Lemoore Municipal Code Part I General Provisions

The Council finds that the development of cable television and communications systems has the Potential of having great benefit and positive impact upon the people of the City. Because of the complex and rapidly changing technology associated with cable television, the Council further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such persons as the City shall designate. (Ord. 9501, 5-2-1995)

For the purpose of this Chapter, the following terms, phrases, words and their derivations shall have the meaning given in this Section or in other provisions of this Chapter. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined in this Section or elsewhere in this Chapter shall be given their common and ordinary meaning.

ACT: The Communications Act of 1934 (47 USC section 151 et seq.), as amended by the Cable Communications Policy Act of 1934 (Public Law No. 98-549, 93 Stat. 2779 (1984)), the Cable Television Consumer Protection and Competition Act of 1992 (Public Law No. 102-385, 106 Stat. 1460 (1992)) and all other amendments and successors thereto.

BASIC CABLE SERVICE: The lowest priced level of service which includes the retransmission of local television broadcast signals (as authorized) and Public Educational and Governmental Access Programming channels, and any additional video programming signals or service added to such level of service by a grantee.

CABLE SERVICE: The transmission to subscribers of video programming or other programming services and subscriber interaction, if any, which is required for the selection of such video programming of other programming services.

CABLE SYSTEM OR SYSTEM: A system of antennas, cables, wires, lines, fiber optic cables, towers, waveguides or other conductors, converters, pedestals, equipment or facilities, used for distributing video programming to home subscribers, and/or producing, receiving, amplifying, storing, processing, or distributing audio, video, digital or other forms of signals.

CHANNEL OR CABLE CHANNEL: A portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering either one National Television Standards Committee ("NTSC") video signal, a number of audio, digital or other nonvideo signals, or some combination of such signals.

CITY: The City of Lemoore.

COUNCIL: The City Council of the City.

DWELLING UNIT: Any building or portion thereof which contains living facilities, including provisions for sleeping, eating, cooking and sanitation, for not more than one family, or a congregate residence for ten (10) or less persons.

FCC REGULATIONS: The regulations promulgated by the FCC from time to time pursuant to the Act, codified in title 47 of the Code of Federal Regulations, and all amendments and successors thereto.

FRANCHISE: An initial authorization, or renewal thereof, issued hereunder which authorizes the construction or operation of a cable system.

GRANTEE: Any person receiving a franchise pursuant to this Chapter and under the granting franchise agreement, and its successors, transferees or assignees.

GRANTOR: The City as represented by the Council or any delegate acting within the scope of its jurisdiction and authority.

GROSS REVENUES: All cash, credits, property of any kind or nature, compensation, or other consideration received directly or indirectly by the grantee, its affiliates, subsidiaries, parent and any person in which the grantee has a financial interest, or from any source whatsoever, arising from or attributable to the sale or exchange of cable service by the grantee. Gross revenues shall include but not be limited to basic service monthly fees, pay tiers, premium channels, pay-per-view fees, leased channel fees, converter rental or sales, advertising revenue, any other payments by subscribers or users of the grantee's cable system directly or indirectly made to or received by any person who has contracted to provide cable service on the cable system, and such other revenues as agreed to in the franchise agreement. The gross revenues shall not include: 1) the amount of any refunds, credits, or other payments made to subscribers or users; 2) any taxes on cable service furnished by the grantee imposed directly or indirectly on any subscribers or users by any municipal corporation, political subdivision, state or other governmental unit and collected by the grantee for the governmental unit; 3) the sale or transfer of tangible property; 4) the sale or transfer of the franchise; 5) the issuance, sale, or transfer of corporate stocks, bonds, or other securities; 6) equipment deposits; 7) uncollected bad debt; and 8) such other revenues expressly excluded in the franchise agreement. The gross revenues shall not be reduced for any purposes other than provided herein.

INSTALLATION: The connection of the system from feeder cable to subscriber's terminals.

LOCAL ORIGINATION PROGRAMMING: Programming created, produced, purchased, or otherwise acquired by the grantee for distribution to subscribers.

OTHER PROGRAMMING SERVICE: Information that a grantee makes available to all subscribers generally.

PERSON: An individual, partnership, association, joint stock company, trust, corporation or governmental entity.

PUBLIC, EDUCATIONAL AND GOVERNMENTAL ("PEG") ACCESS PROGRAMMING:

Programming created and produced by members of the public who are residents of the City; programming created, produced, or acquired by representatives of the educational community acting in their official capacity; or programming created, produced, or acquired by representatives of the City acting in their governmental capacity.

PUBLIC PROPERTY: Any real property owned by the City other than a street and which is dedicated for uses compatible with cable system operations.

SERVICE AREA OR FRANCHISE AREA: The entire geographic area within the City designated in a franchise agreement as the area in which the grantee is authorized to offer and provide cable service.

STATE: The State of California.

STREET: The surface of and the space above and below any public street, road, highway, freeway, lane, path, public way, alley, court, sidewalk, boulevard, parkway, drive, easement or right of way now or hereafter held by the City, or dedicated for use by the City, use by the general public, or use compatible with cable system operations.

VIDEO PROGRAMMING: Programming provided by, or generally considered comparable to programming provided by, a television broadcast station. (Ord. 9501, 5-2-1995)

A. A franchise granted by the City under the provisions of this Chapter shall permit constructing, operating and maintaining a system in the service area, including the right to erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the streets and public property as expressly specified in the franchise agreement such lines, cables, fiber optics, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appropriate to the operation of the system.

B. It shall be unlawful for any person to construct, install or operate a cable system in the City within any street or within any other right of way within the City without a properly granted franchise awarded pursuant to the provisions of this Chapter, which franchise is in full force and effect. A violation of this subsection shall be a misdemeanor punishable pursuant to the provisions of Title 1, Chapter 4, of this Code.

C. In using any streets, public property or other public area or ways, the grantee shall ensure:

1. That the safety, functioning and appearance of the street, public property or other public area or way will not be adversely affected by installation or construction of facilities necessary for the cable system;

2. That the cost of the installation, construction, operation or removal of such facilities will be borne by the grantee of the subscriber, or a combination of both; and

3. That the Grantor will be justly compensated by the grantee for any damages to any of its streets, public property or other public areas or ways caused by the installation, construction, operation or removal of such facilities by the grantee. (Ord. 9501, 5-2-1995)

A. Term: A franchise granted hereunder shall be for a term established in the franchise agreement.

B. Renewal: The City may establish by resolution a process for renewing any franchise, which process shall be subject to applicable law. (Ord 9501, 5-2-1995)

The franchise area shall include all areas within the territorial limits of the City, and within any area henceforth added to the territorial limits of the City during the term of the franchise, in each case as designated in the franchise agreement as the areas in which the grantee is authorized to provide cable service. (Ord. 9501, 5-2-1995)

This Chapter shall be construed in a manner consistent with all applicable Federal and State laws. Whenever the Federal Communications Commission ("FCC") or Public Utilities Commission ("PUC") of the State or any other Federal or State agency shall now or hereafter exercise any paramount jurisdiction over any specific provisions of this Chapter, such paramount jurisdiction shall preempt or preclude the exercise of like jurisdiction by the Grantor only if the action by such jurisdiction specifically preempts the Grantor's exercise of jurisdiction. (Ord. 9501, 5-2-1995)

A. The franchise shall not be sublet or assigned, nor shall any of the rights or privileges therein granted or authorized be leased, assigned, sold or transferred, either in whole or in part, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, except the grantee, either by act of the grantee or by operation of law, without the prior written consent of the Grantor, which consent shall not be unreasonably withheld, provided the proposed assignee or transferee has established the information specified in subsection C of this Section. Such consent shall not be required for: 1) assignments or transfers between or among wholly-owned subsidiaries of the grantee or affiliates of the grantee which are controlled or wholly owned by the same parent, or 2) assignments in trust, mortgage or other hypothecation, in whole or in part, to secure indebtedness. The granting of such consent shall not render unnecessary any subsequent consent. Upon the receipt of all reasonably necessary information requested by it, the Grantor shall approve, disapprove or conditionally approve the request within a reasonable period of time, in accordance with applicable law. For any sublease, assignment, lease, sale or other transfer described in this subsection A, including those for which consent is not required, within thirty (30) days after the effective date of the sublease, assignment, lease, sale or other transfer the grantee shall file in the office of the City Clerk all documents reasonably necessary to evidence the transfer.

B. The requirements of subsection 7-8-7A shall also apply to a transfer in the control of the grantee. The word "control" as used herein shall mean actual working control in whatever manner exercised.

C. The transferee shall be required to establish that it possesses the legal, financial and technical qualifications to operate and maintain the system and comply with all franchise requirements for the remainder of the term of the franchise.

D. Any financial institution having a pledge of the grantee or its assets for the advancement of money for the construction and/or operation of the cable system shall have the right to notify the Grantor that it or its designee satisfactory to the Grantor shall take control of and operate the cable system and assume all obligations of the franchise and the franchise agreement, in the event of a grantee default in its financial obligations. Within thirty (30) days after assuming such control, the financial institution shall also submit to the Grantor a plan for such operation that will ensure continued cable service and compliance with all franchise requirements during the term the financial institution exercises control over the system. (Ord. 9501, 5-2-1995)

All dwelling units within residential and commercial areas within the franchise area shall be provided with access to cable service from the system, subject to any line extension requirements in the franchise agreement. (Ord. 9501, 5-2-1995)

Any franchise granted hereunder shall be nonexclusive. The Grantor may grant at its sole option one or more franchises in accordance with applicable law. Nothing herein shall be construed to require the Grantor to grant a franchise. (Ord. 9501, 5-2-1995)

A. There is hereby reserved to the Grantor every right it may have in relation to its power of eminent domain over the grantee's franchise and property.

B. Except as otherwise provided in the franchise agreement, neither the granting of any franchise nor any provisions thereof or of this Chapter shall constitute a waiver or bar to the exercise of any governmental right or power by the Grantor.

C. No right or power in, or duty retained by or imposed upon, the Grantor, or any commission, officer, employee, department or board of the Grantor, shall be assigned or transferred by the Grantor to any other officer, employee, department or board of the Grantor without thirty (30) days prior notice to the grantee.

D. The Grantor shall have the right to inspect all construction or installation or other physical work performed by the grantee in connection with the franchise and to make such tests as the Grantor shall find necessary to ensure compliance with the terms of the franchise and other pertinent provisions of law, so long as the inspection and testing does not unreasonably interfere with the grantee's operations.

E. Consistent with applicable law, at the expiration of the term or any renewal term or extension for which the franchise is granted, or upon its lawful revocation, expiration, or termination, the Grantor shall have the right to require the grantee to remove, at the grantee's expense, all portions of the system and any other property used or useful in the system from all streets, public property and other public areas and ways within the franchise area within a reasonable period of time not to exceed three hundred sixty (360) days after the effective date of the revocation, expiration or termination, unless the Council grants a longer period. In the event of such removal, the grantee shall promptly restore, at its own cost and expense, all streets, public property and other public areas and ways from which any portion of the system or such other property has been removed to a condition satisfactory to the Director of Public Works.

F. The Grantor shall have the right to intervene in any suit, proceeding or other judicial or administrative proceeding to which the grantee is a party and in which the Grantor has any material interest.

G. The Grantor shall have the right, upon reasonable notice, to inspect, obtain copies (except as provided below) of and audit on the grantee's local premises, at any time during normal business hours, all relevant information that is reasonably necessary for the exercise of the Grantor's regulatory authority, and any such grantee records kept at another place shall, upon reasonable notice, be made available at the grantee's premises within Kings County for the Grantor's inspection or copying, so long as the inspection does not unreasonably interfere with the grantee's operations, and provided further that the Grantor may copy the grantee's confidential trade secrets or proprietary information only when it is essential, in the Grantor's sole discretion, to its regulatory function. The Grantor shall pay all reasonable costs for copying any relevant information needed. The Grantor shall maintain as confidential and shall not disclose any such information which the grantee has identified in writing as proprietary, to the extent permitted by law.

H. The Grantor shall have the right to amend any or all portions of this Chapter: 1) as necessary or appropriate to preserve public health or safety, or 2) for any other reason so long as such amendment does not increase the material burden nor diminish the rights of the grantee. (Ord. 9501, 5-2-1995)