Oakley Municipal Code Art. 2 Franchising Requirements

No person shall establish, construct, operate, or maintain within this county a cable system unless a license therefore has been obtained pursuant to the provisions of this division, and unless such license is in full force and effect. Also, no person shall construct, install or maintain within any street in the county, or within any other public property of the county, or within any privately-owned area within the county which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the county, any equipment or facilities for distributing any television signals or radio signals through a cable system, unless a license authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this division, and unless such license is in full force and effect.

If a cable system is established, constructed, operated or maintained within the county without the license required by this division, the county may notify the cable operator of the license requirement. If the operator continues an unauthorized operation for 60 days after such notice from the county, the operator shall forfeit to the county all gross receipts from the system for so long as such unauthorized operation continues.

Nonexclusive licenses to establish, construct, operate and maintain cable systems within all or any portion of the unincorporated area of the county may be granted by the board to any other person, whether operating under existing licenses or not, who or which offer to furnish and provide such systems under and pursuant to the terms and provisions of this article. Neither the granting of any nonexclusive license hereunder nor any of the provisions contained herein shall be construed to prevent the county from granting any identical, or similar, nonexclusive license to any other person, within all or any portion of the county. In the event the county grants an overlapping license under terms and conditions materially different from those in the existing license, then the grantee may, within six months of the grant of such overlapping license, elect to come under the same terms and conditions as the overlapping license. Said election shall apply to the grantee’s entire license area and shall become effective upon the grantee’s filing with the Clerk of the Board its written acceptance, in a form satisfactory to the county counsel, together with all required bonds and insurance certificates, and its agreement to be bound by and comply with all terms and conditions applicable to the overlapping license. In no event shall an election under this section result in a reduction in the amount of bonds or insurance policies in force at the time of election, nor shall an election result in extension of the existing license term.

A new license or license renewal granted by the board shall be for the initial term specified in the license award resolution, but in no event for an initial term longer than 10 years following the date of acceptance of such license by the grantee. The board may, in its sole discretion, grant an extension or extensions to the initial term.

No license granted pursuant to the provisions of this article shall become effective unless and until the resolution granting same has become effective, and in addition, unless and until all things required in the resolution and Section 5.4.304, Section 5.4.306, if applicable, and Section 5.4.308 are done and completed, all of such things being declared to be conditions precedent to the effectiveness of any such license granted hereunder. The license award shall automatically be null and void if the grantee fails to do all such things within 30 days after receipt of written notice thereof from the County Administrator.

Within 30 days after the date of the resolution awarding a license, or within such extended period of time as the board in its discretion may authorize, the grantee shall file with the Clerk of the Board its written acceptance of the license, in a form satisfactory to the county counsel, together with all required bonds and insurance certificates, and its agreement to be bound by and to comply with and to do all things required of it by the provisions of this division and the license award resolution. Such acceptance and agreement shall be acknowledged by the grantee before a notary public and shall be in a form and content satisfactory to and approved by the county counsel.

All applicants for renewal of a license or for a new license, shall be expected to offer to subscribers a modern, efficient, cost-effective system that will facilitate quality maintenance, deliver a variety of programming and services, and provide the flexibility needed to adjust to changing technology and new developments in the industry. Applicants are encouraged to formulate their proposals in an innovative fashion, so as to meet the informational requirements of the county and the service needs of subscribers. Proposals shall contain sufficient material to enable the board to make fully informed judgments concerning the adequacy of the proposal and me applicant’s qualifications to construct, operate and maintain a cable system in Contra Costa County. All applicants shall, at a minimum, provide the information described in Section 5.4.218. The County Administrator, in his or her sole discretion, may consider the particular circumstances of each proposal and may waive informational requirements contained in Section 5.4.218(b). Where information required to be submitted under Section 5.4.218 has previously been submitted to the county, and is still on file at the time of application, the applicant may not be required to resubmit such information, provided that the applicant certifies that such information is complete, current and accurate.

a. The license application shall contain the following information:

1. The name and address of the applicant if the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application shall also state the names and addresses of its directors, main officers, major stockholders (those holding 20% or more shares of stock) and associates, and the names and addresses of parent and subsidiary companies;

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

3. A description, in detail, of the public streets, public places and proposed public streets within which the applicant proposes or seeks the authority to construct, install or maintain any cable television equipment or facilities; and a detailed description of the equipment or facilities proposed to be constructed, installed or maintained herein;

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

5. A statement describing the existing and proposed level of service, including but not limited to: cable services and other services which will be immediately available and those proposed (setting forth under what circumstances the proposed services will be made available); PEG facilities and equipment (current and proposed); policies relating to outages, late fees and system maintenance; methods of addressing consumer complaints; method of record keeping; proposed or actual rates and charges to subscribers for installation and services; and a copy of any service agreement between the grantee and its subscribers; and

6. For new license or transfer applications, a financial statement prepared by a certified public accountant or public accountant satisfactory to the board, showing the applicant’s financial status and ability to construct, install and maintain the proposed cable system; or for renewal or expansion applications, a financial statement for the licensed system verified by the controller or financial officer of the grantee. If in the normal course of its business, the grantee does not prepare a separate financial statement for the licensed system, the grantee may submit a combined financial statement for the local region, which statement shall include the licensed system.

b. The board may at any time request, and the applicant shall provide, such supplementary, additional or other information as the board may deem reasonably necessary to determine whether the requested license should be granted.

c. If a license is granted to a person, firm or corporation posing as a front or as the representative of another person, firm or corporation, and such information is not disclosed in the original application, such license shall be deemed void and of no force and effect whatsoever.

a. An application fee for a new, renewal, expansion or transfer of license shall be required in the amount of $1,000. In addition, the County Administrator, in his or her sole discretion, may consider the particular circumstances of each application and may reduce or waive any fee otherwise required by this section.

b. The purpose of the application fee is to pay the cost of studying, investigating and otherwise processing such application, which shall be in consideration thereof and not returnable or refundable in whole or in part, except as provided in this section. Application fees are over and above construction inspection and permit fees. Costs for a new applicant shall also include any cost not covered by the application fee that is incurred by the county in its preparation of proposal solicitation documents, evaluation of all applications, including, but not limited to consultant and attorney fees. In the event that the application fee paid by an applicant for renewal, expansion or transfer does not cover the costs reasonably incurred by the county, the applicant shall pay such additional costs as are agreed upon by the grantee and specified in the license award resolution.

c. Any applicant who delivers to the Clerk of the Board a written withdrawal or cancellation of any application hereunder, within seven days of filing such application, shall be entitled to have returned and refunded said application fee less any actual cost or expenses incurred by the county by reason of such application.

a. Upon receipt of any completed application for a new license, the county shall prepare a report and make its recommendations respecting such application and cause the same to be completed and filed with the board within 120 days, which time may be reasonably extended by the board. Such application shall be made under the provisions of Section 5.4.216 through Section 5.4.220.

b. In making any determination hereunder as to any application, the board shall give due consideration to: the quality of the service proposed; rates to subscribers; experience, character, background and financial responsibility of the applicant, its management and owners; system design; technical and performance quality of equipment; willingness and ability to meet construction requirements and to abide by license limitations and requirements; and other considerations deemed pertinent by the board for safeguarding the interests of the county and the public.

c. The Board, after a public hearing, may award the license pursuant to this division or reject such application. The board shall grant or deny such application by resolution and, where the application is rejected, the board shall state the reasons therefor.

The board, in its sole discretion and on such terms as it may prescribe, may grant an expansion of a grantee’s license area to include a specified area or areas contiguous to the grantee’s existing license area. Applications for expansion of license area shall comply with the provisions of Section 5.4.218 through Section 5.4.220.

a. The procedure for license renewal shall be in accordance with applicable Federal and State statutes.

b. In the absence of Federal and State statute specifically governing license renewal procedures, the following procedure shall apply.

c. At any time between 24 months and 12 months prior to the expiration of a license, the grantee may apply for renewal of the license. Such application shall be made under the provisions of Section 5.4.116 through Section 5.4.120.

d. Within 12 months of receipt of a completed application for renewal, the board shall hold a public hearing having afforded the grantee reason able notice of such hearing. After this public hearing, the board shall grant or deny the application, basing its decision on the following factors:

1. The grantee’s substantial compliance with the material terms of the existing license and applicable law;

2. The quality of the grantee’s services to its subscribers, including signal quality, response to consumer complaints and billing practices, but with out regard to the mix or quality of cable programming services provided over the cable system, has been reasonable in light of community needs;

3. Present and future cable-related community needs and interests of the grantee’s current and potential subscribers, taking into account the cost of meeting such needs and interests;

4. The grantee’s financial, legal and technical qualifications to provide the services, facilities and equipment as set forth in the grantee’s proposal; and

5. Such additional factors as the board considers relevant to the renewal of the franchise.

e. In any renewal proceeding, the grantee shall be afforded adequate notice and shall be afforded fair opportunity for full participation. The grantee at its election and expense may have a transcript made of any such proceeding.

f. The board, after a public hearing, may grant or deny a renewal application based on the criteria set forth in this section. The board shall grant or deny such application by resolution and, where the application is denied, the board shall state the reasons therefor.

a. A license is a privilege to be held in personal trust by the original grantee. A grantee shall not sell, transfer, lease, dispose of or assign this license or any rights thereunder, including any beneficial interest or right to operate thereunder, by voluntary sale, merger, consolidation, or otherwise, or by operation of law, without the prior written consent of the board and under such conditions as may herein be prescribed and then only by a duly executed instrument in writing, filed with the board.

b. If grantee is a corporation, prior approval of the board is required when there is an actual change in control, or if ownership of 20% or more of its voting stock is to be acquired by a person or group of persons acting in concert, none of whom already own 20% or more of the voting stock, singly or collectively.

c. The consent of the board is not required for transfer of the license to a wholly-owned subsidiary of the grantee or to any person controlling, controlled by or under common control with the grantee providing any such person agrees to be bound by the existing franchise. The county shall continue to regard the grantee and its transferee as a single entity for all purposes.

d. A grantee’s execution of a deed of trust, mortgage or other instrument given merely to secure the payment of any indebtedness of a grantee shall not constitute a transfer under this division and shall not require the consent of the board.

e. The consent of the board may not be unreasonably withheld. However, the county may first evaluate the proposed transferee as to financial responsibility, ability to provide the required level and quality of service and ability to assume the obligations of the license. The proposed transferee shall comply with the applicable informational and procedural requirements of the county as detailed in Section 5.4.218 through Section 5.4.220.

f. The board shall render its decision in connection with any request for the sale, transfer, lease or assignment of a license within 90 days after receipt of a request therefor and all material information required in connection therewith. If no final decision is made within 90 days after the county’s receipt of the grantee’s completed application with all required information, the application will be deemed approved, unless the 90-day period is extended by mutual agreement of the grantee and the county.

g. The board, after a public hearing, may grant or deny a transfer application. The board shall grant or deny such application by resolution and, where the application is denied, the board shall state the reasons therefor.

h. Upon foreclosure or other judicial sale of all or a substantial part of the system or upon the termination of a lease covering all or a substantial part of the system, grantee shall notify the county of the fact. The notification shall be considered as notice that a change in control or grantee has occurred. In this case the board’s approval of the new owner of the system must be obtained as herein required.

i. Within 30 days after the date of the resolution approving transfer of the license, or within such extended period of time as the board in its discretion may authorize, the transferee shall file with the clerk of the board its written acceptance of the license, in a form satisfactory to the county counsel, together with all required bonds and insurance cer-tificates, and its agreement to be bound by and to comply with and to do all things required of it by the provisions of this article and the license award resolution. Such acceptance and agreement shall be acknowledged by the transferee before a notary public and shall be in a form and content satisfactory to and approved by the county counsel.

j. The county may cancel a license 60 days or later after the appointment of a receiver or trustee to take over and conduct the business of the grantee, whether in receivership, or other action or proceeding, unless the receivership or trusteeship is vacated prior to the expiration of the 60 days, or unless:

1. Within 60 days after his/her election or appointment, the receiver or trustee complies with this division and remedies all defaults; and

2. Such receiver or trustee, within 60 days, executes an agreement, approved by the court, whereby the receiver or trustee assumes and agrees to be bound by this division and the license granted to grantee.

k. A transferee shall expressly assume all obligations of grantee and expressly agree to be bound by this division and the license award resolution and is required to sign the license agreement.

l. The provisions of subsections (i) and (k) shall not apply where the consent of the board is obtained due to any change in control or ownership of the original grantee as required under the provisions of subsection (b) of this section.

m. Failure to comply with the requirements of this section is a material breach of this chapter, subject to the remedies provided for in this division.