Chapter 18.04 — CABLE TELEVISION SYSTEMS

A.

In accordance with applicable federal and state law, the city is authorized to grant one or more nonexclusive franchises to construct, reconstruct, operate, and maintain cable television systems within the city limits.

B.

The city council finds that the development of cable television and related telecommunications services may provide significant benefits for, and substantial impacts upon, the residents of the city. Because of the complex and rapidly changing technology associated with cable television, the city council further finds that the public convenience, safety, and general welfare can best be served by establishing regulatory powers to be exercised by the city. This chapter is intended to specify the means for providing to the public the best possible cable television and related telecommunications services, and every franchise issued in accordance with this chapter is intended to achieve this primary objective. It is the further intent of this chapter to adopt regulatory provisions that will enable the city to regulate cable television and related telecommunications services to the maximum extent authorized by federal and state law.

(Ord. 6827 § 3 (part), 2000)

A.

Franchise Purposes.

A franchise granted by the city under the provisions of this chapter may authorize the grantee to do the following:

To engage in the business of providing cable service and such other telecommunications services as may be authorized by law and which grantee elects to provide to its subscribers within the designated franchise service area;

To erect, install, construct, repair, rebuild, reconstruct, replace, maintain and retain, cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of the cable system in, on, over, under, upon, along and across streets or other public places within the designated franchise service area;

To maintain and operate the franchise properties for the origination, reception, transmission, amplification and distribution of television and radio signals, and for the delivery of cable services and such other services as may be authorized by law.

B.

Franchise Required.

It is unlawful for any person to construct, install or operate a cable television system within any street or public way in the city without first obtaining a franchise under the provisions of this chapter.

The city council finds and determines that certain multichannel video programming distributors and video providers, as those terms are defined in Section 18.10.010 of Chapter 18.10, provide cable service, including video programming, to subscribers within limited geographic areas where multifamily dwelling complexes and congregate-living complexes are located. That cable service, including video programming, is sometimes provided, in whole or in part, by the transmission of signals over wires or lines that are owned or controlled by telecommunications service providers or other public utilities and that are within or cross streets or public ways within the boundaries of a local franchising authority. The multichannel video programming distributor or video provider may obtain from the telecommunications service provider or other public utility, by lease, license or similar contractual arrangement, the right to use those wires or lines in order to provide cable service, including video programming, to subscribers or customers within the multifamily dwelling complexes and congregate-living complexes referenced above. The city council further finds and determines that these contractual arrangements for signal transmission facilitate the provision of cable service, including video programming, and create a nexus between that cable service and the use of the streets and public ways of the city. Consequently, to the maximum extent authorized under California law, it is the intent of the city council to subject multi-channel video programming distributors and video providers that intend to use this signal-transmission methodology to the franchise requirements set forth in this chapter, subject to such waivers and modifications of those requirements as may, in the discretion of the city council or its designee, be warranted in view of the limited geographic area that is proposed to be served.

C.

Term of the Franchise.

A franchise granted under this chapter will be for the term specified in the franchise agreement, commencing upon the effective date of the ordinance or resolution adopted by the city council that authorizes the franchise.

A franchise granted under this chapter may be renewed upon application by the grantee in accordance with the then- applicable provisions of state and federal law and of this chapter.

D.

Franchise Territory.

A franchise is effective within the territorial limits of the city, and within any area added to the city during the term of the franchise, unless otherwise specified in the ordinance or resolution granting the franchise or in the franchise agreement.

E.

Federal or State Jurisdiction.

This chapter will be construed in a manner consistent with all applicable federal and state laws, and it applies to all franchises granted or renewed after the effective date of this chapter, to the extent authorized by applicable law.

F.

Franchise Nontransferable.

grantee may not sell, transfer, lease, assign, sublet or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation, or otherwise, the franchise or any of the rights or privileges therein granted, without the prior consent of the city council and then only upon such terms and conditions as may be prescribed by the city council, which consent may not be unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign, or otherwise dispose of the franchise without the consent of the city council is null and void. The granting of a security interest in any assets of the grantee, or any mortgage or other hypothecation, will not be deemed a transfer for the purposes of this subsection.

The requirements of subsection 1 of this section apply to any change in control of grantee. The word "control" as used herein is not limited to the ownership of major stockholder or partnership interests, but includes actual working control in whatever manner exercised. If grantee is a corporation, prior authorization of the city council is required where ownership or control of more than ten percent (10%) of the voting stock of grantee is acquired by a person or a group of persons acting in concert, none of whom, singularly or collectively, owns or controls the voting stock of the grantee as of the effective date of the franchise.

Grantee must notify the city in writing of any foreclosure or judicial sale of all or a substantial part of the grantee's franchise property, or upon the termination of any lease or other interest covering all or a substantial part of that franchise property. That notification will be considered by the city as notice that a change in control of ownership of the franchise has taken place, and the provisions of this subsection that require the prior consent of the city council to that change in control of ownership will apply.

For the purpose of determining whether it will consent to an acquisition, transfer or change in control, the city may inquire as to the qualifications of the prospective transferee or controlling party, and grantee must assist the city in that inquiry. In seeking the city's consent to any change of ownership or control, grantee or the proposed transferee, or both, must complete Federal Communications Commission Form 394 or its equivalent. This application must be submitted to the city not less than 120 days prior to the proposed date of transfer. The transferee must establish that it possesses the legal, financial, and technical capability to operate and maintain the cable system and to comply with all franchise requirements during the remaining term of the franchise. If the legal, financial and technical qualifications of the applicant are satisfactory, the city will consent to the transfer of the franchise. The consent of the city to that transfer will not be unreasonably denied or delayed.

Any financial institution holding a pledge of the grantee's assets to secure the advance of money for the construction or operation of the franchise property has the right to notify the city that it, or a designee satisfactory to the city, will take control of and operate the cable television system upon grantee's default in its financial obligations. Further, that financial institution must also submit a plan for such operation within 90 days after assuming control. The plan must insure continued service and compliance with all franchise requirements during the period that the financial institution will exercise control over the system. The financial institution may not exercise control over the system for a period exceeding one year unless authorized by the city, in its sole discretion, and during that period of time it will have the right to petition the city to transfer the franchise to another grantee.

Grantee must reimburse the city for the city's reasonable review and processing expenses incurred in connection with any transfer or change in control of the franchise. These expenses include, without limitation, costs of administrative review; financial, legal and technical evaluation of the proposed transferee, consultants (including technical and legal experts and all costs incurred by these experts), notice and publication costs and document preparation expenses. No reimbursement may be offset against any franchise fee payable to the city during the term of the franchise.

G.

Geographical Coverage.

Unless otherwise provided in the franchise agreement, grantee must design, construct and maintain the cable television system so as to have the capability to pass every dwelling unit and commercial building in the city, subject to any service- area line extension requirements of the franchise agreement.

After service has been established by activating trunk or distribution cables for any service area, grantee must provide service to any requesting subscriber in that service area within seven days from the date of request, provided that the grantee is able to secure on reasonable terms and conditions all rights-of-way necessary to extend service to that subscriber within that seven-day period.

H.

Nonexclusive Franchise.

Every franchise granted is nonexclusive. The city specifically reserves the right to grant, at any time, such additional franchises for a cable television system, or any component thereof, as it deems appropriate, subject to applicable state and federal law. If an additional franchise is proposed to be granted to a subsequent grantee, a noticed public hearing must first be held in accordance with the provisions of Government Code 53066.3.

I.

Multiple Franchises.

The city may grant any number of franchises, subject to applicable state and federal law. The city may limit the number of franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations, such as:

a.

The capacity of the public rights-of-way to accommodate multiple cables in addition to the cables, conduits and pipes of the existing utility systems, such as electrical power, telephone, gas and sewerage;

b.

The benefits that may accrue to subscribers as a result of cable system competition, such as lower rates and improved service;

c.

The disadvantages that may result from cable system competition, such as the requirement for multiple pedestals on residents' property, and the disruption arising from numerous excavations within the public rights-of-way.

The city may require that any new grantee be responsible for its own underground trenching and the associated costs if, in the city's opinion, the rights-of-way in any particular area cannot reasonably accommodate additional cables.

(Ord. 6827 § 3 (part), 2000)

A.

Filing of Applications.

Any person desiring an initial franchise for a cable television system must file an application with the city. A reasonable nonrefundable application fee in an amount established by resolution of the city council must accompany the application. That application fee will cover all costs associated with reviewing and processing the application, including without limitation costs of administrative review financial, legal and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by those experts), notice and publication requirements, and document preparation expenses. If those costs exceed the application fee, the applicant must pay the difference to the city within 30 days following receipt of an itemized statement of those costs.

B.

Applications - Contents.

An application for an initial franchise for a cable television system must contain, as applicable:

A statement as to the proposed franchise service area and an explanation as to whether this proposed service area is, or will be, a part of a larger regional cluster of franchise service areas;

A resume of the applicant's prior history, including the experience and expertise of the applicant in the cable television and telecommunications industry;

A list of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each stockholder, if a closely-held corporation. If the applicant is a publicly-owned corporation, each owner of 10 percent or more of the issued and outstanding capital stock must be identified;

A list of officers, directors and managing employees of the applicant, together with a description of the background of each such person;

A statement as to the number of people employed by the applicant, whether on a full-time or part-time basis;

The names and addresses of any parent or subsidiary of the applicant, or any other business entity owning or controlling applicant in whole or in part, or that is owned or controlled in whole or in part by the applicant;

A current financial statement of the applicant verified by a certified public accountant or otherwise certified to be true, complete, and correct to the reasonable satisfaction of the city;

The proposed construction and service schedule;

Any additional information that the city deems to be reasonably necessary.

C.

Consideration of Initial Applications.

Upon receipt of an application for an initial franchise, the city manager or the city manager's designee must prepare a report and make recommendations to the city council concerning that application.

A public hearing will be noticed prior to any initial franchise grant, at a time and date approved by the city council. Within 30 days after the close of the hearing, the city council will make a decision based upon the evidence received at the hearing as to whether the franchise should be granted, and, if granted, subject to what conditions. The city council may grant one or more franchises, or may decline to grant any franchise.

D.

Franchise Renewal.

Franchise renewals will be processed in accordance with then-applicable law. The city and grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the franchise.

(Ord. 6827 § 3 (part), 2000)

A.

The terms and provisions of a franchise agreement for the provision of cable television or related telecommunications services may relate to or include, without limitation, the following subject matters:

The nature, scope, geographical area and duration of the franchise;

The applicable franchise fee to be paid to the city, including the amount, the method of computation and the time for payment;

Requirements relating to compliance with and implementation of state and federal laws and regulations pertaining to the operation of the cable television system;

Requirements relating to the construction, upgrade, or rebuild of the cable television system, as well as the provision of special services, such as outlets for public buildings, emergency alert capability, and parental control devices;

Requirements relating to the maintenance of a performance bond, a security fund, a letter of credit, or similar assurances to secure the performance of the grantee's obligations under the franchise agreement;

Requirements relating to comprehensive liability insurance, workers' compensation insurance and indemnification;

Requirements relating to consumer protection and customer service standards, which requirements may include, without limitation, those set forth in Section 18.04.050 of this chapter;

Requirements relating to the grantee's support of local cable usage, including the provision of public, educational, and governmental access channels, the coverage of public meetings and special events, and financial support for governmental access channels;

Requirements relating to the grantee's obligation to provide an institutional network, and channel capacity on that institutional network for educational or governmental use, subject to the city's rules and procedures for the use of such channel capacity and for compatibility with any telecommunications network that has been or may be developed by the city;

Requirements relating to construction, operation, and maintenance of the cable television system within the public rights-of- way, including compliance with all applicable building codes and permit requirements of the city, the abandonment, removal, or relocation of facilities and compliance with FCC technical standards;

Requirements relating to recordkeeping, accounting procedures, reporting, periodic audits, and performance reviews, and the inspection of grantee's books and records;

Acts or omissions constituting material breaches of or defaults under the franchise agreement, and the applicable penalties or remedies for such breaches or defaults, including fines, penalties, liquidated damages, suspension, revocation and termination;

Requirements relating to the sale, assignment, or other transfer or change in control of the franchise;

The grantee's obligation to maintain continuity of service and to authorize, under certain specified circumstances, the city's operation and management of the cable system;

Such additional requirements, conditions, policies, and procedures as may be mutually agreed upon by the parties to the franchise agreement and that will, in the judgment of city staff and the city council, best serve the public interest and protect the public health, welfare and safety.

B.

If there is any conflict or inconsistency between the provisions of a franchise agreement authorized by the city council and provisions of this chapter, the provisions of the franchise agreement will control.

(Ord. 6827 § 3 (part), 2000)

A.

Applicability.

Unless preempted by paramount federal or state law, or unless otherwise provided in a franchise, license, lease, or similar written agreement with the city, a grantee must maintain the necessary facilities, equipment and personnel to comply with the consumer protection and service standards of this section, which standards apply, without limitation, to all video, voice and data services that are provided by the grantee to its subscribers.

B.

Operational Standards.

The grantee must comply, under normal operating conditions, with the following operational standards and requirements:

a.

Sufficient toll-free telephone line capacity must be available during normal business hours to ensure that telephone calls are answered before the fourth ring. Telephone answer time by a customer service representative, including wait time, may not exceed 30 seconds. Callers who must be transferred may not be required to wait more than 30 seconds before being connected to a service representative.

b.

Under normal operating conditions, a caller must receive a busy signal less than three percent of the time.

c.

Emergency toll-free telephone line capacity must be available on a 24-hour basis, including weekends and holidays. After normal business hours, the telephone calls may be answered by an answering service in accordance with the telephone answering standards set forth in subsections a and b of this section. Calls received after normal business hours must be responded to by a trained company representative on the next business day.

d.

A local business and service or payment office must be located within the franchise service area and must be open during normal business hours at least eight hours daily on weekdays, and at least four hours weekly on evenings or weekends, and adequately staffed with trained customer service representatives to accept subscriber payments and to respond to service requests, inquiries and complaints.

e.

An emergency system maintenance and repair staff must be available that is capable of responding to and repairing major system malfunctions on a 24-hour per day basis.

f.

A trained installation staff must provide service to any subscriber requiring a standard installation within seven business days after receipt of a request, in all areas where trunk and feeder cable have been activated. "Standard installations" are those that are located up to 150 feet from the existing distribution system, unless otherwise defined in the franchise agreement.

g.

All officers, agents, and employees of the grantee, or of its contractors or subcontractors, who, in the normal course of work come into contact with members of the public, or who require entry onto subscribers' premises, must carry a photo- identification card in a form approved by the city. The grantee must account for all identification cards at all times. All vehicles of the grantee or its subcontractors must be clearly identified as vehicles engaged in providing services for the grantee.

h.

In processing a request for installation of service, the grantee may not request more personal-identity information than is necessary to verify the identity of a subscriber. This information may vary depending upon the circumstances, but grantee may not deny service to a potential subscriber if that person fails to provide a driver's license number or a social security number. Service may, however, be denied by grantee if a potential subscriber fails to produce any verifiable personal-identity information after being requested to do so.

i.

The grantee must schedule, within a specified four-hour time period Monday through Saturday (legal holidays excluded), all appointments with subscribers for installation of service, service calls, and other activities at the subscriber's location. The grantee may schedule installation and service calls outside of normal business hours for the convenience of the subscriber. The grantee may not cancel an appointment with a subscriber after the close of business on the business day prior to the scheduled appointment. If a grantee representative is delayed in keeping an appointment with a subscriber and will not be able to honor the scheduled appointment, the subscriber must be contacted prior to the time of the scheduled appointment, and the appointment must be rescheduled, as necessary, at a time that is convenient for the subscriber. The grantee must use its best efforts to contact every customer within two weeks after an installation or repair work is completed to ensure that the customer is satisfied with the work.

j.

Subscribers who have experienced one missed appointment due to the fault of the grantee will receive an installation free of charge if the appointment was for an installation. If an installation was to have been provided free of charge, and for all other appointments, the subscriber will receive one month of the subscribed-to service or service tier, free of charge. Subscribers also will be entitled to receive a free installation, or one-month free service, as provided above, if the grantee fails to complete a standard installation within seven days of receiving an installation request due to its fault, its failure to schedule an appointment within a specified four-hour time period, or its failure to notify the subscriber that the grantee's representative will be late for an appointment. Subscribers who have experienced two missed appointments due to the fault of the grantee will receive two months of the subscribed-to service or service tier, free of charge, in addition to the free installation or free month of service provided for the first missed appointment.

k.

Upon a subscriber's request, the grantee will arrange for pickup or replacement of converters or other equipment provided by the grantee at the subscriber's address within 14 days after the request is made if the subscriber is mobility-limited.

The standards of subsections a and c of this section must be met not less than 90 percent of the time, measured on a quarterly basis.

C.

Service Standards.

The grantee will render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Except in emergency situations, scheduled interruptions will occur during a period of minimum use of the cable system, preferably between midnight and 6:00 a.m. Unless the scheduled interruption lasts for no more than two hours and occurs between midnight and 6:00 a.m. (in which event 24-hours prior notice must be given to the city), 48 hours prior notice must be given to subscribers.

The grantee will maintain a repair force of technicians who will respond to subscriber requests for service within the following time frames:

a.

For a System Outage. Within two hours, including weekends, of receiving subscriber calls or requests for service that by number identify a system outage of sound or picture of one or more channels, affecting five or more subscribers of the system;

b.

For an Isolated Outage. Within 24 hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one or more channels;

c.

For Inferior Signal Quality. No later than the following business day, excluding Sundays and holidays, after a request for service identifying a problem concerning picture or sound quality.

The grantee will be deemed to have responded to a request for service under the provisions of subsection B of this section when a technician arrives at the service location and begins work on the problem. If a subscriber is not home when the technician arrives, the technician must leave written notification of arrival.

The grantee may not charge for the repair or replacement of defective or malfunctioning equipment provided by the grantee to subscribers, unless the defect or malfunction was caused by the subscriber.

The grantee must determine the nature of the problem within 24 hours after commencing work and resolve all cable-system related problems within three business days, unless technically infeasible.

D.

Billing and Information Standards.

Subscriber bills must be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills also must clearly delineate all activity during the billing period, including optional charges, rebates and credits.

To ensure that subscribers are fully informed of the charges they will incur, both current and potential subscribers must, in their telephonic and written communications with grantee's representatives, be quoted rates and charges that are inclusive of all applicable franchise fees, utility users tax, and any other fees that are imposed upon a subscriber.

The first billing to a subscriber after a new installation or service change must be prorated based upon when the new or changed service commenced. Subscribers must not be charged a late fee or otherwise penalized for any failure attributable to the grantee, including the failure to bill the subscriber correctly and in a timely manner.

In case of a billing dispute, the grantee must respond in writing to a written complaint from a subscriber within 10 days after receiving the complaint at the office specified on the billing statement for receiving that complaint.

If a subscriber in good faith disputes all or any part of a billing, the subscriber has the option of withholding the disputed amount without the threat of disconnection until the dispute is resolved, provided that:

a.

The subscriber pays all undisputed charges;

b.

The subscriber provides written notification to grantee of the dispute in a timely manner; and

c.

The subscriber cooperates in determining the appropriateness of the charges that are in dispute.

The grantee must, upon request from the subscriber, provide a credit or refund to a subscriber whose service has been interrupted for two hours or more in any one day by other than a planned outage as to which the subscriber has received reasonable advance notice. This credit or refund will be equal to a pro-rata share of the subscriber's monthly billing for one full day. All credits for service must be issued no later than the customer's next billing cycle following the determination that a credit is warranted. For subscribers terminating service, refunds must be issued promptly, but no later than 30 days after the return of any grantee-supplied equipment. Failure to provide credits or refunds as required by this section will entitle the subscriber to an additional $10 rebate.

Late fees imposed by the grantee must not exceed the amount authorized under California law.

Subject to prior review by the city, the grantee must provide written information on each of the following matters at the time of the installation of service, at least annually to all subscribers, and at any time upon request:

a.

Products and services offered;

b.

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

c.

Installation and service maintenance policies;

d.

Instructions on the use of the cable service;

e.

Channel positions of programming carried on the cable system;

f.

Billing and complaint procedures, including the address and telephone number of both the grantee's and the city's office designated for dealing with cable-related complaints;

g.

Consumer protection and service standards and penalties for noncompliance, which standards must include procedures for refunds and credits, disconnection and termination of service, and the scheduling of service calls.

Subscribers must be notified of any changes in rates, programming services, or channel positions as soon as possible through announcements on the cable system and in writing. Notice must be given to subscribers a minimum of 30 days in advance of those changes if the change is within the control of the grantee. In addition, the grantee must notify subscribers through announcements on the cable system and in writing 30 days in advance of any significant changes in the information required in subsection 8 of this section.

The grantee must offer to subscribers the option to receive an A/B switch at the time of initial cable service installation and must provide to subscribers written information on the use of that switch. The grantee may charge a reasonable price for the switch. Upon subscriber request, the grantee must provide an A/B switch after the initial installation of cable service. If the subscriber requests installation of a switch in order to receive broadcast television without a cable hookup, the grantee may charge reasonable fees for that installation and equipment.

The grantee must maintain a public file containing all notices provided to subscribers under these consumer protection and service standards and all promotional offers made by grantee to subscribers. These documents must be maintained for a minimum period of four years.

E.

Verification of Compliance with Standards.

Upon 15 days prior written notice, the city may require the grantee to provide a written report demonstrating its compliance with any of the consumer protection and service standards specified in this section. The grantee must provide sufficient

documentation to enable the city to verify compliance.

A repeated and verifiable pattern of noncompliance with the consumer protection and service standards of this section, after the grantee's receipt of written notice and an opportunity to cure, may be deemed a material breach of the franchise agreement.

F.

Subscriber Complaints and Disputes.

The grantee must establish written procedures for receiving, acting upon, and resolving subscriber complaints without intervention by the city. The written procedures must prescribe the manner in which a subscriber may submit a complaint, either verbally or in writing, specifying the subscriber's grounds for dissatisfaction. The grantee must file a copy of these procedures with the city.

Grantee must maintain a log or similar written record that lists the date and time of each customer complaint, identifies the subscriber, describes the nature of the complaint, and specifies what action was taken, and when, in response to the complaint. This written record must be maintained at the grantee's local office for a period of three years and must be available during regular business hours for review by the city's authorized representative in order to determine the grantee's compliance with the city's consumer protection and service standards.

All subscribers have the right to continue receiving service so long as their financial and other obligations to the grantee are honored. If the grantee elects to rebuild, modify or sell the system; or if the city gives notice of intent to terminate or not to renew the franchise, the grantee must act so as to ensure that all subscribers receive service while the franchise remains in force.

Upon a change of control of the grantee, or if a new operator acquires the cable system, the original grantee must cooperate with the city, the new grantee, or the new operator in maintaining continuity of service to all subscribers. During that transition period, the grantee is entitled to the revenues derived from its operation of the cable system.

G.

Disconnection/Downgrades.

A subscriber may terminate or downgrade service at any time, and the grantee must promptly comply with the subscriber's request within five days or at the time requested by the subscriber. No period of notice prior to voluntary termination or downgrade of service may be required of subscribers. Grantee may not impose any fee for termination of service or downgrade of service, unless a visit to the subscriber's premises is required to remove a converter box or other equipment or property owned by grantee.

The grantee must provide each new subscriber with a three-day right to rescind the subscriber's order for service, which right will commence on the day following the date on which the order is placed; provided, that this right may not be exercised after the service ordered has been activated.

Every subscriber who is billed for grantee's services will have not less than 15 days from the date that the bill is mailed to pay the invoiced charges. Payments must be promptly posted by the grantee to subscribers' accounts. Residential service may not be disconnected by grantee for nonpayment of a delinquent account without 15 days prior written notice. That notice may not be mailed until after the sixteenth day from the date that the bill was mailed to the subscriber. No late charge may be assessed by the grantee earlier than the twenty-second day after the date that the bill was mailed to the subscriber. If the subscriber pays all past due amounts, including late charges, before any scheduled disconnection date, the grantee may not disconnect service. If service is disconnected for nonpayment of past due fees or charges, the grantee must promptly reinstate service upon payment in full by the subscriber of all such fees and charges, including late charges. Residential service may be disconnected only on those days and at those times when the subscriber can contact a customer service representative of the grantee, either in person or by telephone.

Notwithstanding the requirements of subsection 3 of this section, the grantee may immediately disconnect service to a subscriber if the subscriber is damaging or destroying the grantee's cable system or equipment. In the event of disconnection on such grounds, the grantee will resume service to the subscriber upon receiving adequate assurances that the subscriber has ceased the practices or conduct that resulted in disconnection and has paid all proper fees and charges, including any amounts reasonably owed the grantee for the damage caused by the subscriber.

The grantee may also disconnect service to a subscriber when signal leakage occurs that exceeds federal limits. If service is disconnected, the grantee will immediately restore service without charge upon the satisfactory correction of the signal leakage problem.

Upon termination of service to a subscriber, the grantee will remove its equipment from the subscriber's premises within 30 days. The equipment will be deemed abandoned if it is not removed within such time period unless the grantee has been denied access to the subscriber's premises.

Grantee must issue security or subscriber deposit refund checks promptly, but no later than 45 days following the termination of service, less any deductions authorized by law.

H.

Changes in Service.

Except as otherwise provided by federal law, subscribers must not be required to pay any additional fee or charge, other than the regular service fee and a nominal charge for more than 1 service upgrade in a calendar month, in order to receive the services selected. No charge may be imposed for any service or product that the subscriber has not affirmatively selected. Payment of the regular monthly bill will not by itself constitute an affirmative selection.

I.

Deposits.

The grantee may require a reasonable, nondiscriminatory deposit on equipment provided to subscribers, which deposit must not exceed the actual replacement cost of that equipment. Such deposits must be placed in an interest bearing account. The deposit must be returned, with interest earned to the date of repayment, within 30 days after the equipment is returned to the grantee.

J.

Parental Control Option and Channel Scrambling.

The grantee must provide parental control devices to all subscribers who desire to block the video or audio portion of any programming that the subscriber finds objectionable. Such devices will be provided at no charge to the subscriber, unless otherwise required by federal law or unless a converter box is required to be installed for the purpose of providing the parental control device.

Grantee must provide subscribers with at least 30 days prior written notice of any proposed scrambling or descrambling of a channel that carries R-rated or similar adult programming.

K.

Privacy Rights of Subscribers.

Grantee must at all times protect the privacy rights of all subscribers in accordance with applicable state and federal laws, including the provisions of 47 U.S.C. 551 of the Communications Act.

At least annually, grantee must provide notice to each subscriber in the form of a separate, written statement that clearly and conspicuously informs the subscriber of the following:

a.

The nature of personal-identity information collected or to be collected with respect to the subscriber and the nature of the use of that information;

b.

The nature, frequency and purpose of any disclosure that may be made of that information, including an identification of the types of persons to whom the disclosure may be made;

c.

The period during which that information will be maintained by the grantee;

d.

The times and place at which the subscriber may have access to that information in accordance with federal and state law;

e.

The limitations provided in federal and state law with respect to the collection and disclosure of that information by the grantee and the rights of the subscriber under applicable law;

The following provisions apply to the protection of information relating to subscriber preferences:

a.

Grantee may not disclose individual subscriber preferences, viewing habits, beliefs, philosophy, creeds, or religious beliefs to any third person, firm, agency, governmental unit, or investigating agency without court authority or the prior written

consent of the subscriber.

b.

The subscriber's written consent, if given, must be limited to a period of time not to exceed one year, or a term agreed upon by the grantee and the subscriber.

c.

The grantee may not condition the delivery or receipt of cable services to any subscriber on any such written consent.

d.

A subscriber may revoke, without penalty or cost, any consent previously given by delivering to the grantee written notice of the subscriber's intent to so revoke.

The grantee may not disclose, or sell or permit the disclosure or sale of its subscriber lists without the prior affirmative written consent of each subscriber; provided that the grantee may use its subscriber lists as necessary for the construction, marketing, and maintenance of the grantee's services and facilities authorized by a franchise, and the concomitant billing of subscribers for cable services; and provided further that, consistent with applicable law, the city may use grantee's subscriber lists for the purpose of communicating with subscribers in connection with matters relating to the operation, management, and maintenance of the cable system, except as may be otherwise provided in Section 631 of the Communications Act.

The prohibitions contained in subsection K of this section apply to the grantee, its affiliates and subsidiaries, and to the officers, directors, employees, agents, and holders of equity interests in the grantee and its affiliates and subsidiaries.

L.

Nondiscrimination.

Grantee may not unlawfully discriminate between or among subscribers within one type or class in the availability of services, at either standard or differential rates set forth in published rate schedules. No charges may be made for services except as set forth in published schedules that are available for inspection at grantee's office, quoted by grantee on the telephone, or displayed or communicated to existing or prospective subscribers. This subsection does not apply to offers or promotions of limited duration.

M.

Entry on Private Property.

Grantee will provide verbal or written notice to affected property owners before entering upon their property. The notice must include grantee's telephone number that property owners may call with regard to any matters related to the proposed entry.

N.

Additional Requirements.

If the grantee fails to operate the system for seven consecutive days without the city's prior approval or subsequent ratification, the city may, at its sole option, operate the system or designate an operator until the grantee restores service under conditions acceptable to the city, or until a permanent operator is selected. If the city satisfies this obligation on behalf

of the grantee, then during that time period the city is entitled to collect all revenues derived from the system, and the grantee will indemnify the city against any damages that the city may suffer as a result of the grantee's failure to operate the system.

Additional standards relating to service, consumer protection, and response by the grantee to subscriber complaints not otherwise provided for in this section may be set forth in the franchise, license, lease or similar written agreement, or by separate ordinance, and the grantee must comply with those standards in the operation of the cable television system. A verified and continuing pattern of noncompliance may be deemed a material breach of the written agreement, provided that the grantee receives written notice and an opportunity to cure before any penalty or other remedy is imposed.

Grantee may not scramble or otherwise encrypt signals carried on the basic service tier. Requests for waivers of this prohibition must demonstrate either a substantial problem with theft of basic tier service or a compelling need to scramble basic signals for other reasons. Grantee must also provide "open cable" specifications that allow the use of set-top boxes and encryption devices that are available for purchase in retail stores.

O.

Penalties for Noncompliance.

Purpose. The purpose of this subsection is to authorize the imposition of penalties for the violation of the customer service standards established by this section. These penalties are in addition to any other remedies provided by this chapter, the franchise, license, lease or similar written agreement, or any other law, and the city has the discretion to elect the remedy that it will apply. The imposition of penalties authorized by this subsection will not prevent the city or any other affected party from exercising any other remedy to the extent permitted by law, including but not limited to any judicial remedy as provided by subsection 2(d) of this section.

Administration, Appeals and Penalties.

a.

The city manager or the city manager's designee is authorized to administer this subsection. Decisions by the city manager to assess penalties against the grantee must be in writing and must contain findings supporting the decisions. Decisions by the city manager are final, unless appealed to the city council.

b.

If the grantee or any interested person is aggrieved by a decision of the city manager, the aggrieved party may, within 10 days of the written decision, appeal that decision in writing to the city council. The appeal letter must be accompanied by the fee established by the city council for processing the appeal. The city council may affirm, modify, or reverse the decision of the city manager.

c.

Schedule of Penalties. The following schedule of monetary penalties may be assessed against the grantee for the material breach of the provisions of the customer service standards set forth in this section, provided that the breach is within the reasonable control of the grantee:

(i)

For a first material breach, the maximum penalty is $200 for each day of material breach, but not to exceed $600 for each occurrence of material breach, irrespective of the number of customers affected.

(ii)

For a second material breach of the same nature within a 12-month period for which the city has provided notice and a penalty has previously been assessed, the maximum penalty is $400 for each day of the material breach, but not to exceed a cumulative total of $1,200 for each occurrence of the material breach, irrespective of the number of customers affected.

(iii)

For a third or further material breach of the same nature within a 12-month period for which the city has provided notice and a penalty has previously been assessed, the maximum penalty is $1,000 for each day of the material breach, but not to exceed a cumulative total of $3,000 for each occurrence of the material breach, irrespective of the number of customers affected.

(iv)

The maximum penalties referenced above may be modified by the city and the grantee in the franchise, license, lease or similar agreement.

d.

Judicial Remedy. This subsection does not preclude any affected party from seeking any judicial remedy available to that party without regard to this paragraph.

e.

Notification of Breach. The city must give the grantee written notice of any alleged breach of the consumer protection and service standards and allow the grantee at least 30 days from receipt of the notice to remedy the specified breach. For the purpose of assessing penalties, a material breach is deemed to have occurred for each day, following the expiration of the period for cure specified in the city's written notice, that any breach has not been remedied by the grantee, irrespective of the number of customers affected.

P.

Free Service for Noncompliance.

Notwithstanding any other penalties or remedies provided by this section, or any other law, the grantee must provide the following months of free service to subscribers affected by the grantee's failure to comply with the specified consumer protection and service standard:

One Month Free Service. The grantee will provide one month of free service to each subscriber affected by the failure of the grantee to timely and satisfactorily comply with any of the following requirements:

a.

The pickup or replacement of converters or other equipment within 14 days after subscriber request (subsection B(1)(k));

b.

Forty-eight hour notice of service interruption (subsection C(1));

c.

Response time for system outages and inferior signal quality (subsection C(2));

d.

Resolution of cable system related problems within three business days (subsection C(5)). One additional month of free service will be provided for each seven-day period that the problem remains unresolved;

e.

Written response to billing complaints (subsection D(4));

f.

Credits and refunds (subsection D(6));

g.

Provision of all required information to subscribers (subsection D(8));

h.

Notification of rate, service, or channel changes (subsection D(9));

i.

Completion of termination or downgrade of service (subsection G(1));

j.

Provision of parental control devices (subsection J(1)).

Three Months Free Service. The grantee will provide three months of free service to each subscriber affected by the grantee's disconnection of subscriber service without just cause, provided that grantee fails to restore service within four hours after the disconnection (subsection G(3)).

Definition of Free Service. The free service required by this subsection relates to the service tier or tiers subscribed to by the affected subscriber.

(Ord. 6827 § 3 (part), 2000)

A.

Fee for Support of Local Cable Usage. A fee paid to the city is hereby established for the support of public, educational, and governmental access facilities and activities within the city. Unless a higher percentage is authorized by applicable state or federal law, this fee shall be one percent (1%) of a state video holder's gross revenues, as defined in California Public Utilities Code Section 5860. This fee shall be remitted quarterly to the city treasurer and must be received not later than 45 days after the end of the preceding quarter. The fee payment shall be accompanied by a summary that explains the basis for the calculation of the support fee for local cable usage.

B.

Franchise Fee. A state video franchise holder operating in the city shall pay to the city a franchise fee that is equal to five percent (5%) of the gross revenues of that state video franchise holder. The term "gross revenues" shall be defined as set forth in Public Utilities Code Section 5860. This fee shall be remitted quarterly to the city treasurer and must be received not later than 45 days after the end of the preceding calendar quarter. The fee payment shall be accompanied by a summary

that explains the basis for the calculation of the franchise fee. Unless construed otherwise by applicable law, the phrase "summary that explains the basis for the calculations," as used herein and above in subsection A, means the identification of the sources of revenue upon which the fee is based.

C.

Authority to Examine Records. Not more than once annually, the appropriate city department may examine the business records of a holder of a state video franchise to ensure compliance with all applicable statutes and regulations related to the computation and payment of franchise fees.

D.

Customer Service Penalties Under State Video Franchises.

The holder of a state video franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service.

The appropriate city department shall monitor a state video franchise holder's compliance with state and federal customer service and protection standards. The city will provide to the state video franchise holder written notice of any material breaches of applicable customer service and protection standards, and will allow the state video franchise holder 30 days from receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30-day time period will be subject to the following monetary penalties to be imposed by the city in accordance with state law:

a.

For the first occurrence of a violation, a monetary penalty of $500 shall be imposed for each day the violation remains in effect, not to exceed $1,500 for each violation.

b.

For a second violation of the same nature within twelve months, a monetary penalty of $1,000 shall be imposed for each day the violation remains in effect, not to exceed $3,000 for each violation.

c.

For a third or further violation of the same nature within twelve months, a monetary penalty of $2,500 shall be imposed for each day the violation remains in effect, not to exceed $7,500 for each violation.

A state video franchise holder may appeal a monetary penalty assessed by the city. Such appeal must be filed no later than 60 days after the date of mailing of notification of the penalty or the right to appeal shall be deemed waived. After relevant evidence and testimony is received, and staff reports are submitted, the city council will vote to either uphold or vacate the monetary penalty. The city council's decision on the imposition of a monetary penalty shall be final.

E.

City Response to State Video Franchise Applications.

Applicants for state video franchises within the boundaries of the city must concurrently provide to the city complete copies of any application or amendments to applications filed with the California Public Utilities Commission. One complete copy must be provided to the city manager.

The city will provide any appropriate comments to the California Public Utilities Commission regarding an application or an amendment to an application for a state video franchise.

F.

Public, Educational or Governmental (PEG) Channel Capacity. A state video franchise holder that uses the public rights-of- way shall designate sufficient capacity on its network to enable the carriage of at least four PEG access channels.

PEG access channels shall be for the exclusive use of the city or its designees to provide public, educational, or governmental programming.

Advertising, underwriting, or sponsorship recognition may be carried on the PEG access channels for the purpose of funding PEG-related activities.

The PEG access channels shall be carried on the basic service tier and shall be of similar quality and functionality to that offered by commercial channels on the lowest cost tier of service unless the signal is provided to the video service provider at a lower quality or with less functionality, as provided in subsection (g)(3) of Section 5870 of the California Public Utilities Code.

To the extent feasible, the PEG access channels shall not be separated numerically from other channels carried on the basic service tier, and the channel numbers for the PEG access channels shall be the same channel numbers used by the incumbent cable operator unless prohibited by federal law.

After the initial designation of PEG access channel numbers, the channel numbers shall not be changed without the prior written consent of the city, unless the change is required by federal law.

Each PEG access channel shall be capable of carrying a National Television System Committee television signal, as provided in Public Utilities Code Section 5870b.

G.

Interconnection. Where technically feasible, a state video franchise holder and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG access channel programming. Interconnection may be accomplished by direct cable, microwave link, satellite, or other reasonable method of connection. State video franchise holders and incumbent cable operators shall provide interconnection of the PEG access channels on reasonable terms and conditions and may not withhold the interconnection. If a state video franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the city may require the incumbent cable operator to allow the state video franchise holder to interconnect its network with the incumbent's network at a technically feasible point on the holder's network as identified by the holder. If no technically-feasible point for interconnection is available, the state video franchise holder shall make an interconnection available to the channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state video franchise holder requesting the interconnection unless otherwise agreed to by the parties.

H.

Emergency Alert System and Emergency Overrides. A state video franchise holder must comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the holder's network. Provisions in city-issued franchises authorizing the city to provide local emergency notifications shall remain in effect, and shall apply to all state video franchise holders in the city for the duration of the city-issued franchise, or until the term of the franchise would have expired had it not been terminated pursuant to subdivision (m) of Section 5840 of the California Public Utilities Code, or until January 1, 2009, whichever is later.

(Ord. 7128 § 2, 2008)