Modoc County Municipal Code Ch. 5.12 Community Antenna Television Systems

An exclusive or nonexclusive franchise to construct, operate and maintain a community antenna television system (hereinafter "CATV") within all or any portion of the county may be granted by the county to any person, firm or corporation, whether operating under an existing franchise or not, who or which offers to furnish and provide such system under and pursuant to the terms and provisions of this chapter.

(Ord. 263 §1, 1981)

A. Any franchise granted pursuant to the provisions of this chapter shall authorize and permit the grantee to engage in the business of operating and providing a CATV system in the county, or any portion thereof, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public streets such poles, wires, cable, conductors, ducts, conduit, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system; and, in addition, so to use, operate and provide persons, firms or corporations, including but not limited to any public utility or other grantee franchised or permitted to do business in the county.

B. The grantee may make a charge to subscribers for installation or connection to its CATV system, and a fixed monthly charge as filed and approved as provided in this chapter. No increase in the rates and charges to subscribers as set forth in the schedule filed and approved with grantee's application may be made without the prior approval of the county expressed by resolution.

(Ord. 263 §2, 1981)

A. Application for a franchise under this chapter shall be in writing, shall be filed with the county clerk, and shall contain the following information:

1. The name and address of the applicant. If the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application shall also state the names and addresses of its directors, main offices, major stockholders and associates, and the names and addresses of parent and subsidiary companies;

2. A statement and description of the CATV system proposed to be constructed, installed, maintained or operated by the applicant; the proposed location of such system and its various components; the manner in which the applicant proposes to construct, install, maintain and operate the same; and particularly, the extent and manner in which existing or future poles or facilities of other public utilities will be used for the system;

3. A description, in detail, of the public streets, public places, and proposed public streets within which the applicant proposes or seeks authority to construct, install or maintain CATV equipment or facilities; a detailed description of the equipment or facilities proposed to be constructed, installed or maintained therein; and the proposed specific location thereof;

4. A map specifically showing and delineating the proposed service area or areas within which applicant proposes to provide CATV services and for which a franchise is requested;

5. A statement of schedule in a form approved by the director of public works of proposed rates and charges to subscribers for installation and services, and a copy of proposed service agreements between the grantee and its subscribers shall accompany the application. For unusual circumstances, such as underground cable required, or more than one hundred fifty feet of distance from cable to connection of service to subscribers, an additional installment charge over that normally charged for installation as specified in the applicant's proposal may be charged, with easements to be supplied by subscribers. For remote, relatively inaccessible subscribers within the county, service may be made available on the basis of cost of materials, labor, and easements if required by the grantee;

6. A financial statement prepared by a certified public accountant, public accountant, or person otherwise satisfactory to the board of supervisors, showing applicant's financial status and his financial ability to complete the construction and installation of the proposed CATV system;

7. The board of supervisors may at any time demand, and applicant shall provide, such supplementary, additional or other information as the board may deem reasonably necessary to determine whether the requested franchise should be granted.

B. Upon consideration of any such application, the board of supervisors may refuse to grant the requested franchise, or the board of supervisors may by ordinance grant a franchise for a CATV system to any such applicant as may appear from such application to be in its opinion best qualified to render proper and efficient CATV service to television viewers and subscribers in the county. The board's decision in the matter shall be final. If favorably considered, the application submitted shall constitute and form part of the franchise granted.

(Ord. 263 §15, 1981)

A. The grantee shall, concurrently with the filing of and acceptance of award of any franchise granted under this chapter, file with the county clerk, and at all times thereafter maintain in full force and effect for the term of such franchise or any renewal thereof, at grantee's sole expense, a corporate surety bond in a company and in a form approved by the board of supervisors, in the amount of ten thousand dollars, renewable annually, and conditioned upon the faithful performance of grantee, and upon the further condition that, in the event grantee shall fail to comply with any one or more of the provisions of this chapter, or of any franchise issued to the grantee hereunder, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the county as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee as prescribed hereby which may be in default, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond; said condition to be a continuing obligation for the duration of the franchise and any renewal thereof and thereafter until the grantee has liquidated all of its obligations with the county that may have arisen from the acceptance of the franchise or renewal by the grantee, or from its exercise of any privilege therein granted. The bond shall provide that thirty days' prior written notice of intention not to renew, cancellation, or material change, be given to the county.

B. Neither the provisions of this section, nor any bond accepted by the county pursuant hereto, nor any damages recovered by the city thereunder, shall be construed to excuse faithful performance by the grantee, or limit the liability of the grantee under any franchise issued under this chapter, or for damages, either to the full amount of the bond or otherwise.

(Ord. 263 §10, 1981)

A. The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, furnish to the county and file with the county clerk, and all times during the existence of any franchise granted hereunder, maintain in full force and effect, at its own cost and expense, a liability insurance policy in the amount of two hundred thousand dollars, in a company approved by, and in a form satisfactory to, the district attorney, indemnifying and saving harmless the county, its officers and employees from and against any and all claims, demands, actions, suits and proceedings by others, against all liability to others, including but not limited to any liability for damages by reason of or arising out of any failure by the grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee's CATV system, and against any loss, cost, expense and damages resulting therefrom, including reasonable attorney's fees, arising out of the exercise of enjoyment of its franchise, irrespective of the amount of the comprehensive liability insurance policy required under this chapter.

B. The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, furnish to the county and file with the county clerk, and at all times during the exercise of any franchise granted hereunder, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, in protection of the county, its officers, council, commissions, agents and employees, in a company approved by, and in a form satisfactory to, the district attorney, protecting the county and all persons against liability for loss or damage for personal injury, death and property damage occasioned by the operations of grantee under such franchise, with minimum liability limits of two hundred thousand dollars for personal injury or death of any one person, and three hundred thousand dollars for personal injury or death of two or more persons in any one occurrence, and fifty thousand dollars for damage to property resulting from any one occurrence.

C. The policies mentioned in the foregoing subsection shall name the county, its officers, board, commissions, agents and employees as additional insureds, and shall contain a provision that a written notice of cancellation or reduction of coverage of such policy shall be delivered to the county ten days in advance of the effective day thereof. If such insurance is provided by a policy which also covers the grantee or any other entity or person other than those above named, then such policy shall contain the standard crossliability endorsement.

(Ord. 263 §11, 1981)

Within thirty days after the effective date of the awarding of a franchise, or within such extended period of time as the board of supervisors, in its discretion, may authorize, the grantee shall file with the county clerk his written acceptance, in a form satisfactory to the district attorney, of the franchise, together with the bond and insurance policies provided for in this chapter, and his agreement to be bound by and to comply with and to do all things required of him 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 in form and content be satisfactory to and approved by the district attorney.

(Ord. 263 §17, 1981)

A. No franchise granted by the county under this chapter shall be for a term longer than fifteen years following the date of acceptance of such franchise by the grantee, or the renewal thereof.

B. Any such franchise granted under this chapter may be terminated prior to its date of expiration by the county in the event that the county shall have found, after thirty days' notice of the proposed termination and public hearing that:

1. The grantee has failed to comply with the provisions of this chapter or has, by act or omission, violated any terms or conditions of any franchise or permit issued hereunder; or

2. Any provision of this chapter has become invalid or unenforceable, and the county further finds that such provision constitutes a consideration material to the grant of the franchise; or

3. The county acquires the CATV system property of the grantee.

(Ord. 263 §3, 1981)

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

B. Any such franchise shall be a privilege to be held in personal trust by the original grantee. It 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 county 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 county clerk within thirty days after such transfer or assignment. The consent of the county may not be arbitrarily refused; provided, however, the proposed assignee must show financial responsibility and must agree to comply with all provisions of this chapter; and provided, further, that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation as a whole, to secure an indebtedness.

C. Time shall be of the essence of any franchise granted under this chapter. The grantee shall not be relieved of his obligation to comply promptly with all of the provisions of this chapter, or by any failure of the county to enforce prompt compliance.

D. Any right or power in, or duty impressed upon, any officer, employee, department or board of the county shall be subject to transfer by the county to any other officer, employee, department or board of the county.

E. The grantee shall have no recourse whatsoever against the county for any loss, cost, expense or damage arising out of any provision or requirement of this chapter or of any franchise issued hereunder, or because of its enforcement.

F. The grantee shall be subject to all requirements of county ordinances, rules, regulations and specifications heretofore or hereafter enacted or established.

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

H. Grantee is to avoid monopolistic practices and unfair competition, and is not to solicit television sales or service as part of the hookup contract with the subscriber.

(Ord. 263 §5, 1981)

Any franchise granted under this chapter is renewable, in the discretion of the county, upon the application of the grantee, in the same manner and upon the same terms and conditions as required herein for obtaining the original franchise, except those which are by their terms expressly inapplicable, provided that the board may, at its option, waive compliance with any or all of the requirements of Section 5.12.030 of this chapter.

(Ord. 263 §16, 1981)

There is hereby reserved to the county the power to amend any section or part of this chapter so as to require additional or greater standards of construction, operation, maintenance, or otherwise, on the part of the grantee.

(Ord. 263 §6, 1981)

A. Any grantee granted a franchise under this chapter may be required to pay to the county, during the life of such franchise, a sum equal to zero percent of the gross annual receipts of the grantee for the first three years' operation, and then three percent thereafter. Such payment by the grantee to the county shall be made annually, or as otherwise provided in the grantee's franchise, by delivery of the same to the county clerk. "Gross receipts" shall not include installation fees.

B. The grantee shall file with the county, within thirty days after the expiration of any calendar year or portion thereof during which such franchise is is force, a financial statement prepared by a certified public accountant, or person otherwise satisfactory to the county, showing in detail the gross annual receipts, as defined herein, of grantee during the preceding calendar year or portion thereof. It shall be the duty of the grantee to pay to the county, within fifteen days after the time for filing such statements, the sum hereinabove prescribed, or any unpaid balance thereof, for the calendar year or portion thereof covered by such statements.

C. The county 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 this chapter. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the county may have for further or additional sums payable under this chapter, or for the performance of any other obligation hereunder.

D. In the event of any holding over after expiration or other termination of any franchise granted under this chapter, without the consent of the county, the grantee shall pay to the county reasonable compensation and damages of not less than one hundred percent of its total gross profits during such period.

(Ord. 263 §4, 1981)

A. Within thirty days after acceptance of any franchise, the grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including but not limited to any utility jointuse attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of CATV systems, or their associated microwave transmission facilities.

B. Within ninety days after obtaining all necessary permits, licenses and authorizations, grantee shall commence construction and installation of the CATV system.

C. Within ninety days after the commencement of construction and installation of the system, grantee shall proceed to render service to subscribers, and the completion of the construction and installation shall be pursued with reasonable diligence thereafter, so that service shall be provided within one year from the date of the granting of a franchise.

D. Failure on the part of the grantee to commence and diligently pursue each of the foregoing requirements, and to complete each of the matters set forth herein, shall be grounds for termination of such franchise, under and pursuant to the terms of Section 5.12.070; provided, however, that the county, in its discretion, may extend the time for the commencement and completion of construction and installation for additional periods in the event the grantee, acting in good faith, experiences delays by reason of circumstances beyond his control.

(Ord. 263 §7, 1981)

A. Any poles, wires, cable lines, conduits or other properties of the grantee, to be constructed or installed in streets, shall be so constructed or installed only at such locations and in such manner as shall be approved by the di rector of public works, acting in the exercise of his reasonable discretion.

B. In those areas and portions of the county where the transmission or distribution facilities of both the public utility providing telephone service, and those of the utility providing electric service are underground, or hereafter may be placed underground, then the grantee shall likewise construct, operate and maintain all of its transmission and distribution facilities underground. For the purpose of this subsection, "underground" means and includes a partial underground system, e.g., streamlining. Amplifiers in grantee's transmission and distribution lines may be in appropriate housings upon the surface of the ground approved by the director of public works.

(Ord. 263 §8, 1981)

A. The grantee shall at all times make and keep in the county full and complete plans and records showing the exact location of all CATV systems equipment installed or in use in streets and other public places in the county.

B. The grantee shall file with the director of public works, on or before the last day in March of each year, a current map or set of maps, drawn to scale, showing all CATV system equipment installed and in place in streets and other public places of the county.

(Ord. 263 §12, 1981)

The CATV system shall be installed and maintained in accordance with the highest and best accepted standards of the industry, to the effect that subscribers shall receive the highest possible service.

(Ord. 263 §13, 1981)

The grantee shall maintain an office so that CATV maintenance service shall be promptly available to subscribers.

(Ord. 263 §14(a), 1981)

A. In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of twelve months, or in the event such system or property has been installed in any street or public place without complying with the requirements of grantee's franchise or this chapter, or the franchise has been terminated, cancelled, or has expired, the grantee shall promptly, upon being given ten days' notice, remove from the streets or public places all such property and poles of such system other than any which the director of public works may permit to be abandoned in place. In the event of such removal, the grantee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the director of public works.

B. Any property of the grantee remaining in place thirty days after the termination or expiration of the franchise shall be considered permanently abandoned. The director of public works may extend such time not to exceed an additional thirty days.

C. Any property of the grantee to be abandoned in place shall be abandoned in such manner as the director of public works shall prescribe. Upon permanent abandonment of the property of the grantee in place, the property shall become that of the county, and the grantee shall submit to the director of public works an instrument in writing, to be approved by the board of supervisors, transferring to the county the ownership of such property.

(Ord. 263 §9, 1981)

No person, firm or corporation in the existing service area of the grantee shall be arbitrarily refused service; provided, however, that the grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or monthly service charge.

(Ord. 263 §14(b), 1981)

A. From and after the effective date of the ordinance codified in this chapter, it is unlawful for any person to establish, operate, or to carry on the business of distributing to any persons in this county any television signals or radio signals by means of a CATV system unless a franchise therefor has been first obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.

B. It is unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within the county for the purpose of taking or receiving television signals, radio signals, pictures, programs, or sound.

C. It is unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within the county for the purpose of enabling himself or others to receive any television signal, radio signal, picture, program or sound, without payment to the owner of the system.

D. It is unlawful for any person, without the consent of the owner, to wilfully tamper with, remove, or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs, or sound.

(Ord. 263 §18, 1981)