Chapter 13.82 — FRANCHISE REGULATIONS FOR VIDEO SERVICE PROVIDERS WITH A CITY FRANCHISE

The City Council is empowered to grant by resolution, consistent with the requirements of the Federal Communications Commission, a non-exclusive franchise to any qualified person, firm or corporation to operate a cable television system within the City limits. No provision of this article may be deemed or construed as to require the granting of a franchise when in the opinion of the City Council it is in the public interest to restrict the number of grantees to one or more, or to refrain from granting any franchise in all or any portion of the City. (Prior code 6802; Ord. 32-79; Ord. 23-95)

In the event that the City shall grant a franchise to construct, operate, maintain and reconstruct a cable system, the franchise shall constitute both a right and an obligation to provide the services as required by the provisions of this article and the franchise agreement. (Prior code 6803; Ord. 32-79; Ord. 23-95)

• A. An original application for franchise shall be in writing, shall be filed with the City Clerk, and shall contain, but not be limited to, the following information:

  1. The name and address of the applicant. If the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application shall also state the names and addresses of its directors, main officers, major stockholders and associates, and the names and addresses of parent and subsidiary companies and the state of incorporation.

  2. A statement and description of the cable system proposed by the applicant, its proposed location and various components, the manner in which it will be constructed, installed, maintained and operated and the extent and manner in which existing or future poles or other facilities of other public utilities will be used for the cable system.

  3. A detailed description of the public streets, public places within which applicant proposes to construct, install or maintain any cable system equipment or facilities and a detailed description of the equipment or facilities proposed to be constructed, installed or maintained and their location.

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

  5. A statement or schedule of proposed rates and charges to subscribers for installation and services, and a copy of proposed service agreement between the grantee and its subscribers.

  6. A copy of all existing contracts between the applicant and any public utility providing

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City of Orange, CA § 13.82.030

ORANGE CODE

§ 13.82.050

for the use of any facilities of the public utility.

7. A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any person, firm or corporation with respect to the proposed franchise or the proposed cable system operation. If a franchise is granted to a person, firm or corporation posing as a front for the applicant and such information is not disclosed in the original application, such franchise shall be void and of no force and effect.

8. A financial statement prepared by a certified public accountant, showing applicant's financial status and his or her financial ability to complete the construction and installation of the proposed cable system.

9. A statement as to when construction of the cable system will begin.

10. A statement indicating where other cable system franchises are held and how many existing subscribers are serviced.

11. A statement of intent with regard to program origination and acceptance of local advertising.

12. The number and identification of channels proposed to be carried on the cable system.

13. A proposed subscriber complaint processing and equipment repair procedure.

14. A proposed "proof of performance" description, listing tests to be performed and equipment utilized.

• B. Upon consideration of an application, the City Council may refuse to grant a franchise or the City Council may by resolution grant a franchise to any such applicant as may appear from the application to be in its opinion best qualified to render proper and efficient cable service to subscribers.

The City Council's decision in the matter shall be final. If accepted, the application shall constitute and form part of the franchise granted.

• C. The City may at any time demand, and the applicant shall provide, such supplementary, additional or other information as the City may deem reasonably necessary to determine whether the requested franchise should be granted.

• D. Any franchise granted pursuant to this article shall be used and operated solely and exclusively for the purpose expressly authorized by City ordinance and for no other purpose. This shall not be deemed to limit the authority of the City to include any other reasonable condition, limitation or restriction which it may deem necessary to impose pursuant to the authority conferred by this article.

(Prior code 6824; Ord. 32-79; Ord. 23-95)

Each application shall be accompanied by an application fee in the sum of $2,500.00 which shall be used by the City to cover the costs of reviewing, investigating and processing such an application. This fee is not refundable.

(Prior code 6825; Ord. 32-79; Ord. 23-95)

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City of Orange, CA

PUBLIC UTILITIES

§ 13.82.050

§ 13.82.080

The franchise granted herein is non-exclusive. The City specifically reserves the right to grant, at any time, such additional franchises for a cable television system as it deems appropriate. Any new or renewed franchise shall contain terms and conditions which are similar to the terms and conditions of any existing grantee.

(Prior code 6805; Ord. 32-79; Ord. 23-95)

Any franchise granted pursuant to the provisions of this article shall authorize and permit the grantee to engage in the business of operating and providing a cable system in the City, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public street, such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the cable system; and in addition, so to use, operate, and provide similar facilities or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other grantee franchised or permitted to do business in the City.

(Prior code 6804; Ord. 32-79; Ord. 23-95)

No franchise granted by the City Council under this article shall be for a term longer than 15 years following the date of acceptance of such franchise by the grantee or the renewal thereof. Any such franchise shall terminate in whole or proportionately if City acquires the cable system property of the grantee or a portion thereof.

(Prior code 6806; Ord. 32-79; Ord. 23-95)

• A. As compensation for the franchise to be granted and in consideration of permission to use the streets and public ways of the City for the construction, operation, maintenance, and reconstruction, of a cable television system, the grantee shall pay to the City an annual amount equal to five percent of the grantee's gross annual revenue. Such payments will be made to the City Treasurer.

• B. Payments due the City under this provision shall be computed quarterly, for the preceding quarter, as of March 31st, June 30th, September 30th and December 31st. Each quarterly payment shall be due and payable no later than 60 days after the dates listed in the previous sentence. Each payment shall be accompanied by a brief report showing the basis for the computation and such other relevant facts as may be required by the City.

• C. The City shall have the right to inspect the grantee's records showing the gross receipts from which its franchise payments are computed and the right of audit and recomputation of any and all amounts paid under this article. No acceptance of any payments shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under this article or for the performance of any other obligation hereunder.

• D. In the event that the above payment is not received by the City within the specified time,

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City of Orange, CA § 13.82.080

ORANGE CODE

§ 13.82.110

grantee shall pay to the City as penalty and interest at the rate of two percent per month on the unpaid balance.

• E. The grantee shall file with the City, within 90 days after the expiration of any fiscal year of the franchise or portion thereof during which such franchise is in force, a financial statement prepared by a certified public accountant, or a certified financial statement prepared by an appropriate grantee financial officer, showing in detail the gross annual revenue of grantee during the preceding fiscal year or portion thereof. It shall be the duty of the grantee to pay to the City, within 10 days after the time for filing such statements any unpaid balance due and owing.

• F. In the event that federal regulatory authorities or the courts, in the future, permit a higher franchise fee on total gross annual revenues of the cable system than the five percent limit now in effect, a higher franchise fee may be imposed by resolution of the City Council.

• (Prior code 6807; Ord. 32-79; Ord. 23-95)

• A. Any franchise shall be a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without the prior consent of the City Council expressed by resolution, after receipt of any proposed contractual documents, including the consideration, and then only under such conditions as may in the resolution be prescribed. Any such transfer or assignment shall be made only by an instrument in writing, a duly executed copy of which shall be filed in the office of the City Clerk within 30 days after any such transfer or assignment. The consent of the City Council may not be arbitrarily refused. However, the proposed assignee must show financial responsibility and must agree to comply with all provisions of this article and of the franchise. A request for Council consent must be accompanied with a fee of $500.00 to assist in defraying City investigation expenses.

• B. Prior approval of the City Council shall be required when ownership or control of more than 30% of the right of control of grantee is acquired by a person or group of persons acting in concert, none of whom already own or control 30% or more of such right of control, singularly or collectively and as may otherwise be set forth in the franchise agreement. By its acceptance of this franchise, the grantee specifically grants and agrees that any such acquisition occurring without prior approval of the City Council shall constitute a material violation of this franchise by the grantee.

• (Prior code 6840; Ord. 32-79; Ord. 23-95)

Any franchise issued pursuant to this article may be renewed if such renewal is submitted in compliance with the Cable Act and applicable FCC regulations or as otherwise agreed by the City and grantee.

(Prior code 6827; Ord. 32-79; Ord. 23-95)

• A. Any franchise issued hereunder may, after grantee has been provided due notice and a reasonable opportunity to correct, be revoked, altered or suspended by the City Council

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City of Orange, CA

PUBLIC UTILITIES

§ 13.82.110

§ 13.82.110

after a public hearing, on any of the following grounds:

1. For willful, false or misleading statements in, or material omission from, any application;

2. For failure to file and maintain the bond, security or insurance, or pay franchise fees required under this article;

3. For repeated failure, as determined by the City Council, to maintain signal quality in accordance with this article and FCC standards;

4. For any sale, lease, assignment, or transfer of control of its franchise without consent of the City Council;

5. For violation of material terms of this article or material terms of a franchise agreement issued pursuant to this article such as, but not limited to, any unreasonable delay in beginning construction or in meeting the construction schedule, or unreasonable delay in offering cable system service;

6. If the grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt or all or part of grantee's facilities should be sold under an instrument to secure a debt and are not redeemed by grantee within 30 days from the sale;

7. If the grantee attempts to or practices any fraud or deceit in its conduct or relations under the franchise;

8. If the grantee fails to receive or to obtain all necessary pole right agreements for any reason within one year after the effective date of the franchise due to its own lack of diligence and effort;

9. If the grantee fails to meet any conditions established in a franchise agreement or if the grantee fails to perform as required in areas designated as grounds for revocation in the franchise agreement.

• B. Upon determination by the City Manager that one or more of the above grounds for revocation, alteration or suspension of the franchise exists, the City shall notify the grantee of that determination and shall state the major causes and reasons supporting the determination. The grantee shall be granted 10 working days to respond to the notification statement. The City shall consider the response of the grantee, if any, and may terminate, postpone for a period, or proceed with the revocation, alteration or suspension process. If the City proceeds with the revocation, alteration or suspension process, or reactivates a postponed proceeding, a statement of revocation, alteration or suspension shall be written stating the principal reasons for such action and a copy of the statement shall be sent by registered mail to the grantee at his or her principal place of business within the City. This statement and a notice of public hearing shall be published in a newspaper of general circulation, and a public hearing shall be scheduled 30 days after publication. The City Council shall take final action on the revocation, alteration or suspension of the franchise after completion of the public hearing.

• C. No such revocation shall be effective unless or until the City Council shall have adopted a resolution setting forth the cause and reasons for the revocation and the effective date thereof. In the event the revocation depends upon a finding of fact, such finding of fact as made by the City Manager or other designated City official and as approved by the City

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City of Orange, CA § 13.82.110

ORANGE CODE

§ 13.82.140

Council, shall be stated in such resolution.

• D. Upon revocation of a franchise, the City may by resolution declare a forfeiture, whereupon all of grantee's rights shall immediately be divested without a further act upon the part of the City. The grantee shall forthwith remove its structures or property from the streets and restore the streets to such condition as the City may require and upon failure to do so, the City may perform the work and collect the cost thereof from the grantee.

• (Prior code 6849; Ord. 32-79; Ord. 23-95)

• A. No privilege or exemption shall be granted or conferred by any franchise granted under this article except those specifically prescribed herein.

• B. Any privilege claimed under any franchise by the grantee in any public street or other public property shall be subordinate to any prior or subsequent lawful occupancy or use thereof by the City or any other governmental entity, shall be subordinate to any prior lawful occupancy or use thereof by any other person, and shall be subordinate to any easements created prior to the granting of any franchise hereunder.

• C. Time shall be of the essence of any such franchise granted. The grantee shall not be relieved of its obligation to comply promptly with any of the provisions of this article or by any failure of the City to enforce prompt compliance.

• D. The grantee shall be subject to all requirements of City ordinance, rules, regulations and specifications heretofore or hereafter enacted or established.

• E. Any franchise shall be in lieu of any and all other rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by grantee; or any successor to any interest of grantee; of or pertaining to the construction, operation, or maintenance of any cable system in the City. As between grantee and the City, any and all construction, operation and maintenance by any grantee of any cable system in the City shall be, and shall be construed in all instances and respects to be, under and pursuant to the franchise and this article.

• F. The grantee shall comply with all provisions of existing and future local, state and federal rules and regulations.

• G. Any fixtures placed in any public way by the grantee shall be placed in such a manner as not to interfere with the usual travel on such public way.

• (Prior code 6808; Ord. 32-79; Ord. 23-95)

The franchise shall be evidenced by an executed franchise agreement between the City and the grantee. The franchise agreement shall incorporate the terms of this article and the grantee's franchise application. Any conflict between the two shall be specifically resolved in the franchise agreement.

(Prior code 6858; Ord. 32-79; Ord. 23-95)

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City of Orange, CA

PUBLIC UTILITIES

§ 13.82.140

§ 13.82.150

• A. Upon the foreclosure or other judicial sale of all or a substantial part of the cable system, or upon the termination of any lease covering all or a substantial part of the cable system, the grantee shall notify the City Clerk of such fact, and such notification shall be treated as a notification that a change in control of the grantee has taken place and the provisions of this article governing the consent of the City Council to such change in control of the grantee shall apply.

• B. The City shall have the right to revoke the franchise 120 days after the appointment of a receiver or trustee to take over and conduct the business of the grantee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of the 120 days, or unless:

  1. Within 120 days after election or appointment, such receiver or trustee shall have fully complied with all the provisions of the franchise and remedied all defaults thereunder; and

2. Such receiver or trustee, within the 120 days, shall have executed an agreement, duly approved by the court of competent jurisdiction, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of the franchise.

(Prior code 6850; Ord. 32-79; Ord. 23-95)

• A. No franchise shall become effective until the resolution granting same has become effective and, until all things required by this article are done and completed, all of such things being declared to be conditions precedent to the effectiveness of any such franchise. In the event any of such things are not completed in the time and manner required, the City Council may declare the franchise null and void.

• B. Within 20 days after the effective date of the resolution awarding a franchise, or within such extended period of time as the City Manager may authorize, the grantee shall file with the City Clerk its written acceptance of the franchise, together with all bonds and insurance policies required by this article, together with its agreement to be bound by and to comply with and to do all things required by the provisions of this article and the franchise. Such acceptance and agreement shall be acknowledged by the grantee before a notary public, and shall be in a form and content satisfactory to and approved by the City Attorney.

• (Prior code 6830; Ord. 32-79; Ord. 23-95)

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City of Orange, CA

PUBLIC UTILITIES

§ 13.84.010

§ 13.84.060