Chapter 6 — FRANCHISES — Hidden Hills Municipal Code

ARTICLE A. - GENERAL

2-6A-1: - PURPOSE AND SCOPE; SHORT TITLE.

This Chapter regulates the granting of franchises by the City for the purposes enumerated herein. This Chapter may be referred to as the City's Franchise Regulations.

(Ord. 177, 8-19-85)

2-6A-2: - DEFINITIONS.

The following terms are defined for the purposes of this Chapter:

Building Official: The Building Official of the City of Hidden Hills.

City: The City of Hidden Hills.

Council: The City Council of the City of Hidden Hills.

Customer: Any person or entity within the City receiving service from the grantee.

Grantee: The person, firm or corporation to whom or to which a franchise is granted by the Council pursuant to the provisions of this Chapter and the lawful successor, transferee or assignee of such person, firm or corporation.

Subscriber: A person who obtains services from a grantee under a franchise.

(Ord. 177, 8-19-85; 1994 Code)

2-6A-3: - APPLICATION FOR FRANCHISE; REVIEW PROCEDURES.

Any persons desiring to obtain a franchise under this Chapter shall make application upon forms provided by the City Clerk.

The Building Official shall review the application and present a report with recommendations to the Council.

The Council shall conduct a public hearing to consider the Building Official's report and recommendations and shall approve, deny or conditionally approve the application. The decision of the Council shall be final.

(Ord. 177, 8-19-85)

2-6A-4: - GRANTING AND ACCEPTANCE OF FRANCHISE; TERM AND RENEWAL.

Ordinance or Resolution Required; Conditions of Effectiveness: No franchise shall become effective until an ordinance or resolution granting the franchise has become effective and all things required in this Chapter are completed. In the event any of such things are not completed in the time and manner required, the Council may declare the franchise null and void.

File Acceptance of Franchise: Within 20 days after the effective date of the ordinance awarding a franchise or within such extended period of time as the Council, in its discretion, may authorize, the grantee shall file with the City Clerk a written acceptance of the franchise, in a form satisfactory to the City Attorney, together with the other documents required by this Chapter and an agreement to be bound by and to do all things required by the provisions of this Chapter and the franchise. Such acceptance and agreement shall be acknowledged by the grantee before a notary public and shall be in form and content satisfactory to and approved by the City Attorney.

Term: No franchise granted by the Council shall be for a term longer than 30 years following the date of acceptance of the franchise by the grantee.

Renewal: Franchises shall be renewable at the application of the grantee, in the same manner and upon the same terms and conditions as required by the provisions of this Chapter for obtaining the original franchise, except those which are by their terms expressly inapplicable; provided, however, the Council, at its option, may waive compliance with any or all of the requirements of an ordinance granting the franchise.

(Ord. 177, 8-19-85; 1994 Code)

2-6A-5: - CONDITIONS OF FRANCHISE.

Nonexclusive: Any franchise granted pursuant to the provisions of this Chapter shall be nonexclusive.

No Implied Privileges: No privilege or exemption shall be granted or conferred by any franchise except as specifically prescribed in this Chapter.

Subordinate Privileges: Any privilege claimed under any franchise by the grantee in any street or public property shall be subordinate to any prior lawful occupancy of the streets or public property.

Transfer of Franchise Restricted: Any franchise shall be a privilege to be held in personal trust by the original grantee. Such franchise cannot, in any event, be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale or by voluntary sale, merger, consolidation or

otherwise without the prior consent of the Council, expressed by resolution, and then only under such conditions as may therein be prescribed. Any such transfer or assignment shall be made only by an instrument, in writing, a duly executed copy of which shall be filed in the office of the City Clerk within 30 days after any such transfer or assignment. The consent of the Council may not be arbitrarily refused; provided, however, the proposed assignee shall show financial responsibility and shall agree to comply with all of the provisions of this Chapter, and provided, further, no such consent shall be required for a transfer in trust, mortgage or other hypothecation, as a whole, to secure an indebtedness.

Time of Essence: Time shall be of the essence of any franchise. The grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this Chapter or by any failure of the City to enforce prompt compliance.

Rights and Powers of City: Any right or power in, or duty impressed upon, any officer, employee, department or board of the City shall be subject to transfer by the City to any other officer, employee, department or board of the City.

Recourse for Loss or Damage: The grantee shall have no recourse whatsoever against the City for any loss, cost, expense or damage arising out of any provision or requirement of this Chapter or of any franchise or because of the enforcement of the provisions of this Chapter.

City Laws to Govern: The grantee shall be subject to all City laws, rules, regulations and specifications heretofore or hereafter enacted or established.

Refusal of Service: No person in the existing service area of the grantee shall be arbitrarily refused service; provided, however, the grantee shall not be required to provide service to any customer who does not pay the applicable fee or monthly service charge.

Additional Terms and Conditions: The Council shall impose additional terms and conditions for the granting of a franchise as are necessary to implement the provisions of this Chapter, including but not limited to provisions concerning the facilities of the grantee and operational standards. These additional terms and conditions shall be set forth in the ordinance or resolution granting the franchise.

(Ord. 177, 8-19-85; 1994 Code)

2-6A-6: - RIGHTS RESERVED BY THE CITY.

Nothing contained in this Chapter shall be deemed or construed to impair or affect, in any way, to any extent, the right of the City to acquire the property of the grantee, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted, and nothing contained in this Chapter shall, in any way, modify or abridge the City's right of eminent domain.

There is hereby reserved to the City every right and power which is required to be reserved or provided by the provisions of this Chapter or by any law of the City, and the grantee, by its acceptance of any franchise, agrees to be bound thereby and to comply with any action or requirement of the City in its exercise of such rights or powers heretofore or hereafter enacted or established.

Neither the granting of any franchise nor any of the provisions contained in this Chapter shall be construed to prevent the City from granting any identical or similar franchise to any other person within all or any portion of the City.

Neither the granting of any franchise nor any provision of this Chapter shall constitute a waiver or bar to the exercise of any governmental right or power of the City.

No provision of this Chapter shall be deemed or construed so as 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.

(Ord. 177, 8-19-85; 1994 Code)

2-6A-7: - JURISDICTION OF COUNCIL; SETTLEMENT OF DISPUTES.

The Council may do all things which are necessary and convenient in the exercise of its jurisdiction under the provisions of this Chapter and may determine any question of fact which may arise during the existence of any franchise.

The City Manager is hereby authorized and empowered to adjust, settle or compromise any controversy or charge arising from the operations of any grantee under the provisions of this Chapter, either on behalf of the City, the grantee or any subscriber, in the best interests of the public. Either the grantee or any member of the public who may be dissatisfied with the decision of the City Manager may appeal the matter to the Council for hearing and determination. The Council may accept, reject or modify the decision of the City Manager, and the Council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provision of this Chapter.

(Ord. 177, 8-19-85; 1994 Code)

ARTICLE B. - CABLE TELEVISION FRANCHISE[1]

Editor's note— Ord. No. 323, §§ 1, 2, adopted January 28, 2008, repealed the former Art. B, §§ 2-6B-1— 2-6B-5, and enacted a new Art. B as set out herein. The former Art. B pertained to similar subject matter and derived from Ord. 177, 8-19-85; 1994 Code.

2-6B-1: - DEFINITIONS.

The following definitions apply to this Article. However, in the event of inconsistencies with definitions found in federal laws and regulations, the federal laws and regulations control.

Basic Subscriber Services or Basic Service: The simultaneous delivery by the grantee to all subscribers within the confines of the area of:

All signals of over-the-air television broadcast required by the FCC to be carried by a community antenna television system as defined by the FCC or all those local Los Angeles area VHF and UHF stations which are received by the community without the aid of a cable television system or similar apparatus; and

A channel designated for special purposes by the Association, such as educational, medical, local government, local origination and lease access channel programming; and

Additional service as proposed by the grantee in its proposal or as it may hereafter provide. However, pay or subscription television, as defined by the FCC, and radio services supplied by the grantee shall not be considered part of the basic service.

Community Antenna Television System or CATV: A system of antennas, coaxial cables, wires, fibers, wave guides or other conductors, equipment or facilities designed, constructed or used for the purpose of providing television or FM radio service by cable or through its facilities as contemplated in this Chapter.

Franchise or CATV Franchise: Any authorization granted pursuant to the provisions of this Article in terms of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a CATV system in the City. Any such authorization, in whatever term granted, shall not mean nor include any license or permit required for the privilege of transacting and carrying on a business within the City in accordance with the City business license regulations. [2]

Gross Annual Receipts or Gross Revenues: Any and all compensation and other consideration in any form whatsoever, and any contributing grant or subsidy received, directly or indirectly, by the grantee from a)

subscribers or users in payment for television or FM radio signals, reception or service received within the territorial limits of the City whether said signals, reception or service is included within the term "basic subscriber service" or if an additional or premium charge is collected for said signals, reception or services, but not including installation and line extension charges; and b) any fees or income received by the grantee for carrying advertising or commercial messages over the CATV facilities. "Gross revenues" or "gross annual receipts" shall not include any converter deposits or any installation fees which do not exceed the actual cost of installation or any reimbursements of capital outlays for undergrounding or any taxes on services furnished by grantee imposed directly on any subscriber or user by any city, state or other governmental unit and collected by grantee for such governmental unit.

Property of the Grantee: All property owned, installed or used by a grantee in the conduct of CATV business in the City under the authority of a franchise granted pursuant to the provisions of this Article.

Quarter: A calendar quarter.

Subscriber: Any person or entity receiving for any purpose and paying for the cable television service of the grantee.

Video Service Provider: Any person, company, or entity that provides video programming to a residence, including, without limitation, a home, multi-family dwelling complex, congregate living complex, condominium, apartment, or mobile home, where some fee is paid for that service, whether directly or as included in dues or rental charges, and whether or not public rights of way are used in the delivery of that video programming. A "video provider" or "video service provider" includes, without limitation, providers of video programming service, cable television service, open video system service, master antenna television, satellite master antenna television, direct broadcast satellite, multipoint distribution services, and other providers of video programming, whatever the technology, including, without limitation, internet protocol and other technologies defined as video service provider or video provider in state and federal law.

(Ord. No. 323, § 2, 1-28-08)

See Chapter 7 of this Title.

2-6B-2: - FRANCHISE REQUIRED.

No person shall operate or provide video services within the City, including a community antenna television system, without first securing a franchise as required by this Article.

(Ord. No. 323, § 2, 1-28-08)

2-6B-3: - REQUIREMENTS FOR CATV FRANCHISE.

Who can Obtain a Franchise: A nonexclusive franchise to construct, operate and maintain a CATV system within all or any portion of the City may be granted by the Council to any person, whether operating under

an existing franchise or not, who offers to furnish and provide such system under and pursuant to the terms and provisions of this Chapter.

Use of Telephone Company Facilities: If the grantee of any CATV franchise constructs, operates and maintains a CATV system through telephone company facilities, such grantee shall be required to comply with all of the provisions of this Article as a "licensee", and in such event, whenever the term "grantee" is used in this Article, it shall be deemed to mean and include "licensee".

Use of Public Utility Poles and Facilities: When any portion of the CATV system is to be installed on public utility poles and facilities, certified copies of the agreements for such joint use of poles and facilities shall be filed with the City Clerk.

(Ord. No. 323, § 2, 1-28-08)

2-6B-4: - GROSS RECEIPTS FEES; REPORTS TO CITY.

Fees Established: Any grantee granted a CATV franchise shall pay to the City, during the life of such franchise, a sum equal to five percent of the gross annual receipts of the grantee. Such payment by the grantee to the City shall be made annually, or as otherwise provided in the grantee's franchise, by delivery of the same to the City Treasurer.

Report to be Filed: The grantee shall file with the City, within 30 days after the expiration of any calendar year, or portion thereof, during which such franchise is in force, a financial statement prepared by a certified public accountant or person otherwise satisfactory to the Council showing, in detail, the gross annual receipts of the grantee during the preceding calendar year, or portion thereof.

Payment of Fee: It shall be the duty of the grantee to pay to the City, within 15 days after the time for filing such statements, the sum set forth in this Section, or any unpaid balance thereof, for the calendar year, or portion thereof, covered by such statements.

Inspection of Records: The City shall have the right to inspect the grantee's records showing the gross receipts from which its franchise payments are computed and the right of audit and recomputation of any and all amounts paid under the provisions of this Chapter. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under the provisions of this Article or for the performance of any other obligation hereunder.

Fee for Receipts After Termination of Franchise: In the event of any holding over after the expiration or other termination of any CATV franchise without the consent of the City, the grantee shall pay to the City reasonable compensation and damages of not less than 100 percent of the grantee's total gross profits during such period.

Credit to Business License Fee: [3] Fees paid by the grantee pursuant to this Chapter shall be credited against any business license fee imposed by the City on the grantee's activities.

(Ord. No. 323, § 2, 1-28-08)

See Chapter 7 of this Title.

2-6B-5: - CONDITIONS OF FRANCHISE.

Any franchise shall not relieve the grantee of any obligation involved in obtaining pole space from any department of the City, from any utility company or from others maintaining poles in streets.

Any CATV franchise shall be in lieu of any and all other rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by the grantee or any successor to any interest of the grantee of or pertaining to the construction, operation or maintenance of any CATV system in the City, and the acceptance of any CATV franchise shall operate, as between the grantee and the City, as an abandonment of any and all such rights, privileges, powers, immunities and authorities within the City to the effect that, as between the grantee and the City, any and all construction, operation and maintenance by any grantee of any CATV system in the City shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to such franchise and not under or pursuant to any other right.

(Ord. No. 323, § 2, 1-28-08)

2-6B-6: - CUSTOMER SERVICE STANDARDS AND PENALTIES FOR MATERIAL BREACH FOR STATE FRANCHISE HOLDERS.

Pursuant to California Public Utilities Code Section 5900, video service providers that have been issued a state franchise pursuant to California Public Utilities Code Section 5840 must comply with the provisions of Sections 53055, 53055.1, 53055.2, and 53088.2 of the California Government Code, and any other customer service standards pertaining to the provision of video service established by federal law or

regulation and any laws subsequently enacted by the California Legislature (the "customer service standards").

The Customer Service Standards also include California Penal Code Section 637.5 and the privacy standards contained in the Federal Cable Act, at 47 U.S.C. § 551, et seq.

The City shall enforce the customer service standards within the City's jurisdiction, pursuant to California Public Utilities Code Section 5900(c).

Prior to imposing the penalties provided by this section, the City shall notify video service providers in writing of any material breach of these customer service standards. The video service provider shall have 30 days from the receipt of the notice to remedy the specified material breach.

A material breach of the customer service standards is punishable by a penalty of $500.00 for each day of each material breach, not to exceed $1,500.00 for each occurrence of a material breach.

If a subsequent material breach of the same standard occurs within 12 months, the repeat material breach is punishable by a penalty of $1,000.00 for each day of each material breach, not to exceed $3,000.00 for each occurrence of the material breach.

If a third or further material breach of the same standard occurs within 12 months of the first breach, the repeat material breach or breaches are punishable by a penalty of $2,500.00 for each day of each material breach, not to exceed $7,500.00 for each occurrence of the material breach.

Acts or omissions of a video service provider that result in breaches of two or more different customer service standards will be treated and penalized as separate material breaches of each violated standard.

This section shall not apply to any video service provider providing video services pursuant to a franchise agreement with the City.

(Ord. No. 323, § 2, 1-28-08)

2-6B-7: - PUBLIC, EDUCATIONAL, AND GOVERNMENTAL (PEG) ACCESS FEE FOR STATE FRANCHISE HOLDERS.

Pursuant to California Public Utilities Code Section 5870(n), the City of Hidden Hills hereby establishes a Public, Educational, and Governmental (PEG) Access Fee.

Video service providers that have been issued a state franchise pursuant to California Public Utilities Code Section 5840, shall designate a sufficient amount of capacity on their networks to allow the provision of the same number of PEG channels as are provided by the incumbent cable operator, as defined in California Public Utilities Code Section 5830(j). Notwithstanding the foregoing, such video service providers shall provide an additional PEG channel when the nonduplicated locally produced video programming televised on a given channel exceeds 56 hours per week as measured on a quarterly basis.

Video service providers that have been issued a state franchise must pay to the City of Hidden Hills a PEG Access Fee of one percent of the video service provider's gross revenues to support PEG channels consistent with federal law. The fee shall be remitted to the City quarterly, within 45 days after the close of each quarter, at the same time as the video service provider remits its franchise fee pursuant to California Public Utilities Code Section 5860(h).

If the video service provider does not pay the PEG Access Fee when due, the video service provider shall pay interest at a rate per year equal to the prime interest rate published from time to time in the Wall Street Journal, plus one percentage point, from the date such amount was due, to and including the date of payment.

Pursuant to California Public Utilities Code Section 5860(i), the video service provider must keep records of its gross revenues for at least four years after those revenues are recognized in its books. The City may review the business records of the video service provider to ensure that the PEG Access Fee is being paid properly. If an audit of the video service provider indicates that the PEG Access Fee has been underpaid by more than five percent, the video service provider must pay the reasonable and actual costs of the audit, plus the interest as set forth in subsection D.

This Section shall not apply to any video service provider providing video services pursuant to a franchise agreement with the City.

(Ord. No. 323, § 2, 1-28-08)