) the city has approved the transfer of the franchise to the successful bidder in a manner consistent with this article; and (ii) 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 article.

(e) 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 facilities that are used to provide another service for which the franchisee holds a valid franchise issued by the city.

(f) Remedies provided for under this article, 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) A franchise granted pursuant to this article shall require the payment of administrative penalties and liquidated damages, in amounts and payable in the manner required by law, the city's master fee schedule and as 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). Administrative penalties and liquidated damages shall be assessed only following a minimum 30 days written notice thereof, and subject to city's administrative appeal process. In no event shall administrative penalties exceed in the aggregate $5000 per day. The franchise shall also provide that the city may claim and/or setoff such penalties and liquidated damages owed from the franchisee's performance bond and security deposit. Penalties and 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 penalties and liquidated damages. Franchisee's obligation to pay penalties and liquidated damages does not in any way affect its obligation to pay franchise fees or perform other obligations in the franchise. Penalties and 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). Penalties and liquidated damages paid by grantee are not costs of satisfying franchise requirements as provided in 47 C.F.R § 76.925. Grantee will not pass the cost of any penalties and liquidated damages to subscribers through subscriber rates or itemize or otherwise identify on subscriber bills any obligation grantee may have to pay penalties and liquidated damages.

(h) In fixing franchise administrative penalties the city shall be guided by the following principles:

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

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

(3) Penalties shall be sufficient to protect against loss of revenues resulting from violations. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) 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. The records include, but are not limited to revenue records, and other records related to compliance with any provision of this article or a franchise. A cable communications system operator 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 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.

(b) Books and records requested shall be produced to the city by a time and at a location in the city designated by the CAO. 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 (i) the franchisee must make necessary arrangements for copying documents selected by the city after its review; and (ii) the franchisee must pay all travel and additional copying expenses incurred by the city (above those that would have been incurred had the documents been produced in the city) in inspecting those documents or having those documents inspected by its designee. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) The CAO may from time to time direct a franchisee to prepare reports and to submit those reports by a date certain, in a format prescribed by the Manager, in addition to those required by this article.

(b) Unless an exemption is granted by the CAO, within 45 days of the end of each calendar quarter, a franchisee shall submit a report to the city containing the following information:

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

(2) 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 or more subscribers.

(c) Unless an exemption is granted by the CAO, no later than ninety (90) days after the end of its fiscal year, a franchisee shall submit the following information:

(1) 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.

(2) A report showing, for each applicable customer service standard, 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 all the customer service complaints received and an explanation of their dispositions.

(3) 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.

(d) Within 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:

(1) Notices of deficiency or forfeiture related to the cable communication system; and

(2) Any voluntary or involuntary petition for protection under bankruptcy laws, or any order, judgment or discharge related to a bankruptcy proceeding involving the franchisee or by any person, partnership or corporation that owns or controls the franchisee directly or indirectly.

(e) The franchisee may be required to submit to the city copies of all pleadings, applications, notifications, communications and documents of any kind, submitted by the franchisee to, as well as copies of all decisions, correspondence and actions by, any federal, state and local courts, regulatory agencies and other government bodies relating to its cable communication system operations within the franchise area. Franchisee shall submit such documents to the city no later than thirty (30) days after receipt of a city request. The franchisee hereby waives any right to claim confidential, privileged or proprietary rights to such documents unless such confidential rights have been "determined" to be confidential by a court or by the practices or decision of federal and state agencies. Such confidential data exempt from public disclosure shall be retained in confidence by the city and its authorized agents and shall not be made available for public inspection, to the extent allowed by law.

(f) The willful refusal or failure of the franchisee to file any of the reports reasonably required, or such other reports as the city reasonably may request, may be deemed a material breach of the franchise, and may subject the franchisee to all remedies, legal or equitable, which are available to the city under the franchise or otherwise. (Added Ord. 2004-105, § 2, eff. 11-30-04).

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 provide a map to the city showing the location of its facilities, in such detail and scale as may be directed by the city and update the map at least annually, and whenever the facility expands or is relocated. Copies of maps shall be provided in hard copy and on disk, in a commercially available electronic format specified by the City Engineer. (Added Ord. 2004-105, § 2, eff. 11-30-04).

(a) Unless the CAO waives the requirement, a franchisee shall at all times maintain:

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

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

(3) 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 (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved.

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

(b) The CAO may temporarily exempt any franchisee from the requirements of subsection (a) of this Section if the CAO determines that the requirement would be unduly burdensome or unnecessary, and that city and subscriber interests may be adequately protected in some other manner. (Added Ord. 2004-105, § 2, eff. 11-30-04).

A franchisee shall take all reasonable steps required so that it is able to provide reports, books and records to the city, including by providing 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. (Added Ord. 2004-105, § 2, eff. 11-30-04).

Except as required by federal or state law:

(a) The monitoring of any subscriber terminal without specific written authorization of the subscriber is prohibited. Franchisee shall be responsible for the protection of subscriber privacy, prohibiting the tapping and/or monitoring of cable, line, signal input device, or subscriber outlet or receiver for any purpose whatsoever, except franchisee may conduct tests of the functioning of the system where necessary in order to ensure proper maintenance of the system and to collect performance data for agencies regulating the quality of signal. Where critical information requires private communication, electronic signal scrambling techniques must be used.

(b) Listings of subscribers' names and addresses may not be sold or otherwise released for any purpose, nor any list which identifies, by name, subscriber viewing habits, to any person, agency, entity, for any purpose whatsoever, without specific written authorization of the individual subscriber.

(c) The grantee and the city shall maintain constant vigilance with regard to possible abuses of the right or privacy of any subscriber, resulting from any device or signal associated with the cable communications system. The grantee shall not place in any private residence any equipment capable of two-way communications without the written consent of the residents, and will not utilize the two-way communications capability of the system for subscriber surveillance of any kind without the written consent of the subscriber.

(d) No cable, line, wire, amplifier, converter, or other piece of equipment owned by the franchisee shall be attached to any residence or other property by the grantee without first securing the written permission of the owner or responsible occupant of any property involved. If such permission is later revoked whether by the original or a subsequent owner or responsible occupant, the grantee shall remove forthwith all of its equipment and promptly restore the property to as near to its original condition as possible.

(e) No polls or other two-way responses of subscribers shall be conducted unless the program of which the poll is a part shall contain an explicit disclosure of the nature, purpose and prospective use of the results of the poll. No commercial or other use of information of subscriber viewing habits or patterns may be made and no release of such information shall be permitted without prior consent of the council or pursuant to rules and regulations duly adopted by the city.

(Added Ord. 2004-105, § 2, eff. 11-30-04).

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

(b) Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this article 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.

(c) If any term, condition, or provision of this article 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 that 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.

(d) Connections to cable system; use of antennae.

(1) 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) 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.

(e) Discrimination prohibited.

(1) 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 the city to waive such rights as a condition of taking service.

(2) 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, caste, indigeneity, sex, sexual orientation, 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.

(f) It shall be unlawful for any person, firm or corporation to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable communication system within this city for the purpose of enabling himself or others to receive or use any television signal, radio signal, picture, program or sound, or other information or intelligence, without payment to the owner of said system or its lessee. It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound, or information or intelligence.

(g) Transitional provisions.

(1) The operator of any facility installed as of the effective date of this article, for which a franchise is required under this article, shall have three months from the effective date of this article to file one 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 Fresno Municipal Code, and nothing herein shall prevent the city from requiring removal of any facilities installed in violation of the Code.

(2) 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 and any additional period required by the Cable Act including section 626 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 article to the extent permitted by law.

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

(h) Extended Operation.

(1) Unless otherwise expressly provided in the franchise documents, upon the expiration, non-renewal, or revocation of a franchise, the city may require the franchisee to continue to operate the cable communication system for a defined period of time not to exceed twenty-four (24) months from the date of such expiration, non-renewal, or revocation. The franchisee shall, as trustee for its successor-in-interest, continue to operate the cable communication system under the terms and conditions of this article and the franchise documents and to provide the regular cable service and any of the other services that may be provided at that time. The city shall be permitted to seek legal and equitable relief to enforce the provisions of this section.

(i) Every field representative of the franchisee shall be clearly identified on sight to the public as a representative of the franchisee. Every vehicle of the franchisee shall be similarly identified.

(j) The city may, with the permission of the relevant court or administrative tribunal, intervene in any suit or proceeding involving the cable communication system franchise to which the franchisee is party.

(k) Franchisee shall maintain throughout the term of the franchise, a local address for service of notices by mail.

(l) Within one hundred eighty days from and after the effective date of the ordinance awarding the franchise or franchise renewal, or within such extended period of time as the council in its discretion may authorize, the franchisee shall file with the city clerk copies of all contracts which it may have with all public utility companies, including but not limited to the SBC Communications Inc. and the Pacific Gas & Electric, whereby grantee is granted any right to use any of the property, equipment or facilities of such utility or utilities in the conduct of any operations pursuant to the franchise or franchise renewal awarded to said franchisee.

(m) The franchisee shall not, and shall prohibit any officer, agent, employee, contractor or subcontractor which it retains from, removing or trimming any tree or portion thereof (either above, at or below ground level), which is located within a public right-of-way without the prior written approval of the City Director of Public Works, consistent with the Fresno Municipal Code. Such consent may be given or withheld upon such terms and conditions as the Director of Public Works deems appropriate. Each franchisee shall be responsible for, shall indemnify, defend and hold harmless the city, and its officers, agents and employees from and against any and all damages arising out of or resulting from the removal, trimming, mutilation of or any injury to any tree or trees proximately caused by the franchisee or its officers, agents, employees, contractors or subcontractors.

(Added Ord. 2004-105, § 2, eff. 11-30-04; Amd. Ord. 2023-031, § 3, eff. 11-3-23).

(a) Findings.

(1) Any ordinance declared by the Council to be necessary as an emergency measure for preserving the public peace, health or safety, and containing a statement of the reasons for its urgency, may be introduced, adopted, and become effective at one and the same meeting if passed by at least five affirmative votes.

(2) The Council finds that continuity of cable communication and video franchise services impact, further and are necessary to ensure the public's health and safety including as to Emergency Alert Broadcasting of public safety information and public, educational and governmental broadcasting and fees in support thereof, and therefore require the adoption of this ordinance based upon the following findings: the city must enact this ordinance prior to January 2, 2008 in order to preserve and fully exercise rights preserved to the city under the Digital Infrastructure and Video Competition Act of 2006 ("DIVCA"); in the absence of a DIVCA implementing ordinance effective as of January 2, 2008, the city will be unable to fully exercise rights preserved to the city under DIVCA as against a state franchisee as of said date; enactment of this ordinance as an urgency measure is necessary to ensure its effect from and after January 2, 2008.

(b) General Provisions.

(1) This section 9-235 is intended to be applicable to state franchise holders who have been awarded a state video franchise under the California Public Utilities Code section 5800 et seq., as amended from time to time (the Digital Infrastructure and Video Competition Act of 2006 ["DIVCA"]), to serve any location(s) within the incorporated boundaries of the City. It is the purpose of this section to implement within the incorporated boundaries of the City the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated there under that are applicable to a "local franchising entity" or a "local entity" as defined in DIVCA.

(2) The rights reserved to the City under this section 9-235 are in addition to all other rights of the City, whether reserved by section 9-235 or authorized by law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the City.

(3) Except as otherwise expressly provided by DIVCA, a state franchise shall not include, or be a substitute for:

(i) compliance with generally applicable requirements for the privilege of transacting and carrying on a business within the City, including, but not limited to, compliance with the conditions that the City may establish before facilities may be constructed for, or providing, non-video services;

(ii) any permit or authorization required in connection with construction, repair, maintenance and/or operations on or in public rights-of-way or public property, including, but not limited to, encroachment permits, street work permits, pole attachment permits and street cut permits; and

(iii) any permit, agreement or authorization for occupying any other property of the City or any private person to which access is not specifically granted by the state franchise.

(4) Except as otherwise provided in DIVCA, a state franchise shall not relieve a state franchisee of its duty to comply with all laws, including the ordinances, resolutions, rules, regulations, and other laws of the City, and every state franchisee shall comply with the same.

(5) Nothing contained in this section 9-235 shall ever be construed so as to exempt a state franchise holder from compliance with all ordinances, rules or regulations of the City now in effect or which may be hereafter adopted which are consistent with the DIVCA.

(c) Definitions.

(1) For purposes of this section 9-235, the following terms, phrases, words, and their derivations shall have the meaning given in this section. Unless otherwise expressly stated, words not defined in this section 9-235 shall be given the meaning set forth in Section 9-204 of the Fresno Municipal Code as may be amended from time to time, unless the context indicates otherwise. Words not defined in this subsection (b) or Section 9-204 of the Fresno Municipal Code shall have the same meaning as established in (1) DIVCA, and if not defined therein, (2) Commission rules implementing DIVCA, and if not defined therein, (3) Title VI of Title 47 of the Communications Act of 1934, as amended, 47 USC § 521 et. seq., and if not defined therein (4) their common and ordinary meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and "including" and "include" are not limiting. The word "shall" and "will" are always mandatory. 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.

(i) "Access," "PEG access," "PEG use," or "PEG" means the availability of a cable or state franchise holder's system for public, educational, or governmental 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 state franchise holder's editorial control.

(ii) "Director" means the Director of the Public Works Department of the City, acting either directly or through authorized agents.

(iii) "Gross revenues" means all revenues actually received by the holder of a state franchise that are derived from the operation of the holder's network to provide cable service or video service within the incorporated areas of the City, subject to the specifications of California Public Utilities Code section 5860.

(iv) "State franchise holder" or "State Franchisee" means a cable operator or video service provider that has been issued a franchise by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in California Public Utilities Code section 5830, within any portion of the incorporated limits of the City.

(d) Franchise Fees.

(1) Any state franchise holder operating within the incorporated areas of the City shall pay to the City a state franchise fee equal to five percent (5%) of gross revenues.

(2) The state franchise fee required pursuant to this subsection (c) shall each be paid quarterly, in a manner consistent with California Public Utilities Code section 5860. The state franchise holder shall deliver to the City, by check or other means, which shall be agreed to by the City, a separate payment for the state franchise fee not later than forty-five (45) days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the payment was calculated, and shall include such additional information on the appropriate form as designated by the City.

(3) The City may audit the business records of the holder of a state franchise not more than once annually, in a manner consistent with California Public Utilities Code section 5860(i).

(4) In the event a state franchise holder fails to make payments required by this section on or before the due dates specified in this section, the City shall impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent (1%).

(5) In the event a state franchise holder leases or licenses access to a network owned by the City, the City may set a franchise or other fee for access to the City-owned network separate and apart from the franchise fee charged to state franchise holders pursuant to this subsection (c), which fee shall otherwise be payable in accordance with the procedures established by this section.

(e) Customer Service.

(1) A state franchise holder shall comply with Sections 53055, 53055.1, 53055.2 and 53088.2 of the California Government Code; the FCC customer service and notice standards set forth in Sections 76.309, 76.1602, 76.1603, and 76.1619 of Title 47 of the Code of Federal Regulations; Section 637.5 of the California Penal Code; the privacy standards of Section 551 of Title 47 of the United States Code; and all other applicable state and federal customer service and consumer protection standards pertaining to the provision of cable service or video service, including any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this paragraph shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.

(2) The City shall enforce the compliance of state franchisees with respect to the state and federal customer service and consumer protection standards set forth in paragraph (1). The City will provide a state franchisee with a written notice of any material breaches of applicable customer service or consumer protection standards, and will allow the state franchisee 30 days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period will be subject to the following penalties to be imposed by the City:

(i) For the first occurrence of a material breach, a fine of $500 may be imposed for each day the violation remains in effect, not to exceed $1,500 for each violation.

(ii) For a second material breach of the same nature within 12 months, a fine of $1,000 may be imposed for each day the violation remains in effect, not to exceed $3,000 for each violation.

(iii) For a third material breach of the same nature within 12 months, a fine of $2,500 may be imposed for each day the violation remains in effect, not to exceed $7,500 for each violation.

(3) Any penalties imposed by the City shall be imposed in a manner consistent with California Public Utilities Code section 5900.

(f) Permits And Construction.

(1) Except as expressly provided in this Section 9-235, the provisions of sections 9-224, 9-225 and 9-226 shall apply to all work performed by or on behalf of a state franchise holder on any City public rights-of-way, public property, or City easement as those terms are defined in Chapter 9 of the Fresno Municipal Code.

(2) Prior to commencing any work for which a permit is required by this subsection (e), a state franchise holder shall apply for and obtain a permit in accordance with the provisions referred to in paragraph (1) of this subsection (e) and shall comply with all other applicable laws and regulations, including but not limited to all applicable requirements of Division 13 of the California Public Resources Code, section 21000, et seq. (the California Environmental Quality Act).

(3) The Director shall either approve or deny a state franchise holder's application for any permit required under paragraph (1) of this subsection (e) within sixty (60) days of receiving a completed permit application from the state franchise holder.

(4) If the Director denies a state franchise holder's application for a permit, the Director shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial.

(5) A state franchise holder that has been denied a permit by final decision of the Director may appeal the denial to the City Council pursuant to the provisions of Section 13-216 of this Code.

(6) The Council may affirm, modify, or reverse the determination or dismiss the appeal there from, as may be just. The hearing before the Council shall be conducted informally, may be continued. The decision of the Council shall be final.

(7) Prior to any construction, rebuild, or upgrade of a cable communication or video system, a state franchise holder shall establish procedures to notify City residents within 300 feet of the impacted area of construction schedules and activities, or as otherwise provided by the Director. Such notices must be provided in the predominant languages spoken by those persons who work and/or reside in the impacted area. The notices shall be provided to the Director for review and acceptance no later than twenty (20) days before commencement of construction, rebuild, or upgrade activities.

(8) At a minimum, the notice required in paragraph (7) of this subsection (e) shall be provided by the state franchise holder not less than forty-eight (48) hours prior to the planned construction. The state franchise holder shall provide additional notice to the persons described in paragraph (7) of this subsection (e) on the day of construction. The notice may be in the form of door hangers that indicate, at a minimum, the dates and times of construction and the name and telephone number of a state franchise holder contact.

(9) The state franchise holder shall provide notice at least twenty (20) days prior to entering private property or public ways or public easements adjacent to or on such private property, public ways, or public easements, and provide a second notice three (3) days prior to entering such property.

(i) Should there be above ground or underground installations (excluding aerial cable lines utilizing existing poles and cable paths) which will affect the private property, such notice shall be in writing and shall contain specific information regarding any above ground or underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths) which shall affect the private property.

(ii) To the extent practicable, aboveground or underground equipment placed on private property shall be placed at the location requested by the property owner. A state franchise holder shall provide the private property owner with at least twenty (20) days advance written notice of its plans to install such equipment, and shall obtain express written consent, in the form of a recorded easement agreement, from the private property owner before installing its appurtenances. The state franchise holder shall notify the property owner, in writing, that the property owner is not obligated to agree to the placement on their property or to enter into an easement agreement with the state franchise holder. Should property owner notify the state franchise holder of objection to placement of any such above-ground or underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), the state franchise holder shall confer with the Director regarding appropriate location and placement of such appurtenances.

(10) In addition to any other notice of proposed entry required under this subsection (e), a state franchise holder's personnel shall make a reasonable attempt to give personal notice to residents immediately preceding entry on private property or public ways or public easements adjacent to or on such private property.

(11) A state franchise holder, its employees, agents, contractors, and subcontractors shall be properly identified as agents of the state franchise holder prior to and during entry on private and public property. Identification shall include the name and telephone number of the state franchise holder on all trucks and vehicles used by installation personnel.

(12) After performance of work, the state franchise holder shall restore such private and public property to a condition equal to or better than its condition prior to construction. Any disturbance of landscaping, fencing, or other improvements upon private or public property shall, at the sole expense of the state franchise holder, be promptly repaired or restored (including replacement of such valuables as shrubbery and fencing) to the reasonable satisfaction of the property owner, in addition to the furnishing of camouflage plants on public property.

(13) Each state franchise holder, within 60 days after the expiration of each calendar year, shall file a report with the Director, which shall contain a street and highway map or maps of any convenient scale on which shall be plotted the location of the entire transmission and distribution system or systems covered by the report as of the last day of the calendar year, with the system or systems located in City highways indicated by distinctive coloration or symbols.

(g) Emergency Alert.

(1) Each state franchise holder shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the state franchise holder's network.

(2) To the extent consistent with California Public Utilities Code section 5880, each state franchisee shall provide the system capability to transmit an emergency alert signal to all participating subscribers, in the form of an emergency override capability to permit the City to interrupt and cablecast an audio message on all channels simultaneously in the event of a disaster or public emergency.

(h) Public, Educational and Government Access Channel Capacity, Interconnection, and Signal Carriage

(1) PEG Channel Capacity.

(i) A state franchisee that has been authorized by the California Public Utilities Commission to provide video service in the City shall designate and activate three PEG channels within three months from the date that the City requests that the state franchisee designate and activate these PEG channels. However, this three-month period shall be tolled for such a period, and only for such a period, during which the state franchisee's ability to designate or provide such PEG capacity is technically infeasible, as set forth in Sections 5870(a), 5870(c) and 5870(h) of the California Public Utilities Code.

(ii) A state franchisee shall provide an additional PEG channel when the standards set forth in Section 5870(d) of the California Public Utilities Code are satisfied by the City or any entity designated by the City to manage one or more of the PEG channels.

(2) PEG Support.

(i) Any state franchise holder operating within the City shall pay to the City, or if directed by the City, pay to the City's designated PEG provider a PEG fee equal to one percent (1%) of gross revenues.

(ii) The PEG support fee shall be used for PEG purposes that are consistent with state and federal law.

(iii) A state franchisee shall remit the PEG support fee to the City or to the City's designated PEG provider quarterly, within forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the PEG support fee was calculated.

(iv) If a state franchisee fails to pay the PEG support fee when due, or underpays the proper amount due, the state franchisee shall pay a late payment charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent (1%).

(3) PEG Carriage and Interconnection.

(i) As set forth in Sections 5870(b) and 5870(g)(3) of the California Public Utilities Code, state franchisees shall ensure that all PEG channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a state franchisee shall be of similar quality and functionality to that offered by commercial channels, shall be capable of carrying a National Television System Committee (NTSC) quality television signal, and shall be carried on the state franchisee's lowest cost tier of service. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the lowest cost tier of service and the channel numbers for the PEG channels shall be the same channel numbers used by any incumbent cable operator, unless prohibited by federal law. After the initial designation of the PEG channel numbers, the channel numbers shall not be changed without the agreement of the City unless federal law requires the change.

(ii) As set forth in Section 5870(h) of the California Public Utilities Code, the holder of a state franchise and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. If a state franchisee and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the City shall require the incumbent cable operator to allow the state franchisee to interconnect its network with the incumbent cable operator's network at a technically feasible point on the state franchisee's network as identified by the state franchisee. If no technically feasible point of interconnection is available, the state franchisee shall make interconnection available to each PEG channel originator programming a channel in the City and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state franchisee requesting the interconnection unless otherwise agreed to by the parties.

(i) Notices.

(1) Each state franchise holder or applicant for a state franchise shall concurrently file with the City a complete copy of all applications, amendments to applications and notices that the state franchise holder or applicant is required to file with the California Public Utilities Commission. Within 30 days of receipt, the CAO shall provide any appropriate comments to the Commission regarding an application or amendment to an application for a state franchise.

(2) Unless otherwise specified in this section, all notices or other documentation that a state franchise holder is required to provide to the City under this Section or the California Public Utilities Code shall be provided to both the City Manager and the City staff person in charge of cable and telecommunications, or their successors or designees.

(j) Existing Franchise(s).

(1) The City will retain authority, without change, over the City's current cable franchisee until such time as it no longer holds a City franchise, or is no longer operating under a current or expired City franchise.

(k) Severability.

(1) If any sentence, clause or phrase of this section is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this section. The City Council hereby declares that it would have passed this ordinance and adopted this section and each sentence, clause or phrase thereof, irrespective of the fact that any one or more subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

(l) No Vested Rights.

(1) Nothing in the Section 9-235 shall be deemed as creating a vested right in the state franchise holder or its affiliates,

(m) Conflict of Law.

(1) In the event of any conflict between this terms and conditions of this Section 9-235 and the terms and conditions of DIVCA, the terms and conditions of DIVCA shall control and take precedence.

(Add. Ord. 2007-94, § 1, eff. 12-4-07)