§ 4-20

This chapter is known and may be cited as the "Video Provider Ordinance" of the City of Ontario. (§ 1, Ord. 2833, eff. August 5, 2006)

This chapter is enacted by the City pursuant to City's authority pursuant to the Cable Act, the California Government Code, the City's police powers, its powers and rights to control the use of the public right-of-way within the City, and all other applicable laws. (§ 1, Ord. 2833, eff. August 5, 2006)

For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, and words in singular number include the plural number. Words not defined by this section shall be given the meaning set forth in the Cable Act, the California Video Customer Service Act, the California Cable Television and Video Provider Customer Service and Information Act, and, if not defined therein, their common and ordinary meaning. (a) "Access, PEG access or PEG use" refers to the availability or use of a video provider system as set forth in the license agreement for public, educational or government use (PEG), by public agencies, institutions, organizations, groups, and individuals, including, but not limited to grantor, and its designated access providers, to acquire, create, and distribute programming not under grantee's editorial control, including, but limited to, the following: (1) Public access or public use where members of the general public are the primary or designated programmers or users having editorial control over their programming. (2) Educational access or educational use where educational institutions are the primary or designated programmers or users having editorial control over their programming. (3) Government access or government use where grantor or other governmental institutions designated by grantor are the primary or designated programmers having editorial control over their programming. (b) "Affiliate" means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person. For purposes of this definition, the term "own" means to own an equity interest (or the equivalent thereof) of more than thirty-five percent (35%). (c) "Cable Act" is the Cable Communications Policy Act of 1984 (47 U.S.C. §§ 521 et seq.), as amended by the Cable Television Consumer Protection and Competition Act of 1992 (Public Law No. 102-385) and the Telecommunications Act of 1996 (Public Law No. 104-104), and as hereinafter may be amended.

(d) "Cable service" shall be defined herein as it is defined under Section 602 of the Cable Act, 47 U.S.C. § 522(6), meaning the one-way transmission to subscribers of video programming, or other programming service, subscriber interaction, if any, that is required for the selection or use of such video programming or other programming service, as hereinafter may be amended. (e) "Cable system" shall be defined herein as it is defined under Section 602 of the Cable Act, 47 U.S.C. § 522(7), meaning grantee's facilities, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide video programming and that is provided to multiple subscribers within the City. Such term does not include: (1) A facility that serves solely to retransmit the television signals of one (1) or more television broadcast stations; (2) A facility that serves subscribers without using any public rights-of-way; (3) A facility of a common carrier that is subject, in whole or in part, to the provisions of Subchapter II of Chapter 5 of 47 U.S.C., except that such facility shall be considered a cable system (other than for purposes of 47 U.S.C. § 541(c)) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (4) An open video system, as defined below, that complies with 47 U.S.C. § 573; or (5) Any facilities of any electric utility used solely for operating its electric utility systems. (f) "City" means the City of Ontario, California. (g) "City Manager" means the City Manager of the City of Ontario, or his or her designee. (h) "Communications Act" means the Communications Act of 1934 (48 Stat. 1064, 15 U.S.C. § 21; 47 U.S.C. §§ 35, 151–155, 201–221, 301–329, 401–416, 501–505, 601–609 (as subsequently amended and as hereinafter may be amended). (i) "Complete system construction" means the point in time when all transmission equipment, facilities, and construction work is installed and completed, and when all appropriate tests have been completed such that applicable performance standards pertaining to, or dependant upon, such construction is verified. The term "complete system construction" does not include marketing and installation of subscriber service. (j) "Control(ing/ed)" means the possession, directly or indirectly, of the power to direct, or to cause the direction of, the management and policies of a specified person, whether through the ownership of voting securities, by contract or otherwise. (k) "Educational access channel" is a channel on the video provider system that designates educational institutions as the primary providers of non-commercial programming. (l) "FCC" means the Federal Communications Commission. (m) "Government access channel" means a channel on the video provider system that is provided by grantee to grantor and other governmental institutions designated by grantor on which non-commercial informational programming regarding government activities and programs may be presented. (n) "Grantee" means any person to whom a valid license is granted by the City under this chapter or to whom an existing franchise agreement was granted by the City under previous ordinances, and the lawful successor, transferee or assignee of such person. (o) "Gross revenues." (1) All revenue, cash, credits, property of any nature, and other consideration derived directly or indirectly by grantee, from or attributable to the sale of any video programming by or through the video provider system; or in any manner derived from the operation of the video provider system to provide cable service, unless otherwise prohibited by federal or state law. Without limiting the foregoing, as provided by the Cable Act, gross revenues shall be those

consideration derived directly or indirectly by grantee, from or attributable to the sale of any video programming by or through the video provider system; or in any manner derived from the operation of the video provider system to provide cable service, unless otherwise prohibited by federal or state law. Without limiting the foregoing, as provided by the Cable Act, gross revenues shall be those

revenues derived from the operation of a cable system to provide cable service. Such revenue and other consideration, regardless of technological platform, includes, without limitation, the following: (i) Fees received from residential and commercial subscribers for all video programming services. (ii) Fees received for installation, reconnection, downgrade, upgrade, and similar services. (iii) Late fees and interest collected on delinquent subscriber fees or charges. (iv) Fees paid for channels that are designated for commercial use. (v) Fees paid in connection with the rental, lease, or sale of converters, remote controls, and other equipment. (vi) Leased or access channel revenues received in connection with the distribution of any video programming service. (vii) All bad debts that are recovered. (viii) All revenue that is received by grantee from the conduct of any service-related activity directly involving the video portion of the video provider system, including without limitation revenues derived from advertising sales, commissions or other compensation paid to the grantee as compensation for promotion or exhibition of products or services on home shopping channels, and the sale of program guides. (ix) The fair market value of any nonmonetary consideration received by grantee in any transaction with another person relating to the receipt of video programming or the operation of the video provider system as it pertains to the offering of video programming, such as a barter transaction, but not de minimis amounts or the value of free service to municipal buildings, employees or other not-for-profit entities and not less than the customary prices paid in connection with equivalent transactions. (x) All carriage revenues received from video programming providers, including incentive fees for carriage, contra expense, barters, or other transactions, but only to the extent that generally accepted accounting principles would require treatment as revenue. (xi) A license fee or franchise fee if itemized and added to the bill. (2) The term "gross revenues" does not include the following: (i) Refundable deposits, rebates, or credits. (ii) Bad debt that is unrecovered or unrecoverable. (iii) Taxes imposed by law on subscribers that grantee is obligated to collect on behalf of any governmental agency. (iv) Revenues collected by unaffiliated video programming providers. (v) PEG fees paid to the grantor per subscriber as required by the license agreement. (vi) Advertising commissions paid to advertisers that are not wholly-owned subsidiaries of grantee. (vii) Programming launch fees and marketing support payments where grantee receives reimbursements for mandatory marketing costs associated with the launch and promotion of services offered. (viii) All fees received by an affiliate or other person in exchange for supplying goods or services used by licensee to provide video programming over the video provider system. (ix) The sale of video programming on the video provider system for resale in which the purchaser is required to collect license fees, as that term is used in § 14-9.16, from purchaser's customer. (x) The sale of video programming to customers who are exempt, as required or allowed by City, including, without limitation, the provision of video programming to public institutions as required or permitted under this chapter. (xi) Sales of capital assets or sales of surplus equipment. (3) Gross revenues shall include revenue received by any entity other than the grantee where necessary to prevent evasion or avoidance of the obligation under this agreement to pay the license fees. Gross revenues shall be computed in accordance with generally accepted accounting principles.

ed or permitted under this chapter. (xi) Sales of capital assets or sales of surplus equipment. (3) Gross revenues shall include revenue received by any entity other than the grantee where necessary to prevent evasion or avoidance of the obligation under this agreement to pay the license fees. Gross revenues shall be computed in accordance with generally accepted accounting principles.

(p) "License" means the right to construct, operate and maintain a video provider system using the City's streets and rights-of-way pursuant to the terms and conditions of this chapter and other relevant provisions of the Municipal Code, the license agreement, and any ordinance or resolution approving the transfer of the license, and any agreement between the City and grantee relating to the operation of the video provider system. (q) "License agreement" means an agreement granting a license pursuant to the terms of the agreement and this chapter. Any conflict between the terms of this chapter and the license agreement shall be resolved in favor of the license agreement. (r) "License area" means the geographic area within the City designated in a license where grantee may operate a video provider system, as defined in the license agreement. (s) "Non-video services" means any service that does not constitute the provision of video programming directly to multiple subscribers in the license area. (t) "Normal operating conditions" means service conditions that are within the control of grantee. Those conditions that are ordinarily within the control of grantee include, but are not limited to, special promotions, rate increases, regular peak or seasonal demand periods, and scheduled maintenance or upgrade of the video provider system. Those conditions that are not in control of grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. See 47 C.F.R. § 76.309(c)(4)(ii). (u) "OntarioNet" means the fiber-to-the-home network owned by the City and available for use on a wholesale basis by qualified service providers, including video providers. (v) "Open video system" means a facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable services, including video programming, and that is provided to multiple subscribers within the City, provided that the FCC has certified that such system complies with 47 CFR §§ 1500 et seq., entitled "Open Video Systems." (w) "Person" means any individual, corporation, partnership, proprietorship, or other organization authorized to do business in the State of California. (x) "Public access channel" means a channel on the video provider system that is provided by grantee for non- commercial programming produced by members of the public or a nonprofit corporation formed by the City to operate and manage such a channel. (y) "Public right(s)-of-way" means any of the following that are controlled, used or dedicated for use by the public and located within the City's jurisdictional limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, public utility easements, rights-of-way and similar public property within which grantee may place its facilities for operating a video provider system. (z) "Service interruption" means the loss or impairment of the video programming services on one (1) or more channels or frequency bands of the video provider system used in connection with the provision of video programming to any subscriber. (aa) "Subscriber" means any person who lawfully receives video programming provided by a video provider. (ab) "Telecommunications facilities" means a video provider's existing and future telecommunications services facilities. (ac) "Telecommunications services" shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. § 153(46). (ad) "Video programming" shall be defined herein as it is defined under Section 602 of the Cable Act, 47 U.S.C. § 522(20), meaning any programming provided by, or generally considered comparable to programming provided by, a television broadcast station. (ae) "Video service" means video programming services provided through wireline facilities located at least in part in the public rights-of-way without regard to delivery technology, including Internet protocol technology. This

f the Cable Act, 47 U.S.C. § 522(20), meaning any programming provided by, or generally considered comparable to programming provided by, a television broadcast station. (ae) "Video service" means video programming services provided through wireline facilities located at least in part in the public rights-of-way without regard to delivery technology, including Internet protocol technology. This

definition does include any video programming provided by a commercial mobile service provider defined in Section 322(d) of the Communications Act. (af) "Video provider" means any person, company, or service which provides one (1) or more channels of video programming to a business or residence, including a home, condominium, apartment, or mobile home, in the City, where some fee is paid, whether directly or as included in dues or rental charges, for that service, whether or not public rights-of-way are utilized in the delivery of the video programming. A "video provider" shall include, but not be limited to, providers of cable television, master antenna television, satellite master antenna television, direct broadcast satellite, multi-point distribution services, and other providers of video programming, whatever their technology. A video provider shall not include a landlord providing only broadcast video programming to a single-family home or other residential dwelling consisting of four (4) units or less. (ag) "Video provider system" means any video provider's facilities, whether leased or owned, located at least in part in the public rights-of-way, and used to deliver cable services or video services to subscribers, without regard to delivery technology. However, a video provider's use of OntarioNet, as authorized by ordinance or agreement with the City, shall not constitute a video provider system for purposes of determining whether a video provider is subject to the licensing requirements of this chapter. (§ 1, Ord. 2833, eff. August 5, 2006)

Article 2. Procedures for Granting, Renewing, Transferring, and Acquiring Video Provider Licenses

(a) It shall be unlawful for any person to establish, operate or carry on the business of distributing to any persons in the City any video programming, by means of a video provider system, unless a license therefore is first obtained pursuant to the provisions of this chapter, and unless such license is in full force and effect. Subject to applicable law, upon its enactment, this chapter shall apply equally and generally to all video providers regardless of the date on which they first provided video programming within the City. (b) It shall be 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, any equipment or facilities for distributing any video programming, by means of a video provider system, unless a license authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this chapter, and unless such license is in full force and effect. (c) It shall be unlawful for any person to make any unauthorized connection, whether physically, electronically, acoustically, inductively or otherwise, with any part of a licensed video provider system within this City for the purpose of enabling him or herself or others to receive any video programming carried on a video provider system, without the permission of grantee. (d) It shall be unlawful for any person, without the consent of grantee, to willfully tamper with, remove, or injure any cables, wires, or equipment used in conjunction with a video provider system. (e) This section shall be construed to require a license in every instance, except to the extent that such requirement is preempted by state or federal law. (f) The City's regulatory authority under Title VI of the Communications Act is not applicable to the construction, installation, maintenance or operation of a video provider's telecommunications facilities. (§ 1, Ord. 2833, eff. August 5, 2006)

The City may by ordinance or resolution grant a license to any person, whether operating pursuant to an existing license or not, who offers to provide video programming, by means of a video provider system, pursuant to the terms and provisions of this chapter. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) The term of the license or any license renewal shall be established in the license agreement. (b) A license may be renewed by the City upon application of grantee, subject to applicable federal and state law. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) Any license granted under this chapter shall be nonexclusive and for the term specified by the license agreement. (b) No privilege or exemption shall be granted or conferred by any license granted under this chapter except those specifically presented herein or by a license agreement. (c) The grant of a license to use the public rights-of-way for purposes of providing video programming, by means of a video provider system, shall not be construed as a right or license to use such public right-of-way for any other purpose for which a right or license to use the public right-of-way is required. (d) Any privilege claimed by grantee under a license in a public rights-of-way or any other public property shall be subordinate to any prior or subsequent lawful, non-competitive occupancy or use thereof, or easement therein, by the City or other government entity for the public health, safety or welfare. (e) A license granted hereunder shall not relieve grantee of any obligation related to obtaining pole and/or conduit space from any department of the City, utility company, or from others maintaining poles and/or conduits in the public rights-of-way. (f) Any right or power in, or duty imposed upon any officer, employee, department, or board of the City shall be subject to transfer by the City to any other officer, employee, department, or board of the City. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) Subject to those restrictions, if any, that are mandated by state or federal law, including the requirements of Cal. Gov't Code § 53066.3, neither the granting of any license nor any of the provisions of this chapter shall be construed to prevent the City from granting additional licenses. (b) Grantee, by its acceptance of any license, agrees to be bound by all lawful, non-discriminatory ordinances and regulations of general application now in effect and to comply with any action or requirements of the City in the exercise of its police power; provided, however, that such ordinances and regulations shall not materially affect grantee's rights or obligations under the license. (c) Neither the granting of any license, nor any of the provisions of this chapter, shall constitute a waiver or bar to the exercise of any governmental right or power of the City. (d) This chapter shall not be construed to impair or affect, in any way, the right of the City to acquire the property of grantee through the exercise of the power of eminent domain, in accordance with applicable law. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) No license shall be transferred, sold or assigned, nor shall any of the rights, privileges, interests or property related to the license be transferred, sold, or assigned, either in whole or in part, directly or indirectly, voluntarily or involuntarily, to any person without the prior consent of the City granted by resolution of the City Council. Consent shall not be unreasonably withheld or delayed. The granting of a security interest in any assets of the grantee, or any mortgage or other hypothecation, will not be deemed a transfer for the purposes of this section. (b) Transfer of a license includes, but is not limited to, any transaction in which control of the license is transferred from one person or group of persons to another person or group of persons, or ownership or other interest in grantee or its video provider system is transferred from one person or group of persons to another person or group of persons so that control of grantee is transferred, or the rights and obligations held by grantee under the license agreement are transferred or assigned to another person or group of persons. (c) Notwithstanding the foregoing, a transfer shall not include a transfer of an ownership or other interest in grantee to the parent of grantee or to another affiliate of grantee; transfer of an interest in the license or the rights held by grantee under the license to the parent of grantee or to another affiliate of grantee; or any action which is the result of a merger of another affiliate of grantee. With respect to any of the foregoing transactions in subsection (b) of this section, grantee shall promptly notify the City in writing of the proposed transfer and the proposed transferee shall agree in writing that it will abide by and accept all terms of this chapter and the license agreement, and assume the obligations and liabilities of the previous grantee under the license. (d) Grantee shall promptly notify the City in writing of a proposed transfer and shall file with the City Manager an application requesting approval of the proposed transfer ("Transfer Application"). The transfer application shall meet the requirements of § 4-20.11 (with the transferee being the applicant), and shall provide complete information on the proposed transaction, including a copy of the bona fide offer, and details on the legal, financial, and technical qualifications of the transferee. (e) In making a determination on whether to approve the transfer application, the City Council shall, to the extent permitted by applicable law, consider the legal, financial, technical and other qualifications of the transferee to operate the system, whether the transferor video provider is in compliance with its license agreement and this chapter and, if not, the candidate transferee's commitment and plan to cure such noncompliance, whether operation by the transferee would adversely affect the delivery of video programming to subscribers or otherwise be contrary to the public interest, and such other criteria provided for by applicable state and federal law. (f) A transfer application shall not be granted unless the proposed transferee agrees in writing that it will abide by and accept all terms of this chapter and the license agreement, assume the obligations and liabilities of the previous grantee under the license, and assume such other conditions as may be lawfully prescribed by the City Council resolution approving the transfer. (g) Approval by the City of a transfer application does not constitute a waiver or release of any of the rights of the City under this chapter or a license agreement, whether arising before or after the date of the transfer. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) The license area shall be established by the license agreement. In determining the license area, the City shall assure that access to video programming is not denied to any group of potential residential subscribers because of the income of the residents of the local area in which such group resides. (b) Territory annexed to the City ("Annexed Territory") that is not within the license area of an existing license may be added to grantee's license pursuant to the license agreement.

(c) All rights acquired under a license or license granted by a public entity other than the City ("Foreign License") shall terminate by operation of law as to annexed territory where grantee of such license or license has not commenced installation of a video provider system in the annexed territory before the date such annexation becomes effective. Where feasible, City shall provide notice to the holder of a foreign license of the City's intent to annex territory that may result in a termination under this section. Failure to provide such notice shall not affect the termination of the foreign license. (d) Where grantee of a foreign license has commenced installation of a video provider system in annexed territory on or before the date such annexation becomes effective, grantee may continue to provide video programming, by means of a video provider system, to the annexed territory for the balance of the initial term of said license (exclusive of any renewal or extension not granted by the City), subject to the terms and conditions then in effect under such license, and the timely payment to the City of all license fees paid in connection with such service. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) Applications for the grant of a new license may be submitted by any person pursuant to the requirements of this chapter. The City may, by advertisement or any other means, solicit applications for a new license pursuant to a request for proposal ("RFP"). (b) An application for a new license to construct, operate, or maintain any video provider system in the City shall be filed with the City Manager and shall be on forms prescribed by the City. The City may, at its sole discretion, request new or additional proposals. (c) Unless waived in writing by the City, all applications for a license shall at the minimum contain the following: (1) The name, address, and telephone number of the applicant and the identity of all affiliates of the applicant; (2) For open video systems, copies of FCC Form 1275, all "Notices of Intent" filed under 47 CFR § 76.1503(b) (1), and the Order of the FCC, all of which relate to certification of the applicant to operate an open video system in accordance with § 653(a)(1) of the Communications Act and the FCC's rules. For all video provider systems, a sworn affidavit, signed by an officer or another person authorized to bind the applicant, that the applicant has filed or will timely file with the FCC all forms required by the FCC before offering cable service or video service within the City. (3) A description of the applicant's build-out plans and timelines consistent with this chapter and applicable law. (4) A description of the video programming services that will be offered by the applicant over its existing or proposed facilities. (5) A description of the transmission medium that will be used by the applicant to deliver the video programming services. (6) Information in sufficient detail to establish the applicant's technical qualifications, experience, and expertise regarding the ownership and operation of the video provider system described in the application. (7) Financial statements prepared in accordance with generally accepted accounting principles that demonstrate the applicant's financial ability to: (i) Construct, operate, maintain and remove any new physical plant that is proposed to be constructed in the City. (ii) Comply with the City's public, educational, and government access channel requirements. (iii) Comply with the City's requirement that grantee pay a license fee equal to five percent (5%) of gross revenue. (8) An accurate map showing the location of any existing facilities, including telecommunications facilities, within the public rights-of-way that the applicant intends to use, to purchase, or to lease.

(9) A copy of any agreement, if existing, between the applicant and any public utilities providing for the use of any facilities of the utility, including, but not limited to poles, lines or conduits. (10) If the applicant's operation of the video provider system will require the construction of new physical plant, modification of existing plant, or addition of new or additional equipment, in the public rights-of-way (but not including telecommunications facilities), the following additional information must be provided: (i) A preliminary construction schedule and completion dates. (ii) Preliminary engineering plans, specifications, and a network map of any new facilities, modification of existing plant, or addition of new or additional equipment to be constructed in the City, in sufficient detail to identify: (A) The locations and routes requested for the applicant's proposed facilities, whether new or modified. (B) The locations, if any, for interconnection with the facilities of other service providers. (C) The specific structures, improvements, facilities, and obstructions, if any, that the applicant proposes to remove or relocate on a temporary or permanent basis. (iii) The applicant's statement that, in constructing any new physical plant, modifying existing plant or adding additional equipment, the applicant will comply with all applicable ordinances, rules, and regulations of the City, including the payment of all required permit and processing fees. (11) The information and documentation that is required to be submitted to the City by a video provider, as specified below in § 4-20.36. (12) Any other details, statements, or information pertinent to the subject matter of such application which shall be required or requested by the City. (13) A nonrefundable filing fee in an amount established by resolution of the City Council. (d) If any item of information specified above in subsection (c) of this section is determined under paramount federal or state law to be unlawful, or is determined by the City Manager to be inapplicable or unnecessary for the City's consideration of the application, the City Manager is authorized to waive the requirement that such information be included in the application. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) Within thirty (30) days after receipt of an application filed under § 4-20.11 that is deemed to be complete, the City Manager will give written notice to the applicant of the City's intent to negotiate a license agreement setting forth the terms and conditions under which the operation of the proposed video provider system will be authorized by the City. The commencement of those negotiations will be on a date that is mutually acceptable to the City and the applicant. (b) The license shall be deemed granted as of the effective date of the license agreement. (c) Any provisions in the license agreement which vary materially from this chapter to the potential competitive disadvantage of any other licensee shall require an amendment to the license agreement(s) of any existing licensee(s) to ensure parity, subject to the further approval of the City Council. (§ 1, Ord. 2833, eff. August 5, 2006)

License renewals shall be processed and reviewed in accordance with then applicable law. The City and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the license. (§ 1, Ord. 2833, eff. August 5, 2006)

The City may, in exercise of its reasonable discretion, limit the number of licenses granted at any one time based upon its consideration of all appropriate criteria which shall include but not be limited to the following: (a) The capability of the public rights-of-way to accommodate the facilities of any proposed additional video provider systems. (b) Any other consideration necessary to safeguard the public interest. (§ 1, Ord. 2833, eff. August 5, 2006)

All actual and reasonable charges and fees incidental to awarding any license shall be paid by the licensee or applicant in accordance with § 542 of the Communications Act. No application shall be considered without payment of a deposit with the City covering such fee. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) As compensation for any license granted, and in consideration of permission to use the public right-of-way in the operation of its video provider system, and because the City will incur costs in regulating and administering the license, grantee shall pay to the City a license fee in the amount equal to five percent (5%) of grantee's gross revenues. (b) The license fee assessed shall be paid quarterly, to be received by the City Treasurer not later than forty-five (45) days after the close of each quarter of grantee's fiscal year. (c) On a quarterly basis, grantee shall provide the City a complete and accurate statement verified by an authorized representative of grantee with reasonable personal knowledge of the accuracy and completeness of such statement, indicating gross revenues for the past quarter, listing every revenue source by category, and depicting gross revenue computations. (d) On an annual basis, grantee shall file a complete and accurate statement verified by an authorized representative of grantee with reasonable personal knowledge of the accuracy and completeness of such statement, indicating all gross revenues for said year, listing every revenue source, by category, and depicting gross revenue computations. If the City has any concerns or objections relating to such report, the City shall have sixty (60) days to notify grantee and request additional information. Grantee shall have sixty (60) days to provide additional information to resolve any concerns or objections to the City's satisfaction. Thereafter, the City may, at its sole discretion, request that such statement be certified by an independent certified public accountant, at grantee's sole cost; provided, however, that any such request shall be made within sixty (60) days after grantee's response is received. (e) Upon reasonable notice, at any time during the term of a license, the City shall have the right to conduct, or require grantee to obtain, an independent audit by certified public accountants of any and all records of grantee that are related to gross revenue reports or computations. Grantee shall pay the costs of such audit not more frequently than once every three (3) years in the event such audit reveals an underpayment of five percent (5%) or more. Grantee shall cooperate with any such audit making readily available any and all relevant information requested by the City. The certified public accountants shall be required to certify in the audit that the grantee is in compliance with this chapter and the license fee requirements of the license agreement. Grantee shall maintain in a readily accessible place all such records for a minimum of four (4) years after any payment period that such record pertains to. This right shall be in addition to City's right to conduct any other audit.

(f) In the event that any license fee payment is not paid by the due date, interest shall be charged monthly at a monthly rate of one and one-half percent (1-1/2%), or the highest rate allowed by law, whichever is lower. In addition, if any license fee is not paid in full within fifteen (15) days after receipt of notice from the City as to the delinquency of such payment, a one-time late fee in the amount of five percent (5%) of the delinquent amount shall be assessed. (g) In the event grantee claims to have overpaid by more than five percent (5%) the amount of license fee actually due during any given quarter, it shall file an application with the City within one (1) year after said payment was made; provided, however, that notwithstanding the foregoing, grantee shall be permitted to seek refund of overpaid amounts that are revealed by an audit conducted in accordance with subsection (e) of this section, and the grantee requests such refund within sixty (60) days of the audit's release. The failure to timely and properly make such claim shall constitute a waiver by grantee of any right to such claimed overpayment, whether by refund, offset, credit or any other accommodation, except to the extent the overpayment is revealed by an audit conducted in accordance with subsection (e) of this section. All such applications shall state the amount of claimed overpayment, the reason for the claimed overpayment, and sufficient documentation to allow the City to verify grantee's claim. Upon request by the City, grantee shall provide any further information that is deemed relevant by the City. All such applications shall be considered by the City Council, and the City Council's decision with respect to such applications shall be final. (h) If grantee bundles video programming services with non-video service, grantee agrees that it will allocate the discount associated with such bundle consistent with the portion allocated in grantee's books and records kept in the regular course of grantee's business. If grantee bundles video programming services with non-video services, grantee agrees that it will not intentionally or unlawfully allocate such revenue for the purpose of evading license fee payments under its license. The parties agree that tariffed telecommunication services that cannot be discounted by state or federal law or regulation are to be excluded from the bundled discount allocation basis. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) The terms and provisions of a license agreement for the operation of a video provider system may include, without limitation, the following subject matters: (1) The nature, scope, geographical area, and duration of the license, including a reasonable period of time for the grantee to become capable of providing video programming to all households in the license area. (2) The applicable license fee to be paid to the City, including the percentage amount, the method of computation, frequency of payments and the time for payments. (3) Requirements relating to compliance with state and federal laws and regulations pertaining to the operation of the video provider system and the provision of video programming. (4) Requirements relating to the construction, upgrade, or rebuild of the video provider system (but not including telecommunications facilities), as well as the provision of special services, such as the provision of services to public buildings, including public schools, emergency alert capability, and parental control devices. (5) Requirements relating to the maintenance of a performance bond, a security fund, a letter of credit, or similar assurances to secure the performance of the grantee's obligations under the license agreement. (6) Requirements relating to liability insurance, workers' compensation insurance, and indemnification. (7) Additional requirements relating to consumer protection and customer service standards, including the resolution of subscriber complaints and disputes and the protection of subscribers' privacy rights. (8) Requirements relating to the grantee's support of local video programming, including the provision of public, educational, and government access channels, the coverage of public meetings and special events, and financial or technical support for public, education, and governmental access uses.

(9) Requirements relating to construction, operation, and maintenance of the video provider system within the public rights-of-way (but not including telecommunications facilities), including compliance with all lawful, non- discriminatory building codes and permit requirements of general application, the abandonment, removal, or relocation of facilities, and compliance with FCC technical standards. (10) Requirements relating to recordkeeping, accounting procedures, reporting, periodic financial and technical audits, and performance reviews, and the inspection of grantee's books and records. (11) Acts or omissions constituting material breaches of or defaults under the license agreement, and the applicable penalties or remedies for those breaches or defaults, including fines, penalties, liquidated damages, suspension, revocation and termination. (12) Requirements relating to the sale, assignment, or other transfer or change in control of the license. (13) The grantee's obligation to maintain continuity of service. (14) Such additional requirements, conditions, representations and warranties, policies, and procedures as may be mutually agreed upon by the parties to the license agreement and that will, in the judgment of the City, best serve the public interest and protect the public health, welfare, and safety. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) The City may regulate a grantee's rates, charges, and prices to the maximum extent permitted by law now or at a future time. (b) Filing of rates and charges. (1) Throughout the term of any license agreement entered into pursuant to this chapter, grantee shall maintain on file with the City a complete schedule of all rates and charges related to providing video programming services under the license. (2) Changes in rates and charges. Grantee shall provide written notice to the City and subscribers at least thirty (30) days in advance of any proposed change in rates and charges within the control of grantee. Such notice shall be provided in the subscriber's bill, or in a separate mailing. (c) Regulation of equipment for hearing-impaired. To the extent authorized by law, the City reserves the right to require and regulate the installation or rental of equipment that facilitates the reception of video programming by hearing impaired individuals. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) In addition to all other rights and powers retained by the City under this chapter or otherwise, the City reserves the right to terminate any license and all rights and privileges of grantee, revoke any license, or assess damages or penalties against grantee, in the event of any material breach of its terms and conditions. A material breach by grantee shall include, but not be limited to, the following: (1) Violation of any provision of this chapter, the license agreement or any rule, order, regulation or directive issued in connection with the license; (2) Evasion of any provision of this chapter or the license agreement, or the practice of fraud or deceit upon the City or its subscribers and customers; (3) Material misrepresentation of fact in an application for a new license, renewal or transfer of a license, whether by act or omission; (4) Failure to pay any license fee when said payment is due;

(5) Failure to restore video programming after seventy-two (72) consecutive hours of interrupted video programming, except in the event of force majeure or where the City approves in writing a longer period of interruption after making a determination that there exists just cause for such longer period of interruption; (6) Failure to provide at least eighty percent (80%) of subscribed services over the video provider system for a period of five (5) days, except in the event of force majeure or where the City approves in writing a longer period of interruption after making a determination that there exists just cause for such longer period of interruption; (7) Failure to consistently meet customer service standards established in the license or this chapter for the relevant measurement period specified in the license or this chapter, as the case may be; (8) Failure to initiate or achieve complete system construction, or reconstruction within the time set forth in the license, unless the City Manager expressly approves the delay in writing, due to the occurrence of conditions beyond grantee's control; (9) Failure to provide or maintain in full force and effect at all times any insurance coverage, letter of credit or bonds required by the license agreement; (10) Violation of orders or rulings of any regulatory body having jurisdiction over grantee relating to the license; (11) Failure to provide, upon written request, relevant data, documents, reports or information required by this chapter or the license agreement; provided, however, that grantee shall be afforded a reasonable amount of time to seek available protections concerning its confidential information, and/or redact confidential portions of such materials so as to protect grantee's confidential information from public disclosure; and (12) Dissolution, liquidation or ceasing to conduct business; abandonment of the video provider system; or the transfer of the video provider system and/or license (including, but not limited to, by means of a sale of all or substantially all of grantee's assets) without the City's consent as provided in this chapter or the license agreement. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) Prior to imposing any liquidated damages, sanction or penalty upon grantee, including termination or revocation of the license, the City Manager, shall demand in writing that grantee cure such breach or diligently commence a cure of such breach within a specified period, which period shall not be less than thirty (30) days following notification. However, only fifteen (15) days notice shall be required in the case of failure to pay undisputed monies due to the City. In addition, the City may, in an emergency, prescribe a notice less than thirty (30) days consistent with the nature of the emergency. An emergency under this subsection (a) means an occurrence or condition that creates an actual or imminent danger to life or property. (b) Should grantee fail to provide sufficient written proof within the specified cure period that corrective action has been taken, or that corrective action is being actively and expeditiously pursued by grantee, then the City Manager shall place the issue of termination, revocation or other penalty before an appropriate hearing officer for his or her determination pursuant to § 4-20.21. The hearing officer shall issue a recommended decision, which will then be acted upon by the City Council pursuant § 4-20.22. (c) The City Manager, or any hearing officer authorized to act pursuant to this chapter shall have the power to issue subpoenas in order to carry out the fact-finding activities authorized by this chapter. The process for the issuance and enforcement of such subpoenas shall be governed by the California Code of Civil Procedure. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) The City Manager may, at his or her sole discretion, refer to a hearing officer any controversy or claim arising out of or relating to the license or its existence, construction, interpretation, performance, enforcement, operation, breach, continuance or termination. Such hearing proceedings shall be initiated by the City Manager by written notice to grantee at least thirty (30) days prior to the hearing, which will specify the time, place and purpose of such hearing, and provide grantee the opportunity to be heard. (b) The procedures set forth in § 1-5.08 shall govern the conduct of such administrative hearing. (c) The hearing officer shall be vested with quasi-judicial authority, and shall be authorized to issue a recommended decision: (1) Ordering grantee to undertake remedial action to cure any breach of its obligations under its license; (2) Assessing liquidated damages and/or levying a penalty upon grantee in accordance with the terms of this chapter and the license agreement; (3) Determining that grantee has not violated any of its obligations under its license; and/or (4) Recommending to the City Council grounds for the revocation of the license. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) Based on the hearing officer's recommended decision pursuant to § 4-20.21, the City Council shall determine, in writing, in its discretion whether or not a material breach occurred and whether to terminate the license or take other appropriate action. (b) Should the City Council find that there has been a material breach of the license, but that termination of the license is inappropriate, then the Council may assess and levy or impose such other relief as the Council deems appropriate, pursuant to this chapter or the license agreement, including, but not limited to, any relief specified in §§ 4-20.21(c), 4-20.23 or any combination thereof. Failure of grantee to fully and promptly comply with an order of the City Council shall be deemed a material breach of the license. (c) The City shall cause grantee to be served with written notice of any action taken by the City Council. The decision of the City Council as to such matters shall be final, but may be challenged by grantee in a court of competent jurisdiction. (d) Nothing herein is intended to limit the City Council's right to make other determinations that are reasonably related to the license, or to seek any other appropriate relief to which the City may be entitled, at law or equity, as a result of any breach by grantee of its obligations under the license. (§ 1, Ord. 2833, eff. August 5, 2006)

The hearing officer or City Council may, following notice and opportunity to cure as herein provided, impose the following penalties for any breach of the license, except any breach of subscriber service standards, which shall be governed by § 4-20.38, and non-payment of fees, which shall be governed by § 4-20.16(f): (a) Up to Five Hundred Dollars ($500.00) for each day of each material breach, or such other amount provided in the license agreement. (b) For a second material breach of the same nature occurring within twelve (12) months where a fine or penalty was previously assessed, One Thousand Dollars ($1,000.00) for each day of each material breach. (c) For a third or further material breach of the same nature occurring within twelve (12) months of the first such breach, where a fine or penalty was previously assessed, Two Thousand Dollars ($2,000.00) for each day of each material breach.

(§ 1, Ord. 2833, eff. August 5, 2006)

The City may, at its sole discretion, take any lawful action which it deems appropriate to enforce the City's rights under the license in lieu of revocation of the license. In no event shall the amount of any insurance, bond, letter of credit or any other security instrument be construed to limit grantee's liability for damages. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) Subject to applicable law, in the event that a license is terminated, revoked, or is not renewed upon expiration, then grantee shall, upon demand of the City, and at grantee's sole expense, promptly remove all or any portion of its video provider system from the public rights-of-way, except with respect to telecommunications facilities. With respect to telecommunications facilities, grantee shall certify to the City that the portion of the facilities responsible for delivering video programming has been disabled. In removing its video provider system, grantee shall restore all streets to the City's standard specifications and repair any damage to utilities or other infrastructure caused by such removal. The liability, indemnity, insurance, security fund and bonds required under the license shall continue in full force and effect until such removal is accepted as complete by the City. (b) Subject to applicable law, in the event that a license is not renewed and the City acquires ownership of a video provider system or effects a transfer of ownership of a video provider system to another person, any such acquisition or transfer shall be at fair market value, determined on the basis of the video provider system valued as a going concern, but with no value allocated to the license itself. If a license is revoked for cause and the City acquires ownership of the video provider system or effects a transfer of ownership of the video provider system to another person, any such acquisition or transfer shall be at an equitable price. The value of a video provider system (fair market value or equitable price) shall be determined by an appraisal committee consisting of three (3) disinterested appraisers. The City and grantee shall each select one (1) appraiser, and the two (2) selected appraisers shall agree upon and appoint a third appraiser. The foregoing shall not apply to telecommunications facilities. (c) If a grantee's plant, or a portion thereof, is deactivated for a continuous period of thirty (30) days, (except for reasons beyond the grantee's control), and without prior written notice to and approval by City, then the grantee must, at City's option and demand, and at the sole expense of the grantee, promptly remove all of the grantee's property from any streets or other public rights-of-way, except any property comprising telecommunications facilities. The grantee must promptly restore the streets or other public areas from which its property has been removed to the condition existing prior to the grantee's use. (d) City may, upon written application by a grantee, approve the abandonment in place by a grantee of any property, under such terms and conditions as City may approve. Upon City-approved abandonment in place of any property, the grantee must cause to be executed such instruments as the City may prescribe in order to transfer and convey ownership of the abandoned property to the City. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) Subject to applicable provisions of the United States Bankruptcy Code, any license shall, at the option of the City, cease and terminate one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding

unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: (1) Such receiver or trustee shall have, within one hundred twenty (120) days after his or her election or appointment, fully complied with all terms of the license and remedied all breaches of the license or provided a plan for the remedy of such breaches which is approved in writing by the City; and, (2) Such receiver or trustee shall, within said one hundred twenty (120) days, execute an agreement duly approved by the Court having jurisdiction, under which such receiver or trustee agrees to be bound by each and every term, provision and limitation of the license. (b) Upon the foreclosure or other judicial sale of all or a substantial part of a video provider system, grantee shall notify the City of such fact, and such notification shall be treated as a notification that a change in ownership of grantee has taken place and the provisions of this chapter governing such changes shall apply. (§ 1, Ord. 2833, eff. August 5, 2006)

Subscribers shall have the right to continue to receive service so long as their financial and other obligations to video provider are honored. Video provider shall at all times, and under all conditions, to the greatest extent economically and technically possible, maintain continuity of service. In the event of an assignment of the video provider system, the assignor shall cooperate with the City and the assignee in order to maintain continuity of service to all subscribers. (§ 1, Ord. 2833, eff. August 5, 2006)

Article 3. Provisions Relating to the Use of Public Rights-of-Way by Video Provider Systems

Sections 4-20.29 through 4-20.35 shall not apply with respect to telecommunications facilities. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) At no time shall grantee place facilities underground without appropriate authorization from the City in accordance with generally applicable, non-discriminatory procedures and requirements. Grantee shall be responsible for its own underground trenching and any associated costs in connection with the construction, maintenance and operation of a proposed new video provider system. (b) The video provider system shall be placed underground in all portions of the license area where either telephone or electric lines are underground. Whenever the poles on which the video provider system is constructed are eliminated, grantee shall concurrently replace its aerial facilities with underground facilities. At no time shall the video provider system be the only aerial facility in any given area. If the City reimburses any licensee for undergrounding, all other licensees with facilities requiring undergrounding in the same area shall be similarly reimbursed. (c) Where the video provider system is installed underground, line extenders, amplifiers, taps, power supplies, traps and related electronic equipment and components may be placed in appropriate housings above the surface of the ground to the extent that the method employed is compliant with any and all generally applicable, non-discriminatory City, state, federal or other regulations, and consistent with any other generally applicable guidelines, policies or procedures that may, from time to time, be adopted by the City or other applicable government agency. grantee shall

provide a procedure for undergrounding taps and pedestals, the cost of which the subscriber will bear, and relocating the taps and pedestals within the technical constraints of the video provider system. (§ 1, Ord. 2833, eff. August 5, 2006)

Grantee shall be authorized to utilize existing poles, conduit, and other facilities of a public utility, subject to applicable law, but shall not be authorized to construct or install any new, different, or additional poles in any City streets without prior written approval by the City, which approval shall not be unreasonably withheld or delayed. Grantee shall comply with applicable federal and state laws regarding pole attachments. (§ 1, Ord. 2833, eff. August 5, 2006)

Grantee shall install and maintain its wires, cables, fixtures, and other equipment in accordance with applicable California Public Utilities Commission pole attachment standards, electrical codes and industry standards generally applicable to the type of video provider system which grantee has constructed, owns or operates, any applicable pole/conduit agreements, and all license agreement requirements. Grantee shall adhere to all generally applicable, non- discriminatory building and zoning regulations currently in force or hereafter enacted. Grantee shall repair and restore any cuts and/or trenching in the roadway or sidewalks to generally applicable, non-discriminatory City standards. Grantee shall locate and maintain its lines, cables, and other appurtenances, on public property, in such a manner as to cause no unreasonable interference with the use of such public property by any person. (§ 1, Ord. 2833, eff. August 5, 2006)

The City Engineer shall approve the location and method of construction of all underground facilities and equipment located on public right-of-ways (including any above-grade portion of such facilities and equipment). The City Engineer also shall approve the location and installation of all new aerial facilities. All construction shall be subject to City permit and inspection fees as may be required by other generally applicable, non-discriminatory applicable laws or regulations. (§ 1, Ord. 2833, eff. August 5, 2006)

Grantee shall file with the City strand maps of the entire video provider system located within the public rights-of- say, excluding technical specifications. Additionally, within thirty (30) days after completion of any material modification of the video provider system, grantee shall file with the City strand maps, excluding technical specifications, showing modifications to the video provider system. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) Grantee shall remove or relocate at its sole cost any facilities installed, used or maintained in connection with the license if and when such removal or relocation is made necessary by any project. For purposes of this section, the

word "project" means any change of grade, alignment or width of any public street, way, alley or place, including but not limited to, the construction of any subway or viaduct, that the City may initiate, either by or through itself or any redevelopment agency, community facility district, assessment district, undergrounding district, reimbursement agreement or generally applicable impact fee program. (b) In the event that such removal or relocation is required, grantee shall commence physical fieldwork on the removal or relocation on or before one hundred twenty (120) days after written notice of such requirement is provided by the City Manager. If, despite its reasonable efforts, grantee is unable to commence removal or relocation within such period, grantee shall provide the City Manager with written notice explaining in detail the reasons for the delay and a date certain upon which such removal or relocation is expected to commence. Grantee shall diligently proceed and promptly complete all such removal or relocation after it is commenced. Grantee shall confirm such removal or relocation by providing written certification to the City Manager within five (5) business days of completion. If the City reimburses any licensee for any such removal or relocation, all other licensees with facilities requiring removal or relocation in the same area shall be similarly reimbursed. (§ 1, Ord. 2833, eff. August 5, 2006)

Should grantee fail, refuse or neglect to properly perform any maintenance or construction work required by the license following due notice from the City and a reasonable opportunity to cure as provided for under this chapter, or should grantee fail to commence performance of such work within the required period of time, or fail to diligently proceed and promptly complete such work thereafter, the City Manager may, subject to applicable law, upon five (5) days prior written notice to grantee (except in cases of emergency), cause such work or other act to be completed in whole or in part by the City or others, and upon so doing shall submit to grantee an itemized statement of the costs thereof. Grantee shall pay to the City the entire amount due, without offset or deduction, within thirty (30) days from the date of such statement. (§ 1, Ord. 2833, eff. August 5, 2006)

Article 4. Registration of Video Providers Not Using the Public Rights-of-Way

Pursuant to Cal. Gov't Code § 53088.2, all video providers that are operating in the City on the effective date of this article, or that intend to operate in the City after the effective date of this article, and are not required under applicable law to operate under a license, lease, or similar written agreement with the City, must register with the City. The registration form must include or be accompanied by the following: (1) The video provider's name, address, and local telephone numbers. (2) The names of the officers of the video provider. (3) A copy of the video provider's written policies and procedures relating to customer service standards and the handling of customer complaints, as required by Cal. Gov't Code §§ 53054 et seq. These customer service standards must include, without limitation, standards regarding the following: (i) Installation, disconnection, service and repair obligations, employee identification, and service call response time and scheduling. (ii) Customer telephone and office hours. (iii) Procedures for billing, charges, refunds, and credits. (iv) Procedures for termination of service.

(v) Notice of the deletion of a programming service, the changing of channel assignments, or an increase in rates. (vi) Complaint procedures and procedures for bill dispute resolution. (vii) The video provider's written acknowledgement of its obligation under Cal. Gov't Code § 53055.1 to provide to new customers a notice describing the customer service standards specified above in subparagraphs (A) through (F) at the time of installation or when service is initiated. The notice must also include, in addition to all of the information described above in subparagraphs (A) through (F), all of the following: (A) A listing of the services offered by the video provider that clearly describes all levels of service and the rates for each level of service. (B) The telephone number or numbers through which customers may subscribe to, change, or terminate service, request customer service, or seek general or billing information. (C) A description of the rights and remedies that the video provider may make available to its customers if the video provider does not materially meet its customer service standards. (viii) The video provider's written commitment to distribute annually to its employees and customers, and to the City, a notice describing the customer service standards specified above in subparagraphs (A) through (F). This annual notice must include the report of the video provider on its performance in meeting its customer service standards, as required by Cal. Gov't Code § 53055.2. (4) Unless a video provider is exempt under federal law from its payment, a registration fee in an amount established by resolution of the City Council to cover the reasonable costs incurred by the City in reviewing and processing the registration form. (5) In addition to the registration fee specified above in subsection (4), the written commitment of the video provider to pay to the City, when due, all costs and expenses reasonably incurred by the City in resolving any disputes between the video provider and its subscribers, which dispute resolution is mandated by Cal. Gov't Code § 53088.2(o). (§ 1, Ord. 2833, eff. August 5, 2006)

Article 5. Consumer Protection and Service Standards Applicable to All Video Providers

(a) A video provider must comply with all applicable provisions of the following state statutes: (1) The Cable Television and Video Provider Customer Service and Information Act (Cal. Gov't Code §§ 53054, et seq.). (2) The Video Customer Service Act (Cal. Gov't Code §§ 53088, et seq.). (b) The customer service obligations imposed upon video providers by the Video Customer Service Act, Cal. Gov't Code §§ 53088 et seq.) consist of the following: (1) Every video provider must render reasonably efficient service, make repairs promptly, and interrupt service only as necessary. (2) All video provider personnel contacting subscribers or potential subscribers outside the office of the provider must be clearly identified as associated with the video provider. (3) At the time of installation, and annually thereafter, all video providers must provide to all customers a written notice of the programming offered, the prices for that programming, the provider's installation and customer service policies, and the name, address, and telephone number of the City's office that is designated for receiving complaints. (4) All video providers must have knowledgeable, qualified company representatives available to respond to customer telephone inquiries Monday through Friday, excluding holidays, during normal business hours.

(5) All video providers must provide to customers a toll-free or local telephone number for installation, service, and complaint calls. These calls must be answered promptly by the video providers. (6) All video providers must render bills that are accurate and understandable. (7) All video providers must respond promptly to a complete outage in a customer's service. The response must occur within twenty-four (24) hours of the reporting of such outage to the provider, except in those situations beyond the reasonable control of the video provider. A video provider will be deemed to respond to a complete outage when a company representative arrives at the outage location within twenty-four (24) hours and begins to resolve the problem. (8) All video providers must provide a minimum of thirty (30) days' written notice before increasing rates or deleting channels. All video providers must make every reasonable effort to submit the notice to the City in advance of the distribution to customers. The thirty (30)-day notice is waived if the increases in rates or deletion of channels are outside the control of the video provider. In those cases, the video provider must make reasonable efforts to provide customers with as much notice as possible. (9) Every video provider must allow every residential customer who pays his or her bill directly to the video provider at least fifteen (15) days from the date the bill for services is mailed to the customer, to pay the listed charges unless otherwise agreed to pursuant to a residential rental agreement establishing tenancy. Customer payments must be posted promptly. No video provider may terminate residential service for nonpayment of a delinquent account unless the video provider furnishes notice of the delinquency and impending termination at least fifteen (15) days prior to the proposed termination. The notice must be mailed, postage prepaid, to the customer to whom the service is billed. Notice must not be mailed until the sixteenth day after the date the bill for services was mailed to the customer. The notice of delinquency and impending termination may be part of a billing statement. No video provider may assess a late fee any earlier than the twenty-second day after the bill for service has been mailed. (10) Every notice of termination of service pursuant to the preceding subsection (9) must include all of the following information: (i) The name and address of the customer whose account is delinquent. (ii) The amount of the delinquency. (iii) The date by which payment is required in order to avoid termination of service. (iv) The telephone number of a representative of the video provider who can provide additional information and handle complaints or initiate an investigation concerning the service and charges in question. (11) Service may only be terminated on days in which the customer can reach a representative of the video provider either in person or by telephone. (12) Any service terminated without good cause must be restored without charge for the service restoration. Good cause includes, but is not limited to, failure to pay, payment by check for which there are insufficient funds, theft of service, abuse of equipment or system personnel, or other similar subscriber actions. (13) All video providers must issue requested refund checks promptly, but no later than forty-five (45) days following the resolution of any dispute, and following the return of the equipment supplied by the video provider, if service is terminated. (14) All video providers must issue security or customer deposit refund checks promptly, but no later than forty- five (45) days following the termination of service, less any deductions permitted by law. (15) Video providers must not disclose the name and address of a subscriber for commercial gain to be used in mailing lists or for other commercial purposes not reasonably related to the conduct of the businesses of the video providers or their affiliates, unless the video providers have provided to the subscriber a notice, separate or included in any other customer notice, that clearly and conspicuously describes the subscriber's ability to prohibit the disclosure. Video providers must provide an address and telephone number for a local subscriber to use without toll charge to prevent disclosure of the subscriber's name and address.

eir affiliates, unless the video providers have provided to the subscriber a notice, separate or included in any other customer notice, that clearly and conspicuously describes the subscriber's ability to prohibit the disclosure. Video providers must provide an address and telephone number for a local subscriber to use without toll charge to prevent disclosure of the subscriber's name and address.

(§ 1, Ord. 2833, eff. August 5, 2006)

(a) Purpose. The purpose of this section is to authorize the imposition of monetary penalties for the violation of the customer service standards established by § 4-20.37. The imposition of penalties authorized by this section will not prevent the City or any other affected party from exercising any other remedy to the extent permitted by law, including but not limited to any judicial remedy as provided below in subsection (b)(4) of this section. (b) Administration and appeals. (1) The City Manager or the City Manager's designee is authorized to administer this section. Decisions by the City Manager to assess monetary penalties against the grantee must be in writing and must contain findings supporting the decisions. Decisions by the City Manager are final, unless appealed by the grantee or aggrieved party. (2) If the grantee or any interested person is aggrieved by a decision of the City Manager, the aggrieved party may, within ten (10) days of the written decision, appeal that decision in writing to the City Council. The appeal shall be conducted in accordance with the provisions of OMC § 1-5.08. (3) Schedule of penalties. The following schedule of monetary penalties may be assessed against the grantee for the material violation of the provisions of the customer service standards set forth in this section, provided that the violation is within the reasonable control of the grantee: (i) The maximum penalty for a first material violation is Two Hundred Dollars ($200.00) for each day of the material violation, not to exceed Six Hundred Dollars ($600.00) for each occurrence of the material violation. (ii) For a second material violation of the same nature within a twelve (12)-month period for which the City has provided notice and a penalty has been assessed, the maximum penalty is Four Hundred Dollars ($400.00) for each day of the material violation, not to exceed One Thousand Two Hundred Dollars ($1,200.00) for each occurrence of the material violation. (iii) For a third or further material violation of the same nature within a twelve (12)-month period for which the City has provided notice and a penalty has been assessed, the maximum penalty is One Thousand Dollars ($1,000.00) for each day of the material violation, not to exceed Three Thousand Dollars ($3,000.00) for each occurrence of the material violation. (4) Judicial remedy. This subsection does not preclude any affected party from pursuing any judicial remedy available to that party without regard to this section. (5) Notice of violation. The City must give the grantee written notice of any alleged violation of the consumer service standards and allow the grantee at least thirty (30) days from receipt of the notice to remedy the specified violation. (6) Assessment of monetary penalties. (i) If a violation has not been corrected or cured by grantee within the time specified by the City, the monetary penalties specified above in subsection (3) above may be assessed from the date of delivery to grantee of the City's written notice of violation. (ii) In assessing monetary penalties under this section, the City Manager or the City Council, as applicable, may take into account the nature, circumstances, extent and gravity of the violation and, with respect to the grantee, the degree of culpability, any history of prior violations, and such other matters as may be relevant. If warranted under the circumstances, the monetary penalty to be assessed may be less than the maximum penalty amount specified above in subsection (3). (§ 1, Ord. 2833, eff. August 5, 2006)

Upon thirty (30) days' prior written notice, the City may require a video provider to provide a written report demonstrating its compliance with any of the customer service standards specified in § 4-20.37. The video provider must provide sufficient documentation to enable the City to verify compliance. (§ 1, Ord. 2833, eff. August 5, 2006)

No charge may be imposed for any service or equipment that the subscriber has not affirmatively selected. Payment of the regular monthly bill will not by itself constitute an affirmative selection. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) In case of a billing dispute, the video provider must respond to a written complaint from a subscriber within thirty (30) days. (b) At the time of the initial complaint, the video provider shall provide written or verbal notice to customers that in the event of a billing dispute, the video provider, upon resolution of the dispute when the video provider is at fault, shall waive a late fee. (c) Subscribers shall not be charged a late fee or otherwise penalized for any failure by the video provider, its employees, or contractors, including failure to timely or correctly bill the subscriber, or failure to properly credit the subscribers for a payment made in a timely manner. (d) The video provider shall afford each subscriber with a right to rescind the subscriber's ordering of service within three (3) days after ordering, provided that such right of rescission shall end upon activation of the service ordered. (e) The grantee shall assess any late fees in accordance with California law. In no event shall a late fee exceed the maximum amount permissible under California law. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) No person, firm or corporation in the existing service area of a video provider shall be arbitrarily refused service; provided, however, that the video provider shall not be required to provide service to any subscriber who does not pay the applicable connection fee or monthly service charge hereby authorized. (b) It is the City's intent that tenants not be discriminated against in the ability to subscribe to the video provider services. A video provider shall be required to provide service to tenants in individual units of a multiple housing facility with all services offered to other dwelling units within the video provider's service area within the city, so long as the owner of the facility consents in writing, if requested by the video provider, to the following: (1) Video provider's providing the service to units of the facility on such terms and conditions as are reasonable, provided that: (i) The owner of the facility shall not seek to charge video provider any fee or consideration for access to the facility or for the right of providing video provider service to the dwelling units within the facility, (ii) Video provider shall not seek to charge the owner of the facility any fee or consideration for installing such service other than its actual costs as provided for herein, and (iii) Such terms and conditions shall be in compliance with applicable law;

(2) Reasonable access to the premises by the video provider for installation, maintenance, and inspection of the system on the premises; (3) Reasonable conditions promulgated by the video provider to protect the video provider's equipment and to encourage widespread use of the system; (4) The owner shall not discriminate in rental charges, or otherwise, between tenants who receive video provider service and those who do not; and (5) The owner shall provide all easements, rights-of-way, and other rights of access deemed reasonably necessary or appropriate by video provider for purposes of providing video provider service to the facility. (§ 1, Ord. 2833, eff. August 5, 2006)

Under normal operating conditions, a video provider shall provide written or oral notice, in light of circumstances, prior to entering any private property. (§ 1, Ord. 2833, eff. August 5, 2006)

(a) A video provider will abide by all customer privacy requirements of federal and state law. Without limiting the foregoing, at least annually, a video provider shall provide notice in the form of a separate, written statement to each subscriber, which clearly and conspicuously informs the subscriber of: (1) The nature of personally identifiable information collected or to be collected with respect to the subscriber and the nature of the use of such information; (2) The nature, frequency and purpose of any disclosure, which may be made of such information, including the identification of the types of persons to whom the disclosure may be made; (3) The period during which such information will be maintained by the video provider; (4) The times and place at which the subscriber may have access to such information in accordance with federal and state law; and (5) The limitations provided in federal and state law with respect to the collection and disclosure of information by the video provider and the right of the subscriber under law. (b) Data collection. A video provider's data collection and dissemination practices regarding subscribers shall be in compliance with this chapter, including, without limitation, § 4-20.37(b)(15), and, if applicable, the Cable Act (including § 631). (c) Revealing subscriber preferences. (1) A video provider shall not reveal individual subscriber preferences, viewing habits, beliefs, philosophy, creeds or religious beliefs to any third person, firm, agency, governmental unit or investigating agency without court authority or prior written consent of the subscriber. (2) Such written consent, if given, shall be limited to a period of time not to exceed one (1) year or a term agreed upon by the video provider and subscriber. (3) A video provider shall not condition the delivery or receipt of services to any subscriber on any such consent. (4) Such a subscriber may revoke without penalty or cost any consent previously made by delivering to the video provider in writing a substantial indication of his or her intent to so revoke. (d) Other persons affected. This section, except the written notice requirements of subsection (a) of this section, shall apply to all of the following, to the extent they have access to subscriber information, as well as to any video provider:

(1) Officers, directors, employees and agents of the video provider; (2) General and limited partners of the video provider; (3) Any person or combination of persons owning, holding or controlling five percent (5%) or more of any corporate stock or other ownership interest of the video provider; (4) Any affiliated or subsidiary entity owned or controlled by the video provider, or in which any officer, director, stockholder, general or limited partner or person or group of persons owning, holding or controlling any ownership interest in the video provider, shall own, hold or control five percent (5%) or more of any corporate stock or other ownership interest; (5) Any person, firm or corporation acting or serving in the capability of holding or controlling company of the video provider. (§ 1, Ord. 2833, eff. August 5, 2006)

CHAPTER 20A: STATE VIDEO SERVICE FRANCHISES

CHAPTER 20A: STATE VIDEO SERVICE FRANCHISES

4-20.50 Purpose 4-20.51 Rights reserved 4-20.52 Compliance with chapter 4-20.53 Definitions 4-20.54 State franchise fees 4-20.55 PEG fees 4-20.56 Payment of fees 4-20.57 Audits 4-20.58 Late payments 4-20.59 Lease of City-owned network 4-20.60 Customer service and consumer protection standards 4-20.61 Penalties for violations of standards 4-20.62 Construction in the public rights-of- way 4-20.63 Permits 4-20.64 Participation with other utilities 4-20.65 Underground services alert 4-20.66 Emergency alert systems 4-20.67 Interconnection for PEG programming 4-20.68 Notices

This Chapter 20A is applicable to all video service providers who are eligible for, and have been awarded, a state video franchise under the Cal. Public Utilities Code §§ 5800 et seq., (the Digital Infrastructure and Video Competition Act of 2006), to provide cable or video services in any portion of the City. (§ 2, Ord. 3035, eff. December 31, 2015)

The rights reserved to the City under this chapter, are in addition to all other rights of the City whether reserved by this chapter, or authorized by other applicable law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the City. (§ 2, Ord. 3035, eff. December 31, 2015)

Nothing contained in this chapter exempts a state franchise holder from compliance with all ordinances, rules or regulations of the City now in effect or which may be hereafter adopted which are not inconsistent with this chapter or Cal. Public Utilities Code §§ 5800 et seq., or obligations under any franchise previously issued by the City, insofar as those may be enforced under Cal. Public Utilities Code § 5800.

(§ 2, Ord. 3035, eff. December 31, 2015)

For purposes of this chapter, the following terms, phrases, words and their derivations shall have the meaning given herein. Unless otherwise expressly stated, words not defined in this chapter, including but not limited to “gross revenue,” “cable service,” “video service provider” and “video service” shall be given the meaning as set forth in Title 1, Chapter 3, Section 1-3.13 of this Code or in the Digital Infrastructure and Video Competition Act of 2006, Cal. Public Utilities Code §§ 5800 et seq., as amended from time to time. “Applicant” means any person submitting any application required under the Cal. Public Utilities Code §§ 5800 et seq. “Applicable law” means all lawfully enacted and applicable federal, state and City laws, ordinances, codes, rules, regulations and orders as the same may be amended or adopted from time to time. “City Engineer” means the City Engineer or his or her designee. “City Manager” means the City Manager of the City or his or her duly authorized designee. “Construction,” and similar formulations of that term mean the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, excavation and tree trimming. “DIVCA” means the Digital Infrastructure and Video Competition Act of 2006, Cal. Public Utilities Code §§ 5800 et seq., as may be amended from time to time. “PEG” means public, educational, or governmental access. “State franchise” means a franchise issued by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in DIVCA, within any portion of the City. “State franchise holder” means a person who holds a state franchise. “Subscriber” means the City or any person who legally receives any cable service or video service from a state franchise holder delivered over that state franchise holder’s network. (§ 2, Ord. 3035, eff. December 31, 2015)

A. Any state franchise holder operating within the City shall pay to the City a state franchise fee equal to five percent (5%) of the gross revenues of it, or any affiliate, that is subject to a franchise fee under Cal. Public Utilities Code § 5860. B. The City Manager shall promptly send any state franchise holder that notifies the City that it intends to provide video service in the City a copy of this chapter and a notice designating the person to whom the state franchise fee payments should be made. (§ 2, Ord. 3035, eff. December 31, 2015)

A. Every state franchise holder operating within the boundaries of the City shall pay a PEG fee in the amount of one percent (1%) of the state franchise holder’s gross revenues. B. To the extent reauthorization is required by law, this chapter, including the PEG fee in the amount of one percent (1%) of the state franchise holder’s gross revenues, is automatically reauthorized as to each affected state video

franchise holder upon the expiration of any state franchise. Any and all reauthorizations shall be effective for so long as such reauthorization is required by law. (§ 2, Ord. 3035, eff. December 31, 2015 as amended by § 4, Ord. 3091, eff. April 19, 2018)

The state franchise fee required pursuant to § 4-20.54, and the PEG fee required pursuant to § 4-20.55, shall each be paid to the City quarterly, in a manner consistent with Cal. Public Utilities Code § 5860. The state franchise holder shall deliver to the City, by check or other means specified by the City, a payment for the state franchise fee and a separate payment for the PEG fee not later than forty-five (45) days after the end of each calendar quarter. Each payment made shall be accompanied by a summary explaining the basis for the state franchise fees, containing such information as the City Manager may require consistent with DIVCA. (§ 2, Ord. 3035, eff. December 31, 2015)

The City may audit the business records of the holder of a state franchise in a manner consistent with Cal. Public Utilities Code § 5860(i). (§ 2, Ord. 3035, eff. December 31, 2015)

In the event a state franchise holder fails to make payments required by this chapter on or before the due dates specified in this chapter, the City shall impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent (1%). (§ 2, Ord. 3035, eff. December 31, 2015)

In the event a state franchise holder leases access to a network owned by the City, the City may set a franchise fee for access to the City-owned network separate and apart from the franchise fee charged as rent or a toll to state franchise holders for use of the City’s rights-of-way pursuant to § 4-20.54, which fee shall otherwise be payable in accordance with the procedures established by this chapter. (§ 2, Ord. 3035, eff. December 31, 2015)

Each state franchise holder shall comply with all applicable customer service and consumer protection standards to the extent consistent with Cal. Public Utilities Code § 5900, including, but not limited to, all existing and subsequently enacted customer service and consumer protection standards established by state and federal law and regulation pertaining to the provision of video service. (§ 2, Ord. 3035, eff. December 31, 2015)

A. The City shall enforce the provisions of Code § 4-20.60.

B. The local entity shall give the video service provider written notice of any alleged material breach of the customer service standards and allow the video provider at least 30 days from receipt of the notice to remedy the specified material breach. C. For material breaches, as defined in Cal. Public Utilities Code § 5900, by a state franchise holder of applicable customer service and consumer protection standards, the City may impose the following penalties: 1. For the first occurrence of a material breach, a fine of $500.00 may be imposed for each day the violation remains in effect, not to exceed $1,500.00 for each violation. 2. For a second material breach of the same nature within 12 months, a fine of $1,000.00 may be imposed for each day the violation remains in effect, not to exceed $3,000.00 for each violation. 3. For a third material breach of the same nature within 12 months, a fine of $2,500.00 may be imposed for each day the violation remains in effect, not to exceed $7,500.00 for each violation. D. Any penalties imposed by the City shall be imposed in a manner consistent with Cal. Public Utilities Code § 5900. E. The City Manager is authorized to provide any notices required under Cal. Public Utilities Code § 5900. The City Manager may coordinate with the Division of Ratepayer Advocate to protect consumers in the City. F. A state video franchise holder may appeal a penalty assessed by the City Manager to the City Council within sixty (60) days of the initial assessment. The City Council shall hear the matter consistent with the provisions contained in Chapter 4 of Title 1 of this Municipal Code. (§ 2, Ord. 3035, eff. December 31, 2015)

Except as expressly provided in this chapter, the provisions of Chapters 3, 5, 6, and 7 of Title 7 of this Code, and all City administrative rules and regulations developed pursuant to Chapters 3, 5, 6, and 7 of Title 7, as now existing or as hereafter amended, shall apply to all work performed by or on behalf of a state franchise holder in any public rights- of-way. (§ 2, Ord. 3035, eff. December 31, 2015)

A. Prior to commencing any work for which a permit is required by Chapter 3 of Title 7 of this Code, a state franchise holder shall apply for and obtain a permit in accordance with the provisions of Chapter 3 of Title 7 . A permit application is complete when the state franchise holder has complied with all applicable laws and regulations, including but not limited to all City administrative rules and regulations, and all applicable requirements of Division 13 of the Cal. Public Resources Code §§ 21000 et seq., (the California Environmental Quality Act) and preparation of plans and specifications as required by the City Engineer. B. The City Engineer shall, in the exercise of reasonable discretion as permitted by state law, either approve or deny a state franchise holder’s application for any permit required under Chapter 3 of Title 7 within sixty (60) days of receiving a complete permit application from the state franchise holder. C. If the City Engineer denies a state franchise holder’s application for a permit, the City Engineer shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial. D. A state franchise holder that has been denied a permit by final decision of the City Engineer may appeal to the City Council with the time frame set forth and consistent with the provisions contained in § 7-3.06 of this Municipal

Code. The City Engineer shall transmit to the Council all maps, diagrams, records, papers, and files that constitute the record in the action from which the appeal was taken. E. The issuance of a permit under Chapter 3 of Title 7 of this Code is not a franchise, and does not grant any vested rights in any location in the public rights of way, or in any particular manner of placement within the rights of way. A permit to place cabinets and similar appurtenances aboveground may be revoked and the permittee required to place facilities underground, upon reasonable notice to the permittee. (§ 2, Ord. 3035, eff. December 31, 2015)

Each state franchise holder shall cooperate in the planning, locating and construction of its network in utility joint trenches or common duct banks with other communications providers. (§ 2, Ord. 3035, eff. December 31, 2015)

Each state franchise holder shall be a member of the regional notification center for subsurface installations (underground services alert) and shall field mark, at its sole cost and expense, the locations of its underground network facilities upon notification in accordance with the requirements of § 4216 of the Cal. Government Code, and any other applicable law. (§ 2, Ord. 3035, eff. December 31, 2015)

Each state franchise holder shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the state franchise holder’s network. (§ 2, Ord. 3035, eff. December 31, 2015)

Each state franchise holder, and each incumbent cable operator, shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. Interconnection may be accomplished by any means authorized under Public Utilities Code § 5870(h). Each state franchise holder and incumbent cable operator shall provide interconnection of PEG channels on reasonable terms and conditions and may not withhold the interconnection. If a state franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the City may require the incumbent cable operator to allow the state franchise holder to interconnect its network with the incumbent cable operator’s network at a technically feasible point on the state franchise holder’s network as identified by the state franchise holder. If no technically feasible point for interconnection is available, each state franchise holder will make an interconnection available to each channel originator providing PEG programming to an incumbent cable operator, and will provide the facilities necessary for the interconnection. The cost of any interconnection will be borne by the state franchise holder requesting the interconnection unless otherwise agreed to by the state franchise holder and the incumbent cable operator. (§ 2, Ord. 3035, eff. December 31, 2015)

A. Each state franchise holder or applicant for a state franchise shall file with the City a copy of all applications or notices that the state franchise holder or applicant is required to provide to the City under DIVCA. B. Unless otherwise specified in this chapter, all notices or other documentation that a state franchise holder is required to provide to the City under this chapter or the California Public Utilities Code shall be provided to the City Manager. (§ 2, Ord. 3035, eff. December 31, 2015)

CHAPTER 21: FIREWORKS, PYROTECHNIC DEVICES, EXPLOSIVES, DESTRUCTIVE DEVICES OR THEIR COMPONENTS

CHAPTER 21: FIREWORKS, PYROTECHNIC DEVICES, EXPLOSIVES, DESTRUCTIVE DEVICES OR THEIR COMPONENTS

4-21.01 Definitions 4-21.02 Prohibitions 4-21.03 Responsible persons–Violations occurring on real property 4-21.04 Responsible persons–Parental responsibilities 4-21.05 Administrative fines 4-21.06 Dangerous fireworks–Additional costs