Newark Municipal Code Ch. 5.16 Catv Regulations

The ordinance codified in this chapter shall be known and may be cited as the "Newark Cable Communications Ordinance."

(Ord. 180 § 1, 1982)

For the purposes of this chapter, the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number:

1. "Applicant" means any person or corporation submitting an application for a cable communications franchise.

2. "Basic service" means that service regularly provided to all subscribers at a basic monthly rate including, but not limited to, the retransmissions of local and distant broadcast television and FM radio signals, non-premium satellite services, automated services, local origination and access services.

3. "Cable communications system or CATV system" means a system employing antennae, microwave, wire, wave-guides, coaxial cables, or other conductors, equipment or facilities designed, constructed or used for the purpose of:

a. Collecting and amplifying local and distant broadcast television or radio signals and distributing and transmitting them;

b. Transmitting original cablecast programming not received through television broadcast signals;

c. Transmitting television pictures, film and video-tape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers;

d. Transmitting and receiving all other signals: digital, voice, audio-visual, or other forms of electronic or electrical signals.

4. "Channel" means a six megahertz (MHz) frequency band, which is capable of carrying either one standard audio/video television signal, or a number of audio, digital or other non-video signals.

5. "City" means the city of Newark, a municipal corporation of the state of California, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

6. "City manager" means the city manager of the city of Newark.

7. "Community access channel or access channel" means any channel or portion of a channel utilized for programming on a nonprofit basis.

8. "Council" means the legislative body of the city of Newark.

9. "Educational channel" means any channel or portion of a channel on which educational institutions are the only designated programmers.

10. "Entertainment services" means television services provided on a one-way non-interactive basis including but not limited to broadcast channels, local origination channels, pay channels or any other channels supplied to subscribers at a basic or premium charge where the content of the transmitted signals is uniform to all subscribers or individual classes of subscribers and program selection is accomplished by operation of a tuner or converter under the sole control of the subscriber.

11. "Federal Communications Commission or FCC" means the present federal agency of that name as constituted by the Communications Act of 1934, or any successor agency created by the United States Congress.

12. "Franchise or franchise agreement" means any authorization granted hereunder in terms of a franchise, privilege, permit or license to construct, operate and maintain a cable communications system within the city. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the city as required by other ordinances and laws of this city.

13. "Government channel" means any channel or portion thereof dedicated to the use of the municipal agencies.

14. "Grantee" means a person or corporation to whom a franchise or license is granted by the council, or any person or corporation to which it may thereafter be lawfully transferred and which has filed with the council an acceptance, bond and insurance policies and deposit referred to in Sections 5.16.060 and 5.16.370 through 5.16.400.

15. "Grantee property" means all property owned, installed or used by a grantee in the conduct of a cable communications system business in the city under the authority of a franchise or license granted pursuant to this chapter.

16. "Grantor" means the city of Newark acting through its council.

17. "Gross revenues" means any and all compensation in whatever form, directly or indirectly received by grantee, from the source specified, not including any taxes on services furnished by the grantee, which taxes are imposed directly on a subscriber or user by a city, county, state or other governmental unit, and collected by the grantee for such entity.

18. "Institution" means a building or buildings where service may be utilized in connection with a business, trade, profession, public agency or service, school, or nonprofit organization.

19. "Institutional network" means a cable communications network designed principally for the provision of nonenteragencies or other nonprofit agencies for use in connection with the on-going operations of such institutions.

20. "Institutional services" means services delivered on the institutional subscriber network.

21. "Institutional subscriber" means a place of business, public agency, school or nonprofit corporation receiving institutional services on the institutional subscriber network.

22. "Interactive services" mean services provided to subscribers where the subscriber either:

a. Both receives information consisting of either television or other signal and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or

b. Transmits signals to any other location for any purpose.

23. "Leased access channel" means any channel or portion of a channel available for programming for a fee or charge by persons or entities other than the grantee.

24. "Local origination channel" means any channel or portion of a channel where the grantee is the only designated programmer, and which is utilized to provide television programs to subscribers.

25. "Non-basic service" means any communications service in addition to regular subscriber services including, but not limited to, access channel carriage including origination programming, pay television, burglar alarm service, fire alarm service, data transmission, facsimile service, home shopping service, etc.

26. "Pay channel or premium channel" means a channel on which television signals are delivered to subscribers for a special charge fee or charge to subscribers over and above the regular charges for basic subscriber service, on a per program, per channel, or other subscription basis.

27. "Person or persons" means any corporation, partnership, proprietorship, individual or organization authorized to do business in the state of California.

28. "Premium service" means pay-per-program, pay-per-channel, or subscription service, i.e., delivered to subscribers for a fee or charge over and above the regular charges for basic service.

29. "Public access channel" means any channel or portion of a channel where any member of the general public may be a programmer on a first-come, first-served basis, subject to appropriate rules formulated by the city and/or grantee.

30. "Residential network" means a cable communications network designed principally for the delivery of entertainment, community access or interactive services to individual dwelling units.

31. "Residential services" mean services delivered on the residential subscriber network.

32. "Residential subscriber" means a subscriber who receives residential services on the residential subscriber network.

33. "Streets, public ways or rights-of-way" means the surfaces of and the spaces above and below any public street, avenue, road, highway, freeway, boulevard, lane, concourse, driveway, bridge, tunnel, park, parkway, sidewalk, waterway, dock, pier, alley, court, right-of-way, public utility easement, or any other public place, ground or water, now or hereafter existing as such within the city.

34. "Subscriber" means any person or institution that elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connection with the cable communications system whether or not a fee is paid for such service.

35. "Tapping" means the observing of a communications signal exchange where the observer is neither of the communicating parties, whether the exchange is observed by visual or electronic means, for any purpose whatsoever.

36. "Video provider" or "video service provider" means any person, company, or service that provides video programming to a residence, including, without limitation, a home, multi-family dwelling complex, congregate living complex, condominium, apartment, or mobile home, where some fee is paid for that service, whether directly or as included in dues or rental charges, and whether or not public rights-of-way are used in the delivery of that video programming. A "video provider" or "video service provider" includes, without limitation, providers of video programming service, cable television service, open video system service, master antenna television, satellite master antenna television, direct broadcast satellite, multipoint distribution services, and other providers of video programming, without regard to the delivery technology (including but not limited to Internet Protocol or any other technology).

(Ord. 180 § 2, 1982)

(Ord. No. 429, § 1, 7-24-2008)

It is unlawful to commence or engage in the construction, operation or maintenance of a cable communications system without a franchise issued under this chapter or a franchise issued by the State of California Public Utilities Commission pursuant to Assembly Bill 2987 (Nunez), formally called the "Digital Infrastructure and Video Competition Act of 2006," which became effective on January 1, 2007. The council may, by ordinance, award a nonexclusive franchise to construct, operate, and maintain a cable communications system within all or any portion of the city to any person, whether operating under an existing franchise or not, who makes application for authority to furnish a cable communications system which complies with the terms and conditions of this chapter; provided, that this section shall not be deemed to require the grant of a franchise to any particular person or to prohibit the council from restricting the number of grantees should it determine such a restriction would be in the public interest. Any franchise or license for the construction, maintenance, and operation of cable television systems using the public streets, utility easements, other public rights-of-way or places shall conform to the provision of this chapter. Video service providers who have obtained a state franchise under the state franchising system administered by the California Public Utilities Commission for video service providers pursuant to the "Digital Infrastructure and Video Competition Act of 2006" shall be governed by state law and regulation and by Section 5.16.500 of this Code.

(Ord. 180 § 3.1, 1982)

(Ord. No. 429, § 1, 7-24-2008)

A. The provisions of this chapter shall be incorporated by reference in any franchise agreement or license approved hereunder.

B. The provisions of any proposal submitted and accepted by the city shall be incorporated by reference in any applicable franchise or license.

(Ord. 180 § 3.2, 1980)

Any franchise granted hereunder by the city shall authorize the grantee, subject to the provisions herein contained:

A. To engage in the business of operating and providing cable communication service and the distribution and sale of such service to subscribers within the city;

B. To erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street, such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, antennae, amplifiers, and appliances, attachments, supporting structures, and other property as may be necessary and appurtenant to the cable communications system; and, in addition, so to use, operate, and provide similar facilities, or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other grantee franchised or permitted to do business in the city;

C. To maintain and operate the franchise properties for the origination, collection, transmission, amplification, distribution and reception of electrical or radiant energy.

(Ord. 180 § 3.3, 1982)

A. A franchise shall be effective on the thirty-first day after approval of the franchise agreement or license; provided, that the grantee has filed, within twenty days after such effective date, a written instrument, addressed to the council, accepting a franchise or license, together with the bond and insurance policies and deposits required by Sections 5.16.370 through 5.16.400, and agreeing to comply with all of the provisions hereof.

B. A franchise or license shall expire fifteen years after acceptance thereof unless sooner terminated by ordinance.

C. The council may terminate any franchise granted pursuant to the provisions of this chapter in the event of the wilful failure, refusal or neglect by grantee to do or comply with any material requirement or limitation contained in this chapter, or any other applicable rule or regulation of the council or city manager validly adopted pursuant to this chapter.

1. The city manager may make written demand that the grantee comply with any such requirement, limitation, term, condition, rule or regulation. If the failure, refusal or neglect continues after notice for an unreasonable period of time, determined as such by the city manager, following such written demand, the city manager may place his request for termination of the franchise upon the next regular council meeting agenda. The city manager shall cause to be served upon such grantee, at least thirty days prior to the date of such council meeting, a written notice of his intent to request such termination, and the time and place of the meeting.

2. The council shall consider the request of the city manager and shall hear any persons interested therein, and shall determine, in its discretion, whether or not any failure, refusal or neglect by the grantee was with just cause.

3. If such failure, refusal or neglect by the grantee was with just cause, the council shall direct the grantee to comply within such time and manner and upon such terms and conditions as are reasonable.

4. If the council shall determine such failure, refusal or neglect by the grantee was without just cause, then the council may, by ordinance, declare that the franchise with such grantee shall be terminated and forfeited, grantee shall be required to sell all interests, and title in all of its plant and system operated under the franchise including any rights under the unexpired portion of the franchise.

D. In the event of termination, the city may purchase, or require any successor grantee to purchase, grantee's facilities at a cost not to exceed its then fair market value, with a reduction for uncompensated damages incurred by the city in connection with grantee's operation. In the event the parties are unable to agree on the fair market value of grantee's system as specified above, the following procedure will be followed:

1. Grantee and the purchaser each shall select one qualified appraiser experienced in the evaluation of cable communications systems.

2. The two selected appraisers shall select a third appraiser. The three appraisers shall be employed to determine the fair market value of grantee's system. The fair evaluation shall be the average of the three evaluations of the appraisers. The appraisers shall be directed to reach their determination within thirty days. Grantee and the purchaser shall each pay fifty percent of the costs of employing such appraisers.

3. Upon determination of the fair market value, and upon payment of such sum by the purchaser, grantee shall transfer all rights, titles, and interests in the subject property to the purchaser within thirty days.

4. In the event of a material breach resulting in a termination of the franchise in accordance with the provisions herein, the term "fair market value" shall not include the rights granted pursuant to the franchise.

E. Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the right of the city to acquire the property of the grantee through the exercise of the right of eminent domain, nor any other rights of the city under the franchise or any other provision of law.

F. In the event of any holding over after expiration or other termination of any franchise granted hereunder, the grantee shall pay to the city all fees consistent with the provisions herein as if there had not been such holding over and as if the terms and conditions of the franchise continued in full force and effect. In the event of any such holding over in direct contravention by grantee of a final valid order of the city, expressed by resolution upon notice, requiring grantee to cease and desist all operations upon a certain date, then and in that event, the grantee shall pay to the city, reasonable compensation and damages, or not less than one hundred percent of its gross revenue derived from all sources within the city during the period.

G. Upon thirty days' notice prior to the expiration of a franchise, the city may purchase the franchise property by a tender within ninety days after the expiration of the franchise. The notice shall extend the franchise for the tender period. The compensation shall be determined pursuant to subsection D of this section.

(Ord. 180 § 3.4, 1982)

Unless otherwise specifically prescribed in this chapter, the following provisions shall govern the interpretation and construction of a franchise:

A. Time is of the essence. The grantee shall not be relieved of its obligation to promptly comply with any provision hereof, or the ordinance granting the franchise, by any failure of the city to enforce prompt compliance with the same or any other provision.

B. Any right or power conferred, or duty imposed upon any officer, employee, department, or board of the city is subject to transfer by operation of law to any other officer, employee, department or board of the city.

C. The grantee shall have no recourse whatsoever against the city for any loss, costs, expense or damage, arising out of any provision or requirement of a franchise or the enforcement thereof.

D. A franchise does not relieve the grantee of any requirement of the city or of any ordinance, rule, regulation, or specification of the city, including, but not limited to any requirement relating to street work, street excavation permits, or the use, removal or relocation of property in streets.

E. The granting of a franchise or any of the provisions contained herein shall not be construed to prevent the city from granting any identical or similar franchise to any person or corporation other than the grantee.

(Ord. 180 § 4.1, 1982)

A. No privilege or exemption is granted or conferred by a franchise except those specifically prescribed herein.

B. Any privilege claimed under a franchise by the grantee in any street shall be subordinate to any prior lawful occupancy of the street. The city reserves the right to reasonably designate where a grantee's facilities are to be placed within the public ways.

C. A franchise is a privilege to be held in personal trust by the original grantee. It cannot in any event be transferred in part, and it is not to be sold, transferred leased, assigned, or disposed of as a whole, either by forced sale, merger, consolidation, or otherwise, without prior consent of the city expressed by resolution, and then only under such conditions as may be therein prescribed; provided, however, that no such consent shall be required for any transfer in trust, mortgage, or other hypothecation, as a whole, to secure an indebtedness.

D. The grantee shall at all times comply with all applicable present and future rules of the Federal Communications Commission.

E. A grantee shall, at all times during the life of its franchise, be subject to the lawful exercise of the city's police power and such reasonable regulations as the council may subsequently promulgate thereunder.

F. Nothing contained in this chapter shall be deemed to prohibit in any way the right of the city to levy non-discriminatory occupational license taxes on any activity conducted by grantee.

G. Nothing contained in this chapter shall be deemed to prohibit in any way the right of the city to provide, for consideration, rights or privileges in addition to those set forth in Section 5.16.050.

H. Any franchise granted shall not relieve the grantee of any obligations involved in obtaining pole or conduit space from any department of the city, utility company, or from others maintaining utilities in the public ways.

I. Whenever in the judgment of the grantor it is deemed impracticable to permit erection of poles or construction of underground conduit system by any other utility which may at the time have authority to construct or maintain a conduit or poles in street area, the grantor may require the grantee herein to afford to such utility the right to use such of the poles or facilities of the grantee as the grantor finds practicable in common with the grantee, both parties sharing the costs incident thereto and under such rules and regulations as they may agree upon, but in case they fail to agree within a reasonable time, then upon such terms, conditions and regulations governing the same as the grantor may determine to be just and reasonable.

J. Any franchise granted shall be in lieu of any and all other conflicting rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by grantee, or any successor to any interest of grantee, of or pertaining to the construction, operation or maintenance of any cable communications system in the city; and the acceptance of any franchise shall operate as between grantee and the city, as an abandonment of any and all of such rights, privileges, powers, immunities, and authorities within the city to the effect that, as between grantee and the city; and all construction, operation and maintenance by any grantee of any cable communications system in the city shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to the franchise, and not under or pursuant to any other right, privilege, power, immunity or authority whatsoever.

K. No franchise shall authorize use of any public property other than public right-of-way and public utility easements owned by the city, unless such franchise or subsequent resolution of the council expressly authorizes such other public property.

L. Grantee shall be subject to all provisions of the other ordinances, rules, regulations, and specifications of the city heretofore or hereafter adopted, including but not limited to those pertaining to works and activities in, on, over, under, and about public rights-of-way.

M. Any privilege claimed, under any such franchise granted, in any public right-of-way or other public property shall be subordinate to the public use and any other lawful use thereof.

N. Grantee shall be subject to the provisions of general laws of the state of California or as hereafter amended, when applicable to the exercise of any privilege contained in any franchise granted pursuant to this chapter, including but not limited to those pertaining to works and activities in and about State Highways.

O. Grantee shall be prohibited from directly or indirectly doing any of the following:

1. Imposing a fee or charge for any service or repair to subscriber-owned receiving or transmitting devices except for the connection of its service or for the determination by grantee of the quality of signal reception and/or transmission;

2. Soliciting, referring, or causing or permitting the solicitation or referral of any subscriber to persons engaged in any business herein prohibited to be engaged in by grantee;

3. Providing information concerning the viewing patterns of identifiable individual subscribers to any person, group or organization for any purposes;

4. Install, maintain or operate on any television set a coin box or any other device or means for collection of money for individual programs.

P. If the Federal Communications Commission or the Public Utilities Commission of the state of California or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of any franchise granted, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the city, the jurisdiction of the city shall cease and no longer exist.

Q. The preemption or preclusion of the exercise by the city of any of its police power shall not diminish, impair, or affect any other contractual benefit to the city of grantee nor any other contractual obligation of the grantee under any franchise granted.

R. Any and all minimum standards governing the operation of grantee and any and all maximum rates, ratios, and charges specified in any franchise granted, existing now and at any time in the future, including such time as any paramount jurisdiction shall preempt or preclude that of the city, and any and all rights, powers, privileges, and authorities of the city to determine, establish, or fix any of the same, are each and all declared by the city and by any grantee accepting any franchise to be contractual in nature and to be for the benefit of the city.

S. The form of the grantee's contract with the subscriber shall also be subject to approval of the city.

T. It is not necessarily the city's intention to prohibit the erection or controlled use of individual television antennae, and no one is or will be required to receive cable communications service or connect with a cable communications system.

U. Should the grantee ever fail to pay any sum of money to the city owing to the city under provisions of this chapter, or the franchise ordinance, when such sum becomes due and payable, grantee shall pay interest to the city on the delinquent sum, until it is fully paid at two interest points above the prime rate of interest charged in the San Francisco Bay area as calculated by the city.

V. A franchise to proceed with construction or operation of a cable communications system shall not be construed as any limitation upon the right of the city to grant to other persons or corporations, rights, privileges or authority similar to or different from the rights of authority set forth herein or the franchise document itself, in the same or other street, alleys, public highways, public places, or other public rights-of-way by agreement, franchise, permit or otherwise.

W. Nothing in this chapter shall be construed or prohibit any person from constructing or operating any private noncommercial satellite receiving station to the extent permitted by city, state and federal law.

(Ord. 180 § 4.2, 1982)

A. This chapter itself grants no authority to operate a cable communications system to any person(s). Such grants are only made by the adoption of a separate ordinance awarding a specific franchise to an applicant who has complied with the provisions of this chapter.

B. Each application for a franchise to construct, operate, or maintain any cable communications system(s) in this city shall be filed with the city clerk and shall contain or be accompanied by the following, as a minimum:

1. The name, address, and telephone number of the applicant;

2. A detailed statement of the corporate or other business entity organization of the applicant including but not limited to, the following and to whatever extent required by the city:

a. The names, residence and business addresses of all officers, directors and associates of the applicant,

b. The names, residence and business addresses of all officers, persons and entities having, controlling, or being entitled to have or control of one percent or more of the ownership of the applicant and the respective ownership share of each person or entity,

c. The names and addresses of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part or owned and controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to cable television systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby,

d. A detailed description of all previous experience of the applicant in providing cable television communications system service and in related or similar fields,

e. A detailed and complete financial statement of the applicant,

f. A statement identifying, by place and date, any and all cable television franchises awarded to the applicant, or its parent or subsidiary; the status of the franchises with respect to completion thereof; the total cost of completion of such systems; and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof;

3. A thorough, detailed description of the proposed cable communications system and plan of operation of the applicant which shall include, but not be limited to, the following:

a. A detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be served,

b. A detailed, informative and referenced statement describing the actual equipment and operational standards proposed by the applicant. In no event shall the operational and performance standards be less than those adopted by the Rules and Regulations of the Federal Communications Commission (contained in Title 47, Subpart K, Sections 76.601 et seq. 9), and as augmented herein and modified by the franchise awarded,

c. A detailed estimate of the cost of constructing the applicant's proposed system,

d. A copy of the form of any agreement, undertaking or other instrument proposed to be entered into between the applicant and any subscriber,

e. A detailed statement setting forth in its entirety any and all agreements and undertakings, whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm or corporation which materially relate or pertain to or depend upon the application and the granting of the franchise,

f. A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of the classifications, including installation charges and service charges;

4. A copy of any agreement existing between the applicant and any public utility subject to regulation by the California Public Utilities Commission providing for the use of any facilities of the public utility, including but not limited to poles, lines or conduits, within the city and/or adjacent areas;

5. Any other details, statements, information or references pertinent to the subject matter of such application which shall be required or requested by the council, or by any provision of any other ordinance of the city;

6. An application fee in a sum to be set by the city which shall be in the form of cash, certified or cashier's check, money order, to pay the costs of studying, investigating, and otherwise processing such application, and which shall be in consideration thereof and not returnable or refundable in whole or in part, except to the extent that such fee exceeds the actual costs incurred by the city in studying, investigating and otherwise processing the application; provided, that any applicant who shall deliver to the city clerk a written withdrawal of or cancellation of any application following the date such application is received by the city clerk, shall be entitled to have returned and refunded the sum of fifty percent of the fee less any actual costs or expenses incurred by the city by reason of such applications.

C. The council may, by advertisement or otherwise, solicit for any other applications for cable communications system franchises, and may determine and fix any date upon or after which the same shall be received by the city, or the date before which the same shall not be received, and may make any other determinations and specify any other times, terms, conditions or limitations respecting the soliciting, calling for, making and receiving of such applications.

D. Upon receipt of any application for franchise, the council shall refer the same to the city manager or cable communications advisory committee, if such exists, who shall prepare a report and make recommendations respecting such application, and cause the same to be completed and filed with the council within one hundred and twenty days.

E. In making any determinations hereunder as to any application the council shall give due consideration to the character and quality of the service proposed, rates to subscriber, income to the city, experience, character, background, and financial responsibility of any applicant, and its management and owners, technical and performance quality of equipment, willingness and ability to meet construction and physical requirements, and to abide by policy conditions, franchise limitations and requirements, and any other consideration deemed pertinent by the council for safeguarding the interest of the city and the public. The council, in its discretion, shall determine the award of any franchise on the basis of such considerations and without competitive bidding.

F. If the council, after public hearing, shall determine to reject such application, such determination shall be final and conclusive, and the same shall be deemed rejected.

G. If the council shall determine to further consider the application, the following shall be done:

1. The council shall decide and specify the terms and conditions of any franchise to be granted hereunder and as herein provided.

2. The council shall give notice of its intention to consider the granting of such a franchise, stating the names of the proposed grantee, and that copies of the proposed franchise may be reviewed at the office of the city clerk, fixing and setting forth a time and public place certain when and where interested parties may inspect all the bona fide applications, fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or objection to the granting thereof may file written protests and appear before the council and be heard, and directing the city clerk to publish notice of the resolution's adoption at least once within ten days of the passage thereof in a newspaper of general circulation within the city.

H. At the time set for the hearing, or at any adjournment thereof, the council shall proceed to hear all written protests. Thereafter, the council shall make one of the following determinations:

1. That such franchise be denied; or

2. That such franchise be granted upon such conditions as the council deems appropriate, which conditions may include, on a not to exceed basis, where in accordance with applicable FCC regulations and state laws:

a. Charges for installation;

b. Subscriber rates;

c. Service rates for separate classifications of service such as additional connections.

I. If the council shall determine that a franchise be denied, such determination shall be expressed by resolution; if the council shall determine that franchise be granted, such determination shall be expressed by ordinance granting a franchise to the applicant. The action of the council shall be final and conclusive.

J. The grantee shall pay to the city a sum of money sufficient to reimburse it for all expense incurred by the provisions of this chapter, beyond those defrayed by application fees. Such payment shall be made within thirty days after the city furnishes the grantee with a written statement of such expenses.

(Ord. 180 § 5.1, 1982)

A. The service provided by the grantee under a franchise may be required to continue uninterrupted beyond the expiration or cancellation of a franchise. To assure continued service to the subscribers, application for a replacement franchise shall be submitted at least twelve months prior to the expiration date thereof. If the grantee fails to make the application, the city may commence procedures for the issuance of another franchise(s).

B. Any franchise may be renewed for a term not to exceed fifteen years, at any time prior to the expiration of the same. An application therefor shall be submitted to the city manager containing the following information:

1. The information required pursuant to Section 5.16.090B1 and 2;

2. A map of the area proposed to be included in the franchise service area;

3. A schedule of rates and charges proposed;

4. A narrative and/or pictorial description of the facilities in place, and a narrative description of proposed additions and/or replacements thereto, if any.

C. Upon receipt of such an application, the city manager, or cable communications advisory committee, if such exists, shall review the same and forward to the council a report containing the recommendations as to whether the renewal franchise should be granted or not. Upon receipt of such a report, the council shall conduct a public hearing, noticed as is provided in Section 5.16.090G2. At the time of such hearing, or continuance thereof, the council shall, based upon the application, report, and relevant evidence received, determine whether the public interest, convenience and necessity require the issuance of such franchise. If the council determines to deny the application for renewal, it shall do so by resolution. If it determines that the franchise should be granted, it shall do so in the manner provided in Section 5.16.090H2. In the event of nonrenewal or termination of a franchise, the city may purchase, or require any successor grantee to purchase, grantee's facilities at a cost not to exceed its then fair market value, with a reduction for any uncompensated damages incurred by the city in connection with the grantee's operation. If such fair market value cannot be agreed upon by the parties, it shall be determined by a three-member agreed arbitration panel, in accordance with the arbitration process specified in Section 5.16.060D. The parties shall divide expenses of arbitration evenly among themselves.

(Ord. 180 § 5.2, 1982)

A. No franchise granted under this chapter shall become effective for any purpose unless and until written acceptance thereof, together with the bond and insurance policies and deposits required by Sections 5.16.370 through 5.16.400, shall have been filed with the city clerk. Written acceptance, which shall be in the form and substance approved by the city attorney, shall also be and operate as an acceptance of each and every term and condition and limitation contained in this chapter, and in such franchise, or otherwise specified as herein and therein provided.

B. The written acceptance shall be filed by the grantee within twenty days after the effective date of the ordinance granting such franchise, in the event this day falls on a non-working day, then the next business day will suffice.

C. In default of the filing of such written acceptance as herein required, the grantee shall be deemed to have rejected and repudiated the franchise. Thereafter, the acceptance of the grantee shall not be received nor filed by the city clerk. The grantee shall have no rights, remedies, or redress in the premises, unless and until the council, by resolution, shall determine that such acceptance be received or filed, and then upon such terms and conditions as the council may impose.

D. In any case, and in any instance, all rights, remedies and redress in these premises which may or shall be available to the city, shall at all times be available to the city, and shall be preserved and maintained and shall continuously exist in and to the city, and shall not be in any manner or means modified, abridged, altered, restricted, or impaired by reason of any of these premises, or otherwise.

E. Any franchise granted and accepted under this chapter shall be in lieu of any and all other conflicting rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by the grantee, of or pertaining to the construction, operation, or maintenance of any cable communications system(s) in the city.

(Ord. 180 § 5.3, 1982)

A. Any such franchise shall be a privilege to be held in personal trust by the grantee. The franchise shall not be sublet or assigned, nor shall any of the rights or privileges therein granted or authorized be leased, assigned, mortgaged, sold, transferred, or disposed of, either in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person(s), except the grantee, either by act of the grantee or by operation of law, without the consent of the city expressed by ordinance.

B. The grantee shall promptly notify the city of any proposed change in, or transfer of, or acquisition by, any other party of control of the grantee with respect to which the consent of the grantor is required, pursuant to subsection A of this section. Such change of control shall make this franchise subject to revocation unless and until the council shall have consented thereto.

C. Consent of the council shall not be granted until it has examined the proposed assignee's legal, financial, technical, character and other qualifications to construct, operate and maintain a cable communications system in the city and has afforded all interested parties notice and an opportunity to be heard on the question. The grantee shall assist the city in any such examination.

D. The consent of the council may not be unreasonably refused; provided, however, the proposed assignee must show financial responsibility as determined by the council and this chapter; and provided further, that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation, in whole or in part, to secure an indebtedness, except that when such hypothecation shall exceed fifty percent of the market value of the property used by the grantee in the conduct of the cable communications system, prior consent of the council shall be required for such a transfer. Such consent shall not be withheld unreasonably.

E. In the event that grantee is a corporation, prior approval of the council shall be required where there is an actual change in control or where ownership of more than fifty percent of the voting stock of grantee is acquired by a person or group of persons acting in concert, none of whom already own fifty percent or more of the voting stock, singly or collectively. Any such acquisition occurring without prior approval of the council shall constitute a failure to comply with a provision of this chapter within the meaning of Section 5.16.060C.

F. Any such transfer or assignment shall be made only by an instrument in writing, which shall include an acceptance of all terms and conditions of the franchise by transfer of a duly executed copy of which shall be filed with the city clerk within thirty days after any such transfer or assignment.

(Ord. 180 § 5.4, 1982)

A. Standards of cable communications system(s) constructions, safety, and operation will meet, but not be limited to, the following referenced specifications, unless exception is agreed upon between the city and the grantee:

1. Applicable city, state and national/federal codes and ordinances as they apply to the construction of buildings, tower structures, and cable system installation;

2. Applicable utility joint attachment practices;

3. National Electrical Safety Code, NFPA No. 70;

4. Local utility code requirements; and

5. Local right-of-way procedures.

B. The overall system(s) will be designed and constructed to meet all FCC technical performance specifications and standards over a temperature range of ± 50 degrees F from the mean temperature of the Newark area, and to function throughout all environmental extremes expected.

C. The forward portion of any cable communications system shall be capable of initial activation of a minimum carriage of fifty-four Class 1 television channels, the full FM broadcast band, and pilot carriers or other such auxiliary signals as required for system control.

D. The combined forward trunk and distribution system will deliver signals to each and every subscriber's receiver that will meet or exceed the franchise ordinance specifications at the mean system temperature ± 50 degrees F, unless otherwise indicated. This shall include the effects of drop cables, interior splits, and any terminal equipment such as descramblers and set top converters.

E. The reverse portion of the residential system shall be capable of initial activation of a minimum of 5 to 30 MHz in bandwidth, with return signals from each subdivider and institutional (including all schools) signal source to the extreme end of any area in compliance with the specifications set forth in the franchise ordinance.

1. Where applicable, the end of the system specifications shall include the effects of any signal reprocessing equipment necessary to achieve forward transmission.

2. For Class 1 signals, the signal delivered to the subscriber's TV receiver, after being transmitted to the headend, processed and retransmitted down a forward channel shall meet the specifications of the franchise ordinance.

F. All cable communications systems authorized to be constructed and operated pursuant to this chapter, shall be, insofar as financially and technically feasible, be compatible one with another. Signal specifications compliance determination for forward, and/or institutional channels interchanged between other cable communication systems and a grantee's system are to be determined by applying the combined contribution of distortion of all pertinent components of the worst case (temperature and location) signal path. The combined contribution shall meet or exceed the specified technical specifications at the termination of the worst case signal path the channel could encounter. At the interconnect point the party delivering a channel or channels will provide signals, transported either in the forward or reverse system to the interconnect point, that meet or exceed the franchise ordinance specifications at the mean system temperature ± 50 degrees F. The signals are to be in compliance as stated at a point where best represents the most direct signal path between the party providing the signal and the party receiving the signal. Only one such inter-connect point is to be specified for all signal exchanges.

G. A comprehensive routine preventative maintenance program shall be developed, effected and maintained for each system by the respective grantee to ensure continued top quality cable communications operating standards in consonance with FCC Part 76 and the technical specifications stipulated in the franchise ordinance.

H. No newly constructed system services shall be offered for sale prior to proof-of-performance testing in accordance with FCC Part 76.601 and technical specifications and standards listed in the franchise agreement: This initial proof-of-performance testing, and annual proof-of-performance testing, may be conducted by the city, or its designated representative, at the city's option, when for sufficient cause as deemed by the council, or its designated representative. The city reserves the right to have the measurements, associated with city observed performance tests, conducted at city selected test points and to a greater number of test points when the minimum required by Sub-Part 76.601, FCC Rules. Additionally, the grantee shall reimburse the city for all expenses incurred by it in connection with the city conducting or observing the annual performance tests, when the results of those tests are deemed by the city to fall below at ninety percent level of compliance with the technical standards set forth in FCC Part 76 and in the Franchise Agreement.

I. Grantee's proof-of-performance testing procedure must be approved by the city for implementation prior to the initial proof-of-performance testing addressed in subsection H of this section. The results of proof-of-performance tests shall be retained for at least five years and available for inspection by the city.

J. All systems antennae and mounts shall be designed, installed and constructed to withstand one hundred mile per hour winds.

K. All underground cable should be flooded and be armour-clad cable and/or installed in conduit unless specifically exempted by the city engineer, on a case-by-case basis.

L. Residential and institutional drop cables should be a double shielded type and fitted with sealed hex crimp ring high integrity connectors.

M. Polyethylene jacketed cable should be used in any and all areas of the plant where airborne heavy chemical particles can be expected.

N. Grantee's corrective maintenance program shall render efficient corrective service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions shall be preceded by notice and shall occur during a period of minimum use of the system. A written log shall be maintained of all service interruptions. The log shall reflect the date, time, duration, and reason for each service interruption. The record of the log shall be kept on file for a minimum of three years.

(Ord. 180 § 6, 1982)

A. Within thirty days after acceptance of 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 joint use attachment agreements, encroachment permits, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable television/communications systems, or associated microwave transmission facilities.

B. In connection with subsection A of this section, copies of all petitions, applications and communications submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting grantee's cable communications operations, shall also be submitted simultaneously to the city manager.

(Ord. 180 § 7.1, 1982)

A. Within sixty days after obtaining all necessary permits, licenses and authorizations, including right of access to poles and conduits, grantee shall commence construction and installation of the cable communications system.

B. Within one hundred twenty days after the commencement of construction and installation of the system, grantee shall proceed to render service to subscribers, and the completion of the installation and construction shall be pursued with reasonable diligence thereafter, so that service to all of the areas designated and scheduled on the map and plan of construction made part of the franchise shall be provided as set forth therein.

C. 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, except as otherwise provided for in the franchise ordinance, shall be grounds for termination of such franchise. By resolution and order, the council, in its discretion, may extend the time for the commencement and completion of installation and construction for additional periods in the event the grantee, acting in good faith, experiences delays by reason of circumstances beyond his control.

D. The city shall have the right, free of charge, to make additional use, for any public or municipal purpose, whether governmental or proprietory, of any poles, conduits, or other similar facilities erected, controlled, or maintained exclusively by or for grantee in any street, provided such use by city does not interfere with the use by grantee.

E. Grantee shall utilize existing poles, conduits, and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately owned property unless and until first securing the written approval of the city engineer.

F. In all sections of the city where wires, cables and other system appurtenances are mounted above ground, every reasonable effort shall be made to minimize obstruction of the view of residents, and every reasonable effort shall be made to preclude an unsightly system installation.

(Ord. 180 § 7.2, 1982)

A. Unless otherwise authorized by the council, in those areas and portions of the city where the transmission and/or distribution facilities of the public utility providing telephone service, and those of the utility providing electric service, are underground or hereafter may be placed underground, or are to be placed underground by a builder, developer or subdivider as part of a development or subdivision, then the grantee shall likewise construct, operate and maintain all of its transmission and distribution facilities underground to the maximum extent that existing technology reasonably permits the grantee to do so.

B. In new developments or subdivisions, the grantee shall be responsible for the performance of all necessary trenching and backfilling of main line and service trenches, including furnishing of any imported backfill material required or participate in joint trench construction with other utilities. The grantee will be responsible for the conduct of the engineering and labor to put the cable conduit in the trench. Pre-wiring of new dwellings by builder while under construction shall be mandatory. The grantee will be responsible for pulling in the cable, and providing the plant electronics and drops to individual homes, after occupancy.

C. In those areas and portions of the city heretofore designated by the city as local improvement districts and where utility service facilities are currently located underground, the grantee shall be responsible for the undergrounding of cable facilities including the performance of all necessary trenching and backfilling of main line and service trenches, and the furnishing of any imported back-fill material required.

D. Previously installed aerial cable shall be under-grounded in concert, and on a cost-sharing basis, with other utilities pursuant to the general ordinances of the city or applicable state law, or in the event such action shall be taken by all other utilities on a voluntary basis.

E. Subject to approval by the council, incidental appurtenances such as amplifier boxes and pedestal mounted terminal boxes may be placed above ground, but shall be of such size and design and shall be so located as not to be unsightly or hazardous to the public.

(Ord. 180 § 7.3, 1982)

A. Grantee shall extend residential and institutional (the latter as required by city) service into every new subdivision and/or development. Those new areas having more dwelling units per strand mile of plant than the number stipulated in the franchise ordinance shall receive residential service for the normal installation fee. The capacity to provide cable communications service shall be available to newly constructed structures on the date of first occupancy. Actual installation of service may be delayed up to sixty days from the first occupancy or until after final grading, whichever is first. In those areas where the number of dwelling units per strand mile is less than the number stipulated in the franchise ordinance, grantee will provide residential cable service on a pro-rata sharing of the installation costs with the potential subscriber(s). Grantee will bear its pro-rata share of the then current mile of plant construction cost based on a multiple of the actual number of potential subscribers per mile divided by the number of dwellings per mile stipulated in the franchise ordinance.

B. The remaining construction cost will be borne on a pro-rated basis by each applicant committing to service within the extension area. Mileage will be measured from the nearest point on the nearest trunk line. Example: If it requires one mile of plant extension at $10,000 per mile of construction to serve 20 potential subscribers, and if the franchise stipulated dwellings per mile were 24, Grantee would pay $10,000 × 20 ÷ 24, or $8,333, as its share of the extension cost. The remaining one thousand six hundred and sixty-seven dollars cost would be divided equally among the twenty potential subscribers or each would pay an eighty-four dollar installation fee assuming all twenty become subscribers. The above formula applies to individual installation distances, as stipulated in the franchise ordinance, or less. For distances in excess of the stipulated distance, there may be an additional charge for that distance in excess.

(Ord. 180 § 7.4, 1982)

A. Any pavements, sidewalks, curbing or other paved area taken up or any excavations made by a grantee shall be done under permits issued for the work by the proper officials of the city, and under their supervision and direction, and shall be done in such a manner as to give the least inconvenience to the inhabitants of the city. A grantee shall, at its own cost and expense, and in a manner approved by the proper city officials, replace and restore any such pavements, sidewalks, curbing or other paved areas in as good a condition as before the work involving such disturbance was done, and shall also make and keep full and complete plats, maps and records showing the exact locations of its facilities located within the public streets, ways and easements of the city. These maps shall be available for inspection at any time during business hours by city officials.

B. A grantee shall, on the request of any person holding a building moving permit issued by the city, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than forty-eight hours' advance notice to arrange for such temporary wire changes.

(Ord. 180 § 7.5, 1982)

A. Upon any failure of the grantee to commence, pursue or complete any work required by it by law or by the provisions of a franchise to be done in any street, the council, at its option and according to law, may cause such work to be done and the grantee shall pay to the city the cost thereof in the itemized amounts reported by the council to the grantee, within thirty days after receipt of such itemized report.

B. In the event that:

1. Any part of such system has been installed in any street or other area without complying with the requirements hereof and/or the franchise ordinance; or

2. The use of any part of the system of grantee is discontinued for any reason for a continuous period of thirty days, without prior written notice to and approval by the city; or

3. Any franchise shall be terminated, cancelled or shall expire, then the grantee shall, at the option of the city, and at the expense of grantee and at no expense to the city, and upon demand of the city, promptly remove from any streets or other area all property of grantee, and grantee shall promptly restore the street or other area from which such property has been removed to such condition as the city engineer shall approve.

(Ord. 180 § 7.6, 1982)

The grantee at his expense shall protect, support, temporarily disconnect, relocate, or remove any property of grantee when required by the council by reason of traffic conditions, public safety, street vacation, freeway or street construction; change or establishment of street grade, installation of sewers, drains, waterpipes, power line, signal line, structure or improvements by governmental agencies whether acting in a governmental or proprietary capacity, of any other structure of public improvement, including but not limited to movement of buildings, urban renewal and redevelopment, and any general program under which the city shall undertake to cause all such properties to be located beneath the surface of the ground; provided, that grantee shall in all causes have the privileges and be under the obligations as to the abandonment of franchise property in place which are provided in Section 5.16.210.

(Ord. 180 § 7.7, 1982)

A. In the event the use of any grantee property is permanently discontinued, or no franchise has been obtained therefor, upon expiration of or within twelve months after any termination of a franchise, the grantee shall promptly remove from the streets all property involved, other than the council may, at its sole option, permit to be abandoned in place.

B. A permit to abandon in place must first be obtained from the city engineer. Nothing hereunder shall be deemed as taking of the property of grantee, and grantee shall be entitled to no surcharge by reason of anything hereunder.

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

D. Grantee property to be abandoned in place shall be abandoned in such manner as the council shall prescribe. Upon abandonment of any franchise property in place, the grantee shall submit to the council an instrument, satisfactory to the city attorney, transferring to the city the ownership of such property.

(Ord. 180 § 7.8, 1982)

Throughout the life of a grantee's franchise, and in addition to other service regulations adopted by the council, and excepting circumstances beyond grantee's control, such as Acts of God, riots and civil disturbances, and in providing the foregoing services, a grantee shall:

A. Maintain all parts of its system in good condition and in accordance with standards generally observed by the cable television industry. The system must serve individual residents, but also serve as a broad based communications source for city government, other public facilities including hospitals, public libraries, and schools, industrial and commercial business users;

B. Retain sufficient employees to provide safe, adequate and prompt service for all such residential subscribers, institutional facilities and business users;

C. Limit system failures to minimum time duration by locating and correcting malfunctioning as promptly as is reasonably possible, irrespective of holidays or other non-business hours.

(Ord. 180 § 8, 1982)

A grantee shall, at all times:

A. Install and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of the city building regulation ordinance, and in such manner that they will not interfere with any installations of the city;

B. Keep and maintain in a safe, suitable, substantial condition, and in good order and repair, all its structures, lines, equipment, and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of the city wherever situated or located.

(Ord. 180 § 9, 1982)

Grantee's system design and construction shall be such that service shall be made available to all residential units within the grantee's service area, as defined in the franchise, for the normal installation fee, with the exception that in those locations where the dwelling units per strand mile of system plant are less than the dwellings per mile figure stipulated in the franchise ordinance, grantee shall provide cable service on a pro-rata sharing of the installation costs with the potential subscribers. The pro-rata sharing of those costs will be in accordance with the formulation set forth in Section 5.16.170.

(Ord. 180 § 10.1, 1982)

A. Subject to such regulations as may be adopted by the council, the grantee shall install cable television service to all persons making a timely and bona fide request for such service at any location within the service area.

B. After the grantee shall have established service pursuant to a franchise in any area of the city, such service shall not be suspended or abandoned unless such suspension or abandonment be authorized or ordered by the council.

(Ord. 180 § 10.2, 1982)

A cable communications system, to be installed and operated pursuant to this chapter and a franchise granted hereunder shall:

A. Be operationally capable of relaying to subscriber terminals those television and radio broadcast signals for the carriage of what the grantee is now or thereafter authorized by the Federal Communications Commission; and

B. Distribute color television signals which it received in color; and

C. Provide, as a minimum, channel capacity and basic equipment for program production in cablecasting for educational, public, and government access uses;

D. Have a minimum capacity of fifty-four downstream video channels;

E. Have two-way (bidirectional) operational capability upon initial activation of system, or at such time as may be extended by the council.

(Ord. 180 § 10.3, 1982)

The cable communications system permitted to be installed and operated pursuant to this chapter may also engage in the business of:

A. Transmitting original cablecast programming not received through television broadcast signals;

B. Transmitting any additional broadcast signals permitted by the Federal Communications Commission;

C. Transmitting television pictures, film and videotape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers;

D. Transmitting and receiving all other signals; digital, voice and audio-visual, etc.;

E. Transmit, on a nondiscriminatory basis and for a reasonable rate, burglar, fire, or other nonbroadcast services which customers request from persons supplying those services.

(Ord. 180 § 10.4, 1982)

A. Grantee shall provide and maintain at least one local origination and access studio within the city. Location of the studio to be approved by the council or its designated representative.

B. Grantee shall provide, install and maintain a local origination and access audio/video system at their local origination and access studio. The system shall contain a complement of compatible equipment as specified in the franchise ordinance, all of which will be of broadcast or top level industrial quality.

C. The grantee shall make studio and portable and audio-video equipment available to residents in accordance with a grantee-developed and city-approved studio and equipment operations/usage plan, and provisions set forth in the franchise ordinance.

D. Grantee shall provide portapak equipment for remote public productions and locally originated programming.

E. Grantee shall provide community access channels for use by city residents, including channel for government and education access. Also, community access on a first-come, first-served basis, and leased access. Until there is a demand for full channel-time use, such may be combined on one or more channels. Additional access channels will be activated when any of the channels stipulated are in use during eighty percent of the weekdays (Monday through Friday) for eighty percent of the time during any consecutive three-hour period for six consecutive weeks.

F. Grantee will actively promote production assistance to facilitate use of these community access channels. Grantee shall maintain sufficient dedicated studio staff to fully support active local origination and access activities. The staff, upon reasonable notice, shall provide training and technical assistance in the use of the studio and portable equipment. This training and assistance shall, at a minimum, be available at the local origination and access studio and made available upon request at public schools.

G. Grantee shall maintain all studio equipment, including portable equipment, in a fully operational status on a continuous basis, and to technical standards requisite for quality performance.

(Ord. 180 § 10.5, 1982)

A. With respect to local government access, the grantee shall provide, at the request of the council, and upon city reimbursement of grantee's actual production costs in excess of five hours a week, use of grantee's studio, equipment and technical services for production of live and video-taped municipal programs, subject to scheduling requirements of the grantee.

B. With respect to the basic television service, the grantee shall provide a drop and all basic subscriber services, without cost, when the system passes such facilities and as designated by the council, to:

1. Public schools and community colleges within the city; and

2. Buildings owned and controlled by the city, used for public purposes and not for residential use;

3. Satellite Senior Homes Multi Purpose Room (Newark Senior Center).

(Ord. 180 § 10.6, 1982)

At such time as the council determines it to be in the public interest, the grantee may be required, without increasing subscription rates, to provide as set forth in the grantee's application, or the resolutions or ordinance granting a franchise pursuant to this chapter:

A. Connection to municipal video production studios;

B. Connection to educational facilities;

C. Connection to public health facilities;

D. Program origination, including children and senior citizen programs; and

E. Interconnection between municipal and/or educational facilities.

(Ord. 180 § 10.7, 1982)

The grantee will be required to provide interconnection to city franchises and other nearby cable television systems at the time and to the extent and in the manner specified by the council, after the council has conducted public hearings on the matter to determine the need and viability of an interconnect system. Costs of the interconnections shall not be passed on to subscribers without permission of the council.

(Ord. 180 § 10.8, 1982)

A. The grantee shall design and construct the system to provide for a restricted audio override of all audio channels during emergencies. If video override is also provided, the system shall include a character generator capability for delivery of emergency messages to the communicatively handicapped. The audio override shall include a squeal alert tone to precede the verbal and video messages. The design of the emergency alert system is to be submitted to the city manager for approval prior to construction.

B. Emergency power sources shall be provided by grantee at the head-end, network distribution center, satellite earth station, processing hubs, and other system locations as may be necessary to guarantee that in the event of a power failure on any part of the system, service will be maintained on the rest of the system.

(Ord. 180 § 10.9, 1982)

It shall be the right of all subscribers to receive all available services insofar as their financial and other obligations to the grantee are honored. Neither the city nor the grantee shall, as to rates, charges, service, service facilities, rules, regulations, or in any other respect, make or grant any preference or advantage to any person, nor subject any person to prejudice or disadvantage. Subject to such regulations as may be adopted by the council pursuant hereto, the grantee shall:

A. Maintain a high standard of courtesy in customer relations at all times;

B. Maintain a log showing the date, approximate time and duration, type and probable cause of all headend, trunk or distribution line service interruptions and/or failures due to causes other than routine testing or maintenance; such log shall be subject to review by the council;

C. Maintain a conveniently located business office and service center within the city with toll-free telephone numbers so that subscribers may report service outages or deficiencies at any time. The office shall maintain an adequate staff such that subscribers may transact all necessary business, including payment of bills, during regular business hours;

D. Keep a written record of all complaints showing as a minimum the date, subscriber's name and address, nature of complaint, and action taken by the grantee;

E. Restore any interruption in service as expeditiously as possible, and in accordance with the franchise agreement. Corrective maintenance for institutional services will be in accord with contract terms between the grantee and the subscriber;

F. Before providing cable television service to any subscriber, the grantee shall provide a written notice to the subscriber substantially as follows:

"Subscriber is hereby notified that in providing cable television/communications service the Grantee is making use of public rights-of-way within the City of Newark and that the continued use of such rights-of-way is in no way guaranteed. In the event the continued use of such rights-of-way is denied to Grantee for any reason, Grantee will make every reasonable effort to provide service over alternate routes. By accepting cable television/communications service, subscriber agrees he will make no claim nor undertake any action against the City, its officers, or its employees if the service to be provided hereunder is interrupted or discontinued."

G. There shall be no charges for service calls to subscribers' homes except as provided by the franchise agreement;

H. In the event that the grantee elects to rebuild, modify, or sell the system, or the city revokes or fails to renew the franchise, the grantee shall do everything in its power to ensure that all subscribers receive continuous, uninterrupted service regardless of the circumstances during the lifetime of the franchise. In the event of a system purchase by the city, or change of grantee, the current grantee shall cooperate with the city to operate the system for a temporary period, in maintaining continuity of service to all subscribers;

I. Upon termination of service to any subscriber, a grantee shall promptly remove all its facilities and equipment from the premises of such subscriber upon his request.

(Ord. 180 § 10.10, 1982)

A. The monitoring of any subscriber terminal without specific written authorization of the subscriber is prohibited. Grantee shall be responsible for the protection of subscriber privacy, prohibiting the tapping and/or monitoring of cable, line, signal input device, or subscriber outlet or receiver for any purpose whatsoever, except grantee may conduct tests of the functioning of the system where necessary in order to ensure proper maintenance of the system and to collect performance data for agencies regulating the quality of signal. Where critical information requires private communication, electronic signal scrambling techniques must be used.

B. Listings of subscribers' names and addresses may not be sold or otherwise released for any purpose, nor any list which identifies, by name, subscriber viewing habits, to any person, agency, entity, for any purpose whatsoever, without specific written authorization of the individual subscriber.

C. The grantee and the city shall maintain constant vigilance with regard to possible abuses of the right or privacy or other human rights of any subscriber, programmer, or general citizen resulting from any device or signal associated with the cable communications system. The grantee shall not place in any private residence any equipment capable of two-way communications without the written consent of the residents, and will not utilize the two-way communications capability of the system for subscriber surveillance of any kind without the written consent of the subscriber.

D. No cable, line, wire, amplifier, converter, or other piece of equipment owned by the grantee shall be attached to any residence or other property by the grantee without first securing the written permission of the owner or responsible occupant of any property involved. If such permission is later revoked whether by the original or a subsequent owner or responsible occupant, the grantee shall remove forthwith all of its equipment and promptly restore the property to as near to its original condition as possible.

E. No polls or other two-way responses of subscribers shall be conducted unless the program of which the poll is a part shall contain an explicit disclosure of the nature, purpose and prospective use of the results of the poll. No commercial or other use of information of subscriber viewing habits or patterns may be made and no release of such information shall be permitted without prior consent of the council or pursuant to rules and regulations duly adopted by the city.

(Ord. 180 § 10.11, 1982)

Except when and as preempted by FCC Regulations and state laws, the following procedures apply to the rates and charges associated with the providing of services under this chapter and any franchise issued hereunder:

A. The grantee shall charge its subscribers and users rates and charges approved by the council, and no change in rates and charges may be made without the prior approval of the council expressed by resolution. Petition for changes in rate and charges shall be reviewed (processed) and acted upon in accordance with provisions of this section and will not be unreasonably denied.

B. Should the grantee desire to change its rates and charges, it shall file a petition with the council at least ninety days prior to the proposed date of change. The petition shall detail the proposed changes and set forth the reason changes are desired. The petition shall include system historical financial data (balance sheets and detailed profit and loss statements) for the period since commencement of system operations or the previous five years, whichever is the lesser.

C. Council determination of proper rates and charges shall be based on factors considered important by council, which shall include, but not be limited to: The quality of signal delivered to subscribers, the quality of services provided to subscribers, channel capacity, number and quality of programming sources, and underlying economics of the system (system cash flow, grantee return on investment, etc.). In this regard, the city reserves the right to inspect all of the grantee's property and records in ad-judging the merits of a request for a change in rate and/or charges.

D. In connection with any proposed increase in any rate or charge, the city may direct an authorized representative to conduct a hearing on the matter. If so directed, the representative shall set the day, hour, and place certain when and where any person having any interest therein may appear and be heard. This hearing should normally be conducted within sixty days from date of receipt of petition. The notice of a public hearing on the matter should be published at least ten days before the date of the hearing in a newspaper of general circulation within the city.

E. At the time set for such hearing, or any adjournment thereof, the representative shall hear the matter. Following the close of such hearing, the representative shall prepare and file with the council a report of the hearing, and his recommendations and the reasons therefor. After receipt of the representative's report, the council shall determine whether to adopt the report or to hold a further hearing. If the council elects to adopt the recommendations of the representative, it shall do so by resolution. If it elects to conduct a hearing thereon, it shall adopt a resolution to do so, describing and stating the proposed change in rates or charges; fixing and setting forth a day, hour, and place certain when and where any person having any interest herein may appear before the council and be heard. Such resolution shall direct the city manager to publish notice of the resolution's adoption at least once within ten days of the passage thereof in a newspaper of general circulation within the city. The city manager also shall cause notice of intent of such resolution to be mailed to the grantee at least ten days prior to the date specified for hearing thereon. At the time set for such hearing, or at any adjournment thereof, the council shall hear and decide the matter.

F. No rate established shall afford any undue preference or advantage among subscribers, but separate rates may be established for separate classes of subscribers and installation charges may reflect the increased cost of providing service to isolated or sparsely populated areas.

G. The council may set rates and charges hereunder upon a determination that rates and charges levied by grantee are unreasonable or inequitable.

(Ord. 180 § 11, 1982)

A. In consideration of the granting and exercise of a franchise to construct and operate a cable communications system in the city, the grantee shall pay to the city during the life of the franchise, an annual franchise fee equivalent to a percentage, as stipulated in the franchise ordinance, of the grantee's gross revenues including but not limited to, basic service revenues, non-basic revenues, advertising revenues, lease revenues, and data transfer revenues, for the purpose of defraying administrative expenses associated with the conduct and performance of the city's authority, responsibilities, and police power in the promotion of safety, convenience, comfort, prosperity, and general welfare of the citizens of the city, and in consideration of the city's granting and grantee's exercising a franchise to use the streets, as defined in Section 5.16.020.

B. The percentage payments shall be made in the manner, amounts and at times directed in the franchise ordinance.

C. Each payment shall be accompanied by a statement, in duplicate, verified by the grantee or by a general officer or other duly authorized representative of the grantee, showing in such form and details as the council may require from time to time the facts material to a determination of the amount due.

D. The city or its representative shall have the right to inspect the grantee's records to determine if proper payments have been made to the city. The cost of such audits shall be borne by grantee if the same results in increasing, by more than two percent, the grantee's annual payment to the city.

E. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the city may have for further or additional sums payable under this chapter, or the franchise ordinance or associated resolution or ordinance for the performance of any other obligation thereunder.

F. The payment made to the city by the grantee pursuant to this section for any calendar year shall be in lieu of any license fee or business tax, prescribed by the city for the same period, but only to the extent of such payment.

(Ord. 180 § 12.1, 1982)

Grantee shall at all times maintain in full force and effect a policy of insurance in such form as the city may require, executed by an insurance company authorized to write the required insurance and approved by the Insurance Commissioner of the state of California, insuring the payment of any sums which the grantee, or city, its officers, boards, commissioners, agents and employees may become obligated to pay by reason of any liability imposed upon them by law for damages because of bodily injury or death, or injury to or destruction of property that may result to any person or property arising out of the construction, operation or maintenance of any facilities pursuant to a franchise. The sums, payment of which shall be so insured, shall not be less than two million dollars combined single limits including bodily injury liability and property damage liability. Such policy of insurance shall contain a provision that a written notice of cancellation or reduction in coverage of the policy shall be delivered to the city ten days in advance of the effective date thereof; if such insurance is provided by a policy which also covers grantee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. A certificate of insurance acceptable to the city shall be filed with the city clerk.

(Ord. 180 § 12.2, 1982)

Upon being granted a franchise, and upon the filing of the acceptance required under Sections 5.16.090 through 5.16.120, the grantee shall file with the city clerk and shall thereafter, during the entire term of such franchise, maintain in full force and effect Worker's Compensation Insurance coverage in at least the minimum amounts required by law. If a grantee fails to obtain or maintain such required insurance coverage, the city, may without notice to grantee, obtain, at grantee's sole expense, such coverage, or forthwith terminate, without prior notice, the franchise as granted.

(Ord. 180 § 12.3, 1982)

A. The grantee shall, at his sole expense, at the time of acceptance of a franchise, file with the city, and, unless otherwise authorized by council, at all times thereafter maintain in full force and effect, an acceptable corporate surety bond, in duplicate, in the amount of three hundred thousand dollars, effective for the entire term of a franchise, and conditioned that in the event the grantee shall fail to comply with any one or more of the provisions of a franchise, then there shall be recoverable jointly and severally from the principal and surety of such bond, any damages suffered by the city as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of property as prescribed by Section 5.16.210 which may be in default, up to the full amount of the bond; said condition to be a continuing obligation for the duration of a franchise and thereafter until the grantee has liquidated all of its obligations with the city that may have arisen from the acceptance of a franchise by the grantee or from its exercise of any privilege herein granted.

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

C. If, at any time during the term of a franchise, the condition of the corporate surety shall change in such a manner as to render the bond unsatisfactory to the city, the grantee shall replace such bond by a bond of like amount and similarly conditioned, issued by a corporate surety satisfactory to the city. In the event the grantee's obligations under a franchise shall so warrant, the council, from time to time, may authorize or require appropriate adjustments in the amount of the bond.

(Ord. 180 § 12.4, 1982)

A. Within thirty days after the effective date of a franchise, the grantee shall deposit into an insured account, established by the city, and maintain on deposit throughout the term of the franchise, the sum of fifty thousand dollars as security for the faithful performance by it of all the provisions of the franchise, and compliance with all orders, permits and directions of any agency of the city having jurisdiction over its acts or defaults under the franchise, and the payment by the grantee of any claims, liens, payments and taxes due the city which arise by reason of the construction, operation or maintenance of the system. The grantee shall have the right to earn interest on funds deposited in the security fund.

B. Within thirty days after notice to it that any amount has been withdrawn by the city from the security fund pursuant to subsection A of this section, the grantee shall deposit a sum of money sufficient to restore such security fund to the original amount.

C. If the grantee fails, after ten days notice to pay to the city any taxes or payments due and unpaid; or, fails to repay to the city, within such ten days, any damages, costs or expenses which the city shall be compelled to pay by reason of any act or default of the grantee in connection with a franchise; or fail after thirty days notice of such failure by the city to comply with any provision of the franchise which the city reasonably determines can be remedied by an expenditure of the security, the city may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the city shall notify the grantee of the amount and date thereof.

D. The security fund deposited pursuant to this section shall become the property of the city in the event that a franchise is cancelled by reason of the default of the grantee or revoked for cause. The grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit at the expiration of the term of the franchise, or upon termination of the franchise at an earlier date, provided that there is then no outstanding default on the part of the grantee.

E. The city may, at its sole discretion, upon grantee's successful completion of system construction, reduce the security fund to a lesser required amount as set forth in the franchise agreement, and refund the difference to grantee.

F. All rights reserved to the city with respect to the security fund are in addition to all other rights of the city whether reserved by a franchise or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the city may have.

(Ord. 180 § 12.5, 1982)

A. By accepting a franchise, each grantee shall be deemed to have agreed to indemnify and hold harmless the city, its officers, boards, commissions, agents, consultants and/or employees against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damages (including but not limited to, damages to city property and damages arising out of copyright infringements, and damages arising out of any failure by grantee to secure consent from the owners, authorized distributors or licensees of programs to be delivered by grantee's cable communications system), costs or liabilities (including costs of the city with respect to its employees), of every kind and nature whatsoever, including but not limited to damages for injury or death or damage to person or property, and regardless of the merit of any of the same, and against all liability to others, and against any loss, costs, and expense resulting or arising out of any of the same, including any attorney fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, traveling and transportation expense, or other costs or expense arising out of or pertaining to the exercise of the enjoyment of any franchise hereunder by grantee, or the granting thereof by the city, irrespective of the amount of the bond designated in Section 5.16.390.

B. The grantee shall at the sole risk and expense of grantee, upon demand of the city, made by and through the city attorney, appear in and defend any and all suits, actions, or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative, or otherwise brought or instituted or had by third persons or duly constituted authorities, against or affecting the city, its officers, commissions, agents, consultants, or employees, and arising out of or pertaining to the exercise of the enjoyment of such franchise, or the granting thereof by the city.

1. Alternatively, at the discretion of the council, the city may, on behalf of itself, and/or any of its officers, agents, consultants, or employees, elect to employ, at grantee's expense, attorneys to appear and defend such actions.

2. The grantee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive, or demand rendered, made or issued against grantee, the city, its officers, boards, commissions, agents, consultants, or employees in any of these premises and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, security deposit, undertaking or other assurance required hereunder, or otherwise; provided, that neither grantee nor city shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit or other proceedings, without first obtaining the written consent of the other.

(Ord. 180 § 12.6, 1982)

There is provided and reserved to the city every right and power which is required to be herein reserved or provided by any provision of the city or its ordinances, as amended, and the grantee by its acceptance of a franchise agrees to be bound thereby and to comply with any action or requirement of the city in its exercise of any such right or power.

A. Neither the granting of a franchise nor any provision hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the city, including regulation of subscription rates as permitted by law.

B. Nothing herein and/or in the franchise shall be deemed or construed to impair or affect, in any way, to any extent, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, and nothing herein contained shall be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the city's right of eminent domain.

C. There shall be reserved to the city every right and power which is required to be reserved or provided by law, and the grantee, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or agreements of the city in its exercise of such rights of power, theretofore, or thereafter enacted or established.

D. Neither the granting of the franchise nor any provision thereof shall constitute a waiver or bar to the exercise of any governmental right or power of the city.

E. The city reserves to itself the right to intervene in any suit, action, or proceeding involving any provision of this chapter and/or grantee's franchise. The council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter and/or grantee's franchise, and may determine any question of fact which may arise during the existence of any franchise granted. The city manager and the city attorney, with the approval of the council, are authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any grantee under the franchise, either on behalf of the city, the grantee, or any subscriber, in the best interest of the public.

F. The city at its option, when for sufficient cause as deemed by the city manager, may require that the annual proof-of-performance test, addressed in Section 5.16.130, be conducted or observed by a qualified member of the city's staff or its designated representatives. The city reserves the right to have the measurements, associated with city observed performance tests, conducted at city-selected test points and to a greater number of test points than the minimum, required by Section 76.601, FCC Rules.

G. Any delegable right, power, or duty of the council, the city or any officials of the city may be transferred or delegated to an appropriate officer, employee, or department of the city.

H. The city reserves the right to negotiate other reasonable technical and operational performance standards for system franchises granted pursuant to this chapter. Grantee shall have the duty to negotiate in good faith with the city.

I. The city reserves the right to enact reasonable regulations pertaining to franchise granted pursuant to this chapter which may include, but is not limited to:

1. Construction and use of poles;

2. Use of poles and conduits by city;

3. Common user;

4. Filing of pole user agreement;

5. Reservation of street rights;

6. Restoration of streets; and

7. Movement of facilities.

J. The city reserves the right to further regulate the conduct of the grantee in regard to the privacy and property rights of private citizens. Such regulations may include but are not limited to the security of all records maintained by the grantee containing privacy sensitive information, personnel practices relating to such records and any other matters related to privacy and individual rights.

K. The city reserves the right to establish a cable communications advisory committee to assist the council in regulating cable activity in the city. The members and duties of any such committee, if any, shall be established by the council.

L. Should the state of California, or any agency of the Federal Government agency thereof subsequently require the grantee to act in a manner which is inconsistent with any provisions of this chapter, franchise ordinance or associated resolutions and orders, the grantee shall so notify the city. Upon receipt of such notification, the city shall determine if a material provision of the franchise is affected. Upon such determination, the city shall have the right to modify or amend any of the sections of the franchise to such reasonable extent as may be necessary to carry out the full intent and purpose of this chapter or the franchise ordinance. In the event that the city determines that substantial and material compliance with the original proposed terms of the franchise has been frustrated by such state or federal requirement, grantee shall renegotiate in good faith with city a new franchise agreement. The city may terminate the franchise in the event that it determines that no satisfactory new franchise agreement can be reached.

M. No grantee nor any major stockholder of a grantee shall directly or indirectly use the position as cable grantee to gain a competitive advantage in the business of selling, leasing, renting, servicing or repairing radio or television sets or other receivers or parts thereof, or data access and transfer equipment, which make use of entertainment and information signals; provided, that nothing therein shall prevent grantee from making modifications to the tuner input circuit of the subscribers' communications transmitters and/or receivers, and the fine tuning of the customers' operating controls only, to ensure proper operation under conditions of cable connection at the time of installation, or in repairing receivers and other equipment belonging to other cable system operators for use in the conduct of their businesses.

N. The city shall have the right, free of charge, of installing, maintaining and operating upon antenna towers and coaxial cable, wire, fixtures and appurtenances necessary for a city communication system; provided such equipment is installed, maintained and operated so as not to interfere with property or operations of the grantee, and that the grantee shall not be responsible for any damage without his/her fault resulting to the signs, wires, cables or property of the city from such use by the city.

O. The grantee shall manage all of its operations in accordance with a policy of totally open books and records. The city shall have the right to inspect at any time during normal business hours, at the local and parent corporation offices of the grantee, all books, records, maps, plans, income tax returns, financial statements, service complaint logs, performance test results and other like materials of the grantee which relate to the operation of the grantee. Access to the aforementioned records shall not be denied by the grantee on the basis that the records contain "proprietary" information.

P. Copies of all petitions, applications, communications, and reports submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal and state regulatory commission or agency having jurisdiction in respect to any matters affecting cable communications operations authorized pursuant to the franchise, shall also be submitted simultaneously to the grantor. Copies of responses or any other communications from the regulatory agencies to the grantee shall likewise be furnished simultaneously to the grantor.

Q. Any intra-state interconnection of interactive services between the system operated by grantee and any other system shall be subject to the regulatory authority of the city.

R. The reservation of any particular right shall not be construed to limit the promulgation of other reasonable rules and regulations.

(Ord. 180 § 43, 1982)

A. At all reasonable times, the grantee shall permit any duly authorized representative of the city to examine all property of the grantee, together with any appurtenant property of the grantee situated within or without the city, and to examine and transcribe any and all maps and other records kept or maintained by the grantee or under its control which deal with the operations, affairs, transactions or property of the grantee with respect to its franchise. If any such maps or records are not kept in the city, or upon reasonable request made available in the city, and if the council shall determine that an examination thereof is necessary or appropriate, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by the grantee.

B. The grantee shall prepare and furnish to the city engineer and the city clerk at the times and in the form prescribed by either of the officers, such reports with respect to its operations, affairs, transactions or property, as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the city or any of its officers in connection with the franchise.

C. The grantee shall at all times make and keep in the city full and complete plans and records showing the exact location of all cable communications system equipment installed or in use in streets and other public places in the city.

D. The grantee shall file with the city engineer, on or before the last day in June of each year, a current map or set of maps drawn to scale, showing all cable communications system equipment installed and in place in streets and other public places of the city.

(Ord. 180 § 13, 1982)

A. At any time, the council may adopt reasonable rules, regulations and standards governing the operation of cable communications systems in the city, consistent with the provisions of this chapter, and the franchise ordinance. Such rules, regulations and standards shall apply to and shall govern the operations of the grantee of any cable communications franchise, and are expressly declared to be a part of any such franchise.

B. Prior to adopting any such rule, regulation, or standard, the council shall conduct a duly noticed hearing thereon. At the time set for such hearing, or at any adjournment thereof, the council shall proceed to hear any relevant evidence relating to the matter. Thereafter, the council, by resolution, may adopt, amend or modify such rules and regulations.

C. The standards adopted may govern the engineering, construction, installation, service, and maintenance of all cable communications systems in the city, including but not limited to standards governing carrier levels, signal-to-noise ratios, hum modulations, distortion levels, channel interactions and interreactions, and composite beat levels.

(Ord. 180 § 14, 1982)

Every direction, notice, or order to be served upon a grantee shall be sent to the local office described in Section 5.16.330C. Every notice to be served upon the city shall be delivered, or sent by certified mail, to the city manager at: City Administration Building, City of Newark, 37101 Newark Boulevard, Newark, California, 94560. The delivery of such shall be deemed to have been at time of receipt.

(Ord. 180 § 19, 1982)

The council shall amend this chapter and any franchise issued thereunder, upon its own motion or the application of a grantee whenever amendment is necessary to enable a grantee to utilize new developments in television or radio signal transmission which would improve and update cable communications service in the city, or to comply with any modifications in the Rules of the FCC. Amendments to Section 76.31 of the FCC Rules will be incorporated into this chapter within one year of their adoption or at the time of franchise renewal, whichever comes first. No amendment shall be adopted except after full, open public hearing affording due process, and no amendment substantially amending the existing rights and obligations of the grantee shall be adopted without grantee's consent.

(Ord. 180 § 15, 1982)

A. It is unlawful for any person to construct, install or maintain within any public right-of-way in the city, or within any other public property of the city, or within any privately owned area within the city which has not yet become a public right-of-way but is designated or delineated as a proposed public right-of-way on any tentative subdivision map approved by the city, equipment or facilities for distributing any television signals or radio signals through a cable communications system, unless a franchise authorizing such use of such street or property or area has first been 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 or use any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise with any part of any cable communications system within this city for the purpose of enabling himself/herself or others to receive or use any television signal, radio signal, picture, program, sound, information, or other system service without payment to the owner of the system.

C. It is unlawful for any person, without the consent of the grantee, to wilfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs, sound, information, data, or other system service.

(Ord. 180 § 16, 1982)

The city may levy fines and other penalties for failure to comply with the provisions of this chapter and the franchise agreement, not to exceed those limits set forth in the franchise agreement, except as otherwise expressly provided for in Section 5.16.490.

(Ord. 322 § 2, 1996: Ord. 180 § 17, 1982)

A. Local Office Business Hours.

1. Each grantee shall maintain a local office which shall be centrally located within Newark and shall remain open during normal business hours. Business hours shall include, at a minimum, from seven a.m. to seven p.m. each weekday, and from eight a.m. to one p.m. on Saturday.

2. The following services shall be offered by the grantee's local office:

a. Accept payments;

b. Exchange or accept converters or other equipment;

c. Respond to customer inquiries and billing disputes; and

d. Schedule installations and service calls.

B. Telephone Availability.

1. Each grantee shall maintain a local, toll-free or collect call telephone access line which will be available to its subscribers twenty-four hours a day, seven days a week. Telephone service shall be provided in such a manner as to provide access as defined by the Americans with Disabilities Act (ADA).

2. Trained grantee representatives shall be available to respond to subscriber/caller telephone inquiries at least Monday through Saturday from eight a.m. to eight p.m. After such hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after said hours must be responded to by a trained company representative on the next business day, except that grantee must respond to service outages as required herein. After hours answering service shall comply with the same telephone answering time standards as set forth herein. Grantee shall provide additional staffing to handle telephone inquiries during peak periods, for not less than thirty days after subscribers become aware of either changes in services or rates or during special promotions.

3. Telephone answer time by a grantee representative, including ARU-answered time, wait time transfer time or on-hold time, shall not exceed thirty seconds when the connection is made. ("Maximum Permissible Time" or "MPT") All calls shall be answered by the fourth ring. If an ARU is utilized, the message shall, within thirty seconds after answering the customer's call, give the customer the option of speaking to a customer service representative, and the transfer time, including wait or on-hold time, shall not exceed thirty seconds on average measured on a quarterly basis. However, the grantee's use of the ARU shall not operate to extend the MPT under this section. These standards shall be met for no less than ninety percent of the calls received by the grantee during normal business hours, measured quarterly, under normal operating conditions.

4. The subscriber will receive a busy signal less than two and one-half percent of the time. Grantee shall authorize city to request SBC Pacific Bell reports on the incidence of busy signals. This standard shall be met for no less than ninety percent of the calls received by the grantee during normal business hours, measured quarterly, under normal operating conditions.

5. The grantee shall have published in the major telephone directory serving the city, a listing of the address and telephone number of the grantee's customer service center, the twenty-four-hour repair service telephone number, and the address and telephone number of the grantee's main local business office.

6. In calculating percentages for purposes of determining compliance with the MPT and busy signal standards of this section, grantee shall use the total number of calls for the quarterly period as the denominator and shall not aggregate or average percentages for shorter periods.

7. The phrase "normal operating conditions" as used in this section means those service conditions that are substantially within the control of the grantee. Those conditions which are not within the control of the grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual whether conditions. Those conditions which are within the control of the grantee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system. Conditions that are not within the control of the grantee will operate to excuse compliance only where the grantee shall demonstrate that those conditions were the material and proximate cause of the non-compliance.

8. Should the grantee choose to report data for telephone answer time by a representative for customers with the city together with data for such telephone answer time for customers in other franchise areas not within the city, such reported data shall be conclusively presumed to be the data for customers within the city, provided that in calculating the percentages to determine compliance with the MPT and busy signal standards pursuant hereto, the grantee shall not exclude data for any periods due to other than "normal operating conditions" unless the asserted cause of the non-"normal operating conditions" occurred within the counties of Alameda, Contra Costa, San Francisco, San Mateo, Santa Clara and Santa Cruz, (i.e., any "natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions" shall have occurred within the geographic limits of the Counties of Alameda, Contra Costa, San Francisco, San Mateo, Santa Clara and Santa Cruz).

C. Installations and Services Calls.

1. A grantee shall maintain a staff which is sufficient and capable of complying with the standards set forth herein. A grantee shall also maintain a technically competent emergency system maintenance and repair staff, capable of responding promptly to and repairing service interruptions on a twenty-four-hour basis.

2. A grantee shall meet the following minimum standards not less than ninety-five percent of the time within any three-month period for the following requests:

a. Connection of a new subscriber to the system and commencement of service within the service area shall be achieved within seven days after grantee receives the request for such service. "Standard" connections are those that are located up to one hundred fifty feet from the existing distribution system. Within one year after the date of city's approval of the transferee to grantee, grantee shall connect new subscribers within five days of the request for such service, and grantee shall meet this standard not less than fifty percent of the time measured over any three-month period.

b. Requests for additional outlets, service upgrades or other connections (e.g., DMX, VCR, A/B switch) separate from the initial installation will be performed within three days after grantee receives a request for such service.

c. With respect to any existing subscriber, a grantee shall commence a requested additional service within seven days after the grantee receives the request for such service. Within one year after the date of city's approval of the transferee to grantee, grantee shall provide such additional service to existing subscribers within five days of the request for such service, and grantee shall meet this standard not less than fifty percent of the time measured over any three-month period.

d. A grantee's failure to comply with any of the above installation standards will result in the grantee being required to provide the affected subscriber with a credit to the subscriber's then-current billing balance in an amount equal to the then-current rate for the installation services requested.

e. A grantee shall maintain a log showing the date and type of each installation request. In addition, such log shall set forth the address of the person submitting each such request and the date upon which the response to such request was completed.

3. A grantee shall cooperate with customers by scheduling any installation, repair or other appointment at an agreed upon time, consisting of either a specific appointment time or a predesignated block of time not exceeding four hours on a weekday or Saturday. Within one year after the date of city's approval of the transferee to grantee, grantee shall schedule installations, repairs or other appointments at either specific appointment times or designated blocks of time not exceeding two hours on a weekday or Saturday, and grantee shall meet this standard not less than fifty percent of the time measured over any three-month period. The grantee may schedule service calls and other installation activities outside the normal business hours for the express convenience of the subscriber. If the grantee fails to meet either a scheduled appointment or a predesignated block of time with a subscriber who is available and present for the appointment, the grantee must offer and fully describe to the affected subscriber the following options:

a. If the appointment was to have been on a fee basis, a credit to the subscriber's then-current billing balance in an amount equal to the then-current rate for one month of the service tier to which the subscriber subscribes; or

b. If the appointment was to have been provided free of charge, the subscriber shall receive three months of the most widely subscribed to service tier free of charge; or

c. With respect to service connection or repair appointments, a twenty-dollar credit, and/or an opportunity to elect to seek remedies under California Civil Code Section 1722, if applicable; or

d. Priority rescheduling within one day.

4. The grantee shall have the burden of establishing that its representative met the date and time period of the scheduled appointment and that the subscriber was not present or available. The subscriber shall not be deemed to have made an election unless and until the grantee shall demonstrate that it has informed the subscriber that, by his/her acceptance of the credit specified in this section, the subscriber shall waive his/her remedies under the Civil Code for the missed appointment.

5. A grantee may not cancel an appointment with a subscriber after close of business on the business day prior to the scheduled appointment, except as provided for in this section. The grantee's failure to comply with this requirement will result in the grantee being required to provide the affected subscriber with a credit to the subscriber's then-current billing balance in an amount equal to the then-current rate for one month of the service tier to which the subscriber subscribes.

6. If a grantee representative is running late for an appointment with a subscriber and will not be able to keep the appointment as scheduled, the grantee must make a good faith effort to notify the subscriber prior to the specified appointment time or the end of the predesignated block of time that the appointment must be canceled and rescheduled. A new appointment must be priority scheduled at the subscriber's convenience to a specific time for a date no more than two days after the originally scheduled appointment. The grantee's failure to comply with this requirement will result in the grantee being required to provide the affected subscriber with a credit to the subscriber's then-current billing balance in an amount equal to the then-current rate for one month of the service tier to which the subscriber subscribes.

7. If, in conducting a service call, a grantee's representative finds no one at the site of the appointment, a call to the dispatch operator shall be made. The dispatch operator shall thereupon attempt to contact the subscriber by telephone. If the dispatch operator is unable to reach the subscriber, the grantee's representative shall proceed to carry out the purpose of the appointment as thoroughly as possible without entering the involved structure, and, if practicable, correct any problems from outside the structure. The grantee's representative shall leave at the site of the appointment a door-hanger or other appropriate notice which identifies the grantee's representative, states the grantee's telephone number and address, describes any problem that was found and how it was corrected (if repair was possible) and asks the subscriber to make a service appointment if the problem continues to exist.

8. Upon completion of any service, maintenance and/or repair work to a subscriber's or the city's premises, the grantee shall promptly return the premises to their original condition to the subscriber's or city's reasonable satisfaction, as appropriate.

9. If the subscriber is at the site at the time of the appointment, the grantee's representative shall introduce himself/herself, discuss the service problem with the subscriber, determine the cause of the problem and correct the problem, if the problem lies in the CATV system. All grantee's representatives shall be properly equipped to locate and correct service problems which originate at the residence.

D. Outages.

1. Excluding conditions beyond the control of the grantee, the grantee shall comply with the following standards for not less than ninety-five percent of instances in which a subscriber experiences either the loss or degradation of signal on some, but not all, channels, types of service problems which do not require on-premises work or instances in which the subscriber experiences the loss or degradation of signal on all channels simultaneously:

a. Where such loss or degradation affects fewer than five subscribers, repair shall be commenced within two hours and pursued diligently to completion within twenty-four hours.

b. Where such loss or degradation affects five or more subscribers, repair shall be commenced within two hours and shall be pursued diligently to completion within eight hours.

2. Scheduled service interruptions for preventative maintenance or other reason shall be preceded by reasonable notice to subscribers and the city not less than one week prior to such service interruption and shall occur during the period of minimum use of the system, preferable between midnight and six a.m.

3. Except for scheduled service interruptions, upon the subscriber's request, the grantee shall provide any affected subscriber with a prorated twenty-four-hour credit to the subscriber's account for each eight-hour period during which such subscriber experienced an outage or substantial impairment of service. Such credit shall be applied to the account of the requesting subscriber within thirty days after the grantee receives a written or oral request from any such subscriber.

4. No charge may be imposed upon any subscribers for repair of any equipment which is provided to the subscriber by the grantee but for which the grantee retains ownership unless the cause of the repair is entirely beyond the control of the grantee, such as for documented cases of repeated subscriber negligence or abuse of the grantee's equipment.

5. Grantee shall provide the city with a plan for ensuring that premium and pay-per-view, or other comparable channels, are not cablecast to a subscriber without the consent of the subscriber. Such a plan shall be subject to approval of the city manager or his/her designee.

E. Communications Between Grantees and Subscribers.

1. Upon commencement of service and at least annually thereafter, the grantee shall provide each subscriber with a written notice containing the following information:

a. All equipment, products and services currently available (including parental lock-out devices);

b. Prices and options for programming services and conditions of subscriptions to programming and other services;

c. The amount and criteria for any deposit required by the grantee, if applicable, and the manner in which such deposit will be refunded;

d. Installation, service maintenance and disconnection/termination service policies;

e. The procedure for reporting after-hours outage problems;

f. Instructions on how to use the cable service including specific instructions on how to connect the VCRs to the system;

g. Channel positions of programming carried on the system;

h. The grantee's billing cycle and procedures for charging late fees;

i. The grantee's policies and procedures by which complaints and inquiries will be addressed, as well as the availability of the remedies provided by this code and its franchise. The grantee must verify this information with the city's cable liaison office at least annually prior to the annual notification to all subscribers;

j. The toll-free telephone number and address of the grantee's office to which service requests, repair calls, complaints and inquiries may be submitted including the name of the grantee's general manager; and

k. The grantee's methods and procedures for protecting against invasions of subscriber privacy including the process for removing the subscriber's name from grantee's telemarketing lists.

2. Subscribers will be notified of any changes in rates, programming services, channel positions or changes in the other information required herein as soon as possible through announcements on the cable system and in writing. Notice must be given to subscribers a minimum of thirty days in advance of such changes. Grantee shall provide city with at least forty-five days' notice of the changes referenced herein.

3. When in contact with Newark residents and subscribers, all representatives of a grantee shall maintain a professional and courteous demeanor. All representatives of a grantee, including contractors and subcontractors, shall wear photo-identification badges, prominently displayed, when acting on behalf of the grantee in the city.

4. Each grantee shall conduct a routine followup system in order to ensure subscriber and resident satisfaction with grantee's response to service requests and resolution of complaints. Each grantee shall annually contact by telephone or postcard at least ten percent of all residents who recently received repair or installation services, residents upon whose property the grantee conducted construction activities and persons submitting service complaints, in order to determine the level of satisfaction or dissatisfaction with the services rendered by the grantee. Responses to such followup contacts shall be logged by the grantee. A grantee shall provide the city with copies of such logs annually. A grantee shall make every effort to correct all deficiencies in the CATV system which are revealed by this followup policy which are feasible to correct.

5. No polls or monitoring of other two-way responses to subscribers shall be conducted by a grantee without the subscriber's consent. This restriction shall not apply to the routine followup system set forth in this section. The program of which the poll is a part shall contain explicit disclosure of the nature, purpose and prospective use of the results of the poll. No commercial or other use of information of individual subscriber viewing habits or patterns may be made and no release of such information shall be permitted without the prior consent of the city council or pursuant to rules and regulations duly adopted by the city. This does not preclude grantee's use of aggregate subscriber viewing data for the above stated purposes.

6. Grantee shall not provide personally identifiable information of any type whatsoever relating to subscribers to any unrelated person or entity for any purpose or reason whatever, except as may be expressly authorized by 47 U.S.C. 551(c)(2)(A), without the prior affirmative, written consent of the affected subscriber, provided that, subject to applicable law, the foregoing shall not preclude the grantee from providing personally identifiable information to the city on a confidential basis for purposes of enforcement of provisions of the franchise.

7. The grantee may not obtain a subscriber's acceptance or assent to any changed term, provision or condition of a contract between the grantee and the subscriber (other than changes in rates and prices and changes in composition of programming tiers or offerings which are expressly authorized by 47 CFR 76.981) by use of a "negative option," unless customer has actual notice of the proposed change at least sixty days in advance of the effective date of the change. Grantee shall have the burden of proving customer's actual notice. As used in this section, "negative option" means any procedure whereby the subscriber is deemed to have accepted or assented to terms proposed by the grantee merely by the subscriber's continued use of the services provided by the grantee.

F. Service Notices, Billing Procedures, Refunds and Credits.

1. All grantees shall comply with the following service notice standards:

a. Except in emergency situations where the problem is of such magnitude as to warrant an immediate response; at least seven days in advance of entering upon a public utility easement, a grantee shall provide written notice to owners and residents of any private property upon which such easement is located.

b. If the property owner or resident must be present to allow access to such property, the owner or resident shall be contacted in advance to schedule an appointment within a two-hour period at the owner's or resident's convenience. In the event that a grantee requires access to private property on which there is no public utility easement, the grantee must first obtain specific permission from the property owner or resident and schedule the visit within a two-hour window at the owner's or resident's convenience.

c. Nothing provided in this section shall be construed as directing, authorizing, permitting of suffering any grantee to enter upon any easement or private property for any reason whatsoever. In any action or proceeding against the city arising from a grantee's entry upon any easement or private property for any purpose, such grantee shall defend, indemnify and hold the city harmless from all damages, losses and costs of litigation including attorneys' fees.

d. In the event of a CATV system rebuild or any other construction activity by the grantee that involves work in the public right-of-way, every effort shall be made to work with the adjacent property owners and residents to assure that they have proper notice of the activity and the grantee shall work to minimize the impact of the activity on the adjacent nearby property owners and residents. At a minimum, grantee shall notify the adjacent property owners and residents thirty days prior to the initiation of the work. Additional grantee responsibilities may also be provided for in the franchise agreement.

2. All bills must be clear, concise and understandable and must contain all of the information required in this code section. Bills must be fully itemized, with itemizations including, but not limited to, basic, expanded and premium services charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. If a grantee chooses to itemize the franchise fee or franchise costs or any other costs on its bills, it must do so in an accurate and non-misleading manner. The grantee may not assess a late charge earlier than the forty-second day from the time the bill for services has been mailed, and in no event prior to the end of the service period for which billing has been made. In case of a billing dispute, the grantee must respond to a written complaint from a subscriber within thirty days. Grantee's bill must notify the subscriber that he or she may remit payment in person at the grantee's office in the city and inform the subscriber of the address of that office.

3. A refund check will be issued promptly by a grantee, but no later than either the subscriber's next billing cycle following resolution of the request or thirty days, whichever is less; or, the return of the equipment supplied by the grantee, if service is terminated.

4. Credits for service will be issued by a grantee no later than the subscriber's next billing cycle following the determination that a credit is warranted.

5. Deposits retained by the grantee shall appear and be itemized on each billing to the subscriber after payment of the deposit. Said deposit(s) shall accrue interest at a rate equal to the effective interest rate for new issues of one-year United States Treasury Bills, issued during the last week of October of each year. This interest rate, rounded to the nearest percent, shall apply to deposits held during the subsequent calendar year. Not less than annually on a calendar-year basis, the grantee shall post to the subscriber's monthly bill and itemize thereupon, or in a separate statement, the amount of the interest accrued upon the deposit(s) of subscriber during that year. If, at any time, the deposit is applied to an outstanding balance of a subscriber, the interest on the deposit shall be prorated.

6. In the event that the grantee shall elect to identify as a separate line item on each regular bill of each customer the amount of the total bill assessed as a franchise fee by the city pursuant to 47 U.S.C. 542(c)(1) and any regulations of the FCC prescribed pursuant thereto, the grantee shall identify and disclose said amount in a non-misleading manner upon the bill.

7. The grantee may establish by contract between the grantee and its customers an "alternative dispute resolution" procedure ("ADR procedure") to resolve disputes between the grantee and its customers, provided that no such ADR procedure may be utilized after the date hereof unless:

a. The ADR procedure shall not preclude the allocation of costs by the hearing officer;

b. The ADR procedure shall apply and be subject to California law in all respects;

c. Any hearing held pursuant to the ADR procedure shall be held within the city; and

d. The ADR procedure shall not prohibit the customer from disclosing the existence, content or result of any such ADR procedure which results in a decision by the hearing officer.

8. In the event that the grantee should elect to implement an administrative order or rule of the FCC and/or a judicial decision which has the effect of increasing (or allowing an increase in) customer rates and/or charges before that the potential judicial review of such order, rule or decision is fully exhausted, the grantee shall submit a written plan for customer refunds for approval in advance by city, which approval shall not be unreasonably withheld. The total amount of the refund shall bear interest at the legal rate pursuant to Civil Code Section 3289.

G. Service Disconnection.

1. Grantee may disconnect service to a subscriber from one or more services for the following causes:

a. A subscriber is delinquent in his/her payment for services by thirty days or more after the due date for payment for any such service.

b. If grantee in good faith determines that the subscriber has tampered with or abused the grantee's equipment or is engaged in theft of services. When disconnecting service in such instances, the grantee shall leave a door hanger or other notice at the site where service is received, stating the grantee's telephone number, address and business hours.

c. A grantee may not impose a fee for disconnection of all services to the subscriber by the grantee nor for any service provided after the date by which the subscriber requested disconnection; provided, that the subscriber has provided the grantee with at least five days of notice of disconnection. Unless specifically authorized by federal regulation, a grantee may not impose a charge for disconnection of any service. A grantee may not impose any notice period greater than five days upon a subscriber's request for voluntary disconnection. Following disconnection, a grantee may continue to charge the subscriber for grantee-owned equipment until such equipment is returned to the grantee.

2. Each grantee shall provide each subscriber whose account is delinquent with at least twenty days' advance written notice of a prospective disconnection of service for nonpayment, which notice shall include the date on or after which the disconnect will occur. Said notice shall also inform the subscriber of the date by which all outstanding charges must be paid in order to avoid disconnection. Such notice may consist of a special notice in or on the monthly billing statement, but general statements to the effect that all accounts which are delinquent for thirty days are subject to disconnection, will not suffice as the specific notification required in this section. For purposes of this section, a subscriber's account shall be considered delinquent if payment is not made by the due date specified on the billing.

3. In cases of disconnection for delinquent payment, in addition to the other notification required herein, the grantee shall attempt to contact the subscriber by telephone on the evening prior to dispatching a representative to disconnect service, and, immediately prior to disconnection, the grantee's representative shall attempt to make direct contact with subscriber at the site to offer the subscriber the opportunity to correct the delinquency at that time. If at the time of disconnection the subscriber has not received notice by direct telephone contact, telephone answering service or by personal contact at the site, the grantee's representative shall leave a door hanger or other notice at the site indicating that an attempt had been made to reach the subscriber by telephone prior to the disconnection and listing the grantee's customer service telephone number, address and business hours.

4. If a grantee disconnects any subscriber from service without cause, the grantee shall immediately offer such person free reconnection and one month of free service of the type which the subscriber received prior to disconnection. The grantee shall also provide the subscriber with a thorough explanation of the grantee's billing procedures.

5. If, for reasons of delinquency in payments, a grantee disconnects any subscriber whose service has never before been disconnected for delinquent payment and there is a reasonable disagreement between the grantee and the subscriber as to the facts of the situation, the grantee shall give the subscriber the "benefit of the doubt" and shall immediately offer such person free reconnection.

6. In the event of a billing dispute which is ultimately resolved in favor of the subscriber, a grantee shall waive any late fee during the period assessed during the period of dispute.

7. If a subscriber pays all amounts due as evidenced by a receipt from the grantee, including late charges before the date scheduled for a disconnection, the grantee shall not disconnect service. After disconnection, upon payment by the subscriber in full of all proper fees or charges, including payment of reconnection charge, if any, the grantee shall promptly reinstate the service.

H. Reporting Requirements.

1. The grantee shall maintain a written record, or "log" of all subscriber complaints received by the grantee. For purposes of this section, "complaint" shall mean and include: (i) an oral request by a subscriber to speak with a supervisor of the answering customer service representative and (ii) any written communication made by a subscriber to the grantee, and (iii), insofar as known to the grantee, any oral or written complaint to the city, the Better Business Bureau or the local "Action Line," relating to the programming, reception quality, service calls, pricing, billing and/or other aspect of the company's service or procedures. This "log" shall be kept at the grantee's local business office reflecting the operations to date for a period of at least three years; it shall be available for inspection during normal business hours without further notice or demand by the city manager or his designee; and, it shall include, at a minimum, a listing of the following information:

a. The date and time a subscriber complaint was received by the grantee;

b. The name and address of the complainant;

c. The "tracking number" assigned to each complaint;

d. A description of the nature of the complaint;

e. Information regarding when and what action was taken by the grantee to respond to and resolve the complaint.

2. The grantee shall provide to the city a quarterly subscriber service report including, at a minimum, the following information:

a. Subscriber report, detailing subscription levels for each level of service and equipment offered;

b. Disconnect by reason analysis, detailing the number of subscriber disconnections and the reason(s) for the disconnections;

c. Monthly service interruption report, detailing the number of planned and unplanned service interruptions, the time and date of each interruption, the location of each interruption, the number of subscribers affected by each interruption, the cause of each interruption, the time and date when each interruption was repaired, and how each interruption was repaired;

d. Service call resolution report, detailing the total number of service calls received, a listing of calls by problem category, and the percentage of cable subscribers impacted by service calls;

e. Subscriber complaint log, detailing the name and address of all complainants, the date of each complaint, the nature of the complaint (e.g., billing, installation, service, etc.), the name of the employee responsible for resolving the complaint, what actions were taken to resolve the complaints and the date the complaint was resolved;

f. Field services report, detailing the number of non-service call field services which were provided by the grantee (e.g., system repairs, system upgrades, system maintenance activities, field inspections, etc.);

g. Telephone wait, transfer and busy signal report, detailing the grantee's compliance with the office hours and telephone availability standards set forth herein.

3. An independent audit may be conducted, at the discretion of the city manager and after a finding of noncompliance with the requirements set forth herein. The auditor shall be mutually approved by the city and grantee and the grantee shall bear the expense of the audit.

I. Nondiscrimination.

1. No grantee shall unlawfully discriminate against any person in a manner that would violate state law in the provision of any cable communication service.

2. A grantee shall use its best efforts to assure maximum practical availability of grantee's services and facilities to all city residents, regardless of disability. To accommodate the needs of potential subscribers who are prevented from obtaining services due to significant impairment of mobility, upon such potential subscriber's request grantee shall, without charge, provide for pickup and/or replacement of converters or other grantee equipment during the grantee's normal business hours.

3. To accommodate the needs of subscribers with significant hearing impairments, a grantee shall provide information concerning the cost and availability of equipment to facilitate the reception of all cable services by persons with hearing impairment. Each grantee shall operate TDD/TTY or equivalent equipment on any telephone numbers intended for general use and for the receipt of service requests, reports or service problems and complaints.

J. Enforcement.

1. In the event that the grantee shall fail, refuse or neglect to comply fully with the requirements of these standards, the city shall, except in instances in which time is of the essence in obtaining the grantee's compliance and/or the city determines that such efforts would be futile, attempt informal resolution and rectification of the grantee's noncompliance. Said informal resolution efforts shall be initiated by the city's general statement of the alleged violations under investigation and the general nature of the evidence then known to the city. Notwithstanding the foregoing, the nature and extent of evidence which may be presented by the city or its designee in any subsequent enforcement hearing, at set forth in this section, shall not be limited or abridged by reason of the presentment or nonpresentment or recitation or nonrecitation of such evidence in the course of the informal resolution efforts.

2. To the extent reasonably consistent with the goal of obtaining compliance with these standards, it shall be the policy of the city to notify the grantee of a possible or alleged violation and, if said violation is then curable, allow a reasonable time the grantee to cure the possible or alleged violation. If the grantee does so cure, in the absence of aggravating circumstances, it shall be the preference of the city to abstain from further enforcement action. For purposes of this section, "aggravating circumstances" shall include, but are not limited to, the wilful nature of the violation, the length of time the violation has persisted, the seriousness of the violation and the number of subscribers affected by the violation.

3. In the event that the informal efforts at resolution are ineffective or otherwise inappropriate, the city may notice the grantee to meet with the city on not less than ten days' notice to determine whether or not probable cause exists to believe that the grantee has failed, neglected or refused to comply with the provisions of these standards. The probable cause determination shall be initiated by the city's general statement of the alleged violations under investigation and the general nature of the evidence then known to the city. The city shall disclose to the grantee all such evidence in its possession which demonstrates that the grantee has failed, neglected or refused to comply with the provisions of these standards. Notwithstanding the foregoing, the nature and extent of evidence which may be presented by the city in any subsequent enforcement hearing pursuant to this section shall not be limited or abridged by reason of the presentment or nonpresentment or recitation or nonrecitation of such evidence in the course of the probable cause determination. The grantee, however, shall put forth all relevant evidence at this meeting with the city in order to permit city to make an informed determination on the existence of probable cause to believe that the grantee has failed, neglected or refused to comply with the provisions of these standards, and nonpresentment or nonrecitation by the grantee of such evidence may result in the city and/or hearing officer limiting or denying admissibility of such evidence by the grantee at any subsequent enforcement hearing.

4. Upon a determination by the city, pursuant to the provisions of this section, that probable cause exists to believe that the grantee has failed, neglected or refused to comply with the provisions of these standards, the city may hold such hearings, conduct such procedures and impose such remedies as are authorized by these standards.

5. The hearing may be conducted either by the governing body of the city or, at the sole discretion of the governing body of the city, by a hearing officer appointed by the governing body to conduct the hearing.

6. If the matter shall be referred to a hearing officer, such hearing officer shall be selected from a listing of neutral, unaffiliated candidates provided by the American Arbitration Association (AAA) in San Francisco, California. From the listing provided, each party shall have ten business days to select three candidates as potential hearing officers. The final selection of the person who will serve as hearing officer will be made by AAA. Any such hearing officer shall be an attorney licensed to practice under the laws of the state of California. The cost of providing quarters for the hearing, fees charged by AAA, the compensation and expenses for the hearing officer, if any, and the per diem cost of any reporter retained to record the proceedings shall be borne equally by the grantee and the city. The costs incurred by the parties for attorney's fees, expert witness fees and other expenses shall be borne solely by the party incurring the costs.

7. At any hearing conducted as set forth herein, a designee of the city shall put forth evidence showing the alleged failure, neglect or refusal to comply with these standards, and shall have the burden of establishing such violation to the satisfaction of the city or the hearing officer by a preponderance of the evidence. The grantee may present such evidence consistent with the provisions of this section, as it may desire.

8. All witnesses testifying at the hearing shall be sworn. Witnesses shall be subject to direct and cross-examination. However, formal rules of evidence applicable to the trial or civil or criminal proceedings in the trial courts of this state shall apply to evidence adduced at the hearing only to the extent that such rules are reasonably necessary to the preservation of the probative nature of the evidence proffered. The provisions of the Administrative Procedure Act, commencing at Section 11500 of the California Government Code or any successor legislative enactment, shall not be applicable to any such hearing. The hearing may be continued from time to time. Either party may maintain a substantially verbatim record, by means of court reporter or audio or video tape recording. Unless otherwise agreed by the parties, the party requesting the record shall bear the cost thereof.

9. If the hearing is conducted by a hearing officer, the officer shall, upon conclusion of the hearing, prepare a recommended decision which includes findings of fact and conclusions. The recommended decision shall be filed with the clerk of the governing body of the city and mailed to the parties not later than thirty calendar days after conclusion of the hearing. The verbatim record, if such was maintained as permitted in this section, shall be made available to the parties, provided that, absent agreement of the parties to the contrary, nothing contained herein shall obligate either party to obtain a written transcript of the record of the hearing. Upon receipt of such a recommended decision, the governing body may, without a hearing, except as otherwise required herein, either:

a. Adopt the recommended decision, including findings of fact and conclusion submitted by the hearing officer;

b. Adopt the findings of fact and conclusions contained in the recommended decision, modify the decision and adopt the recommended decision as so revised;

c. Based upon the record of the hearing, modify the findings of fact, conclusions or decision and adopt the recommended decision as so revised; or

d. Reject the recommended decision and conduct a new hearing, before a hearing officer provided at the city's expense.

The city shall allow a reasonable time to receive comments upon and objections to the recommended decision of the hearing officer from the grantee. If the city acts under either subsection (J)(2) or (3) of this section, the city shall set forth clearly its rationale and grounds for so doing and shall allow representatives of the grantee a reasonable time to summarize the views of the grantee upon the evidence and as to the proposed action.

10. If the hearing is conducted by the governing body of the city, upon conclusion of the hearing, the governing body shall adopt a decision which includes findings of fact and conclusions.

11. Remedies which may be imposed for a violation of an order of the city issued pursuant to these standards shall include, but not be limited to, the monetary sanctions established by these standards. The monetary sanctions established by these standards shall be construed as police power impositions pursuant to the city's exercise of constitutional police power pursuant to the city's franchising ordinance.

K. Remedies.

1. Upon the finding, after a noticed hearing conducted pursuant to subsection (J)(4) of this section of a violation of any order of the city issued pursuant to this section at the conclusion of a notice hearing pursuant to subsection (J)(4) of this section, the city may impose monetary sanctions for each such violation so found, not to exceed the amount(s) set forth for the violation of the applicable provision(s) as set forth in this section.

2. A conscious violation is any failure, neglect or refusal of the grantee to materially comply with any order issued pursuant to these standards under such circumstances as to indicate:

a. A conscious policy of noncompliance with the requirements thereof; or

b. A conscious lack of a policy of compliance with the requirements thereof.

A prior finding of a violation of this section for substantially the same or similar conduct shall create a rebuttable presumption of conscious action or inaction on the part of the grantee. For each such violation, the city may impose a monetary sanction in an amount not to exceed fifty thousand dollars, and in an additional like sum for each month or portion thereof during which the grantee shall fail, neglect or refuse to rectify said violation beginning thirty calendar days after written notice thereof from the city to the grantee.

3. Inadvertent Subscriber Violation. An inadvertent subscriber violation is any failure, neglect or refusal of the grantee to comply with the requirements of an order issued under these standards as to its obligations hereunder in relation to one or more subscribers under such circumstances as do not indicate a pattern of behavior by the grantee in derogation of the referenced requirement. For each such violation, the city may impose a monetary sanction:

a. In an amount not to exceed two hundred dollars for each such subscriber and ten thousand dollars in cumulation of the violations as to all such subscribers resulting from any substantially continuous behavior, act or omission; and

b. In an additional like sum for each month or portion thereof during which the grantee shall fail, neglect or refuse to rectify said violation beginning thirty days after written notice thereof from the city to the grantee;

c. In any proceeding relating to an alleged violation of the disclosure requirements of these standards with respect to any particular subscriber, the grantee shall be conclusively presumed to have provided such disclosure if it shall produce a writing, in a form approved by the city, signed or initialed by the subscriber evidencing acknowledgment of receipt of the disclosure.

4. An inadvertent grantee violation is any failure, neglect or refusal of the grantee to materially comply with the requirements of an order issued pursuant to these standards with respect to the grantee in relation to the city. For each such violation, the city may impose a monetary sanction in an amount not to exceed ten thousand dollars and in an additional like sum for each month or portion thereof during which the grantee shall fail, neglect or refuse to rectify said violation beginning thirty calendar days after written notice thereof from the city to the grantee.

5. The maximum amount(s) specified for a conscious violation shall be doubled for the second violation under that section for substantially the same or similar conduct occurring within any given forty-eight-month period and shall be quintupled for the third violation under that section for substantially the same or similar conduct occurring within any given forty-eight-month period; provided, that in the event that, subsequent to the imposition and collection of an enhanced sanction under this section, a prior violation providing, in whole or in part, the basis for such an enhancement shall be invalidated, the portion of the sanction theretofore collected which is attributable to the invalidated prior violation shall be refunded and/or otherwise offset. Nothing in the foregoing shall be deemed to preclude imposition of enhanced sanctions by the city upon the basis of prior violations which are then pending judicial challenge by the grantee.

6. Neither monetary sanctions imposed hereunder nor any order issued by the city related hereto shall be deemed to bar or otherwise limit the right of the city to obtain judicial enforcement of the grantee's obligations by means of specific performance, injunctive relief, mandate or other remedies at law or in equity, other than monetary damages.

7. The city may, in its sole discretion, denominate any monetary sanctions imposed pursuant to this section on a per-subscriber basis or on a total-dollar basis; provided, that the total of any such monetary sanctions imposed for any single violation shall not exceed the totals provided therefor herein. Such monetary sanctions may be levied, in the sole discretion of the city, in the form of refunds or credits to subscribers. Any credit or refund made to subscribers under these standards shall be deemed a penalty for failure to meet the requirements of these standards and such cost shall not be passed through to the subscribers in rates or charges for any reason.

a. All refunds owing by grantee to subscribers shall be paid by the grantee to affected subscribers by direct payment or credited to the subscriber's bill within sixty days from the date of the determination that refunds are due or levy of the sanction so designated.

b. If, after reasonable and diligent efforts to make payments of moneys refundable to subscribers the grantee is unable to effectuate such payments for any reason, the grantee shall establish a trust account and deposit to it the actual payment of moneys refundable to subscribers or former subscribers who cannot be located any payment effectuated. Any interest earned on such moneys shall be credited to the trust account.

c. All moneys which have been on deposit in the trust account for a period of six months or longer, including interest thereon, shall be returned to the city on December 31st of each year.

8. In establishing the amount of any penalty or assessment within the ranges specified in this section, the city shall consider factors including, but not limited to, the following:

a. The materiality of the violation;

b. Whether the violation resulted from an intentional act, a conscious and affirmative act, active negligence, passive negligence or inadvertence;

c. The number of subscribers affected by the violation;

d. The duration of the violation;

e. The nature and extent of the services impacted by the violation;

f. The degree of control the company exercised, or failed to exercise, over circumstances which resulted in the violation (even if such circumstances would not constitute force majeure as that term is defined in these regulations);

g. Whether the company has attempted in good faith to cure the violation;

h. Whether the violation has occurred in the past.

9. Failure of the city to enforce any requirements set forth herein of a grantee's franchise or any other applicable ordinance or law shall not constitute a waiver of the city's right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies.

10. Grantee shall, prior to the city's approval of the transfer of the franchise to grantee, deliver as security for payment of penalties or assessments made by the city against grantee in accordance with and pursuant to the foregoing provisions, an unconditional and irrevocable stand-by letter of credit ("letter of credit") in the amount of fifty thousand dollars for the benefit of the city issued by financial institution with a Newark office acceptable to the city. The city shall be entitled to draw upon the letter of credit upon presentation of a site draft and a statement by the city that the city is entitled to draw thereunder. The city shall be entitled to draw upon the letter of credit in the event that a penalty has been assessed in accordance with the provisions of these standards, demand for full payment therefor has been made upon grantee and grantee has failed and refused to pay said sum within thirty days of notice. If the city draws upon the letter of credit, grantee shall, in each instance, within thirty days, restore the security to the full fifty-thousand-dollar amount.

L. Other.

1. Nothing contained in this section shall prevent or prohibit the city and a grantee from agreeing to customer service standards that exceed the standards set forth herein.

2. The grantee shall not be excused from any provision of these standards by reason of any cause or excuse except for causes which are caused by an event of force majeure.

3. Nothing contained in these standards is intended to foreclose, delimit or otherwise restrain the rights of the grantee to obtain such administrative review or judicial review as may otherwise be available to it; provided, that decisions of the city shall be accorded the maximum deference allowed by law.

The grantee shall have the right to challenge the validity of these standards only by reason of changes of law occurring after the effective date of the agreement by which grantee accepts the obligations of the franchise by which these standards are made applicable to the grantee.

Notwithstanding the foregoing, the decisions, determinations and orders of the city hereunder shall be deemed to be quasi-legislative actions which may be set aside only if they are found to be arbitrary, capricious or entirely lacking in evidentiary support.

(Ord. 405 § 3, 2004; Ord. 380, 2002; Ord. 322 § 1, 1996)

A. Authority and Findings.

1. Assembly Bill 2987 (Nunez), formally called the Digital Infrastructure and Video Competition Act of 2006 (the "Act"), became effective on January 1, 2007.

2. The Act establishes a state franchising system administered by the Public Utilities Commission for video service providers.

3. The intent of this article is to exercise the city's regulatory authority pursuant to the Act and other state and federal law.

B. Customer Service Standards and Penalties for Material Breach.

1. Pursuant to California Public Utilities Code Section 5900, video service providers that have been issued a state franchise pursuant to California Public Utilities Code Section 5840 must comply with the provisions of Sections 53055, 53055.1, 53055.2, and 53088.2 of the California Government Code, and any other Customer Service Standards pertaining to the provision of video service established by federal law or regulation and any laws subsequently enacted by the California Legislature (the "customer service standards").

2. The customer service standards also include California Penal Code Section 637.5 and the privacy standards contained in the Federal Cable Act, at 47 U.S.C. § 551, et seq.

3. The city shall enforce the customer service standards within the city's jurisdiction, pursuant to California Public Utilities Code Section 5900(c).

4. Prior to imposing the penalties provided by this section, the city shall notify video service providers in writing of any material breach of these customer service standards. The video service provider shall have thirty days from the receipt of the notice to remedy the specified material breach.

5. A material breach of the customer service standards is punishable by a penalty of five hundred dollars for each day of each material breach, not to exceed fifteen hundred dollars for each occurrence of a material breach.

6. If a subsequent material breach of the same standard occurs within twelve months, the repeat material breach is punishable by a penalty of one thousand dollars for each day of each material breach, not to exceed three thousand dollars for each occurrence of the material breach.

7. If a third or further material breach of the same standard occurs within twelve months of the first breach, the repeat material breach or breaches are punishable by a penalty of twenty-five hundred dollars for each day of each material breach, not to exceed seventy-five hundred dollars for each occurrence of the material breach.

8. Acts or omissions of a video service provider that result in breaches of two or more different customer service standards will be treated and penalized as separate material breaches of each violated standard.

9. This section shall not apply to any video service provider providing video services pursuant to a franchise agreement with the city.

C. Public, Educational, and Governmental (PEG) Access Fee.

1. Pursuant to California Public Utilities Code Section 5870(n), the city hereby establishes a Public, Educational, and Governmental (PEG) Access Fee.

2. Video service providers that have been issued a state franchise pursuant to California Public Utilities Code Section 5840, shall designate a sufficient amount of capacity on their networks to allow the provision of the same number of PEG channels as are provided by the incumbent cable operator, as defined in California Public Utilities Code Section 5830(j). Notwithstanding the foregoing, such video service providers shall provide an additional PEG channel when the nonduplicated, locally produced video programming televised on a given channel exceeds fifty-six hours per week as measured on a quarterly basis.

3. Video service providers that have been issued a state franchise must pay to the city a PEG access fee of one percent of the video service provider's gross revenues to support PEG channels consistent with federal law. The fee shall be remitted to the city quarterly, within forty-five days after the close of each quarter, at the same time as the video service provider remits its franchise fee pursuant to California Public Utilities Code Section 5860(h).

4. If the video service provider does not pay the PEG access fee when due, the video service provider shall pay interest at a rate per year equal to the prime interest rate published from time to time in the Wall Street Journal, plus one percentage point, from the date such amount was due, to and including the date of payment.

5. Pursuant to California Public Utilities Code Section 5860(i), the video service provider must keep records of its gross revenues for at least four years after those revenues are recognized in its books. The city may review the business records of the video service provider to ensure that the PEG access fee is being paid properly. If an audit of the video service provider indicates that the PEG access fee has been underpaid by more than five percent, the video service provider must pay the reasonable and actual costs of the audit, plus the interest as set forth in subsection C.4.

6. This section shall not apply to any video service provider providing video services pursuant to a franchise agreement with the city.

(Ord. No. 429, § 3, 7-24-2008)