Pacifica Municipal Code Art. 6 Miscellaneous Provisions

(a) A franchise granted to provide service within the City shall authorize and permit the grantee to solicit, sell, distribute, and make a charge to subscribers within the City for connection to the cable television system of the grantee and shall also authorize and permit the grantee to traverse any portion of the City in order to provide service.

(b) A franchise, easement, license, or other permit granted to anyone other than the grantee to traverse any portion of the City in order to provide service shall not authorize nor permit such person to solicit, sell, distribute, or make any charge to subscribers within the City, nor to render any service or connect any subscriber within the City to the cable television system of the grantee.

(c) The grantee shall be subject to all the provisions of the other laws, rules, regulations, and specifications of the City heretofore or hereafter adopted pursuant to the valid exercise of the police powers, including, but not limited to, those pertaining to works and activities in, on, over, under, and about streets and other public throughways or infrastructures, all zoning and land use laws, building, electrical, mechanical, and plumbing Codes, business license laws, and laws of general applicability.

The grantee also shall be subject to the provisions of the general laws of the State, or as hereafter amended, when applicable to the exercise of any privilege contained in any franchise granted pursuant to this chapter, including, but not limited to, those pertaining to works and activities in and about State highways.

(d) The grantee shall be prohibited from directly or indirectly engaging in the business of selling at retail, leasing, renting, repairing, or servicing of television sets or radios. The provisions of this subsection shall not be construed to prohibit the grantee from making a charge to subscribers for the connection of video tape recorders or equipment for a comparable purpose to the grantee's cable television system.

(e) When not otherwise prescribed in this chapter, all matters required by this chapter to be filed with the City shall be filed with the City Clerk.

(f) No person, firm, or corporation within the service area of the grantee, and where trunk lines are in place, shall be refused service; provided, however, the grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or service charge or, in the case of the reconnection of the same subscriber, who has not paid all past outstanding charges, or to any residence where the provision of service would be technically impossible,

(g) The grantee's contracts with subscribers shall be consistent with the requirements of this chapter and the franchise agreement and shall include such information as required by any provision of this chapter and the franchise agreement.

(§ 2, Ord. 461-86 eff. May 14, 1986)

(a) As used in this section, "valid authorization" shall mean written approval from the subscriber for a period of time not to exceed one year.

(b) Each grantee shall strictly observe and protect the right of privacy and of property of subscribers and users at all times. Information on individual subscribers, individual subscriber preferences of any kind, viewing habits, political, social, or economic philosophies, beliefs, creeds, or religions, or names, addresses, or telephone numbers shall not be revealed to any person, mailing service, investigating agency, department, company, or other agency or entity, unless upon the authority of a court of law or upon the prior written permission of the subscriber. The request or permission shall be separately signed or initialed and contain a prominent statement that the subscriber is authorizing the permission in full knowledge of its provision. Such authorization shall not in any event be required as a condition of receiving service.

(c) A grantee may release the number of its subscribers but only as a total number and as a percentage of the potential subscribers throughout the City. When indicating the number of subscribers viewing a particular channel at a particular time, the grantee shall indicate only the aggregate numbers of subscribers viewing during the relevant time and the percentage of subscribers which they represent, but never the identity of a particular subscriber.

(d) A grantee may maintain such information as is necessary to bill subscribers for the purchase of any system service.

(e) A subscriber at any time may revoke any authorization previously made by delivering to the grantee in writing, by mail or otherwise, his or her decision to so revoke. Any such revocation shall be effective upon receipt by the grantee.

(f) No monitoring of any subscriber terminal shall take place without specific prior valid authorization by the user of the terminal in question; provided, however, the grantee may conduct system-wide or individually addressed "sweeps" for the purposes of billing, verifying system integrity, and ensuring signal quality. A grantee shall not initiate a subscriber response mechanism without a finding by the City Manager that the system can operate effectively and yet give protection against any invasion of privacy.

(g) A grantee shall not tabulate any test result, nor permit the use of the system for such tabulation, which would reveal the commercial product preferences or opinions of individual subscribers, members of their families or their invitees, licensees, or employees without the prior valid authorization of the subscriber.

(h) Each compilation, publication, tabulation, or other dissemination of each piece of information made or permitted to be made in violation of this section shall be considered a separate violation.

(i) A grantee shall comply with the subscriber privacy provisions of Section 631 of the Cable Act.

(§ 2, Ord. 461-86, eff. May 14, 1986)

To provide for changes in the state of the art of cable communications, to facilitate renewal procedures, to promote the maximum degree of flexibility in the cable system, and to provide on a continuing basis an advanced, modern system, the grantor and the grantee shall comply with the following system and services review provisions:

(a) At the grantor's or grantee's option, the grantor and grantee may hold a system and services review session on or about the third anniversary date of the franchise agreement. Subsequent system review sessions may be scheduled by the grantor each two (2) years thereafter. The first such review session, held on or about the third anniversary, shall be limited to considering issues arising out of the construction or rebuilding of a system. The grantor may require the grantee to provide a report on specified issues related to the construction or rebuilding of the system.

(b) Sixty (60) days prior to any subsequent scheduled system and services review session, the grantor may request that the grantee submit a report to the grantor indicating the following:

(1) A survey of cable system services which are being provided on an operational basis, excluding tests and demonstrations, to cities in the State of similar size and complexity;

(2) A plan for the provision of those services not provided the grantee or an explanation indicating why such services are not feasible for the franchise area; and

(3) Any other information provided the grantor can demonstrate the relevance of such information to issues to be discussed at the review session.

(c) Topics for discussion and review at the system and services review sessions shall include, but shall not be limited to, services provided, line extensions, technical standards, channel capacity, application of new technologies, the metering and supply of utility services, system performance, programming (including access opportunities), subscriber complaints, user complaints, rights of privacy, amendments to the franchise, undergrounding processes, and developments in the law.

(d) Either the grantor or the grantee may select additional topics for discussion at any review session,

(e) Not later than sixty (60) days after the conclusion of each system services review session, the grantor shall issue findings, including specifically a listing of any cable services not then being provided that the grantor establishes are technically and economically feasible. The grantor may request the grantee to provide such services within a reasonable time, under reasonable terms and conditions. Unreasonable failure to provide such requested services may be considered a breach of the franchise subject to arbitration as provided in Section 7-1.604. of this article but not subject to the liquidated damage provisions contained in Section 7-1.303 of Article 3 of this chapter.

(§ 2, Ord. 461-86, eff. May 14, 1986)

(a) Arbitration. A dispute as to any decision arising out of the effect or interpretation of the sections set forth in subsection (b) of this section shall be appealed to arbitration. Judicial relief may not be sought until a final written decision has been rendered by the arbitration panel as set forth in subsection (g) of this section,

(b) Matters arbitrable. Any dispute shall be arbitrable which rises out of decisions of the grantor rendered pursuant to the following sections of this chapter:

(1) Subsection (b) of Section 7-1.303 of Article 3: the amount or length of liquidated damages, penalties, or sanctions; and

(2) Subsection (e) of Section 7-1.603 of Article 6: requests rising out of systems reviews.

(c) Procedure. Arbitration proceedings shall be conducted in compliance with the California Arbitration Act, Sections 1280 et seq. of the Code of Civil Procedure of the State, except as otherwise provided in this section.

(d) Arbitration panel. Each arbitration shall be conducted by a panel of three (3) arbitrators. One arbitrator shall be appointed by the grantee, one arbitrator shall be appointed by the grantor, and the third arbitrator shall be the chairperson of the panel and shall be appointed by the other two (2) arbitrators. If the other two (2) arbitrators are unable to agree upon an appointment, the third arbitrator shall be appointed by the Presiding Judge of the Superior Court of the County. No member of the panel shall be an officer, employee, or attorney of the grantee, any affiliate thereof, or the City.

The grantee and grantor shall each appoint its arbitrator and mail notice to the other of its selection not later than fifteen (15) calendar days following the filing of a notice of appeal to arbitration or mailing of the initiation of arbitration. The third arbitrator shall be appointed not later than thirty (30) calendar days following the filing of the notice of appeal to arbitration or mailing of the initiation of arbitration.

(e) Arbitration hearings. The chairperson of the arbitration panel shall select the site of the hearing, retain a stenographic reporter to report the hearing, and, in consultation with the other members of the panel and the parties, schedule the hearing. The hearing shall be scheduled to commence not later than ninety (90) calendar days following the filing of the notice of appeal to arbitration or mailing of the initiation of arbitration. The chairperson of the panel shall mail written notice of the time, date, and place of the hearing to the other two (2) arbitrators, legal counsel to the grantor, the grantee, and the grantee's surety on the performance bond not later than twenty (20) calendar days in advance of the hearing.

(f) Arbitration costs. The compensation and expenses of the arbitrator appointed by the grantee shall be borne and paid solely by the grantee. The compensation and expenses of the arbitrator appointed by the grantor shall be borne and paid solely by the grantor. The grantee and grantor shall each bear and solely pay their own costs of attorneys' fees, expert and other witness fees, and other expenses incurred in preparing and prosecuting their respective cases. In proceedings where the record of a public hearing of the grantor is to be considered by the arbitration panel, the costs of transcribing, typing, and copying the record shall be borne and paid solely by the grantee.

The compensation and expenses of the chairperson of the arbitration panel, rental, if any, for the place of the hearing, per diem costs of the stenographic reporter, costs of transcribing and typing any transcript of the arbitration hearing, and any other cost of the arbitration proceeding not identified in the first paragraph of this subsection shall be divided equally between, borne, and paid by the grantee and grantor. The arbitration panel shall not be empowered to order a division of costs, fees, or expenses different from that prescribed by this section,

(g) Arbitration awards. The arbitration award shall be determined by a majority of the members of the arbitration panel and shall be in writing. If it is necessary for the panel to make determinations of fact, the panel shall include findings of fact and conclusions with the award if requested by any party to the proceeding. The award shall be issued and mailed to the parties not later than ninety (90) calendar days following the close of the arbitration hearing.

(h) Limitations of powers. The arbitration panel shall have no authority to add to, delete, or alter any provision of this chapter, the agreement, request for proposals, or the proposal submitted by the grantee, but shall limit its interpretation to the express terms of this chapter, agreements, if any, or the application submitted by the grantee. Under no circumstance shall an arbitration panel be vested with authority or jurisdiction to determine or award monetary damages (by way of setoff or counterclaim, directly or otherwise) or any other relief against the grantor or its officers, agents, or employees.

(§ 2, Ord. 461-86, eff. May 14, 1986)

(a) Any provision of this chapter may be waived, at the sole discretion of the City, by resolution of the Council.

(b) The grantee may submit a request for a waiver to the Council at any time during the franchise term. Such request for a waiver shall be set for a public hearing and acted upon within 180 days following the submission.

(c) The Council may authorize the economic, technical, or legal evaluation of such waiver request, and the grantee shall be required to reimburse the City for any expenditure incurred by the City in connection with such evaluation.

(§ 2, Ord. 461-86, eff. May 14, 1986)

The grantee shall not be deemed in violation of this chapter or the franchise for the delay in performance or failure to perform in whole or in part its obligations under this chapter or the franchise due to a labor dispute, material shortage, war or act of war (whether an actual declaration of war is made or not), insurrection, riot, act of the public enemy, accident, fire, flood, or other act of God or by other events to the extent that such events are caused by circumstances beyond the grantee's control.

(§ 2, Ord. 461-86, eff. May 14, 1986)