Napa County Municipal Code Div. IV Violations—Enforcement

A person's failure to obtain a franchise as required by this chapter may, in the county's discretion, result in:

A. Forfeiture, by operation of law, of the person's cable communication system located in the public rights-of-way that are not authorized by an existing franchise; and/or

B. A requirement that the cable communication system be removed, and that penalties and damages be paid.

(Ord. 1262 § 2 (part), 2005)

Franchise Violation-Notice and Procedures. Before revoking a franchise or issuing an order to assess liquidated damages, the county shall follow the procedures set forth below:

A. The county shall notify a cable communications system operator in writing of any alleged violation ("violation notice") of a franchise or this chapter. The violation notice shall: (1) identify the violation; (2) direct the cable communications system operator to cure the violation or show cause why the violation cannot or should not be cured; and (3) state the time for the cable communications system operator's response, which shall be at minimum thirty days from the date of issuance of the violation notice, except for violations that present a danger to public health, safety or welfare, in which case the time for response may be shortened.

B. Within the time period designated for response in the violation notice issue pursuant to subsection (A) of this section, the cable communications system operator shall respond in writing to the county indicating that: (1) the cable communications system operator intends to contest the violation notice and describing all facts relevant to its claim; or (2) the cable communications system operator has completely cured the violation, in which case the cable communications system operator shall provide documentation demonstrating that the violation has been completely cured; or (3) the cable communications system operator has begun to correct the violation, however, the violation cannot be corrected immediately despite the cable communications system operator's continued due diligence, in which case the operator shall describe in detail the steps already taken and operator's proposed plan and time schedule for completely curing the violation. The county may accept, modify, or reject the cable communications system operator's proposed plan and time schedule for curing the violation. Correction of the violation is not complete until all damages and penalties owed are paid in full.

C. If the cable communications system operator contests the violation notice or the county determines that the cable communications system operator has failed to completely cure the violation, to submit an acceptable plan to cure the violation, or to work diligently to cure the violation, the county shall schedule a hearing before the director or the director's designee ("violation hearing"). The county shall provide cable communications system operator written notice of the violation hearing at least twenty days prior to the hearing ("hearing notice").

D. The hearing notice shall indicate: (1) the time and place of the violation hearing; (2) the nature of the violation; and (3) the cable communications system operator's right to present oral and written testimony at an open and public meeting.

E. At the violation hearing, the director or the director's designee shall hear and consider evidence from the cable communications system operator, county staff and members of the public regarding the alleged violation. The cable communications system operator shall be given an opportunity to present any and all evidence relating to the alleged violation.

F. If, based upon the evidence presented at the violation hearing, the director or the director's designee finds that cable communications system operator has violated its franchise, any provision of this chapter or any applicable state or federal law, the director or the director's designee may issue an order assessing liquidated damages if provided for by the cable communications system operator's franchise, or, subject to Section 5.12.480 and the terms of the cable communications system operator's franchise, revoke or shorten the franchise. The cable communication system operator may appeal the decision to the board of supervisors.

G. If the cable communications system operator files a written appeal to the board of supervisors pursuant to subsection (F) of this section, the board of supervisors shall hold a public hearing to consider the appeal. Notice of the hearing shall be given to the cable communications system operator at least twenty days prior to the hearing. Such notice shall include the information described in subsection (D) of this section. If, based upon the evidence presented at the public hearing, the board of supervisors find that the cable communications system operator has violated its franchise, this chapter, or any applicable state or federal laws, the board of supervisors may issue an order assessing liquidated damages if provided for by the cable communications system operators' franchise, or, subject to Section 5.12.480 and the terms of the cable communications system operators' franchise, revoke or shorten the term of the franchise.

(Ord. 1262 § 2 (part), 2005)

The county may revoke a franchise or reduce the term of a franchise if it finds, after complying with procedures set forth above, that a cable communications system operator has violated this chapter or its franchise or license; has defrauded or attempted to defraud the county or subscribers; or has attempted to evade the requirements of this chapter or its franchise or license. Except as to violations that are impossible to cure, and as provided in Sections 5.12.490 and 5.12.500, the franchise may only be revoked if the franchisee: (A) was given notice of the default; (B) thirty days to cure the default; and (C) the franchisee failed to cure the default, or to propose a schedule for curing the default acceptable to the county where it is impossible to cure the default in thirty days. Any revocation proceeding must conducted in accordance with applicable federal and state laws.

(Ord. 1262 § 2 (part), 2005)

No opportunity to cure is required for repeated violations (provided that notice was provided pursuant to subsection (A) of Section 5.12.470), and fraud and attempted fraud shall be deemed incurable. Further, the county may declare a franchise forfeited without opportunity to cure where a franchisee: (A) voluntarily stops providing service it is required to provide; or (B) transfers the franchise without the prior consent of the county.

(Ord. 1262 § 2 (part), 2005)

Upon termination or forfeiture of a franchise, whether by action of the county as provided above, or by passage of time, the franchisee must stop using the cable communications system for the purposes authorized by the franchise. The county may take possession of some or all of franchisee's facilities, consistent with provisions of applicable law, or require the franchisee or its bonding company to remove some or all of the franchisee's facilities from the county, and restore affected property to its same or better condition. This provision does not permit the county to remove facilities that are used to provide another service for which the franchisee holds a valid franchise issued by the county.

(Ord. 1262 § 2 (part), 2005)

Remedies provided for under this chapter or under a franchise shall be cumulative. Recovery by the county of any amounts under insurance, the performance bond, the security fund or letter of credit, does not limit a franchisee's duty to indemnify the county; or relieve a franchisee of its franchise obligations or limit the amounts owed to the county.

(Ord. 1262 § 2 (part), 2005)

A franchise granted pursuant to this chapter shall require liquidated damages, in an amount to be specified in the franchise, for specified breaches of the franchise including but not limited to, failure to commence construction, failure to meet construction plan benchmarks, failure to comply with rebuild plan benchmarks, failure to commence service, and material breach of franchise obligation(s). The franchise shall also provide that the county may withdraw liquidated damages owed from the franchisee's security deposit, after complying with the procedures set forth in Section 5.12.470. Liquidated damages shall commence on that date that performance was due and/or failed, and continue until the franchisee demonstrates to the satisfaction of the county that the franchisee has fully performed its obligations giving rise to the payment of liquidated damages. Any obligation to pay liquidated damages does not in any way affect the franchisee's obligation to pay franchise fees or perform other franchise obligations and such liquidated damages do not constitute franchise fees and are not subject to any limitations on franchise fees contained in 47 U.S.C. Section 542(b). Any obligation to pay liquidated damages are not costs of satisfying franchise requirements as provided in 47 C.F.R. Section 76.925. A franchisee may not pass the cost of any liquidated damages to subscribers through subscriber rates or itemize or otherwise identify on subscriber bills any obligation franchisee may have to pay liquidated damages.

(Ord. 1262 § 2 (part), 2005)

A. Penalties. In addition to any other remedies provided for in this chapter or otherwise available by law, the county shall have the power to impose civil penalties in the event a franchisee violates any provision of this chapter, a franchise, or any regulation lawfully adopted thereunder. The amounts of such penalties shall be based on the following principles.

1. Penalties shall exceed the financial benefits to a franchisee delaying or failing to comply with the applicable requirement;

2. Even where such benefits are not easily discernible, the penalties shall be high enough to have a significant deterrent effect on a franchisee; and

3. Penalties shall be sufficient to protect the county and other affected parties against loss of revenues resulting from violations.

B. Other Monetary Sanctions. A franchise shall also provide for liquidated damages and other monetary sanctions, the amounts of which shall also reflect the foregoing principals.

C. Private Suit Against Franchisee.

1. Any person or organization adversely affected by a violation, or by a pattern and practice of violations, shall have the right to sue a franchisee in a court of competent jurisdiction for damages and for injunctive and other relief to require enforcement of the franchise. Organizations shall be entitled to sue on behalf of themselves or their members.

2. The remedy herein provided shall be in addition to any other remedies provided by law.

3. Except in emergency situations in which immediate relief is required, private litigants shall notify the county counsel not fewer than ten days prior to filing suit. However, suit by the county shall not preempt the private litigant's right to proceed.

D. Except as otherwise provided herein, any person who violates any provisions of this chapter shall be subject to a monetary penalty in an amount determined pursuant to the principles in subsection (A) of this section.

(Ord. 1262 § 2 (part), 2005)