La Mirada Municipal Code Art. 2 Cable Television Systems

(a) In accordance with applicable federal and state law, the city is authorized to grant one or more non-exclusive franchises to construct, reconstruct, operate and maintain cable television systems within the city limits.

(b) The city council finds that the development of cable television and related telecommunications services may provide significant benefits for, and substantial impacts upon, the residents of the city. Because of the complex and rapidly changing technology associated with cable television, the city council further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers to be exercised by the city. This Article 2 is intended to specify the means for providing to the public the best possible cable television and related telecommunications services, and every franchise issued in accordance with this Article 2 is intended to achieve this primary objective. It is the further intent of this Article 2 to adopt regulatory provisions that will enable the city to regulate cable television and related telecommunications services to the maximum extent authorized by federal and state law.

(Ord. 568 § 2 (part), 2001).

(a) Franchise Purposes. A franchise granted by the city under the provisions of this Article 2 may authorize the grantee to do the following:

(1) To engage in the business of providing cable service and such other telecommunications services as may be authorized by law and which grantee elects to provide to its subscribers within the designated franchise service area;

(2) To erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain, cable lines, related electronic equipment, supporting structures, appurtenances and other property in connection with the operation of the cable system in, on, over, under, upon, along and across streets or other public places within the designated franchise service area;

(3) To maintain and operate the franchise properties for the origination, reception, transmission, amplification and distribution of television and radio signals, and for the delivery of cable services and such other services as may be authorized by law.

(b) Franchise Required. It is unlawful for any person to construct, install, or operate a cable television system within any street or public way in the city without first obtaining a franchise under the provisions of this Article 2

(c) Term of the Franchise.

(1) A franchise granted under this Article 2 will be for the term specified in the franchise agreement, commencing upon the effective date of the ordinance or resolution adopted by the city council that authorizes the franchise.

(2) A franchise granted under this Article 2 may be renewed upon application by the grantee in accordance with the then-applicable provisions of state and federal law and this Article 2.

(d) Franchise Territory. A franchise is effective within the territorial limits of the city, and within any area added to the city during the term of the franchise, unless otherwise specified in the ordinance or resolution granting the franchise or in the franchise agreement.

(e) Federal or State Jurisdiction. This Article 2 will be construed in a manner consistent with all applicable federal and state laws, and it applies to all franchises granted or renewed after the effective date of this Part I, to the extent authorized by applicable law.

(f) Franchise Non-Transferable.

(1) Grantee may not sell, transfer, lease, assign, sublet, or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation, or otherwise, the franchise or any of the rights or privileges therein granted, without the prior written consent of the city council and then only upon such terms and conditions as may be prescribed by the city council, which consent may not be unreasonably denied or delayed.

(2) The requirements of subsection (f)(1) apply to any change in control of grantee. The word "control" as used herein is not limited to the ownership of major stockholder or partnership interests, but includes actual working control in whatever manner exercised. If grantee is a partnership or a corporation prior authorization of the city council is required where ownership or control of twenty five percent or more of the partnership interests or of the voting stock of grantee, or any company in the tier of companies controlling the grantee, whether directly or indirectly, is acquired by a person or a group of persons acting in concert, none of whom, singularly or collectively owns or controls those partnership interests or that voting stock of the grantee, or grantee's upper tier of controlling companies, as of the effective date of the franchise.

(3) Grantee must notify the city in writing of any foreclosure or judicial sale of all or a substantial part of the grantee's franchise property, or upon the termination of any lease or other interest covering all or a substantial part of that franchise property. That notification will be considered by the city as notice that a change in control of ownership of the franchise has taken place, and the provisions of this paragraph that require the prior written consent of the city council to that change in control of ownership will apply.

(4) For the purpose of determining whether it will consent to an acquisition, transfer, or change in control, the city may inquire as to the qualifications of the prospective transferee or controlling party, and grantee must assist the city in that inquiry. In seeking the city's consent to any change of ownership or control, grantee or the proposed transferee, or both, must complete Federal Communications Commission Form 394 or its equivalent. This application must be submitted to the city not less than one hundred twenty days prior to the proposed date of transfer. The transferee must establish that it possesses the legal, financial, and technical capability to operate and maintain the cable system and to comply with all franchise requirements during the remaining term of the franchise. If the legal, financial, and technical qualifications of the proposed transferee are determined to be satisfactory, then the city will consent to the transfer of the franchise.

(5) Any financial institution holding a pledge of the grantee's assets to secure the advance of money for the construction or operation of the franchise property has the right to notify the city that it, or a designee satisfactory to the city, will take control of and operate the cable television system upon grantee's default in its financial obligations. Further, that financial institution must also submit a plan for such operation within ninety days after assuming control. The plan must insure continued service and compliance with all franchise requirements during the period that the financial institution will exercise control over the system. The financial institution may not exercise control over the system for a period exceeding eighteen months unless authorized by the city, in its sole discretion, and during that period of time it will have the right to petition the city to transfer the franchise to another grantee.

(6) Grantee must reimburse the city for the city's reasonable review and processing expenses incurred in connection with any transfer or change in control of the franchise. These expenses may include, without limitation, costs of administrative review, financial, legal, and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by these experts), notice and publication costs, and document preparation expenses. The total amount of these reimbursable expenses may be subject to maximum limits that are specified in the franchise agreement between the city and the grantee. No reimbursement may be offset against any franchise fee payable to the city during the term of the franchise.

(g) Geographical Coverage.

(1) Unless otherwise provided in the franchise agreement, grantee must design, construct, and maintain the cable television system to have the capability to pass every dwelling unit and commercial building in the franchise service area, subject to any service-area line extension requirements or territorial restrictions set forth in the franchise agreement.

(2) After service has been established within all or any part of the franchise service area by activating trunk or distribution cables, grantee must provide service to any requesting subscriber within that activated part of the service area within seven days from the date of request, provided that the grantee is able to secure on reasonable terms and conditions all rights-of-way necessary to extend service to that subscriber within that seven-day period.

(h) Non-exclusive Franchise. Every franchise granted is non-exclusive. The city specifically reserves the right to grant, at any time, such additional franchises for a cable television system that it deems appropriate, subject to applicable state and federal law. If an additional franchise proposed to be granted to a subsequent grantee, a noticed public hearing must first be held if required by the provisions of Government Code § 53066.3.

(i) Multiple Franchises.

(1) The city may grant any number of franchises, subject to applicable state and federal law. The city may limit the number of franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and the following specific local considerations:

(A) The capacity of the public rights-of-way to accommodate multiple cables in addition to the cables, conduits, and pipes of the existing utility systems, such as electrical power, telephone, gas, and sewerage;

(B) The benefits that may accrue to subscribers as a result of cable system competition, such as lower rates and improved service;

(C) The disadvantages that may result from cable system competition, such as the requirement for multiple pedestals on residents' property, and the disruption arising from numerous excavations within the public rights-of-way.

(2) The city may require that any new grantee be responsible for its own underground trenching and the associated costs if, in the city's opinion, the rights-of-way in any particular area cannot reasonably accommodate additional cables.

(Ord. 568 § 2 (part), 2001).

(a) Filing of Applications. Any person desiring an initial franchise for a cable television system must file an application with the city. A reasonable non-refundable application fee deposit in an amount established by resolution of the city council must accompany the application. That application fee deposit will cover all anticipated costs associated with reviewing and processing the application, including without limitation costs of administrative review, financial, legal, and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by those experts), notice and publication requirements, and document preparation expenses. If actual costs exceed the application fee deposit, the applicant must pay the difference to the city within thirty days following receipt of an itemized statement of those costs.

(b) Applications - Contents. An application for an initial franchise for a cable television system must contain, as applicable:

(1) A statement describing the proposed franchise service area;

(2) A resume of the applicant's prior history, including the experience and expertise of the applicant in the cable television industry;

(3) A list of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each stockholder, if a closely-held corporation. If the applicant is a publicly-owned partnership or corporation, each owner of 10 percent or more of the partnership interests, or of the issued and outstanding capital stock, must be identified. If the applicant is a limited liability company, the following information must be provided: the address of its principal executive office; the name and business or residence address of each member and of each holder of an economic interest in the limited liability company, together with the contribution and the share in profits and losses of each member and holder of an economic interest; the name and business or residence address of any manager or managers and the chief executive officer, if any, appointed or elected in accordance with the articles of organization or operating agreement;

(4) A list of officers, directors, and managing employees of the applicant, together with a description of the background of each such person;

(5) The names and addresses of any parent or subsidiary of the applicant, or any other business entity owning or controlling applicant in whole or in part, or that is owned or controlled in whole or in part by the applicant;

(6) A current financial statement of the applicant verified by a certified public accountant or otherwise certified to be true, complete, and correct;

(7) The proposed construction and service schedule, the proposed rate structure for cable services, and the proposed commitment to provide public, educational, and governmental access capacity, services, facilities and equipment;

(8) Any additional information that the city deems to be reasonably necessary.

(c) Consideration of Initial Applications.

(1) Upon receipt of an application for an initial franchise, the city manager or the city managers designee must prepare a report and make recommendations to the city council concerning that application.

(2) A public hearing will be noticed prior to any initial franchise grant, at a time and date approved by the city council. Within thirty days after the close of the hearing, the city council will make a decision, based upon the documents and testimony received at the hearing, as to whether the franchise should be granted, and, if granted, subject to what conditions. The city council may grant one or more franchises, or may decline to grant any franchise.

(d) Franchise Renewal. Franchise renewals will be processed in accordance with then applicable law and with the renewal terms, if any, of the franchise agreement. The city and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise. A non-refundable renewal application fee deposit in an amount established by resolution of the city council must accompany the renewal application or the renewal request. That renewal application fee deposit will cover all anticipated costs associated with reviewing and processing the renewal application including the review of grantee's prior compliance with the franchise, the ascertainment of the community's cable-related needs and interests, the engagement of technical and legal consultants, and expenses related to negotiations and document preparation. If actual costs exceed the renewal application fee deposit, the grantee must pay the difference to the city within 30 days following receipt of an itemized statement of those costs.

(Ord. 568 § 2 (part), 2001).

(a) The provisions of a franchise agreement for the operation of a cable television system may relate to or include, without limitation, the following subject matters:

(1) The nature, scope, geographical area and duration of the franchise;

(2) The applicable franchise fee to be paid to the city, including the percentage amount, the method of computation and the time for payment;

(3) Requirements relating to compliance with and implementation of state and federal laws and regulations pertaining to the operation of the cable television system;

(4) Requirements relating to the construction, upgrade, or rebuild of the cable television systems as well as the provision of special services, such as outlets for public buildings, emergency alert capability and parental control devices;

(5) Requirements relating to the maintenance of a performance bond, a security fund, a letter of credit, or similar assurances to secure the performance of the grantee's obligations under the franchise agreement;

(6) Requirements relating to comprehensive liability insurance, workers' compensation insurance and indemnification;

(7) Requirements relating to consumer protection and customer service standards, which requirements may include, without limitation, those set forth in Section 4.50.080 of this Article 2;

(8) Requirements relating to the grantee's support of local cable usage, including the provision of public, educational, and governmental access channels, the coverage of public meetings and special events and financial support for the required access channels;

(9) Requirements relating to construction, operation and maintenance of the cable television system within the public rights-of-way, including compliance with all applicable building codes and permit requirements of the city, the abandonment, removal, or relocation of facilities and compliance with FCC technical standards;

(10) Requirements relating to record keeping, accounting procedures, reporting, periodic audits and performance reviews, the inspection of grantee's books and records, and reimbursement for technical audits and franchise fee audits under specified circumstances;

(11) Acts or omissions constituting material breaches of or defaults under the franchise agreement, and the applicable penalties or remedies for such breaches or defaults, including fines, penalties, liquidated damages, suspension, revocation, and termination;

(12) Requirements relating to the sale, assignment, or other transfer or change in control of the franchise;

(13) The grantee's obligation to maintain continuity of service and to authorize, under certain specified circumstances, the city's operation and management of the cable system;

(14) Such additional requirements, conditions, policies, and procedures as may be mutually agreed upon by the parties to the franchise agreement and that will, in the judgment of city staff and the city council, best serve the public interest and protect the public health, welfare, and safety.

(b) If there is any conflict or inconsistency between the provisions of a franchise agreement authorized by the city council and provisions of this Article 2, the provisions of the franchise agreement will control.

(Ord. 568 § 2 (part), 2001).

(a) General Standards. A grantee must meet or exceed all applicable consumer protection and service standards that are customary in the cable television industry and that are recommended or required by the following:

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

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

(B) The provisions of Section 76.630 of Title 47 of the Code of Federal Regulations, as it flow exists or may later be amended;

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

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

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

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

(b) Franchise Agreement. Unless preempted by paramount federal law, the consumer protection and service standards referenced above in paragraph (a) that are the most stringent, and that afford the greatest degree of protection to consumers, will be specified in the cable television franchise agreement and will apply, without limitation, to all video, voice, and data services that are provided by the grantee to its subscribers within the franchise service area.

(Ord. 568 § 2 (part), 2001).

(a) Fee for Support of Local Cable Usage. A fee paid to the city is hereby established for the support of public, educational, and governmental access facilities and activities within the local franchise service area. Unless a higher percentage is authorized by applicable state or federal law, this fee shall be one percent of a state video holder's gross revenue, as defined in California Public Utilities Code Section 5860.

(b) Franchise Fee. A state video franchise holder operating in the city shall pay to the city a franchise fee that is equal to five percent of the gross revenues of that state video franchise holder. The term "gross revenues" shall be defined as set forth in Public Utilities Code Section 5860.

(c) Audit Authority. Not more than once annually, the city may examine and perform an audit of the business records of a holder of a state video franchise to ensure compliance with all applicable statutes and regulations related to the computation and payment of franchise fees.

(d) Customer Service Penalties under State Video Franchises.

(1) The holder of a state video franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

(2) The city shall monitor a state video franchise holder's compliance with state and federal customer service and protection standards. The city will provide to the state video franchise holder written notice of any material breaches of applicable customer service and protection standards, and will allow the state video franchise holder thirty days from receipt of the notice to remedy the specified material breach. Material breaches not remedied within this thirty-day time period will be subject to the following monetary penalties to be imposed by the city in accordance with state law:

(A) For the first occurrence of a violation, a monetary penalty of five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars for each violation.

(B) For a second violation of the same nature within twelve months, a monetary penalty of one thousand dollars shall be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation.

(C) For a third or further violation of the same nature within twelve months, a monetary penalty of two thousand five hundred dollars shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars for each violation.

(3) A state video franchise holder may appeal a monetary penalty within sixty days after it is assessed by the city. After relevant evidence and testimony is received, and staff reports are submitted, the city council will vote to either uphold or vacate the monetary penalty. The city council's decision on the imposition of a monetary penalty shall be final.

(e) City Response to State Video Franchise Applications.

(1) Applicants for state video franchises within the boundaries of the city must concurrently provide to the city complete copies of any application or amendments to applications filed with the California Public Utilities Commission. One complete copy must be provided to the city manager.

(2) The city will provide any appropriate comments to the California Public Utilities Commission regarding an application or an amendment to an application for a state video franchise.

(f) PEG Channel Capacity. A state video franchise holder that uses the public rights-of-way shall designate sufficient capacity on its network to enable the carriage of at least three public, educational, or governmental (PEG) access channels.

(1) PEG access channels shall be for the exclusive use of the city or its designees to provide public, educational, or governmental programming.

(2) Advertising, underwriting, or sponsorship recognition may be carried on the PEG access channels for the purpose of funding PEG-related activities.

(3) The PEG access channels shall be carried on the basic service tier.

(4) To the extent feasible, the PEG access channels shall not be separated numerically from other channels carried on the basic service tier, and the channel numbers for the PEG access channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law.

(5) After the initial designation of PEG access channel numbers, the channel numbers shall not be changed without the prior written consent of the city, unless the change is required by federal law.

(6) Each PEG access channel shall be capable of carrying a National Television System Committee (NTSC) television signal.

(g) Interconnection. Where technically feasible, a state video franchise holder and incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG access channel programming. Interconnection may be accomplished by direct cable, microwave link, satellite, or other reasonable method of connection. State video franchise holders and incumbent cable operators shall provide interconnection of the PEG access channels on reasonable terms and conditions and may not withhold the interconnection. If a state video franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the city may require the incumbent cable operator to allow the state video franchise holder to interconnect its network with the incumbent's network at a technically feasible point on the holder's network as identified by the holder. If no technically-feasible point for interconnection is available, the state video franchise holder shall make an interconnection available to the channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state video franchise holder requesting the interconnection unless otherwise agreed to by the parties.

(h) Emergency Alert System and Emergency Overrides. A state video franchise holder must comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the holder's network. Provisions in city-issued franchises authorizing the city to provide local emergency notifications shall remain in effect, and shall apply to all state video franchise holders in the city for the duration of the city-issued franchise, or until the term of the franchise would have expired had it not been terminated pursuant to subdivision (m) of Section 5840 of the California Public Utilities Code, or until January 1, 2009, whichever is later.

(i) Encroachment Permit Applications and Appeal Procedures.

(1) As used in this paragraph (i), the term "encroachment permit" means any permit issued by the city relating to construction or operation of facilities in public rights-of-way by the holder of a state video franchise.

(2) The city shall either approve or deny an application from a holder of a state video franchise for an encroachment permit within sixty days of receiving a completed application.

(3) If the city denies an application for an encroachment permit, the city shall, at the time of notifying the applicant of the denial, furnish to the applicant written notice of the reason for the denial. An applicant may appeal the city's denial of an encroachment permit application to the city council in accordance with the following procedures:

(A) No notice of appeal will be processed unless filed within ten days after service of written notice of the decision from which the appeal is taken; provided that if written notice of the decision has not been served, the appellant may, within ten days after being apprised of that decision, demand service of written notice and will have ten days following that service in which to file the notice of appeal.

(B) The notice of appeal must specify the specific decision from which the appeal is taken, the specific grounds for the appeal, and the relief or action requested from the city council.

(C) The notice of appeal must be accompanied by such fee as may have been established by resolution of the city council.

(D) Upon the timely filing of a notice of appeal in proper form, the city clerk will schedule the matter for hearing by the city council at a regular meeting, but not later than forty-five days after receipt of the notice of appeal. The city clerk will cause the notice of hearing to be given to the appellant not less than ten days prior to the hearing, unless that notice is waived in writing by the appellant. The city clerk will also cause a copy of the notice of appeal and the hearing to be transmitted to the city official or body whose decision is being appealed.

(E) At the time of consideration of the appeal by the city council, the appellant will be limited to a presentation on the specific grounds of appeal and related matters set forth in its notice of appeal. The appellant will have the burden of persuading the city council that the decision appealed from should be reversed or modified.

(F) The city council may continue the hearing on the appeal from time to time as may be deemed necessary. The city council may, by resolution, affirm, reverse, or modify, in whole or in part, the decision appealed from and may take any action that might have been taken in the first instance by the city official or body from whose decision the appeal has been taken.

(G) The decision of the city council will be deemed final and conclusive upon adoption of the resolution. A copy of the resolution adopted by the city council will be served upon the appellant by placement in the United States mail, postage prepaid, to the appellant's last known address.

(Ord. 704 § 1, 2017; Ord. 617 § 1, 2008).