Article 4 — COUNTY REGULATION OF LICENSE

The Office of the County Administrator is designated as having primary responsibility for the administration of the license and this article. Whenever a right may be exercised under this article by the county or a county officer, such right may also be exercised by a designee or employee.

• a. Except as otherwise provided in this division, all notices from grantee to the county pursuant to its license shall be to the Office of the County Administrator.

• b. The grantee shall maintain with the county, throughout the term of license, an address for service of notice by mail.

• c. The grantee shall also maintain within the county a local office and telephone number for conducting matters related to its license during normal business hours.

• a. In situations where the county receives 20 or more verifiable subscriber complaints, which indicate to the county a need for revising or supplementing the customer service standards set forth in this article, the county shall have the right to amend this division by revising existing provisions or adding new provisions.

• b. The county shall first attempt to resolve the problem with the involved grantee by notifying the grantee in writing and giving the grantee an opportunity to correct the problem within 90 days of the date of the notice. If the involved grantee corrects the problem within the specified time and gives satisfactory assurances to the county that the problem will not recur, the county may treat the matter as resolved.

• c. If the involved grantee fails or refuses to correct the problem within the specified time, the county may propose amendments to the customer service standards set forth in this division. Before approving the proposed amendments, the county shall offer to meet and confer with all grantees in an attempt to reach consensus on the proposed amendments. If consensus cannot be reached, the county in its discretion shall have the right to amend the customer service standards, so long as the amended provisions are consistent with the business practices of any cable system within Contra Costa County, including incorporated areas, or are consistent with the business practices of at least one-third of the grantees licensed under this division.

• d. If this division is amended to require addition al or greater customer service standards, all grantees shall comply with the new standards no later than the effective date of such amendment or such later date as may be specified in the amendment.

• e. Notwithstanding the foregoing, the following provisions shall not be amended without the voluntary consent of the grantees:

  • 1. Business office location and hours of operation;

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City of Oakley, CA

OAKLEY CODE

§ 5.4.406

§ 5.4.408

• 2. Time for responding to system or individual outages;
• 3. Telephone system requirements; and
• 4. Credits for system or individual outages.

• f. Notwithstanding the foregoing, the county shall have the right, without following the procedure set forth in this section, to amend this division as necessary to incorporate customer service standards specified in State or Federal statute or regulation applicable to cable operators.

• a. Except as expressly prohibited by State or Federal statute or regulation, the county shall have the right to regulate all rates charged by the grantee to subscribers for programming, equipment, installation, disconnection, reconnection, additional outlets and other programming products or services. To implement such rate regulation, the following provisions of this section shall govern rates and rate changes under this division, except for rates and rate changes for the basic service tier and associated equipment, which shall be governed by the provisions of Section 5.4.410.

• b. Except as otherwise provided in subsection (j) of this section, before establishing or increasing any rate, fee or charge to subscribers, including any increases in items that the grantee passes through to subscribers, the grantee shall first file with the county a written request and shall obtain the county’s approval there of. The request shall include the justification for the proposed increase and shall be in such format and detail as is acceptable to the county.

• c. The board shall have access to the grantee’s financial records for the purpose of verifying all income and expenses relating to the grantee’s cable system. The documents shall include sufficient detail as may be necessary to provide the board with the information needed to make accurate determinations as to the financial condition of the system. All financial statements shall be certified as accurate by an officer of grantee.

• d. The county may require that an analysis of any proposed rate increase be conducted, at an agreed upon maximum cost to be shared equally by the grantee and county, by a professional rate consultant experienced in the analysis of cable system service rates who shall be jointly approved by both the county and the grantee. In approving rate consultants pursuant to this section, neither the county nor the grantee shall unreasonably withhold approval. The consultant shall perform an analysis of the proposed increase and forward it to the county and grantee with a report interpreting the results of the analysis and recommending actions to be taken.

• e. Within 90 days of the filing of the request for increase, the board shall hold a public hearing to consider the proposed increase, at which hearing all persons desiring to be heard, including the grantee, shall be heard on any matter, including but not limited to the grantee’s performance, the grantee’s services and the proposed increase.

• f. Upon the scheduling of any public hearing, as provided in this section, the grantee, at its sole expense, shall promptly notify its subscribers in writing of the time, place and subject matter of the initially-scheduled public hearing. In addition, the grantee, at its sole expense, shall cause notice of the public hearing to be published in a newspaper of general

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City of Oakley, CA

BUSINESS REGULATIONS

§ 5.4.408

§ 5.4.410

circulation serving the license service area, with such publication occurring not less than seven nor more than 14 days before the public hearing.

• g. Within 30 days after a public hearing, the county shall render a written decision on the grantee’s request for a proposed increase, either accepting, rejecting, modifying or deferring the same and reciting the basis of its decision.

• h. If no final decision on the grantee’s request has been rendered by the county within 120 days after the filing of the request, the grantee’s request will be deemed approved, unless the 120 day period is extended by mutual agreement of the grantee and the county.

• i. Where the license is part of a cable system under a single headend that also has licenses with one or more contiguous cities within Contra Costa County, rates for subscribers within the county shall not be higher than rates charged to any other subscriber in the system within Contra Costa County for the same service, except as specifically approved and exempted by the board. In considering a request for exemption, the board shall consider, among other things, whether this article imposes greater obligations on the grantee than the applicable City licenses.

• j. The grantee may increase any rate, fee or charge to subscribers without filing a request with the county and obtaining the county’s approval, so long as the amount of increase in such rate, fee or charge during any one calendar year does not exceed 3% or the rate of increase in the CPI, whichever is less. If the grantee increases any rate, fee or charge during any two consecutive years pursuant to this subsection, all increases in such rate, fee or charge proposed during the third consecutive year shall require the county’s approval, regardless of the amount of proposed increase. The provisions of this subsection shall apply only if the rate, fee or charge proposed to be increased has previously been subjected to rate review and approval by the board, either pursuant to Federal Communications Commission (FCC) regulations and policies or the above provisions of subsections (b) through (h).

• k. The grantee shall inform subscribers in writing of all increases in rates, fees or charges, except per-event programming, at least 30 days prior to their effective date. A copy of such notice or facsimile shall be provided to the county at the time of the subscriber notification 1. This section may be amended, from time to time, to incorporate the regulations and policies of the FCC or other State or Federal Regulatory Agency.

• a. Authority. The Cable Television Consumer Protection and Competition Act of 1992 the Act. and the related regulations adopted by the FCC establish regulations limiting rates for basic cable television service. Local franchising agencies are authorized to enforce these regulations if the agency is certified by the FCC to enforce the regulations. The effectiveness of this section is subject to the certification of the county by the FCC or any other authority which may be conferred upon the county by the Federal government. The county adopts by reference the rate regulations established by the FCC pursuant to the Act together with any amendments which may occur from time to time. The provisions of this section are intended to implement the rate regulations established by the FCC and shall not be deemed to limit the authority of the county in any way.

• b. Initial Basic Cable Service Rates. If the county is certified by the FCC to enforce rate regulations, the County Administrator or designee shall notify each grantee of the

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City of Oakley, CA § 5.4.410

OAKLEY CODE

§ 5.4.410

certification. Within 30 days after receipt of the notice, the grantee shall file its schedule of existing rates for the basic service tier and associated equipment with the board together with a completed FCC Form 393 or such other form for the determination of initial rates as may be issued by the FCC or cost-of-service study as the case may be, and any other information required by the County Administrator or designee consistent with FCC rules or regulations.

• c. Rate Increases. Prior to increasing existing rates or establishing new rates for basic service and/or associated equipment at any time, the grantee shall file its proposed rates with the County Administrator or designee together with a completed FCC Form 393 or such other form for the determination of rate increases or new rates as may be issued by the FCC or the county or cost-of-service study as the case may be, and any other information required by the County Administrator or designee consistent with FCC rules or regulations.

• d. Extensions of Time for Action. The existing rates shall remain in effect and proposed rates shall take effect 30 days after submission of the forms and information specified in subsection (b) or (c) of this section, unless the board disapproves the rate or issues an order extending the 30-day period as follows. The board may issue a written order extending this 30-day period for:

  • 1. An additional 90 days in cases not involving cost-of-service showings if the board is unable to make a determination within the 30-day period; or
  • 2. An additional 150 days in cases involving cost-of-service showings.

• e. Hearings and Decision. If all required materials are not submitted, the proposed rates shall not go into effect. If all required materials are submitted, a hearing on the existing or proposed rates shall be scheduled before the board. The grantee and the general public shall be given an opportunity to be heard at the hearing. The grantee shall have the burden of proof to establish that its existing or proposed rates are within the limits established by the FCC regulations. The board shall issue a written decision if it approves over opposition or disapproves the existing or proposed rates in whole or in part. The board is not required to issue a written decision if it approves an existing or proposed rate which has not been opposed by any person or if it takes no action, in which event the proposed rate shall take effect upon expiration of the time period prescribed in subsection (d). If the board determines that the rates are unreasonable and do not comply with FCC regulations, the board may prescribe reasonable rates as authorized by FCC regulations. If the board determines that the grantee’s existing rates exceed the amounts permitted by FCC regulations, the board may order the grantee to refund the amounts overcharged to its subscribers to the extent permitted by the FCC regulations, provided that the county shall have given the grantee notice of the refund and the opportunity for comment concerning the proposed refund before any such refund is required.

• f. Refunds to Customers. Within 90 days from the board’s issuance of a rate decision or re fund order, any refunds owing by the grantee to customers shall be returned through direct payment to the customer or a specifically identified credit on the customer’s bill, or shall be implemented by means of a prospective rate reduction, as provided in 47 CFR Section 76.942d.

• g. Enforcement. If the grantee fails to comply with a rate decision or refund order made pursuant to this section, the county shall have the right to exercise any of the remedies set forth in Section 5.4.734. However, in the event that the grantee appeals a rate decision or

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City of Oakley, CA

BUSINESS REGULATIONS

§ 5.4.410

§ 5.4.416

refund order, as provided in CFR 47 Section 76.944, the collection of any liquidated damages assessed by the county shall be stayed pending the resolution of such appeal. If the rate decision or refund order is reversed on appeal, the liquidated damages shall be waived. Otherwise, the liquidated damages shall be payable for the period from the date of assessment to the date on which the grantee fully complies with the rate decision or refund order.

• h. Complaints Concerning Cable Programming Services Rates. The County Administrator or designee is authorized to file a complaint with the FCC challenging the reasonableness of a grantee’s rate for cable programming services, or for the installation or rental of equipment used for the receipt of such cable service, at any time that the County Administrator or designee determines such a complaint may be warranted.

• a. The county and grantee may hold performance evaluation sessions at any time as directed by the board provided that no more than one performance evaluation session is held during any two-year period. The county shall send the grantee notice of the date, time and place of the performance evaluation session at least 90 days prior to the session.

• b. All evaluation sessions shall be open to the public and announced in a newspaper of general circulation serving the license area. The grantee, at its sole expense, shall notify all subscribers in the affected license area by U.S. Mail of all scheduled evaluation sessions and the specific issues proposed for discussion at least five working days prior to the first session. Such notice may be by way of a bill stuffer or similar written announcement reviewed by the county and included with subscriber statements.

• c. Topics which may be discussed at any evaluation session may include, but not be limited to. types and quality of service, rate structures, license fee, penalties, free or discounted services, application of new technologies, system performance, programming offered, customer complaints, privacy, amendments to this article, judicial and FCC rulings, line extension policies and grantee or county rules.

• d. Members of the general public may add topics either by working through the grantee or county or by presenting a petition. If such a petition bears the valid signatures of 5% or more of the subscribers who are residents of the license service area, the proposed topic or topics shall be added to the list of topics to be discussed at the evaluation session.

The board may do all things necessary and convenient in the exercise of its jurisdiction under this article and may determine any question of fact which may arise during the existence of any license granted hereunder. The board, on behalf of the county, may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provision of this article. Nothing in this section shall be construed to preclude judicial review of the board’s actions.

Except as otherwise provided in this article, in the interconnect and public access agreement referred to in Section 5.4.608, or in Section 555 of Title 47 of the United States Code, the grantee

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City of Oakley, CA

OAKLEY CODE

§ 5.4.416

§ 5.4.426

shall have no monetary recourse whatsoever against the county, its officers, agents or employees in any judicial proceeding for any loss, cost, expense, or damage arising out of any provision or requirement of this article or of any license issued hereunder or because of enforcement pursuant to this article or other law or for the termination or forfeiture of any license as provided in this article. Nothing in this section shall be construed to prevent a court of competent jurisdiction from awarding declaratory or equitable relief to the grantee as part of a final order or judgment to the extent such relief is required by any provision of Federal, State or Local Law.

Nothing in this article shall, in any way or to any extent, impair or affect the right of the county to acquire, at an agreed price or for fair market value, the grantee’s property either by purchase or through exercise of the right of eminent domain, and nothing herein shall be construed to contract away or to modify or abridge the county’s right of eminent domain in respect to any grantee.

• a. Any license granted pursuant to the provisions of this article shall authorize and permit the grantee to engage in the business of operating and providing a cable system in the county and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public street, where county’s interest therein will support the grant of license, such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the cable system; and in addition, 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 permitted to do business in the county.

• b. The granting of a license pursuant to this article shall not be construed as permission or license to enter on, occupy or otherwise utilize private or non-county property. Nothing in this section shall be construed to restrict any rights granted to the grantee under Federal or State law.

No privilege or exemption is granted or conferred by any license granted under this article except those specifically prescribed in this article. Any privilege claimed under a license granted pursuant to this article in any street shall be subordinate to any prior lawful occupancy of the street or any subsequent occupancy of the street for public purposes.

The county shall have the right during the life of the license, on 30 days’ prior written notice to the grantee, to install and maintain, free of charge, upon the poles or similar aerial structures of the grantee any wires and pole fixtures that do not unreasonably interfere with the cable operations of the grantee, so long as any additional rearrangement or other costs are paid by the county. In case of emergency, the county shall not be required to give notice before installing its facilities.

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City of Oakley, CA

BUSINESS REGULATIONS

§ 5.4.426

§ 5.4.428

• a. The grantee shall comply with applicable Federal and State laws requiring that job applicants and employees be treated without regard to their race, religion, color, age, sex, national origin, marital status, ancestry, political or religious opinion or affiliation, and/or nondisqualifying disabilities. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship.

• b. The grantee shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the grantee’s equal employment opportunity obligations as required by applicable Federal and State Law.

• a. The grantee shall file the following no later than the last day in March of each year for the prior year ending December 31st:

  • 1. A detailed report that includes the number of homes passed and the number of subscribers;
  • 2. A list of current rates for all services;
  • 3. A current channel listing;
  • 4. A summary of the previous year’s activities in development of the cable system, including but not limited to services begun or discontinued during the reporting year and the number of subscribers for each class of service;
  • 5. A statement of projected construction, if any, for the next two years;
  • 6. If materially different from information then on file with the county, a current street map or set of street maps showing the area currently served under each headend and receive sites for all county licenses; and
  • 7. Monthly summaries of customer service telephone calls tracked pursuant to Section 5.4.716(c)(4); and
  • 8. Results of tests of the system required by Section 5.4.506.

• b. Upon reasonable notice, the grantee shall permit any duly authorized representative of the county to examine all property of the grantee, together with any appurtenant property of the grantee situated within or without the county, and to examine and reproduce any and all maps and other records kept or maintained by the grantee or under its control, which property, maps or records pertain to the operations, affairs or transactions of the grantee with respect to its license with the county. If any such maps or records are not kept in the county, or upon reasonable request made available in the county, and if the board 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. In so doing, the county shall, to the extent permitted by law, maintain the confidentiality of any trade secrets or other proprietary information in the possession of the grantee. To the extent required by applicable laws regarding subscriber privacy, property, maps and records shall be exempt from inspection pursuant to this section.

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City of Oakley, CA § 5.4.502

BUSINESS REGULATIONS

§ 5.4.504