Los Gatos Municipal Code Art. III Regulation of Franchise

The grantor shall exercise appropriate regulatory authority under the provisions of this chapter and applicable law. Grantor may, at its sole option, participate in a joint regulatory agency, with delegated responsibility in the area of cable related communications.

(Code 1968, § 9.40.010)

The grantor may exercise or delegate the following regulatory responsibility:

(1) Administering and enforcing the provisions of the cable communications system franchise.

(2) Coordination of the operation of facilities and channels dedicated for public use, as provided for in any franchise agreements.

(3) Providing for technical, programming and operational support to public agency users, such as Town departments, schools and health care institutions.

(4) Establishing procedures and standards for institutional operations and services, use of dedicated channels, and sharing of public facilities.

(5) Planning expansion and growth of cable services.

(6) Analyzing the possibility of integrating cable communications with other city, state or regional telecommunications networks.

(7) Formulating and recommending long-range telecommunications plans.

(Code 1968, § 9.40.015)

The primary purpose of this article is to ensure that a wide variety of cable communication services will be provided with high quality and on a consistent basis to users of any cable communications system authorized under this chapter. It is therefore required that all services provided by any system authorized under this chapter, whether to residential or institutional users, whether required by ordinance or contract or voluntarily offered by grantee, whether fulltime or parttime or occasional, and whether offered to the entire community or to a subpart, shall be provided at the best quality possible under the technical standards set forth in the franchise agreement. To that end, the grantee shall proceed with construction of any and all facilities in a timely manner, utilize proper equipment for each function within the system, utilize sound construction practices, utilize trained operating personnel, utilize proper test equipment and procedures for maintenance and repairs, perform all required periodic preventive maintenance procedures, and perform all necessary repairs in a timely manner, in order to provide such high and consistent service quality and in order to ensure that all technical and operational standards and other requirements of this chapter and the franchise agreement are met.

(Code 1968, § 9.40.020)

If so specified in a franchise agreement, the grantor may utilize a portion of the cable system capacity, and associated facilities and resources, to develop and provide cable services that will be in the public interest. In furtherance of this purpose, the grantor may establish a public nonprofit corporation, to receive and allocate facilities, support funds and other considerations provided by the grantee, and/or others; provided, however, that any such entity shall satisfy the requirements for a nonprofit foundation specified in Government Code section 53066.1(f)(3). Such a public corporation, if established, may be delegated the following responsibilities:

(1) Receive, and utilize or reallocate for utilization, channel capacity, facilities, funding and other support provided specifically for public usage of the cable system.

(2) Review the status and progress of each service developed for public benefit.

(3) Reallocate resources on a periodic basis to conform with changing priorities and public needs.

(4) Report to the grantor annually on the utilization of resources, the new public services developed and the benefits achieved for the Town and its residents.

(Code 1968, § 9.40.025)

The grantor reserves the right, at its discretion, from time to time, to determine if the corporation described in the preceding section is performing its purposes in a manner satisfactory to the grantor, and if it is not, the grantor may receive and reallocate all or a portion of the channel capacity, operating appropriation, and capital appropriation, including any facilities and equipment purchased previously with such appropriations, to another entity. A new entity shall be required to comply in all respects with the legal responsibilities which the corporation has assumed under section 7.30.025.

(Code 1968, § 9.40.030)

(a) Grantor may require, at its option, that performance audits of the system be conducted as often as every three (3) years by an independent technical consultant, to verify substantial compliance of the system to all technical standards and other specifications of the franchise agreement. The audit shall be at the expense of the grantee, subject to any limitations in the franchise agreement.

(b) Upon completion of a performance audit, the grantor and grantee shall meet publicly to review the performance and quality of service of the cable television system. The reports required herein regarding subscriber complaints, the records of performance tests and the opinion survey report shall be utilized as the basis for review. In addition, any subscriber may submit complaints during the review meetings, either orally or in writing, and these shall be considered.

(c) Within thirty (30) days after the conclusion of the system performance review meetings, grantor shall issue findings with respect to the adequacy of system performance and quality of service. If inadequacies are found, and same are within the reasonable control of grantee, grantor may direct grantee to correct the inadequacies within a reasonable period of time. Grantor may also hire an independent technical consultant to verify that the inadequacies have been properly corrected, the cost of such consultant being at grantee's expense, subject to any limitation in the franchise agreement.

(d) Failure of grantee, after due notice, to correct the inadequacies shall constitute grounds for the commencement of the sanction proceedings set forth in article VI of this chapter.

(Code 1968, § 9.40.035; Ord. No. 1772, § 3, 12-5-88)

To provide for technological, economic, and regulatory changes in the state of the art of cable communications, to facilitate renewal procedures, to promote the maximum degree of flexibility in the cable system, and to achieve a continuing, advanced, modern system, the grantor and the grantee shall comply with the following system and services review provisions:

(1) Concurrently with the public review of the triennial review of performance referred to in section 7.30.035, grantor and grantee shall hold a systems and services review session. Such review sessions shall be open to the public and notice shall be given.

(2) Thirty (30) days prior to the scheduled system and services review session, grantee shall submit a report to grantor describing cable system services that are then being provided on an operational basis, excluding tests and demonstrations, through a representative sample of cities in the State with populations from fifty (50) to one hundred thousand (100,000) that are not provided to the Town and, shall, simultaneously therewith, provide a plan for the provision of such services, or an explanation indicating why such services are not feasible.

(3) Topics for discussion and review at the system and services review sessions shall include, but shall not be limited to, services provided, application of new technologies, system performance, programming, subscriber complaints, user complaints, rights of privacy, amendments to the franchise, undergrounding processes, developments in the law, and regulatory constraints.

(4) Either the grantor or the grantee may select additional topics for discussion at any review session.

(5) Not later than thirty (30) days after the conclusion of each system and services review session, grantor shall issue findings, including specifically a listing of any cable services not then being provided to the Town that are considered feasible. Grantor and grantee shall then negotiate in good faith on whether and on what terms such additional services may be provided. However, grantee may not be required to provide any services not called for in this chapter or the franchise agreement.

(Code 1968, § 9.40.040; Ord. No. 1772, § 4, 12-5-88)

(a) Provided that no less than one (1) year shall have elapsed from the last performance audit conducted pursuant to this chapter or the franchise agreement, if at any time, after a public hearing with at least ten (10) days' notice to grantee, grantor determines that reasonable evidence exists of inadequate system performance, it may require grantee to perform tests and analyses directed toward such suspected inadequacies. Grantee shall fully cooperate with grantor in performing such testing and shall prepare results and a report, if requested, within thirty (30) days after notice. Such report shall include the following information:

(1) The nature of the complaint or problem which precipitated the special test.

(2) What system component was tested.

(3) The equipment used and procedures employed in testing.

(4) The method, if any, in which such complaint or problem was resolved.

(5) Any other information pertinent to such tests and analyses which may be required.

(b) Grantor may hire a consultant to supervise the foregoing tests, review their results, and advise grantor of the findings. If the findings of the independent consultant establish inadequate system performance, grantee shall reimburse grantor for the costs of hiring the consultant, including the costs of verifying compliance with any recommended corrective measures, subject to whatever limitations are contained in the franchise agreement.

(Code 1968, § 9.40.045)

(a) Intent. It is the intent of the grantor to ensure that access and community channels provided for in any franchise agreement shall be managed in the best public interest, so that programming on such channels will be free of censorship, open to all residents, and available for all forms of public expression, community information and debate of public issues. Pursuant to these objectives, the grantor may delegate the responsibility for access channel management to a nonprofit entity, termed the Access Channel Manager, which may include, but not be limited to, any of the following:

(1) A nonprofit public corporation;

(2) An access management commission or committee, appointed by grantor, and representing a broad spectrum of the community; or

(3) An established nonprofit entity with special cablecasting capability, such as a local or regional community college or high school.

(b) Functions. The access channel manager shall have the following functions:

(1) Responsibility for program production for and management of the public access channel and all other channels as may in the franchise agreement be designated for community-based programming. Community channels may include government and educational access channels as well as public access channels.

(2) Establishment of budgets on an annual basis and utilization of funds and resources received from the grantor or the public usage corporation designated in section 7.30.025, for the purpose of access programming.

(3) To assure that no censorship or control over program content of the public access and community channel(s) exists, except as necessary to comply with FCC prohibition of material that is obscene, or contains commercial advertising, or conducts a lottery, and to assure that public access and community channels are made available to all residents of the Town on a nondiscriminatory, first-come, first-served basis.

(4) To devise, establish, and administer all rules, regulations, and procedures pertaining to the use and scheduling of the public access and community channels.

(5) To prepare, in conjunction with the grantee, such regular or special reports as may be required or desirable.

(6) To hire and supervise staff.

(7) To make all purchases of materials and equipment that may be required.

(8) To develop additional sources of funding, such as foundation or federal or state grants, to further community programming.

(9) To perform such other functions relevant to the public and community channels as may be appropriate.

(c) Access Channel Manager reports to grantor. The Access Channel Manager shall provide a report to grantor and grantee, at least annually, indicating achievements in community-based programming and services.

(Code 1968, § 9.40.060)

(a) Throughout the term of any franchise granted pursuant to this chapter, the grantee shall have an affirmative duty to notify the Town that it has been granted a cable television franchise by another municipality or franchising authority located anywhere within this County.

(b) For the purpose of this section, any affiliated person, subsidiary, partnership or wholly owned corporation related to the grantee shall qualify as an entity which shall be considered to be equivalent to the grantee.

(c) Subject to the conditions set forth in subsection (e) of this section, the Town shall have the right to require the grantee to modify its cable services or system design to include, within a reasonable time, any services which the grantee is required to offer in any of its cable systems located anywhere in the County.

(d) The grantee shall be obligated to accept any modification in its franchise or in its service obligation unless the grantee is able to affirmatively demonstrate to the satisfaction of the Town Council the following:

(1) The additional or modified services involve services which are only being tested on a trial basis only; or

(2) The modification is not feasible within the Town due to population, technical complexity, demographic characteristics, or other relevant factors; or

(3) The modification would have a substantial adverse impact upon the grantee's reasonable rate of return on investment during the remaining term of the franchise based upon the then current standards in the cable communications industry, and with the adverse impact being determined upon the cumulative effect of the proposed modification and all prior modifications required by the Town pursuant to the provisions of this section.

(e) Notwithstanding anything contained in this section to the contrary, grantee's obligations hereunder shall be subject to the following conditions:

(1) Subsection (c) shall not apply to any services or features of system design offered prior to May 1, 1983.

(2) If the services or system design features offered to other cable systems were made in connection with an extension of grantee's franchise in such area, the Town shall not have the right to require grantee to offer similar services in the Town unless the Town as grantor accepts all the provisions of the franchise being compared, including extension of the franchise between Town and grantee for an equivalent period. The Town shall not be permitted to select some, but not all, of the provisions of any such other franchise award.

(Code 1968, § 9.40.065)