Chapter 13.12 — TELEVISION SYSTEMS

State Law reference— Cities authorized to regulate community antenna television systems and award franchises or licenses, Government Code § 53066.

When and in the event that the grantee of any franchise granted under this chapter constructs, operates and maintains a CATV system exclusively through telephone company facilities constructed, operated and maintained pursuant to a state-granted telephone franchise and offers satisfactory proof that in no event during the life of such franchise shall the grantee make any use of the streets independently of such telephone company facilities, said grantee shall be required to comply with all of the provisions of this

chapter as a "licensee" and in such event whenever the term "grantee" is used in this chapter it means and includes "licensee."

(Code 1972, § 13.12.020; Ord. No. 306, § 2, 1967)

(a)

Any franchise granted pursuant to the provisions of this chapter authorizes and permits the grantee to engage in the business of operating and providing a CATV 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 CATV 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.

(b)

The grantee may make a charge to subscribers for installation or connection to its CATV system and a fixed monthly charge as filed and approved as provided in this chapter. No increase in the rates and charges to subscribers, as set forth in the schedule filed and approved with grantee's application, may be made without the prior approval of the council expressed by resolution.

(Code 1972, § 13.12.040; Ord. No. 306, § 4, 1967)

Secs. 13.12.050—13.12.080. - Reserved.

(a)

Any grantee granted a franchise under this chapter shall pay to the city, during the life of such franchise, a sum equal to five percent of the gross annual receipts of the grantee. Such payment by the grantee to the city shall be made annually, or as otherwise provided in the grantee's franchise, by delivery of the same to the city clerk. For the purposes of this section, the term "gross receipts" means all cash, credits, property of any kind or nature or other consideration derived directly or indirectly by the grantee, its affiliates, subsidiaries, parent and any other person or entity in which the grantee has a financial interest or which has a financial interest in the grantee, arising from or attributable to operation of the cable television system, including, but not limited to:

(1)

Revenue from all services provided on the subscriber network and institutional network (including leased access fees);

(2)

Advertising revenues;

(3)

Revenue from the use of studio facilities, production equipment and personnel;

(4)

Revenue from installation, connection and reinstatement and the provision of subscriber and other services; and

(5)

The sale, exchange or cablecasting of any programming developed for community use or institutional users.

The term "gross receipts" includes, valued at retail price levels, the value of any goods, services or other remuneration in nonmonetary form received by the grantee or others described above in consideration for performance by the grantee or others described above of any advertising or other service in connection with the cable television system.

(b)

The grantee shall file with the city, within 45 days after expiration of any calendar year or portion thereof during which such franchise is in force, a financial statement prepared by a certified public accountant, or other person satisfactory to the city, showing in detail the gross annual receipts of grantee during the preceding calendar year or portion thereof. It shall be the duty of the grantee to pay to the city, within 30 days after the time for filing such statements, the sum hereinabove described or any unpaid balance thereof for the calendar year or portion thereof covered by such statements.

(c)

In any year, or portion thereof, following the first full year service has been provided and during which payments under this section amount to less than $1,000.00 per year, grantee shall pay to the city as a minimum an amount equal to $1,000.00 per year.

(d)

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 chapter. 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 additional sums payable under this chapter or for the performance of any other obligation hereunder.

(e)

In the event of any holding over after expiration or other termination of any franchise granted under this chapter, without the consent of the city, the grantee shall pay to the city reasonable compensation and damages, of not less than 100 percent of the total gross profits.

(Code 1972, § 13.12.090; Ord. No. 692, § 1, 1987: Ord. No. 393, § 1(1), 1972; Ord. No. 306, § 6, 1967)

Secs. 13.12.100—13.12.120. - Reserved.

(a)

Nothing in this chapter shall be deemed or construed to impair or affect, in any way, to any extent, the right of the city to acquire the property of the grantee, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted, and nothing contained in this chapter shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the city's right of eminent domain.

(b)

There is reserved to the city every right and power which is required to be herein reserved or provided by any ordinance of the city, and the grantee, by its acceptance of any franchise, agrees to be bound thereby and to comply with any reasonable action or requirements of the city in its exercise of such rights or power, heretofore or hereafter enacted or established.

(c)

Neither the granting of any franchise under this chapter nor any of the provisions contained herein shall be construed to prevent the city from granting any identical, or similar franchise to any other person, firm or corporation, within all or any portion of the city.

(d)

There is reserved to the city the power to amend within reason any section or part of this chapter so as to require additional or greater standards of construction, operation, maintenance or otherwise, on the part of the grantee.

(e)

Neither the granting of any franchise nor any provision hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the city.

(f)

The council may do all things which are reasonably necessary and convenient in the exercise of its jurisdiction under this chapter and may determine any question of fact which may arise during the existence of any franchise granted hereunder. The city manager is authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any grantee under this chapter, either on behalf of the city, the grantee, or any subscriber, in the best interest of the public. Either the grantee or any member of the public who may be dissatisfied with the decision of the city manager may appeal the matter to the council for hearing and determination. The council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provision of this chapter.

(Code 1972, § 13.12.130; Ord. No. 39.3, § 1(2), (3), (4), 1972; Ord. No. 306, § 8, 1967)

(a)

Any poles, wires, cable lines, conduits or other properties of grantee to be constructed or installed in streets, shall be so constructed or installed only at such locations and in such manner as shall be approved by the director of public works acting in the exercise of his reasonable discretion.

(b)

The grantee shall not install or erect any facilities or apparatus in or on other public property, places or rights-of-way, or within any privately owned area within the city which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the city, except those installed or erected upon public utility facilities now existing, without obtaining the prior written approval of the director of public works.

(c)

In those areas and portions of the city where the transmission or distribution facilities of both the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, the grantee shall likewise construct, operate and maintain all of its transmission and distribution facilities underground. For the purposes of this subsection, the term "underground" includes a partial underground system (e.g., streamlining). Amplifiers in grantee's transmission and distribution lines may be in appropriate housings upon the surface of the ground as approved by the director of public works.

(Code 1972, § 13.12.150; Ord. No. 306, § 10, 1967)

(a)

In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of 12 months, or in the event such system or property has been installed in any street or public place without complying with the requirements of grantee's franchise or this chapter, or the franchise has been terminated, cancelled or has expired, the grantee shall promptly, upon being given 30 days' notice, remove from the streets or public places all such property and poles of such system other than any which the director of public works may permit to be abandoned in place. In the event of such removal, the grantee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the director of public works.

(b)

Any property of the grantee remaining in place 30 days after the termination or expiration of the franchise shall be considered permanently abandoned. The director of public works may extend such time not to exceed an additional 30 days.

(c)

Any property of the grantee to be abandoned in place shall be abandoned in such manner as the director of public works shall prescribe. Upon permanent abandonment of the property of the grantee in place, the property shall become that of the city, and the grantee shall submit to the director of public works an instrument in writing, to be approved by the city attorney, transferring to the city the ownership of such property.

(Code 1972, § 13.12.160; Ord. No. 306, § 11, 1967)

The grantee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place, or remove from the street or other public place, any property of the grantee when required by the director of public works by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by public agencies; provided, however, that the grantee shall in all such cases have the privileges and be subject to the obligations to abandon any property of the grantee in place, as provided in section 13.12.160.

(Code 1972, § 13.12.170; Ord. No. 306, § 12, 1967)

Upon failure of the grantee to commence, pursue, or complete any work required by law or by the provisions of this chapter or by its franchise to be done in any street or other public place, within the time prescribed, and the satisfaction of the director of public works, the director of public works may, at his option, cause such work to be done and the grantee shall pay to the city the cost thereof in the itemized amounts reported by the director of public works to the grantee within 30 days after receipt of such itemized report.

(Code 1972, § 13.12.180; Ord. No. 306, § 13, 1967)

(a)

The grantee shall, concurrently with the filing of and acceptance of award of any franchise granted under this chapter, file with the city manager, and at all times thereafter maintain in full force and effect for the term of such franchise or any renewal thereof, at grantee's sole expense, a corporate surety bond in a company and in a form approved by the city attorney, in the amount of $5,000.00, renewable annually for at least two years after the acceptance of any franchise granted hereunder, and thereafter unless waived by the city council, and conditioned upon the faithful performance of grantee, and upon the further condition that in the event grantee fails to comply with any one or more of the provisions of this chapter, or of any franchise issued to the grantee hereunder, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the city as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee as prescribed by this chapter which may be in default, plus a reasonable allowance for attorney's

fees and costs, up to the full amount of the bond; said condition is a continuing obligation for the duration of such franchise and any renewal thereof and thereafter until the grantee has liquidated all of its obligations with the city that may have arisen from the acceptance of the franchise or renewal by the grantee or from its exercise of any privilege therein granted. The bond shall provide that 30 days' prior written notice of intention not to renew, cancellation, or material change be given to the city.

(b)

Neither the provisions of this section, nor any bond accepted by the city pursuant hereto, nor any damages recovered by the city hereunder, shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise issued under this chapter or for damages either in the full amount of the bond or otherwise.

(Code 1972, § 13.12.190; Ord. No. 393, § 1(6), 1972; Ord. No. 306, § 14, 1967)

(a)

The grantee shall agree to indemnify and save harmless the city, its officers and employees from and against any and all claims, demands, actions, suits, and proceedings by others, against all liability to others, including, but not limited to, any liability for damages by reason of or arising out of any failure by the grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee's CATV system, and against any loss, cost, expense and damages resulting therefrom, including reasonable attorney's fees, arising out of the exercise or enjoyment of its franchise, irrespective of the amount of the comprehensive liability insurance policy required under this chapter.

(b)

The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, furnish to the city and file with the city manager, and at all times during the existence of any franchise granted hereunder, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, in protection of the city, its officers, boards, commissions, agents and employees, in a company approved by the city manager and a form satisfactory to the city attorney, protecting the city and all persons against liability for loss or damage for personal injury, death and property damage, occasioned by the operations of grantee under such franchise, with minimum liability limits of $100,000.00 for personal injury or death of any one person and $300,000.00 for personal injury or death of two or more persons in any one occurrence, and $50,000.00 for damage to property resulting from any one occurrence.

(c)

The policies mentioned in subsection (b) of this section shall name the city, its officers, boards, commissions, agents and employees as additional insured and shall contain a provision that a written notice of cancellation or reduction in coverage of the policy shall be delivered to the city 15 days in advance of the effective date of such cancellation or reduction in coverage. If such insurance is provided by a policy which also covers grantee or any other entity or person other than those named, then such policy shall contain the standard cross-liability endorsement.

(Code 1972, § 13.12.200; Ord. No. 306, § 15, 1967)

(a)

At all reasonable times, the grantee shall permit any duly authorized representative of the city to examine all property of the grantee, together with any appurtenant property of the grantee situated within or without the city, and to examine and transcribe any and all maps and other records kept or maintained by the grantee or under its control which deal with the operations, affairs, transactions or property of the grantee with respect to its franchise. If any such maps or records are not kept in the city, or upon reasonable request made available in the city, and if the council determines that an examination thereof is necessary or appropriate, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by the grantee.

(b)

The grantee shall prepare and furnish to the director of public works and the treasurer at the times and in the form prescribed by either of said officers, such reports with respect to its operations, affairs, transactions or property, as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the city or any of its officers in connection with the franchise.

(c)

The grantee shall at all times make and keep in the city full and complete plans and records showing the exact location of all CATV system equipment installed or in use in streets and other public places in the city.

(d)

The grantee shall file with the director of public works, on or before December 31 of each year, a current map or set of maps drawn to scale, showing all CATV system equipment installed and in place in streets and other public places of the city.

(Code 1972, § 13.12.210; Ord. No. 306, § 16, 1967)

(a)

When not otherwise prescribed in this chapter, all matters herein required to be filed with the city shall be filed with the city manager.

(b)

The grantee shall pay to the city a sum of money sufficient to reimburse it for all publication expense incurred by it in connection with the granting of a franchise pursuant to the provisions of this chapter. Such payment shall be made within 30 days after the city furnishes the grantee with a written statement of such expenses by delivery of such statement to the treasurer.

(c)

The grantee shall maintain an office within the city limits or at a location which subscribers may call without incurring added message or toll charges so that CATV maintenance service shall be promptly available to subscribers.

(d)

No person, firm or corporation in the existing service area of the grantee shall be arbitrarily refused service; provided, however, that the grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or monthly service charge.

(Code 1972, § 13.12.230; Ord. No. 306, § 18, 1967)

When any portion of the CATV system is to be installed on public utility poles and facilities, certified copies of the agreements for such joint use of poles and facilities shall be filed with the city manager and city attorney.

(Code 1972, § 13.12.240; Ord. No. 306, § 19, 1967)

(a)

It is unlawful for any person to establish, operate or to carry on the business of generating or distributing to any person in this city, any television signals or radio signals by means of a CATV system either underground or upon telephone company or other public utility facilities, including, but not limited to, lease services, channel services or other forms of lease arrangements as presented by telephone or other public utility companies, unless a franchise or license therefor, as the case may be, has been first obtained pursuant to the provisions of this chapter or state law, and unless such franchise is in full force and effect.

(b)

It is unlawful for any person to construct, install or maintain within any public street in the city, or within any other public property of the city, or within any privately owned area within the city which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the city, any equipment or facilities for distributing any television signals or radio signals through a CATV system, unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this chapter or state law, and unless such franchise is in full force and effect.

(c)

It is unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this city for the purpose of taking or receiving television signals, radio signals, pictures, programs, or sound.

(d)

It is unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this city for the purpose of enabling himself or others to receive any television signal, radio signal, picture, program or sound, without payment to the owner of the system.

(e)

It is unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound.

(Code 1972, § 13.12.250; Ord. No. 30, § 23, 1967)