Napa County Municipal Code Div. I General Provisions

The purpose of this chapter is to:

A. Establish a local policy concerning cable systems, open video systems, and private communication systems that use the public rights-of-way within the county;

B. Promote the availability of diverse, multimedia information resources to the community, enhance educational opportunities throughout the community and build a stronger community;

C. Encourage the provision of advanced and competitive cable or open video system services on the widest possible basis to the businesses, institutions and residents of the county;

D. Encourage economic development while preserving aesthetic and other community values and prevent proliferation of aboveground facilities; and

E. Encourage universal access to video programming services for all residents and businesses.

(Ord. 1262 § 2 (part), 2005)

For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings set forth in this section. Words not defined in this chapter shall have the same meaning as in Title VI of the Communications Act of 1934, as amended, 47 U.S.C. Section 521 et seq., and, if not defined therein, shall have their common and ordinary meaning. References to governmental entities (whether persons or agencies) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however denominated, and shall include laws, ordinances and regulations now in force or as hereinafter enacted or amended.

"Access," "PEG access," or "PEG use" means the availability of a cable system or open video system for public, education or government use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals, including the county and its designated access providers, to acquire, create, and distribute programming not under a franchisee's editorial control, including, but not limited to:

1. "Public access" or "public use" where organizations, groups, or individual members of the general public, on a nondiscriminatory basis, are the primary or designated programmers or users having editorial control over their communications;

2. "Education access" or "education use" where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications; or

3. "Government access" or "government use" where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications.

"Affiliate" means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person.

"Answer time" means the interval between when the franchisee receives a call and when an interactive voice response (IVR) or agent answers.

"Basic service" means any service tier regularly provided to all subscribers which includes the retransmission of local television broadcast signals.

"Cable Act" means the Cable Communications Policy Act of 1984, 47 U.S.C. Section 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, as such may be further amended from time to time.

"Cable communications system" refers to open video systems (OVS) and cable systems.

"Cable service" means:

1. The one-way transmission to subscribers of (a) video programming, or (b) other programming service; and

2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

"Cable system" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

1. A facility that serves only to retransmit the television signals of one or more television broadcast stations;

2. A facility that serves subscribers without using, or connecting to a facility that uses, any public right-of-way within the county;

3. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

4. Facilities of any electric utility used solely for operating its electric utility systems; or

5. An OVS that is certified by the FCC.

"Calls abandoned" means the percentage of calls in any agent queue that are abandoned.

"Channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system or OVS and which is capable of delivering a television signal whether in an analog or digital format, but this definition does not restrict the use of any channel to the transmission of analog television signals or one-way transmission.

"Construction, operation or repair" and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.

"Director" or "director of public works" means the director of public works of the county or the designee of the director.

"Downstream channel" means a channel designed and activated to carry a transmission from the headend to other points on a cable communications system, including interconnections.

"FCC" means the Federal Communications Commission.

"Franchise" refers to an authorization granted by the county to the operator of a cable communications system giving the operator the nonexclusive right to occupy the space, or use facilities upon, across, beneath, or over public rights-of-way in the unincorporated area of the county, to provide specified services within a franchise area.

"Franchise area" means the portion of the unincorporated area of the county that a franchisee is authorized to serve by the terms of its franchise or by operation of law.

"Franchisee" refers to a person holding a cable communications system franchise granted by the county.

"Franchise fee" means either of the following:

1. The fee, expressed as a percentage of gross revenues calculated as specified in the franchise, which is required to be paid by a franchisee to the county in consideration of the grant and exercise of the right to construct, install, operate, or provide services using facilities in the public rights-of-way, except that if a franchise granted pursuant to this chapter specifies a franchise fee established as the result of limiting applicable law, the county shall have the option to renegotiate the amount of the franchise fee upon a change in applicable law and nothing in this chapter shall require a person to pay amounts in excess of any limits that may be established by state or federal law.

2. The fee paid by a UVPP that provides services using a cable system for which charges are assessed to subscribers, but are not received by the franchisee, that is paid in lieu of a franchise fee on such service pursuant to the franchise fee calculation contained in the cable system franchise.

"Gross revenues" means:

1. All cash, credits, property, or other consideration of any kind or nature received directly or indirectly by a franchisee or its affiliates, from any source whatsoever arising from, attributable to, or in any way derived from a franchisee's operation of a cable system within the franchise area, including but not limited to: fees charged to subscribers for basic service; fees charged to subscribers for any optional, premium, per-channel, or per-program service; monthly fees charged to subscribers for any tier of service other than basic service; installation, disconnection, re-connection, and change-in-service fees; leased channel fees; fees, payments, or other payment received as consideration from programmers for carriage of programming on the cable system; converter rentals or sales; studio rental, production equipment, and personnel fees; advertising revenues, including a per capita share of advertising revenues for advertising carried on more than one cable system; revenues from a home shopping channel; sales of programming guides; and such other revenue sources as may now exist or hereafter develop, with this definition to be interpreted in a manner that permits the county to collect the maximum franchise fee permitted by law, irrespective of the source of revenue; but,

2. This definition does not include any bad debt (defined as unpaid subscriber or advertiser accounts) and any taxes on services furnished to a franchisee and imposed directly upon any subscriber or user by the state, county or other governmental unit and collected by a franchisee on behalf of the governmental unit, except that the amount paid as a franchise fee shall not be deducted from gross revenues unless required to be deducted under federal law.

"Operator" means, when used with reference to a system, a person who either:

1. Directly or through one or more affiliates, provides service over a cable communications system and directly or through one or more affiliates owns a significant interest in such facility; or

2. Otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility.

"OVS" means an open video system. A reference to an OVS includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the OVS, or installed in conjunction with the OVS.

"OVS Agreement" means a contract entered into in accordance with the provisions of this chapter between the county and an OVS franchisee setting forth the terms and conditions under which the franchise will be exercised.

"Person" shall be as defined in Section 1.04.010 of this code except as used in this chapter it shall not include the county.

"Public property" means any property that is owned or under the control of the county that is not a public right-of-way, including, for purposes of this chapter, but not limited to, buildings, parks, poles, structures in the public rights-of-way such as utility poles and light poles, or similar facilities or property owned by or leased to the county.

"Public right-of-way" means the surface of and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, or right-of-way or easement primarily dedicated to travel, now or hereafter existing within the unincorporated area of the county which may be properly used for the purpose of installing, maintaining, and operating a cable communications system; and any other property that a franchisee is entitled by state or federal law to use by virtue of the grant of a franchise.

"Revocation" means the county's affirmative act of terminating a franchise.

"School" means any accredited primary school, secondary school, college or university.

"Speed of answer" means the amount of time between when the customer is transferred into the agent queue from either an IVR or an agent and the time an agent answers.

"Subscriber" means the county or any person who is lawfully receiving, for any purpose or reason, any cable service via a cable communications system with a franchisee's express permission, whether or not a fee is paid for such service.

"Termination" means the conclusion of a franchise by any means, including, but not limited to, expiration of its term, abandonment or revocation.

"Transfer" means the following, with "transferring" and "transferee" have correlative meanings:

1. Any transaction in which all of the following occurs:

A. All or a portion of any facilities or any rights to use or operate facilities located in the public rights-of-way are sold, conveyed, transferred, assigned, encumbered (except as provided subsection (B) of Section 5.12.080) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise; or

B. There is any change, acquisition, or transfer in the identity of the person in control of the franchisee, or any person that controls the franchisee, including, without limitation, forced or voluntary sale, merger, consolidation, or receivership, with it being presumed that any transfer or cumulative transfer of a voting interest by a person or group of persons acting in concert of ten percent or more of a franchisee or person who controls a franchisee, or any change in the managing general partners of a franchisee constitutes a change of control; or

C. The rights or obligations under the franchise are sold, conveyed, transferred, assigned, encumbered (except as set forth herein) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise; but

2. The term shall not include any of the following transactions:

A. A lease to a UVPP pursuant to 47 U.S.C. Section 532 or 573;

B. The transmission of a commodity or electronic signal using facilities on a common carrier basis; or

C. A lease or other right to use facilities mandated pursuant to 47 U.S.C. Section 224.

"Trunks busy" means the percentage of time customers receive a busy signal when they call customer service during normal business hours.

"Upstream channel" means a channel designed and activated to carry transmissions from a point on the cable communications system, other than the headend, to the headend or another point on the cable communications system.

"User" means a person or the county utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.

"UVPP" means an unaffiliated video program provider that is only delivering cable service or other communications service (as that term is used in 47 U.S.C. Section 542(b) to subscribers.

(Ord. 1262 § 2 (part), 2005)

A. Franchise Required. No person may construct or operate a cable communications system in the unincorporated area of the county without first obtaining a grant of a franchise from the county.

B. Exceptions. The following persons or entities shall not be required to obtain a franchise under this chapter: a UVPP that is only delivering cable service or other communications service (as that term is used in 47 U.S.C. Section 542(h)) to subscribers.

C. Existing Franchises. Franchises existing as of the effective date of the ordinance codified in this chapter shall, in addition to all the obligations and duties prescribed by the terms of their existing franchises, be subject to the substantive and procedural requirements herein, except as prohibited by applicable law and to the extent such requirements conflict with a specific provision of the preexisting franchise. Nothing herein is intended to invalidate a lawful, existing franchise or to waive any obligations imposed by such a franchise. This chapter as it read prior to the effective date of this ordinance shall continue to apply to any such preexisting franchise.

(Ord. 1262 § 2 (part), 2005)

A franchise shall be issued in the form of written agreement, approved by resolution of the county board of supervisors, and must be accepted by the franchisee to become effective.

(Ord. 1262 § 2 (part), 2005)

A. Filing an Application. A person seeking to obtain a franchise, transfer a franchise, extend the term of an existing franchise, renew a franchise, or modify an existing franchise shall submit a signed original of its application and six copies to the director. The director shall make any filed application available for public inspection. The application must conform to all of the requirements of this chapter. Requests for other types of franchise modifications may be processed by the county without an application, and submitted for approval, but nothing in this sentence shall prevent the county from requiring an application in the event the director determines, based on the nature of the requested modification, that the public interest would best be served by the submission of an application pursuant to this chapter.

B. Application Fee.

1. Reasonable Costs. An applicant shall pay those costs incurred by the county related to the processing of any application as set forth by resolution of the board of supervisors. Processing costs shall include, but not be limited to, the costs of services rendered by any county employee, agent or representative, including consultants and attorneys.

2. Deposit. The initial deposit of the application fee for the consideration of an application for issuance, renewal, transfer, or modification of a franchise shall be in the amount of five thousand dollars, which deposit shall be submitted with the application. The county may, as costs are incurred, draw upon the deposit to recover its processing costs, including, but not limited to, the reasonable cost of outside consultants retained by the county related to the county's consideration and processing of a franchise. The director, at any time, may require the applicant to deposit additional sums if it appears that the initial deposit or subsequent deposits will be exhausted prior to the final action by the county relating to the consideration by the county of an application for issuance, renewal, transfer, or modification of a franchise. The applicant will not be entitled to further consideration by the county of its requested action until such time as the additional deposit required by the director has been deposited with the county. In the event the amount of the deposit of an applicant is in excess of the amount of the processing costs of the county related to the action requested, then the applicant shall be entitled to a return of any such excess amount. In addition, an applicant that is awarded a franchise shall pay the county a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise. Such payment shall be made to the county auditor within thirty days after the county furnishes the franchisee with a statement of such expenses.

(Ord. 1262 § 2 (part), 2005)

A. Scope. A franchise granted pursuant to this chapter shall authorize and permit a franchisee to construct, operate, maintain and repair a cable system or an OVS (as applicable) to provide cable service within the unincorporated area of the county and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain facilities appurtenant to such system in, on, over, under, upon, across, and along the public rights-of-way, and along such other public property that the county may authorize a franchisee to use.

B. No Implied Rights. A franchise shall not convey rights other than as specified in this chapter or in the franchise agreement, and no rights shall pass by implication.

C. Not in Lieu of Other Authorizations. A franchise shall not include or be a substitute for: compliance with any other requirements for the privilege of transacting and carrying on a business within the county including, but not limited to, complying with the conditions the county may establish before constructing facilities for or providing noncable services; any permit, agreement or authorization of general applicability required in connection with operations on or in public rights-of-way or public property, including by way of example and not limitation, encroachment permits for street construction; or any permits or agreements for occupying any other property of the county or private entities to which access is not specifically granted by the franchise.

D. Compliance with Other Laws Required. A franchise does not relieve a franchisee of its duty to comply with all county ordinances and regulations of general applicability, and every franchisee must comply with the same. Likewise, the rights granted under a franchise are subject to the exercise of police and other powers the county now has or may later obtain, including but not limited to the power of eminent domain.

E. Not a Grant of Property Rights. A franchise does not convey title, equitable or legal, in the public rights-of-way. Rights granted under the franchise may not be subdivided or subleased.

F. Possessory Interest of Public Property. A franchise granted pursuant to this chapter shall notify the franchisee of potential tax liability for property taxes pursuant to Section 107.6 of the California Revenue and Taxation Code.

G. Nonexclusive Franchise. No franchise granted under this chapter shall be exclusive, prevent the county from issuing other franchises or authorizations, or prevent the county from itself constructing, operating, or repairing its own cable communications system with a franchise.

H. Term. Every franchise issued pursuant to this chapter shall be for a term of years, which term shall be specified in the franchise.

I. Costs Borne by Franchisee. Unless otherwise specifically stated in a franchise, or required by law, all acts which a franchisee is required to perform under the franchise or applicable law must be performed at the franchisee's expense.

J. Failures to Perform. If a cable communications system operator fails to perform work that it is required to perform within the time provided for performance, the county may perform the work and bill the operator therefor. The operator shall pay the amounts billed within thirty days. Nothing in this section shall preclude the county from exercising any other remedies available at law or in equity if the cable communications system operator fails to perform work that it is required to perform within the time provided for performance.

(Ord. 1262 § 2 (part), 2005)

A. Adoption of Regulations. The county may from time to time adopt regulations to implement the provisions of this chapter. The provisions of this chapter are not contracts with any franchisee, and may be amended at any time. In the event of any conflict between the terms and provisions of a franchises or franchises and the provisions of this chapters, as such may be amended from time to time, the provisions of this chapter shall prevail.

B. Delegation. The director or his/her designees are hereby authorized to administer the provisions of this chapter and any franchise issued pursuant thereto, and to provide any notices (including noncompliance notices) and to take any action on the county's behalf that may be required hereunder or under applicable law.

C. No Waiver. The failure of the county, upon one or more occasions, to exercise a right or to require compliance or performance under a franchise or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing.

D. Administration of Public, Educational and Government Access. The county may designate one or more entities, including itself, to control and manage the use of public, educational and governmental access channels, facilities and equipment.

(Ord. 1262 § 2 (part), 2005)

A. Prior Approval Required. Every franchise shall be deemed to be held in trust and to be personal to the franchisee. Any transfer that is made without the prior approval of the county shall be deemed invalid.

B. Exception for Mortgages. Notwithstanding any other provision of this chapter, pledges in trust, mortgages, or encumbrances against the facilities or any portion thereof of a cable communications system operator given to a bona fide institutional lender in connection with a loan or other financing required to secure the construction, operation, or repair of the facilities ("loan") may be made without application and without the county's prior consent. However, a loan shall require the county's prior consent unless it does each of the following:

1. Requires the cable communication system operator or any successor to comply with the franchise or applicable law;

2. Requires the bona fide institutional lender to require the entity operating the cable system on its behalf to comply with each of the terms of the franchise; and

3. Prohibits a third party from succeeding to the interest of the operator, or to own or control the system, without the prior consent of the county. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the county under any franchise, this chapter, or other applicable law.

(Ord. 1262 § 2 (part), 2005)

A. Franchisee Must Follow Local Rules. The construction, operation, and repair of cable communications systems shall be performed in compliance with all laws, ordinances, departmental rules, regulations, and practices of general applicability affecting such system. By way of example, and not limitation, this includes zoning and safety codes, construction standards, regulations for providing notice to persons that may be affected by system construction, and directives governing the time, place and manner in which facilities may be installed in the public rights-of-way. Persons engaged in the construction, operation, or repair of communications facilities shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.

B. No Permit Without Franchise. A franchise is required before a permit may be issued for work associated with the construction of a cable communications system. Any permit issued for such work to a person that does not hold a franchise shall vest no rights in the permittee; the permit may be revoked at will, and the permittee shall remove all facilities installed under the permit upon the county's demand.

C. Permits Must be Obtained. Construction, operation, or repair of a cable communications system shall not commence until all required permits have been obtained from the proper county officials and all required fees have been paid. All work performed will be performed in strict accordance with the conditions of the permit. Upon order of the county, any work and/or construction undertaken that is not completed in compliance with the county's requirements, or which is installed without obtaining necessary permits and approvals shall be removed or worked halted until such permits are obtained.

D. No Interference with Rights-of-Way. Interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems, must be minimized. The county may require a person using the public rights-of-way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the public rights-of-way.

E. Plans for and Publicizing Work. Work shall be publicized as the county may direct from time to time. The publication of work may be used to notify the public and operators of other communications systems, of the impending work, in order to minimize inconvenience and disruption to the public. The county shall approve or disapprove any work or work plan submitted.

1. Each cable communications system operator shall provide the county a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the county that will be affected.

2. The county, may from time to time, when the county receives an application for a permit to use a particular route, or upon the county's own initiative, designate by published order a route or proposed route for installation of communications facilities. The county may require all persons who wish to emplace underground facilities along that route or any part thereof to install them during a specified period and otherwise prohibit emplacement of such facilities along the route or any part thereof for twenty-four months or after such other, longer period as is necessary to protect the public interest.

F. Existing Poles to be Used. To the extent possible, operators of cable communications systems shall use existing poles and conduit. Additional poles may not be installed in the right-of-way without the permission of the county, nor may pole capacity be increased by vertical or horizontal extenders.

G. Minimization of Disruption to Public Passage and Infrastructure. To minimize disruption of public passage or infrastructure, to forestall or relieve exhaustion of public rights-of-way capacity, or to protect environmentally sensitive areas, the county may require as a condition of issuing any public rights-of-way permit for erection of new poles or construction of underground conduit, the installation of which requires excavation of or along any traveled way, that the franchisee, licensee, or holder of the rights-of-way permit provide pole space or empty conduits in excess of its own present and reasonably foreseeable requirements for the purpose of accommodating the county and/or other franchisees.

H. Undergrounding.

1. Whenever all existing utilities are located underground in an area in the county, every cable communications system operator in the same area must locate its cable communications system underground except where the county agrees to permit the cable communication system operator to do otherwise.

2. Whenever the owner of a pole locates or relocates underground within an area of the county, every cable communications system operator in the same area shall concurrently relocate its facilities underground.

3. The director may, for good cause shown, exempt a particular system or facility or group of facilities from the obligation to locate or relocate facilities underground, where relocation is impracticable, where ordinary engineering practices make undergrounding impractical, or where the county and the subscriber's interest can be protected in another manner. Nothing in this subsection prevents the county from ordering communications facilities to be located or relocated underground under other provisions of the county code.

I. Prompt Repairs. Any and all public rights-of-way, other public property, or private property that is disturbed or damaged during the construction, operation, maintenance or repair of a cable communications system shall be promptly repaired by the operator. Public property and public rights-of-way must be restored to the satisfaction of the county and to a condition as good or better than before the disturbance or damage occurred. No tree trimming shall be performed without the permission of the county and other affected authorities, and any tree trimming must be performed in strict accordance with the county code.

J. Movement of Facilities for Government.

1. A cable communications system operator shall, by a time specified by the county, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the county by reason of traffic conditions; public safety; public rights-of-way construction and repair (including regrading, resurfacing or widening); public right-of-way vacation; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned system or utility, public work, public facility, or improvement; or for any other purpose where the work involved would be aided by the removal or relocation of the cable communications system. Collectively, such matters are referred to below as the "public work."

2. Except in the case of emergency, the county shall provide written notice describing where the public work is to be performed at least one week prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities. Such action on the part of the franchisee shall be undertaken at no cost to the county, provided that, in an emergency, or where a cable communications system creates or is contributing to an imminent danger to health, safety or property, the county may protect, support, temporarily disconnect, remove, or relocate any or all parts of the cable communications system without further notice, and charge the cable communications system operator for costs reasonably incurred.

K. Movement for Others.

1. To accommodate the construction, operation, or repair of the facilities of another person authorized to use the public rights-of-way or public property, a franchisee shall, by a time specified by such person, protect, support, temporarily disconnect, temporarily relocate or remove its facilities. The franchisee must be given written notice describing where the construction, operation or repair is to be performed at least fifteen days prior to the time by which its work must be completed. The costs to accommodate the construction, operation, or repair of the facilities of another person as provided herein shall be the responsibility of the person requesting such accommodation.

2. A cable communications system operator shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires by a time specified to permit the moving of buildings or other objects. A cable communications system operator shall be given not less than seven days advance notice to arrange for such temporary wire changes. The expense of such temporary removal, relaying, relocation, or raising or lowering of wires shall be paid by the person requesting the same.

L. Abandonment in Place.

1. A cable communications system operator may abandon any property in place in the public rights-of-way upon written notice to the county. However, if, within ninety days of the receipt of written notice of abandonment, the county determines that the safety, appearance, functioning or use of the public rights-of-way and facilities in the public rights-of-way will be adversely affected, the property must be removed by a date specified by the county.

2. A cable communications system operator that abandons its property must, upon request, transfer ownership of the properties to the county at no cost, and execute necessary quitclaim deeds and indemnify the county against future costs associated with mitigating or eliminating any environmental hazards associated with the abandoned property.

M. System Subject to Inspection. Every cable communications system shall be subject to inspection and testing by the county. Each operator must respond to requests for information regarding its system and plans for the system as the county may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated or repaired.

N. Underground Services Alert. Each operator of a cable communications system that places facilities underground shall be a member of the regional notification center for subsurface installations (underground services alert) and shall field mark the locations of its underground communications facilities upon request. The operator shall identify the location of its cable communication system for the county at no charge.

O. Plan for Construction. Every franchise shall specify for the county a construction schedule that will apply to any required construction, upgrade, or rebuild of the cable communications system. The schedule shall provide for the prompt completion of the project, and shall show its timetable for construction of each phase of the project, with benchmarks for deliverables and the areas of the county that will be affected. The county shall have the right to impose penalties on the operator for a failure to meet the accepted timetable and benchmarks.

P. Use of Facilities by the County. The county shall have the right to install and maintain, free of charge, upon any poles or in any conduit owned by a franchisee, any wire and pole fixtures that do not unreasonably interfere with the cable service operations of the franchisee. The county shall pay costs associated with attaching or affixing the county's wire or fixture to the franchisee's infrastructure.

(Ord. 1262 § 2 (part), 2005)

A. Indemnity Required. No franchise shall be valid or effective until and unless the county obtains an adequate indemnity from the franchisee. The indemnity shall be in a form approved by county counsel and must:

1. Release the county from and against any and all loss, damage, expense, cost (including cost of litigation), liability, and responsibility in or arising out of the construction, operation or maintenance of the cable communications system. Each cable communications system operator must further agree not to sue or seek any money or damages from the county in connection with the above-mentioned matters.

2. Indemnify, hold harmless, and defend the county, its elected and appointed officers, agents, and employees, from and against any and all liability, loss, damage, cost, claims, demands, or causes of action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders, judgments, or decrees sustained by the county or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the cable communications system operator, or its agents, independent contractors or employees related to or in any way arising out of the construction, operation or repair of the system.

3. Provide that the covenants and representations relating to the release, indemnification, and hold harmless provision shall survive the term of the franchise or other authorization and continue in full force and effect as to the party's responsibility to indemnify.

B. Insurance Required. A franchisee (or those acting on its behalf) shall not commence construction or operation of the system without obtaining insurance in amounts and of a type as set by the board from time to time, as well as other requirements related thereto. At a minimum, such insurance shall include comprehensive general liability, workers' compensation, and comprehensive auto liability satisfactory to the county. The required insurance must be obtained and maintained for the entire period the franchisee has facilities in the public rights-of-way. If the franchisee, its contractors, or subcontractors do not have the required insurance, the county may order such entities to stop operations until the insurance is obtained and approved.

C. Proof. Certificates of insurance, reflecting evidence of the required insurance and naming the county as an additional insured, and other proofs as the county may find necessary, shall be filed with the county. For persons issued franchises subsequent to the effective date of the ordinance, certificates and other required proofs shall be filed within thirty days of the issuance of a franchise, prior to the commencement of construction, once a year thereafter, and whenever there is any change in coverage. For entities that have facilities in the public rights-of-way prior to the effective date of the ordinance, the certificate shall be filed within sixty days of the effective date of the ordinance, annually thereafter, and whenever there is any change in coverage, unless a preexisting franchise provides for filing of certificates in a different manner.

D. Construction Bond. Every operator of a cable communications system shall obtain and maintain a construction bond to ensure the faithful performance of its responsibilities under this chapter and any franchise. The amount of the bond shall be set in the franchise, but shall not be less than ten percent of the estimated cost of constructing or (in the case of existing systems) upgrading the system, and shall include a sufficient amount to cover the removal of facilities and/or restoration of county facilities within the right-of-way. The bond is not in lieu of any additional bonds that may be required through the permitting process. The bond shall be in a form acceptable to the county counsel. Bonds must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.

E. Security Fund. Every cable communications system operator shall establish and maintain a cash security fund or provide the county an irrevocable letter of credit in the amount of one hundred thousand dollars to secure the payment of fees owed, to secure any other performance promised in a franchise, and to pay any taxes, fees, penalties or liens owed to the county. The letter of credit shall be in a form and with an institution acceptable to the county. Should the county draw upon the cash security fund or letter of credit, the cable communications system operator shall, within fourteen days, restore the fund or the letter of credit to the full required amount. This security fund/letter of credit may be waived or reduced by the county for a franchisee where the county determines in its discretion that a particular franchisee's operations are sufficiently limited that a security fund/letter of credit is not necessary to secure the required performance. The county may from time to time require a franchisee to change the amount of the required security fund/letter of credit to reflect changed risks to the county and to the public, including delinquencies in taxes or other payments to the county. The cash security fund or letter of credit must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.

(Ord. 1262 § 2 (part), 2005)

A. Generally. Each cable communications system operator shall provide the county access to books and records, and allow their copying and inspection, related in whole or in part to the construction, operation, or repair of the cable communications system, or a group of systems of which the system is a part. The records shall include, but are not limited to, revenue records and other records related to compliance with any provision of this chapter or a franchise. A franchisee is responsible for obtaining or maintaining the necessary possession or control of all such books and records, so that it can produce the documents upon request. Books and records must be maintained for a period of five years, except that a franchise may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials. The phrase "books and records" shall be read expansively to include information in whatever format stored.

B. Production. Books and records requested shall be produced to the county by a time and at a location in the county designated by the director. However, if the requested books and records are too voluminous, or for security reasons cannot be copied and moved, then the franchisee may request that the inspection take place at some other location mutually agreed to by the county and the franchisee, provided that:

1. The franchisee must make necessary arrangements for copying documents selected by the county after its review; and

2. The franchisee must pay all travel and additional copying expenses incurred by the county (above those that would have been incurred had the documents been produced in the county) in inspecting those documents or having those documents inspected by its designee.

(Ord. 1262 § 2 (part), 2005)

A. Obligation to Submit. The director may from time to time direct a franchisee to prepare reports and to submit those reports by a date certain, in a format prescribed by the director, in addition to those required by this chapter.

B. Quarterly Reports. Unless an exemption is granted by the director, within forty-five days of the end of each calendar quarter, a franchisee shall submit a report to the county containing the following information:

1. The number of service calls (calls requiring a truck roll) received during the prior quarter and the percentage of service calls compared to the subscriber base; and

2. The total estimated hours of known outages as a percentage of total hours of operation. An outage is a loss of sound or video on any signal, or a significant deterioration of any signal affecting two or more subscribers.

(Ord. 1262 § 2 (part), 2005)

Unless an exemption is granted by the director, no later than ninety days after the end of the operator's fiscal year, a franchisee shall submit the following information:

A. A fully audited or self-certified revenue report signed by an officer of the cable communications system operator from the previous calendar year for the cable communications system, and a certified statement setting forth the computation of gross revenues used to calculate the franchise fee for the preceding year and a detailed explanation of the method of computation showing:

1. Gross revenues by category (e.g., basic service, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); and

2. What, if any, deductions were made from gross revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction.

B. A report showing, for each applicable customer service standard, the franchisee's performance with respect to that standard for each quarter of the preceding year. In each case where the franchisee concludes it did not comply fully, the franchisee will describe the corrective actions it is taking to assure future compliance. In addition, the report should identify the number and nature of all the customer service complaints received and an explanation of their dispositions.

C. An ownership report, indicating all persons who at the time of filing control or own an interest in the franchisee of ten percent or more.

(Ord. 1262 § 2 (part), 2005)

Within ten days of their receipt or (in the case of documents created by the operator or its affiliate) filing, a franchisee shall provide the county:

A. Notices of deficiency or forfeiture related to the operation of the system; and

B. Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly.

(Ord. 1262 § 2 (part), 2005)

Each franchisee shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the public rights-of-way and any power supply sources (including voltages and connections). Maps shall be based upon post-construction inspection to verify location. Each franchisee shall provide a map to the county showing the location of its facilities, in such detail and scale as may be directed by the director and update the map at least annually, and whenever the facility expands or is relocated. Copies of maps shall be provided in hard copy and on disk, in a commercially available electronic format specified by the director.

(Ord. 1262 § 2 (part), 2005)

Unless the director waives the requirement, a franchisee shall at all times maintain:

A. Complaint Records. Records of all complaints received, their nature and resolution. The term "complaints" refers to complaints about any aspect of the franchisee's operations or customer service.

B. Outage Records. Records of outages known to the franchisee, their cause and duration.

C. Complaint Response. Records of service calls for repair and maintenance indicating the date and time service was requested, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved.

D. Installation Records. Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended.

E. Customer Service. Records sufficient to show whether the franchisee has complied with each customer service standard that applies to it.

(Ord. 1262 § 2 (part), 2005)

The director may temporarily exempt any franchisee from its obligations under Sections 5.12.110—5.12.160 if the director determines that the requirement would be unduly burdensome or unnecessary, and that the county and subscriber interests may be adequately protected in some other manner.

(Ord. 1262 § 2 (part), 2005)

A franchisee shall take all reasonable steps required so that it is able to provide reports, books and records to the county including by providing appropriate subscriber privacy notices. Each franchisee shall be responsible for redacting data that applicable law prevents it from providing to the county. Nothing in this section shall be read to require a franchisee to violate state or federal subscriber privacy laws.

(Ord. 1262 § 2 (part), 2005)

A. Fees Paid Quarterly. The franchise fee paid pursuant to Division 2, or fee in lieu of franchise fee paid pursuant to Division 3 shall be paid quarterly unless otherwise specified in a franchise. Payment for each quarter shall be made to the county not later than forty-five days after the end of each calendar quarter.

B. Quarterly Statement. Unless a franchise provides otherwise, a franchisee or other entity subject to a fee under Division 2 or 3 shall file with the county within forty-five days of the end of each calendar quarter a statement showing gross revenues during the preceding quarter and the number of subscribers served.

C. Acceptance of Payment Not a Release. No acceptance by the county of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such payment be construed as a release of any claim the county may have for additional sums payable.

D. Fee Not in Lieu of Taxes. Neither the franchise fee under Division 2, nor the fee paid in lieu of the franchise fee under Division 3, is a payment in lieu of any tax, fee or other assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and operators or their services, but not including a tax, fee, or assessment which is unduly discriminatory against operators or cable subscriber(s)).

E. Failure to Pay Franchise Fee. In the event that a fee payment is not received by the county on or before the due date set forth in this section or in a franchise, or the fee owed is not fully paid, the person subject to the fee will be charged interest from the due date at an interest rate equal to three percent above the rate for three-month Federal Treasury Bills at the most recent United States Treasury Department sale of such Treasury Bills occurring prior to the due date of the franchise fee payment.

F. Final Statement of Gross Revenues. Within ninety days of the date a franchisee ceases operations under a franchise (whether because of franchise termination, transfer, bankruptcy or for any other reason), the franchisee shall file a final statement of gross revenues covering the period from the beginning of the calendar year in which the operations ceased to the date operations ceased. The statement shall contain the information and be certified as required by subsection (A) of Section 5.12.130.

(Ord. 1262 § 2 (part), 2005)

A. No Retaliatory Actions. A cable communications system operator shall not discriminate among persons or the county or take any retaliatory action against a person or the county because of that entity's exercise of any right it may have under federal, state or local law, nor may the operator require a person or the county to waive such rights as a condition of taking service.

B. Employment and Hiring Practices. A cable communications system operator shall not refuse to employ, discharge from employment, or discriminate against any person in compensation or in terms, conditions, or privileges of employment because of race, color, creed, national origin, sex, sexual orientation, age, disability, religion, ethnic background, or marital status. A cable communications system operator shall comply with all federal, state, and local laws and regulations governing equal employment opportunities, and hiring practices, as the same may be amended from time to time.

(Ord. 1262 § 2 (part), 2005)

A. Persons Operating Without a Franchise. The operator of any facility installed as of the effective date of this chapter, for which a franchise is required under this chapter, shall have three months from the effective date of this chapter to file one or more applications for a franchise. Any operator timely filing such an application under this section shall not be subject to a penalty for failure to have such a franchise so long as said application remains pending; provided, however, nothing herein shall relieve any cable communications system operator of any liability for its failure to obtain any permit or other authorization required under other provisions of the county code, and nothing herein shall prevent the county from requiring removal of any facilities installed in violation of the county code.

B. Persons Holding Franchises. Any person holding an existing franchise for a cable communications system may continue to operate under the existing ordinance to the conclusion of its present term (but not any renewal or extension thereof) with respect to those activities expressly authorized by the franchise; and provided further that, such person shall be subject to the other provisions of this chapter to the extent permitted by law.

C. Persons with Pending Applications. Pending applications shall be subject to this chapter. A person with a pending application shall have thirty days from the effective date of this chapter to submit additional information to comply with the requirements of this chapter governing applications.

(Ord. 1262 § 2 (part), 2005)