Article 2 — CABLE TELEVISION AND CUSTOMER SERVICE STANDARDS

(a)

Pursuant to and in accordance with the Cable Act and state law, the Orange County Board of Supervisors has the power and authority to:

(1)

Grant franchises;

(2)

Renew, extend, transfer, or amend a franchises;

(3)

Authorize the use of the public right-of-way to install, operate and maintain a cable or open video system; and

(4)

Administer customer service standards.

(b)

This division provides regulations for granting and renewing franchises to cable operators utilizing public right-of-way to provide cable service to subscribers in unincorporated Orange County and provides customer service standards to be followed by cable operators. This division may be referred to as the Cable Television and Customer Service Standards Ordinance.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

This ordinance applies to all County cable operator agreements executed on or after January 1, 2003. The existing Cable Television Ordinance codified as sections 5-4-1 through 5-4-38, shall continue to apply to all cable operator agreements executed before January 1, 2003, and until said agreements expire by law or are terminated by the County. One (1) exception is that the customer service standards (section 5-6-121) which do not exist in the existing ordinance, will apply to all current and future franchises.

(b)

To authorize and to manage reasonable access to the County's public right-of-way and public property to cable operators on a competitively neutral and nondiscriminatory basis.

(c)

To obtain fair and reasonable compensation for the private use of the public right-of-way and public property.

(d)

To establish guidelines, standards and time frames for the regulation of customer service standards to be followed by cable operators.

(Ord. No. 02-009, § 1, 11-19-02)

For the purposes of this division, the following terms, phrases, words, and abbreviations shall have the meanings set forth herein and the same meaning as in the Cable Act and Title 47 of the Code of Federal Regulations. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number. The words "shall" and "will" are mandatory and the word "may" is permissive. Words not defined in this division shall have the same meaning as in the Cable Act and Title 47 of the Code of Federal Regulations, and, if not defined therein, their common or ordinary meaning shall apply. If specific provisions of law referred to herein are renumbered or retitled, then the reference or title shall be read to refer to the renumbered or retitled provision. References to laws mean those now in force or hereinafter enacted or amended.

(a)

Additional franchise means a franchise granted to a person within a geographical area where another franchise has previously been granted.

(b)

Administrative hearing means a proceeding held before a hearing officer to provide the County and franchisee a fair opportunity to present relevant evidence to determine the existence of facts required to enforce the provisions of this division.

(c)

Administrator means the Director of the Public Facilities and Resources Department, or his/her designee. The Administrator shall:

(1)

Be responsible for the administration of this division and any franchise agreement issued pursuant to this division;

(2)

Serve as the local point of contact for information regarding video services offered to subscribers within the County's jurisdiction; and

(3)

Be responsible for the investigation and resolution of consumer complaints and proposing any fines as set forth in this division.

(d)

Affiliate, when used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person.

(e)

Applicable law means all applicable federal, state, and local laws, codes, rules, regulations and orders, as may be adopted or amended from time to time.

(f)

Applicant means any person or entity submitting a proposal or application for an initial franchise pursuant to this division.

(g)

Basic service means the lowest service tier that includes the retransmission of local broadcast signals as required by federal law and PEG channels, if any.

(h)

Board means the Orange County Board of Supervisors.

(i)

Cable Act means the Communications Act of 1934 as amended by the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, and as may be further amended in the future.

(j)

Cable operator means any person or group of persons:

(1)

Who provide cable service over a cable or open video system and directly or through one (1) or more affiliates owning a significant interest in that cable or open video system; or

(2)

Who otherwise controls or is responsible for, through any arrangement, the management and operation of such cable or open video system.

For purposes of this division, a cable operator is a person who operates a cable system or opens video system and is required to obtain a franchise from the County in order to provide cable services. Cable operators issued franchises pursuant to this division are herein after referred to as franchisees.

(k)

Cable services means the one-way transmission to subscribers of video programming, or other programming service: and, subscriber interaction, if any, which is required for the selection and use of such video programming or other programming services. A cable system or an open video system may provide cable services. Cable services shall include any other services to subscribers, which may be determined to be a cable service by federal law or a court of competent jurisdiction.

(l)

Cable system means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designated to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

(1)

A facility that serves only to retransmit the television signals of one (1) or more television broadcast stations;

(2)

A facility that serves subscribers without using any public right-of-way;

(3)

A facility of a common carrier which is subject, in whole or part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to 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 that complies with section 653 of the Communications Act; or

(5)

Any facilities of any electric utility used solely for operating its electric utility system.

(m)

Complaint means any notification by a subscriber to the County or a cable operator's customer complaint department disputing an action taken or not taken by the cable operator and asserting that the action or inaction is either unlawful or inconsistent with the cable operator's customer contract or franchise obligations. Complaints may concern, by way of example: the amount of a bill; the cable operator's billing procedures; a service call or lack thereof; an outage or degradation of picture quality; cable operators equipment; denial or disconnection of service; or by a citizen reporting damage to real or personal property due to an alleged act or omission by the cable operator.

(n)

Control means the power to control the affairs and key decisions of another person, in whatever manner exercised, whether directly or indirectly.

(o)

County means the County of Orange and all Special Districts as governed by the Board or any designee acting within the scope of the Board's delegated authority except for functions required by this ordinance to be performed by the Board. County is also the grantor of franchises pursuant to this division.

(p)

Customer service representative means any person utilized by a cable operator to assist or provide service to subscribers, whether by answering telephone calls, writing service or installation orders, answering subscriber questions, receiving and processing payments, or performing other customer-related services.

(q)

Customer service standards means any standards set forth in federal or state law or contained in this division or in a franchise agreement that sets forth the standards of how cable operators are to conduct their business regarding their subscribers and prospective subscribers.

(r)

Days means calendar days unless otherwise stated in this division.

(s)

FCC means the Federal Communications Commission and its designated representative(s) or any lawful successor.

(t)

Facility or facilities means any physical elements installed by the cable operator and used to provide cable services whether or not located in public right-of-way. Such facilities include but are not limited to pedestals, cabinets, ducts, conduits, transformers, lines, line extensions service drops, manholes, power supplies and generators, splice boxes, surface location markers, amplifiers, nodes, cables, fiber optics.

(u)

Franchise means the authorization granted by the Board to a cable operator for the non exclusive right to occupy space or place facilities upon, across, beneath or over public right-of-way or other public property for the construction, operation and maintenance of a cable or open video system. This authorization shall not supersede or preempt any requirement for a generally applicable, non-discriminary permit or license to transact business with the County as may be required by any other generally applicable ordinance or law of the County.

(v)

Franchise agreement means the written contractual agreement and its attachments granting a franchise.

(w)

Franchise area means the geographical area for which the cable operator is authorized to provide cable service as defined in the franchise agreement.

(x)

Franchise fee means the maximum amount permitted by federal law to compensate the County for the use of public right-of-way by the cable operator. franchise fees do not include any tax, fee, or assessment of general applicability. Franchise fees do not include any expenses of the cable operator to obtain a franchise or to comply with the terms and conditions of the franchise agreement except as outlined in federal law. Such expenses shall not be offset against any franchise fees owed the County unless expressly permitted in the franchise agreement or in law or regulation.

(y)

Franchisee means any person who operates a cable or open video system and is awarded a franchise in accordance with this division, or that person's lawful successor, transferee, or assignee subject to approval by the Board.

(z)

Gross revenue means any and all revenue received by the franchisee, of any kind, nature or form derived from the operation of a cable or open video system to provide cable service as determined in accordance with Generally Accepted Accounting Principles. Gross revenue include, by example but is not limited to, late fees and other subscriber charges, revenue from equipment sales or rental, franchise fees paid by subscribers, fee revenue or commissions in any form received by the cable operator for carriage of advertising, and home shopping services. Gross revenue shall also include revenues from affiliates or any other person, including but not limited to, leased access providers or any other person leasing time on a cable channel or any portion of the cable operator's facility. Gross revenue does not include:

(1)

Taxes imposed by law on subscribers that the cable operator is obligated to collect and that are shown as a separate line item on subscribers' bills;

(2)

Bad debt; and

(3)

Deposits for equipment paid by subscribers.

(aa)

Material breach means any substantial or repeated failure of the cable operator to comply with customer service standards or any other requirement set forth in the franchise agreement, this division or applicable law. A material breach also means any single breach of any term of the franchise agreement that has a

substantial and significant effect on the rights of either party to the franchise agreement or to the subscribers in the service area described in the franchise agreement. A material breach shall also include any breach designated as material in the franchise agreement or this division.

(bb)

Normal business hours means those hours during which most similar businesses in the community are open to serve customers. Normal business hours shall include some evening hours at least one (1) night per week and/or some weekend hours.

(cc)

Normal operating conditions means those service conditions, which are within the control of the cable operator. Those conditions that are not within the control of the cable operator, including but are not limited to, natural disasters, civil disturbances, power outages, weather conditions. Those conditions, which are ordinarily within the control of the cable operator, include, but are not limited to, special promotions, pay- per-view events, rate increases, regular peak and seasonal demand periods, and maintenance or upgrade of the cable or open video system.

(dd)

Open video system means a facility of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service, which includes video programming, and which is provided to multiple subscribers within a community, provided that the Federal Communication Commission has certified that such a system complies with FCC regulations.

(ee)

PEG or PEG access means channel capacity available on the cable or open video system, as specified in the franchise agreement, provided to agencies, groups, individuals, institutions, organizations, a city or the County, to distribute locally produced, non-commercial video programming which is not under the editorial control of the cable operator. PEG access includes:

(1)

Public access, on a non-discriminatory basis, granted to groups, individuals, or organizations;

(2)

Educational access; granted to accredited public education institutions; or

(3)

Governmental access, granted to governmental entities.

(ff)

Person means an individual, partnership, association, joint stock company, trust, corporation, or governmental entity.

(gg)

Public Hearing means a hearing held before the Board at a duly noticed public meeting. Testimony and written evidence may be submitted to the Board.

(hh)

Public right-of-way means the whole right of way reserved for roadway purposes, the air space above and the area below any public street, and other public right-of-way or public place, including public utility easements.

(ii)

Records means any documents, reports, financial records or statistical reports of franchisee's that shall be available to the County for inspection.

(jj)

Resident means any person residing in the franchise service area.

(kk)

Security means a faithful performance bond or letter of credit.

(ll)

Service area means the geographical area in which a cable operator is authorized to provide service.

(mm)

Service center means a business office where a subscriber may go to conduct business with a customer service representative of the cable operator on a face to face basis.

(nn)

Service disruption means the degradation of the picture by wavy lines, flashing, snow or other abnormalities that renders the picture not viewable or noise interference such as static that will not permit the subscriber to understand the audio signal.

(oo)

Service interruption means the loss of picture or sound on one (1) or more channels.

(pp)

Service tier means a category of cable services or other services provided by a cable operator for which a separate rate is charged. Per channel or per event programming are excluded from this definition.

(qq)

Standard installation means those installations of cable services that are located up to one hundred twenty- five (125) feet from the cable operator's existing distribution system.

(rr)

Subscriber means a member of the general public who receives broadcast programming distributed by a cable television system and who does not further distribute the service.

(ss)

Transfer means any transaction in which:

(1)

All or a portion of any facility or any right to use or operate facilities located in the public right-of-way are sold, conveyed, transferred, assigned, encumbered or leased, in whole or in part, directly or indirectly, by one (1) or more transaction to another person, whether voluntarily or by operation of law or otherwise; or

(2)

There is any change, acquisition or transfer of control of the cable operator, or any person that controls the cable operator, including, without limitation, forced or voluntary sale, merger, consolidation, exchange, receivership; or

(3)

The rights or obligations under the franchise are sold, conveyed, transferred, assigned, encumbered or leased, in whole or in part, directly or indirectly, by one (1) or more transactions to another person, whether voluntary or by operation of law or otherwise. It shall be presumed for purposes of (2) above, that any transfer or cumulative transfer of a voting interest by a person or entity, of twenty-five (25) percent or more of the franchisee, or person who controls the franchisee or any change in the managing general partners of the franchisee, is a change of control.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Franchise Required. No cable operator may construct, install or operate facilities in the public right-of-way or use any facilities installed in the public right-of-way for the purpose of providing cable service without a franchise. Failure to obtain a franchise as required by this division may result in any or all of the following:

(1)

Forfeiture of the person's facilities located in the public right-of-way;

(2)

The removal at the person's expense any facilities from the public right-of-way; or

(3)

Penalty or damage awards.

(b)

Franchise Rights. The granting of a franchise by the County awards the cable operator the right to use public right-of-way to build, operate and maintain a cable system or open video system. The rights granted under the franchise may not be subdivided or subleased by the cable operator without County approval.

(c)

Non-Exclusive franchise. Any franchise issued pursuant to this division shall be nonexclusive. The County reserves the right to grant, at any time, such additional franchises for the construction, operation and maintenance of facilities to provide cable services, as it deems appropriate, subject to applicable law. The County may limit the number of additional franchises based on considerations set forth in California Government Code section 53066.3 (a).

(d)

Franchise Form. The franchise shall be in the form of an agreement and shall be approved by resolution by the Board.

(e)

Board Action Required. Any Board action to approve a franchise, terminate or revoke or to consider an appeal of fines or other penalties for non-compliance with the terms of the franchise shall be considered at a Public Hearing. The applicant or franchisee shall be provided a minimum of thirty (30) days' advance written notice of the time, date and location of the hearing, along with an explanation of the purpose of the hearing, unless the thirty (30) days notice is waived by the applicant or franchisee. The Board shall also consider any transfer, extension of a franchise term or service area, the surrender of the franchise or any amendment to a franchise agreement.

(f)

Term. The term of a franchise shall commence on an effective date to be determined by the Board and shall continue and remain in full force and effect for a term up to fifteen (15) years unless:

(1)

Franchisee surrenders the franchise; or

(2)

The Board revokes the franchise for noncompliance or abandonment by the franchisee.

(g)

Additional Franchises. The County shall consider the application for an additional franchise at a public hearing. The Board shall issue a finding that all considerations contained in applicable state law have been

addressed. A final determination of whether to grant an additional franchise is to be made within six (6) months of the date of the application unless the ability to make such determination is beyond the control of the County.

(h)

Existing Franchises. A franchisee of a franchise existing as of the effective date of the enactment of this division, in addition to all the obligations and duties prescribed in the terms of the existing franchise and the ordinance under which the existing franchise was issued, shall be subject to the customer service standards set forth in section 5-6-121 of this division. Nothing herein is intended to invalidate an existing franchise or to waive any obligations imposed by such a franchise.

(i)

Expired Franchises. Should County, for any reason, be unable to complete the renewal proceeding prior to the expiration of a franchise, franchisee shall have the right to continue to provide cable service utilizing public right-of-way. As long as the franchisee is making a good faith effort to renew the franchise and upon the approval of the Director of the Public Facilities and Resources Department, the franchise shall continue on a month to-month basis for a maximum of twelve (12) months under the same terms and conditions as the existing franchise. No later than twelve (12) months after the expiration of a franchise, the Board shall extend the franchise, terminate the franchise or renew the franchise pursuant to a new franchise agreement.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Any area served by an existing franchise annexed to a city or incorporated into a city will be deleted from the franchise area of the franchise granted by the County upon the effective date of the annexation or incorporation. If the city has not granted a franchise to the franchisee, the franchise granted by the County will inure to the city.

(b)

The County, in the event of an annexation or incorporation, will require no amendment to the franchise issued by the County. In the event that the entire service area of the franchise is annexed or incorporated, the franchise will terminate with the County.

(c)

Within sixty (60) days of receipt of a written notice of the effective date of an annexation or incorporation, the franchisee shall update all records to assure proper payment of franchise fees to the city acquiring the franchise area.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Extension of Franchise Area. An extension of the franchise area of an existing franchise requires an amendment to the existing franchise agreement.

(b)

Deletion of Franchise Area. Any deletion of franchise area from an existing franchise for any reason other than annexation or incorporation requires an amendment to the franchise agreement.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Any interested person may apply to the County for an initial franchise. The following information shall be submitted to the County:

(1)

Identity of the applicant;

(2)

List of partners, general or limited, if a partnership, or percentage of stock owned or controlled by each stockholder having a ten (10) percent interest or more, if a corporation;

(3)

List of officers and directors of the applicant and a resume of each person;

(4)

Names and addresses of any parent corporation or affiliates directly involved in the operation of the proposed cable or open video system;

(5)

Copy of FCC Form 1275, Notice of Intent filed under 47 GFR 76-1503 (b) (1) in accordance with section 653 (a) (1) of the Communications Act if the applicant is an open video service provider;

(6)

Description of the geographical area or areas within and outside of unincorporated Orange County that the applicant proposes to serve;

(7)

Description of services to be offered;

(8)

Description of transmission medium to be used;

(9)

Information to establish applicants technical qualifications, experience and expertise to operate a cable or open video system;

(10)

Financial statement prepared in accordance with generally accepted accounting principles and verified by a certified public accountant which demonstrates applicant's ability to 1) construct, operate, maintain and remove any proposed facilities; and 2) pay franchise fees as set forth in this division;

(11)

Pro forma showing capital expenditures and income and other expenditures for the first five (5) years of operation;

(12)

Map showing the location of facilities the applicant intends to use, purchase, lease or build;

(13)

Preliminary engineering plans and construction schedule for any new facilities;

(14)

Statement that applicant will comply with all applicable ordinances, rules, and regulations of the County and pay all required processing or permit fees; and

(15)

Any additional information required by Administrator.

(b)

Upon determination that the application is complete, the Administrator will notify the applicant in writing that the applicant and County may begin negotiation of a franchise agreement setting forth any terms and conditions, in addition to or in lieu of the requirements of this division, for the operation of a cable or open video system.

(c)

To determine if an additional franchise can be awarded the County may consider:

(1)

Applicant's record in other jurisdictions including signal quality, response to subscriber complaints, billing practices and compliance with applicable law.

(2)

Applicant's financial, legal and technical ability to operate a cable or open video system.

(3)

Applicant's willingness to meet future cable-related needs of the community.

(4)

Whether issuance of the franchise is in the public's interest.

(5)

Other matters the County is required or authorized to consider.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Consistent with federal law and regulation, within six (6) months of the receipt of the franchisee's written request for a renewal of a franchise, the Administrator shall 1) identify the cable-related needs of the County; and 2) review the performance of the franchisee under its existing franchise. The Administrator shall prepare a report for the Board of findings with 1) a recommendation to negotiate a renewal of the franchise pursuant to terms and conditions consistent with the findings; or 2) issue a request that the franchisee provides the County with a proposal. Within four (4) months of the submittal of the franchisee's proposal, a preliminary decision is to be made by the Administrator of renewal or non-renewal.

(b)

The Board shall hold a Public Hearing to determine whether or not to renew the franchise. This determination shall be based on whether or not the franchisee:

(1)

Has substantially complied with material conditions of the franchise and applicable law;

(2)

Provided a reasonable quality of service with respect to signal quality, response to subscriber complaints and billing practices;

(3)

Has the legal, technical and financial expertise and financial qualifications to provide services, facilities and equipment specified in the proposal; and

(4)

Provided a proposal that reasonably meets future cable-related needs of the community taking into account the cost of meeting such needs.

(c)

Nothing in this section prohibits the franchisee and the Administrator from agreeing in writing to suspend the renewal process set forth in this section and to develop a mutually agreeable renewal process. Such suspension shall be conditioned that either party, upon thirty days written notice, may request that the procedure described in this section shall be followed. At the Administrator's discretion, the franchisee may be required to complete an application.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Any transfer (as defined in section 5-6-102(ss)) of a franchise issued pursuant to this division requires the approval of the Board. Failure of the transferor and transferee to obtain consent is a material breach of the franchise agreement and may result in the termination of the franchise and the franchise agreement.

(b)

To initiate the transfer approval process, transferor shall submit to the County written notification of any proposed transfer at least 120 days before the transfer is to be completed. Transferor shall submit such written notice to the County whether or not it submits FCC Form 394 or its successor form to the County. Documentation to be submitted with FCC Form 394 shall include; 1) information or documentation required by state or federal law and 2) relevant portions of the sales agreement or equivalent.

(c)

The Administrator may request additional information within thirty (30) days of the notification of the proposed transfer. Unless the law expressly prohibits the disclosure of such information to reasonably determine if the transferee possesses the legal, technical and financial qualifications to provide cable services and will comply with all franchise requirements for the term of the franchise, the transferee shall provide any requested additional information within ten (10) days.

(d)

The County may, at its sole discretion, initiate the following actions prior to requesting Board action on the transfer:

(1)

Audit of transferor's payment of franchise fees;

(2)

Review of transferor's compliance with applicable technical and safety code standards;

(3)

Review of transferor's compliance with customer service standards; and

(4)

Review of transferor's compliance with all other terms and conditions of the franchise agreement.

(e)

Transferor shall be given an opportunity to cure any deficiencies or the transferee shall agree to cure any deficiencies.

(f)

Board approval of the transfer will be in the form of an agreement between the County, transferor and transferee.

(g)

County may deny the transfer request if it finds any of the following:

(1)

The transferee will not agree to comply with the franchise agreement;

(2)

The transferee will not agree to resolve any existing or outstanding compliance issues;

(3)

Information is not provided to reasonably determine if the transferor is in substantial compliance with this division or the franchise agreement;

(4)

Information is not provided to reasonably determine if the transferee has the legal, technical and financial qualifications to operate the cable system or open video system;

(5)

The County has determined that transferee does not meet legal, technical and financial qualifications to operate a cable system or open video system.

(6)

Any other reason the Board determines to be in the public's interest or in accordance with applicable law.

Approval of a transfer shall not be unreasonably withheld.

(h)

Nothing in this section prohibits the transferor and/or transferee and the County from agreeing in writing to extend the 120-day transfer approval period.

(i)

Approval of a transfer does not waive or release any rights of the County against the transferor under this division, applicable law or the franchise agreement whether such rights arose before or after the approval of the transfer.

(j)

Within thirty (30) days of the approval of a transfer, transferee shall provide the County with a letter of credit and evidence of insurance as required by this division or a written statement that existing security and insurance will remain valid.

(Ord. No. 02-009, § 1, 11-19-02)

An applicant for a new franchise or a franchise renewal may request the Board to consider waiving any requirement of this division if the applicant or franchisee can demonstrate that the requirement:

(1)

Has been preempted by applicable state or federal law;

(2)

Will result in a significant increase in the amount charged to subscribers; or

(3)

Will be overly burdensome to the applicant or franchisee in conducting the business of operating a cable or open video system.

Any waiver granted by the Board to an additional franchisee shall be available to the current franchisee upon request provided that the above criteria are met. Such waiver shall be in the form of an amendment to the franchise agreement granted by the Board.

(Ord. No. 02-009, § 1, 11-19-02)

Franchisee shall provide broad categories of programming in order to meet community needs. PEG is to be available to the extent it is provided to adjacent jurisdictions served by the same cable or open video system on the basic service tier. The County and unincorporated County residents shall have access to PEG that may otherwise be made available by the franchisee either voluntarily or as a required in a franchise with another jurisdiction served by the same cable or open video system.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

At all times during the term of the franchise agreement and within thirty (30) days of the approval of a franchise or effective date of a transfer, franchisee shall furnish the County an irrevocable letter of credit for a minimum amount of seventy-five thousand dollars ($75,000.00) issued by a financial institution approved by the County.

(b)

The letter of credit shall incorporate wording approved by the Administrator to enable the County to draw such sums the County determines to be owed to the County, including but not limited to:

(1)

Fines or penalties levied upon franchisee by County;

(2)

Costs incurred by the County to repair damage to the public rights-of-way caused directly or indirectly by the franchisee, if such repairs are requested and are not made;

(3)

Cost incurred by County to remove franchisee's facilities from the public rights-of-way or other County property; and

(4)

Monies due the County, including but not limited to payment of franchise fees in connection with the franchise agreement or this division.

The County shall provide a ten-day written notice to the franchisee and the letter of credit issuer in the event of any default or to meet any payment due the County. No demand shall be filed until after the County has issued a demand or invoice for such funds and franchisee has not made payment by the required deadline.

(c)

Franchisee shall replenish the letter of credit to its original amount within thirty (30) days after receiving written confirmation from the letter of credit issuer that the County has drawn against the letter of credit. Failure to replenish the letter of credit shall be deemed a material breach of the franchise agreement.

(d)

Under the franchise agreement, the County may require an additional letter of credit or performance bond as a condition of the franchise to be in effect during the period of any new construction, upgrade or rebuild

of the franchisee's facilities.

(e)

Neither the provisions of this section, nor the provisions of any security accepted by County pursuant thereto, nor any damages recovered by County thereunder shall be construed to excuse unfaithful performances by franchisee or to limit the liability of franchisee under this division. The rights reserved to the County with respect to the security are in addition to all other rights of the County and no action, proceedings, or exercise of a right with respect to such security shall affect any other rights the County may have.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Franchisee shall provide to the County, prior to the provision of services under the franchise agreement and for the term of the franchise agreement, a Certificate of Insurance, and all required endorsements which evidence required insurance coverage. Franchisee shall provide the County with a minimum of 30-days notice in the event that any required insurance policy is canceled, except for cancellation for non-payment of premiums, for which such notice shall be ten (10) days. Franchisee shall also provide the County with a Certificate of Insurance including all required endorsements immediately upon the change of any insurer providing coverage, or if there is a change in the amount of coverage. All sub-contractors performing work on behalf of the franchisee to provide cable services, or when performing work of any kind for any reason within the public right-of-way or on public property shall be covered under the franchisee's insurance or shall obtain insurance subject to the same terms and conditions as set forth for the franchisee. The policy or policies must be issues by an issuer licensed to do business in the State of California. The insurer must carry a rating of A-VIII or better with Best's Key Rating Guide/Property-Casualty/United States or any other alternative rating service approved by the County.

(b)

The terms, conditions and amounts of insurance coverage required to be provided by the franchisee will be contained in the franchise agreement, and will be subject to review and adjustment by either party at five- year intervals during the term of the agreement if a change in marketplace or risk assessment justifies an adjustment.

(c)

Endorsements are to be provided to the County containing the following provisions:

(1)

An endorsement that waives of all rights of subrogation against the "County of Orange California," its elected and appointed officials, officers agents, volunteers and employees when in the scope of their employment or appointment, and any Board or Commission governed by the Board, except with respect to liability arising from their gross negligence or misconduct;

(2)

An endorsement that names the "County of Orange, California" as an additional insured for commercial general and automobile liability insurance;

(3)

A severability of interests endorsement in favor of the "County of Orange, California" for general liability; and

(4)

A primary/non-contributing endorsement that states that any insurance maintained by the "County of Orange, California" will apply in excess of, and not contribute with, insurance provided by franchisee's policies.

(d)

Any deductible or self-insurance retention for general liability over twenty-five thousand dollars ($25,000.00), or any deductible over five thousand dollars ($5,000.00), or self-insured retention for automobile liability is subject to the approval by the County Risk Manager.

(e)

A certificate of self-insurance issued by California Department of Motor Vehicles must be submitted if the automobile liability is self-insured or there is a self-insured retention on a commercial insurance policy.

(f)

The County Risk Manager retains the right to allow a franchisee to use a captive insurer or to self-insure based on franchisee's financial assets. If this right is granted by the County Risk Manager, franchisee must agree to following conditions:

(1)

The duty to defend the County from any liability claim or suit to which this franchise agreement applies, is broader than the franchisee's duty to indemnify;

(2)

Franchisee shall have the right and duty to defend the County from any and all liability claims or suits if there is any potential for indemnity under the franchise agreement on any conceivable theory; and

(3)

The provisions of California Civil Code, section 2860 shall apply to any action which is covered by the duty to defend in this franchise agreement and said provisions shall be interpreted as though franchisee was an insurer and the County was the insured.

(g)

The procuring of such required policy or policies of insurance shall not be construed to limit franchisee's liability or to fulfill the indemnification provisions and requirements of this division or the franchise agreement.

(h)

Final approval of any proof of insurance coverage, its form or amount and any waivers to the insurance requirements of this division or the franchise agreement shall be the responsibility of the County Risk Manager, and such approval shall not be unreasonably withheld or delayed.

(i)

Failure of the franchisee to comply with the insurance requirements of this section or the franchise agreement, and to provide proof of coverage by submitting to the County original certificates and endorsements in the form required by the County within thirty (30) days of receipt of notice to the franchisee and to maintain current coverage as set forth in this section or the franchise agreement may be considered a material breach of the franchise agreement.

(Ord. No. 02-009, § 1, 11-19-02)

franchisee shall pay all costs required to meet the requirements of sections 5-6-111 and 5-6-112 and no cost shall be charged to the County.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

County shall not at any time be liable for injury or damage occurring to any person or property from any cause, which may arise out of or be in any way connected with the construction, installation, operation, maintenance or condition or due to the dismantling of the facilities used to provide cable services or the franchisee's failure to comply with any federal, state, or local law, statute division or regulation, except in the event of gross negligence or willful misconduct by the County or its employees or agents. Franchisee voluntarily assumes all such liability.

(b)

Franchisee shall at its sole cost and expense indemnify and hold harmless the County and its employees from and against:

(1)

Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys), whether legal or equitable, which may be imposed upon, incurred by or be asserted against the County by reason of any act or omission of the franchisee, its officers personnel, employees, agents, contractors, subcontractors.

(2)

Any claim asserted or liability imposed upon the County for personal injury or property damage to any individual person by reason of any act or omission of the franchisee, its officers personnel, employees, agents, contractors, or subcontractors.

(3)

Franchisee shall undertake and assume for its officers, personnel, employees, agents, contractors, subcontractors, all risk of dangerous conditions, if any, on or about any County-owned or controlled property, including public right-of-way, and franchisee shall indemnify and hold harmless the County against and from any claim asserted or liability imposed upon the County for personal injury or property damage to any individual person.

(4)

In the event any action or proceeding shall be brought against the County by reason of any matter for which the County is indemnified under this section, franchisee shall upon notice from the County, at the franchisee's sole expense, defend the County. Franchisee shall not admit liability in any matter on behalf of the County without the written consent of the County. County reserves the right to approve franchisee's counsel and settlement of any legal proceeding.

(5)

County shall give franchisee prompt notice of any claim or commencement of any action, suit or other proceeding covered by the provisions of this section. Nothing herein shall be deemed to prevent the County from cooperating with the franchisee and participating in the defense of any litigation by the County's own counsel at the County's expense.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

In consideration of the costs which must be incurred by the County in regulating the franchise and for the use of the public right-of-way for the construction and operation of a cable system or open video system, franchisee shall pay quarterly the amount of five (5) percent of the franchisee's gross revenues. Payment shall be payable to the County of Orange and shall be submitted to the Auditor-Controller.

(b)

Payment shall be received within thirty (30) days of the close of the franchisee's calendar or tax quarter for which revenue was received. Payment shall be accompanied by a report showing the basis of the computation and any relevant information that may be reasonably requested by the Administrator or required in the franchise agreement.

(c)

If any payment specified in this section is not paid to the County within ten (10) days after the due date, a late charge of one (1) percent of the payment due and unpaid from the due date plus a one-time charge of twenty-five dollars ($25.00) shall be added to the payment and the total shall become immediately due and payable to the County. An additional charge of one (1) percent of said payment shall be added for each additional month that said payment remains unpaid.

(d)

If the FCC, federal law or other legislative body with appropriate authority or court of competent jurisdiction changes the maximum franchise fee from the five (5) percent, the County's franchise fee shall change accordingly upon Board approval. Franchisee shall pass on any increase or decrease in franchise fee to subscribers as provided by law.

(e)

No acceptance of any payment by the County shall be construed as a release or as an accord and satisfaction of any claim the County may have for further or additional sums payable as a franchise fee under this division or for the performance of any other obligation of the franchisee.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Upon thirty (30) days written notice from the Administrator, the County shall have the right to inspect, examine or audit franchisee's records that are necessary to verify that the franchisee or any affiliates has paid the correct amount with respect to the franchisee's payment of franchise fees consistent with this division, the franchise agreement, and applicable federal and state law.

(b)

Franchisee shall keep and preserve for a period of three (3) calendar years plus the current calendar year, all records necessary to determine the amount of franchise fee owed the County. A transferor, in the event of a transfer, or a franchisee of a franchise that has terminated shall retain such records for three (3) calendar years after the effective date of the transaction or date of termination.

(c)

In the event that an audit establishes that additional fees in excess of five (5) percent of the amount paid for any quarter are owed, the franchisee shall pay for the actual documented cost of the audit for each quarter in the audit period in which underpayment exceeded five (5) percent.

(d)

Penalties for underpayment of franchise fees are set forth in section 5-6-115(c) above of the division entitled "Franchise Fees."

(e)

In the event the franchisee establishes that it overpaid franchise fees to the County, the franchisee may file a claim with the County.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

A non-refundable processing fee, as established by the Board through County ordinance or resolution pursuant to California Government Code section 66016 and 66017, shall be paid by an applicant or franchisee when requesting franchise approval, transfer, extension of the term or service area, surrender or amendment, to reimburse the County's processing costs.

(b)

This non-refundable processing fee is in addition to franchise fees, permit fees, taxes and other assessments, which maybe owed by franchisee.

(Ord. No. 02-009, § 1, 11-19-02)

Franchisee shall provide, at its own expense upon request of the Administrator, one (1) cable installation of up to one hundred twenty-five (125) feet whenever the franchisee's facilities pass the property line of any County facility, fire station, public library, public school or educational administrative site. Monthly service shall include basic service and any satellite or expanded tiers excluding premium services. Any portion of the installation exceeding one hundred twenty-five (125) feet may be billed at franchisee's cost to the recipient of the service.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Upon thirty (30) days written notice, County has the right to inspect, or review any documents, reports, financial records or statistical reports retained by the franchisee pertaining to franchisee's compliance with the franchise agreement or this division. This right includes records related to the management of the cable or open video system in the possession of an affiliate, contractor or subcontractor. Records are to be made available at the franchisee's local office, during normal business hours, or at such location as is mutually agreed by the County and franchisee. If franchisee determines records are too voluminous or for security reasons can not be moved to the franchisee's local office for inspection, franchisee shall pay travel costs to permit inspection at the site designated by the franchisee. Any records franchisee considers to be proprietary shall be so identified. County will make every effort to avoid copying such records and secure records while in County's possession, return records to the franchisee or will notify franchisee in advance if County is required under law to release such records to a third party. Records requested by the County shall be provided at the franchisee's sole expense. County may have the inspection or review of franchisee's records conducted by a third party on the County's behalf, provided that the third party first

executes a confidentiality agreement reasonably acceptable to the franchisee prohibiting any unauthorized use or disclosure of the franchisee's proprietary information. Franchisee's acceptance of the confidentiality agreement with the third party shall not be unreasonably withheld. County's access to records of the franchisee shall at all times be subject to federal and state laws concerning subscriber privacy.

(b)

The following records shall be kept current and be made available for a period of at least two (2) calendar years plus the current calendar year unless a shorter period is specified in the franchise agreement:

(1)

Subscriber complaints identifying the subscriber's name and address, date complaint was received, description of complaint, description of action taken by franchisee to resolve the complaint and date complaint was resolved.

(2)

Service interruptions effecting more than one (1) subscriber identifying the location, time service interruptions was first reported, time service was restored, duration and cause.

(3)

Service installations and service call appointments for any other reason identifying the date service requested, date and time of appointment, date and time franchisee's representative arrived for the appointment or fact and reason that appointment was not kept.

(4)

Telephone response statistics reflecting the length of time to answer each call after the initial message and the length of time the caller is put on hold after customer services representative answers the call.

(c)

County may request additional records related to the County's right under this division or under the franchise agreement to carry out its regulatory responsibilities under federal, state and local law. Franchisee's refusal to retain accurate records required by this division may be a material breach of the franchise agreement.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Franchisee shall mail to the County mandatory notices as set forth in state and federal law that are periodically mailed to all subscribers in the franchise area including but not limited to rate increase notices, privacy notices, annual notices, channel line-up changes, system-wide promotional materials.

(b)

Franchisee shall provide all reports required by its franchise agreement or as requested by the Administrator in response to complaints, alleged non-compliance with the franchise agreement or this division or as otherwise related to the County's rights and responsibility to carry out its regulatory responsibilities under federal, state and local law.

(c)

If franchisee is convicted of defrauding or attempting to defraud the County or subscribers, or intentionally submits false or misleading information or withholds information requested by franchisee, such action may be deemed a material breach of the franchise agreement.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Accessibility.

(1)

Franchisee shall maintain a local, toll-free or collect telephone access line, which will be available to its subscribers, twenty-four (24) hours a day, seven (7) days a week. Under normal operating conditions during normal business hours, telephone answer time by a knowledgeable, qualified, trained customer service representative, including wait time, shall not exceed thirty (30) seconds after the initial message. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety (90) percent of the time measured quarterly.

(2)

Franchisee shall provide conveniently located service centers offering in person bill payment, equipment exchange, service change requests and subscriber inquiry services and shall arrange for picking up equipment at the subscribers residence in the event of a disconnection or exchange of franchisee's equipment.

(3)

Franchise shall post a sign at each service center stating its hours of operation and a toll free telephone number where a customer service representative can be immediately contacted.

(b)

Installations, Outages and Service Calls.

(1)

An employee, contractor, subcontractor, or agent of franchisee who contact subscribers outside the service center shall be clearly identified as associated with the franchisee. Any vehicle used to provide service to a subscriber shall clearly bear the name of the franchisee.

(2)

Franchisee shall complete all standard installations within seven (7) business days after the order has been placed, unless the subscriber has requested a later date for installation. Under normal operating conditions, this standard is to be met no less than ninety-five (95) percent of the time measured quarterly. In the event of a non-standard installation, the franchisee shall provide the subscriber in advance with an installation cost estimate and the estimated date of installation.

(3)

Excluding conditions beyond the franchisee's control, franchisee shall respond to a complete outage (loss of reception on all channels) of the subscriber's service within twenty-four (24) hours of the reporting of such outage by the subscriber. Response consists of the arrival of the franchisee's representative at the outage location. Franchisee must begin action to correct service interruptions, service disruptions or other service problems no later than the next business day after the subscriber has reported the problem. Under normal operating conditions, this standard is to be met no less than ninety-five (95) percent of the time measured quarterly.

(4)

Franchisee shall provide subscribers with the right to schedule an appointment window in four-hour increments, during normal business hours, when scheduling an appointment for installation or service or any other reason for which the subscriber's presence is required. This does not prohibit franchisee from scheduling an appointment outside of normal business hours for the convenience of a subscriber. If the appointment is not commenced within the four-hour period, except for unforeseen or unavoidable occurrences beyond the control of the franchisee, franchisee may notify the subscriber of the delay and schedule an appointment at a mutually agreeable time within a two-hour period. Subscribers may seek remedies under applicable law for missed appointments. Under normal operating conditions, this standard is to be met no less than ninety-five (95) percent of the time measured quarterly.

(c)

Subscriber Information. Franchisee shall:

(1)

Provide subscribers, at the time of installation and at least annually, written notice containing:

a.

Description of all levels or service tiers of programming service including premium services;

b.

Prices and options for each level of programming service and conditions of subscription to programming and other services;

c.

Telephone number and office hours of franchisee's service center;

d.

Billing and complaint procedures including address and telephone number of County as provided by Administrator.

e.

Rights and remedies available to subscriber if franchisee does not meet its customer service standards;

f.

Installation, disconnection, termination, service, repair, maintenance, policies and franchisees policy for imposing late fees;

g.

Instructions on how to use the service;

h.

Channel positions of programming, commonly referred to as a channel line-up; and

i.

Statement citing sections in federal and/or state law dealing with customer service standards and franchisee's intent to comply with applicable standards.

(2)

Provide a minimum of thirty (30) days' written notice to subscribers and the County of any changes in rates, programming services or channel positions of programming if such change is within the control of the franchisee.

(d)

Billing Procedures. Franchisee shall:

(1)

Provide subscriber's bills that are clear, concise, accurate and understandable. Bills must be fully itemized including, but not limited to, basic service and premium service charges and equipment charges. Bills are to clearly delineate all activity during the billing period, including credits. Bills are to include the address and telephone number as provided by the Administrator;

(2)

Allow subscribers fifteen (15) days from the date the bill for service is mailed to pay the bill unless otherwise agreed to pursuant to a residential rental agreement. The bill must clearly show the date payment is due which is no earlier than tenth day of the service period for which the bill is issued;

(3)

Promptly post payments;

(4)

Terminate service for nonpayment of a subscriber's bill only after the franchisee has furnished written notice of termination at least fifteen (15) days before such termination. Such notice shall not be mailed until the 16th day after the date the bill for services was mailed to the subscriber. Information contained on franchisee's notice of termination shall include:

a.

Name and address of subscriber whose account is delinquent;

b.

The amount of the delinquency;

c.

The date by which payment is required in order to avoid termination of service;

d.

The telephone number of a representative of the franchisee who can provide information, handle complaints or initiate an investigation concerning the service and charges in question;

(5)

Terminate service only on days in which the subscriber can reach a customer service representative of the franchisee either in person or by telephone;

(6)

Restore service at no cost to the subscriber for any service terminated without good cause. 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;

(7)

Assess a late charge no earlier than the 27th day after the bill's due date. In no event shall the late charge be assessed on a balance of ten dollars ($10.00) or less and exceed the amount established by applicable law;

(8)

Return any monies owed a subscriber whose service has been terminated either voluntarily or involuntarily, no later than the subscriber's next billing cycle or thirty (30) days, whichever is earlier or upon return of equipment supplied by the franchisee. Under normal operating conditions, this standard is to be met no less than ninety-five (95) percent of the time measured quarterly; and

(9)

Issue a credit for service no later than the subscriber's next billing cycle following a determination that a credit is warranted.

Franchise fees paid by subscribers and in turn paid by the cable operator to the County are to be applied to the subscribers bill after any discount or credits due the subscriber have been deducted from the cable operators charges for the service being provided.

(e)

Privacy. Franchisee shall not:

(1)

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 business of the franchisee or its affiliates, unless the franchisee has provided to the subscriber a notice, separate or included in any other subscriber notice, that clearly and conspicuously describes the subscriber's ability to prohibit the disclosure. Franchisee shall provide an address and toll free telephone number for the subscriber's use to prevent disclosure of the subscriber's name and address;

(2)

Monitor cable signals in order to determine a subscriber's individual viewing patterns or practices without the prior written consent of the subscriber unless such monitoring is for the purpose of determining programming viewed by the subscriber for the purpose of billing for services rendered; and

(3)

Require a subscriber to provide any personal information that is not necessary to open and maintain the subscriber's account.

Franchisee shall comply with the provisions of 47 USC section 551 or its successor, as currently written or amended in the future; however, consistent with state law, franchisee shall provide information from subscriber's billing records or other information necessary to permit the County to enforce this division or the franchise agreement, and obtain information to determine if the franchisee is meeting community needs. Failure by franchisee to provide such information may be a material breach of the franchise agreement.

(f)

Non-Discrimination. Franchisee shall not:

(1)

Deny service except for good cause as set forth in federal or state law; or

(2)

Discriminate in between or among subscribers in availability of service, its rates or charges or from granting any subscriber or group of subscribers a more favorable or different rate or charge than rates or charges offered to subscribers as a whole. Promotional offers made on a temporary basis to attract or maintain subscribers may be offered as long as such promotions are offered on a non-discriminatory basis. Franchisee may offer discounts to senior citizens, disabled persons, the economically disadvantaged, bulk rate under contract to apartments, condominiums or homeowners associations or other such discounted rates permitted by federal law as long as such discounts are applied in a uniform and consistent manner. All rates must be published and be available for inspection at franchisee's service center or be provided over the telephone.

(g)

Treatment of Property. Franchisee shall:

(1)

At its own expense, restore any private property and landscaping to its original or comparable condition, which was disturbed or damaged during construction, installation, maintenance, facility removal or service installation/disconnection;

(2)

Comply with County ordinances when trimming trees or shrubs from public right of way or easements and remove all trimming from the property;

(3)

Except in the event of an emergency, make every reasonable effort to notify residents before entering private property and provide at least a 24-hour notice in the event of new construction or planned maintenance; and

(4)

Clean all areas surrounding any work site and ensure all materials have been disposed of properly.

(h)

Continuity of Service. In the event of a transfer or in the event that franchisee provides notice of intent to terminate or not renew a franchise, franchisee shall act to ensure that all subscribers receive service as long as the franchise remains in effect. Franchisee shall make all reasonable efforts to provide continuous, uninterrupted service during any transition period following franchise termination or expiration.

(i)

Periodic Review.

(1)

The County may periodically evaluate franchisee's compliance with customer service standards provided by franchisee to subscribers:

a.

In conjunction with any performance review provided for in any franchise agreement;

b.

Based on the number of complaints received from subscribers; or

c.

Based on other information obtained by the County through its own investigation.

(2)

In the event of such a review, franchisee shall provide information necessary for the County to substantiate or refute allegations regarding franchisee's non-compliance with customer service standards, provided the franchisee has not previously provided such information to the County.

(3)

Upon thirty (30) days written notice from the County, franchisee shall respond to any request for information necessary to evaluate franchisee's compliance with customer service standards required in this section. Franchisee shall provide sufficient information to permit County to verify franchisee's compliance with customer service standards.

(4)

If franchisee's performance of any of the requirements of this division is prevented by a cause or event not within franchisee's control or which can not be reasonably be foreseen by franchisee, such inability to comply with this division shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof. The burden of proof of such inability to comply rests with the franchisee.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Complaints to Franchisee.

(1)

Franchisee shall establish a written procedure for receiving, acting upon and resolving subscriber's complaints and publish such procedure at its own expense.

(2)

This procedure shall set forth the method that subscribers may submit both written and oral complaints to the franchisee.

(3)

Subscribers submitting oral complaints to franchisee must receive a written or oral response within thirty (30) days of the receipt of the complaint stating the results of the franchisee's investigation and proposed action.

(4)

Subscribers submitting written complaints to franchisee must receive a written response within thirty (30) days of the receipt of the complaint stating the results of the franchisee's investigation and proposed action.

(b)

Complaints to County.

(1)

Written or oral subscriber complaints received by the County may be forwarded to franchisee for resolution.

(2)

Franchisee shall acknowledge receipt of any such complaint within the next three (3) business days. The County shall receive a written response stating the resolution of the complaint within ten (10) business days. If franchisee can not resolve a complaint within ten (10) business days, franchisee is to provide County a progress report every ten (10) business days unless the County establishes a longer reporting interval or determines the complaint is resolved. A subscriber may appeal the decision as set forth (c) below.

(c)

Administrative Hearing.

(1)

In the event that an administrative hearing is requested by a prospective, current or former subscriber, the Administrator shall give a minimum of fifteen (15) days advance written notice to franchisee setting forth the nature of the complaint and the right of the franchisee to be present at the hearing to provide relevant evidence on the issue. The notice from County shall set forth the time and place for the hearing. At the time and place so specified, evidence shall be submitted as to the facts of any complaint. A hearing officer shall determine whether the facts substantiate a complaint over which the County has jurisdiction.

(2)

A decision by the hearing officer shall be made in writing and shall be transmitted to the subscriber and franchisee within a reasonable time. Such decision shall be final within ten (10) business days of transmittal to franchisee.

(3)

In the event the decision requires the franchisee the take an action to resolve the complaint and the franchisee does not take this action within the timeframe set forth in the decision, the Administrator may

determine that a violation of the franchise agreement has occurred and pursue remedies set forth in section 5-6-125 of this division.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

General Requirements.

(1)

Construction, maintenance, or repair of the facilities located in the public right-of-way is not permitted unless franchisee has a valid franchise to operate a cable or open video system and the following conditions are met:

a.

All required permits have been obtained and fees have been paid;

b.

Franchisee has provided proof of insurance, which meets any generally applicable County's requirements and/or are specified in the franchise agreement or as a condition of the permit;

c.

Franchisee has provided any security generally required by the County or required herein or as a condition of the permit; and

(2)

Construction shall be performed in compliance with all laws, codes, ordinances, County rules, regulations as currently written or as in the future constituted and common practices and must be in constructed to assure compliance with applicable federal or state law.

(3)

Franchisee's facilities shall pass and be able to serve all residences in the service area unless this requirement is waived in the franchise agreement.

(b)

Maps and Plans. Franchisee shall maintain current, accurate plans and record drawings showing, the location of trunk and distribution facilities constructed in the public right-of-way. Such plans and/or drawings shall be made available to the County within ten (10) days of written request or immediately in the event of an emergency.

(c)

Above Ground Construction. Reasonable effort shall be made to construct or install all above ground facilities in a safe location and to be as unobtrusive as possible. Hanging, unsecured, or loose wires or cables are to be promptly repaired. Above ground facilities such as amplifiers and pedestals shall be of such design and size as to blend with the existing surroundings and shall be located so as to not unreasonably interfere with the use of the property of any person or be hazardous to the public or to any property owner. In the event, that constructed facilities are determined to be unsafe, or interfere with the use of property, the franchisee may be required to remove such facility at its own cost.

(d)

Underground Construction.

(1)

Franchisee must place facilities, with possible exception of active electronics such as pedestals, amplifiers and power supplies underground in areas where all existing utilities are located, consistent with generally applicable County requirements. The County shall assure that in new construction areas, franchisee is afforded opportunity to make arrangements with developers to utilize a joint trench with other utilities when installing its facilities.

(2)

In the event that above ground utilities are relocated underground by a utility, the franchisee must relocate its facilities underground at the same time and at its own expense, consistent with general County requirements.

(e)

Underground Field Location. Any franchisee that places facilities underground shall comply with California Government Code section 4216. Upon request by the County, the franchisee shall identify the location of its facilities to the County at no cost to the County.

(f)

Relocation, Disconnection, or Removal.

(1)

Franchisee shall at its own expense and upon reasonable advance written notice, which in no event shall be less than ten (10) business days, temporarily disconnect, relocate or remove its facilities as specified by the County to permit public work. In the event of an emergency, the County may relocate, disconnect, or remove franchisee's facilities without notice and charge the franchisee for expenses incurred to permit public work.

(2)

To accommodate construction, repair or operation of facilities of other persons authorized to use public right-of-way, upon written notice the franchisee shall temporarily relocate, disconnect, or remove its facility

and be reimbursed by the person making such request. The Administrator may resolve any dispute arising about the cost of such work.

(g)

Abandonment. A franchisee may abandon any facility located in public-rights-of way upon written notice to and approval by the County. Notice shall include a map including street names, the size and description of the facilities and the exact location of the facilities. If a franchisee discontinues use of any facility within the public right-of-way for a continuous period of twelve (12) months, the facilities may be considered abandoned. If the County determines such abandonment represents an adverse affect on the public right- of-way, the County can order removal of such facilities by a specified time or may arrange for the removal by a third party, the expense of which will be borne by the franchisee. The County may also require that the ownership of such facilities be transferred to the County at no cost to the County.

(h)

Repair of Public Right-of Way. Any public right-of-way or public property disturbed or damaged during any construction, operation, repair, maintenance, relocation of franchisee's facilities by the franchisee or its contractors shall be promptly repaired and restored to the satisfaction to the County or to a condition as good or better than before the disturbance or damage occurred. All work in the public right-of way shall be in compliance with the conditions of the permit issued by the County and shall be subject to inspection and approval by the County.

(i)

Interconnection. Upon written request by the County, franchisee shall initiate negotiations with franchisees of adjacent systems within Orange County to determine the feasibility of interconnecting the franchisee's systems to permit the carriage of programming of public, educational and governmental access channels on the facilities of more than one (1) franchisee. The franchisee shall report to the County the results of such negotiations no later than sixty (60) days after the receipt of the County's request. Franchisee shall cooperate with County personnel or any consultant hired by the County to determine the feasibility of system interconnection. Interconnection shall not be required if the franchisee and the owners of adjacent systems determine the cost of the interconnection would cause an unreasonable or unacceptable increase in subscriber rates or such interconnection is not technically feasible.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Compliance. The cable or open video system within the franchise service area shall at all time meet or exceed FCC technical standards or any other applicable law. Franchisee is to perform tests required by the FCC to assure compliance with applicable standards and are to take prompt action to achieve compliance in the event standards are not met. Retesting shall be performed after corrective action is taken to assure compliance has been achieved.

(b)

Preventative Maintenance Program. Franchisee shall implement a preventative maintenance program to ensure that there is no degradation of the cable or open video system, which would affect the health, or safety of residents or result in a degradation of the quality of services. Procedures followed by the franchisee in performing such maintenance shall be made available to the County upon request.

(c)

Systems Tests. Franchisee shall perform all systems tests as required by the FCC and shall make the results of these tests available to the County upon request. Franchisee shall also cooperate with County if County hires a third party to provide technical assistance to the County to perform system tests on the franchisee's system. Such testing shall be at the County's expense unless material, substantial non- compliance with technical and performance standards is confirmed. In the event of such material, substantial non-compliance upon initial testing or upon retesting, franchisee shall reimburse the County reasonable expenses incurred by the County. Such payment to the County by franchisee shall not be credited against franchise fees owed the County or passed on to Subscribers.

(d)

Penalties. Failure to meet FCC technical standards may result in the County imposing a requirement that the franchisee rebate each subscriber a pro rata share of subscriber's monthly fee for the period the signal falls below the FCC technical standards. Repeated and verified failure to maintain FCC technical and performance standards may constitute a material breach of the franchise agreement. Franchisee may be subject to penalties as further described in section 5-6-125(c) of this division if FCC technical standards or standards of other applicable law are not met.

(e)

Service interruptions or disruptions. Franchisee shall provide rebates to subscribers, upon subscriber's request, for service interruptions or disruptions except for acts of God, or other acts beyond the control of the franchisee as follows:

(1)

A pro rata rebate of monthly fees shall be issued to subscribers for any one (1) hour to eight (8) hours for each day during the month that a service interruption or disruption occurred;

(2)

Ten (10) percent of monthly fees shall be issued to subscribers for any eight (8) or more consecutive hours to for a total of twenty-four (24) to forty-eight (48) hours during the month that a service interruption or disruption occurred; and

(3)

Twenty (20) percent of monthly fees shall be issued to all Subscribers, whether or not a refund was requested, for any period in excessive of forty-eight (48) or more total hours during the month that a service interruption or disruption occurred.

Franchisee shall interrupt service only for good cause and for the shortest period of time feasible. Routine testing and planned maintenance shall be performed during times franchisee determines shall be the lowest usage of the system.

Franchisee shall promptly begin work to correct any unplanned service interruption. Nothing in this section is to preclude the franchisee from issuing credits on a voluntary basis in the amount to be determined by the franchisee under any circumstances.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Notice of Violation. In the event of Administrator's determination of franchisee's failure to comply with any term of this division, the franchise agreement or applicable law, County shall provide the franchisee written notice of the alleged violation or breach of the franchise agreement and the County's proposed penalties as listed in (c) below. This section may also apply to any franchisee who 1) willfully refuses to provide the County with information necessary to determine franchisee's compliance with the provisions of this division or the franchise agreement or 2) willfully provides incorrect information necessary to demonstrate that an applicable violation has not has not occurred. The franchisee shall be allowed thirty (30) days from the receipt of the notice to: 1) remedy the alleged violation; 2) in the event that, by the nature of the alleged violation, it can not be cured within the 30-day period, initiate reasonable steps to remedy such violation and notify the Administrator of the steps being taken and the projected date that they will be completed: or 3) appeal the Administrator's determination and the proposed penalty in writing. If franchisee takes no action, as described in this section, the Administrator's decision will become final.

(b)

Appeal Process.

(1)

Upon receipt to a written appeal, the Administrator will provide a minimum of thirty (30) days advance written notice to the franchisee of the time and date of an administrative hearing at which time the franchisee can present evidence to a hearing officer.

(2)

At the administrative hearing, the franchisee shall be provided a fair opportunity for full participation, and to introduce relevant evidence. A complete verbatim record or transcript shall be made of such hearing.

(3)

The Hearing Officer shall issue a written decision on the findings and remedies ordered. If a payment to the County is imposed the franchisee shall make payment within thirty (30) days of the date of the invoice from the County. If payment is not made by the due date, the invoice will be referred to collections and interest will be assessed at the same rate as set forth for late payment or underpayment of franchise fees as set forth in section 5-6-115(c) of this division.

(4)

In the event the franchisee does not comply, the franchisee and County may pursue any other remedy available under applicable law.

(c)

Penalties. Any one (1) or a combination of the following penalties may apply:

(1)

Order payment to the County as follows:

a.

For the first occurrence in a 12-month period, a minimum of two hundred dollars ($200.00) each day or each occurrence of the breach not to exceed six hundred dollars ($600.00);

b.

For the second occurrence in a 12-month period, a minimum of four hundred dollars ($400.00) each day or each occurrence of the breach not to exceed one thousand two hundred dollars ($1,200.00);

c.

For the third occurrence in a 12-month period, a minimum of one thousand dollars ($1,000.00) each day or each occurrence of the breach not to exceed three thousand dollars ($3,000.00);

(2)

Order to rebate or credit subscribers;

(3)

Order franchisee to correct or remedy the violation within a stated timeframe; and/or

(4)

Recommend that the Board revoke the franchise.

(Ord. No. 02-009, § 1, 11-19-02)

The Board shall have the power to revoke a franchise in the event that the franchisee:

(1)

Fails to perform the material obligations of this division and the franchise; or

(2)

Is convicted of defrauding the County or subscribers.

The franchisee shall be provided thirty (30) days written notice and opportunity to cure. Thereafter, in the event franchisee fails to cure or initiate a cure, franchisee shall be provided thirty (30) days written notice of a Public Hearing at which the Board will consider revocation. In the event of revocation, the franchisee shall have thirty (30) days to conclude all operations unless the Board grants additional time. Nothing herein precludes the Board from providing franchisee a minimum of thirty (30) days to seek remedies to resolve that reason for the proposed revocation. An opportunity to cure may not be afforded franchisee in the event franchisee fails to provide services, transfers the franchise without the County's consent, repeats violations or does not cure violations based on prior notices and procedures set forth in section 5-6-125 of this division. Franchisee shall have the right to appeal any such decision to a court of competent jurisdiction as long as such appeal shall be made within sixty (60) days of franchisee's receipt of written notice of the determination of the Board.

(Ord. No. 02-009, § 1, 11-19-02)

In the event the franchisee does not request the renewal of a franchise for which the term has expired, the franchise may be terminated. The Board shall make a determination of such termination.

(Ord. No. 02-009, § 1, 11-19-02)

(a)

Upon revocation or termination of a franchise, the County may acquire ownership or effect a transfer of the facilities, or any portion thereof, for which the franchisee shall be compensated, consistent with applicable law.

(b)

Upon written notice of the County's intent to purchase the facilities, franchisee shall execute all appropriate documents to transfer title to the County and shall assign all other contracts, leases, licenses, permits, franchises, and other rights necessary to maintain continuity of service to the subscriber. Franchisee shall cooperate with the County, or with other personnel authorized or directed by the County to operate the facilities for a reasonable interim period while transfer of the system is being arranged. The net earnings or losses during this period are the responsibility of the County and the franchisee shall maintain such accounting records as are necessary to report such earnings or losses. These records are subject to audit by the Auditor-Controller of the County or their designee. County's right to purchase the facilities shall not be construed as a waiver of any other rights the County or franchisee may have.

(Ord. No. 02-009, § 1, 11-19-02)

If any section, subsection, paragraph, sentence, clause, word or this division is for any reason determined to be invalid, unconstitutional or unenforceable, the remaining portions of this division shall continue in full

force and effect.

(Ord. No. 02-009, § 1, 11-19-02)