Point Arena Municipal Code Art. VI Miscellaneous Provisions

(1) 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 grantee and shall also authorize and permit the grantee to traverse any portion of the city in order to provide service.

(2) 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 said 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 grantee.

(3) Grantee shall be subject to all provisions of the other ordinances, rules, regulations, and specifications of the city heretofore or hereafter adopted pursuant to the valid exercise of the police power including, but not limited to, those pertaining to works and activities in, on, over, under, and about streets and other public throughways or infrastructure.

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

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

(5) If the Federal Communications Commission or the Public Utilities Commission of the State of California, or any other federal or state body or agency, shall now or hereafter exercise any paramount jurisdiction over the subject matter of any franchise granted under this chapter, then, to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the city, the jurisdiction of the city shall cease and no longer exist.

Any and all minimum standards governing the operation of grantee and any and all maximum rates and charges specified herein, or in any franchise issued hereunder, existing now and at any time in the future, including such time as any paramount jurisdiction shall preempt or preclude that of the city, and any and all rights, powers, privileges, and authorities of the city to determine, establish, or fix any of the same are each and all hereby declared to the city and by any grantee accepting any franchise hereunder to be contractual in nature and to be for the benefit of the city.

(6) When not otherwise prescribed herein, all matters herein required to be filed with the city shall be filed with the city clerk.

(7) 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, that 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 reconnection of the same subscriber, who has not paid all past outstanding charges.

(8) Before providing cable television service to any subscriber, the grantee shall provide a written notice to the subscriber substantially as follows:

Subscriber is hereby notified that, in providing cable television service, the Grantee is making use of public rights-of-way within the City and that the continued use of such rights-of-way is in no way guaranteed. In the event the continued use of such rights-of-way is denied to Grantee for any reason, Grantee will make every reasonable effort to provide service over alternate routes. By accepting cable television service, subscriber agrees he will make no claim nor undertake any action against the City, its officers, or its employees if the service to be provided hereunder is interrupted or discontinued.

(9) The form of the grantee's contract with the subscriber shall also be subject to approval of the city, such approval not to be unreasonably withheld.

(Ord. 127 § 4.04.150, 1987.)

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

(2) 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, preferences of any kind, viewing habits, political, social or economic philosophies, beliefs, creeds, religions or names, addresses or telephone numbers shall not be revealed to any person, mailing service, investigating agency, or department, company, other agency or entity, unless upon the authority of a court of law or upon prior written permission of the subscriber. The request for permission must 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.

(3) 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, 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.

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

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

(6) 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. 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.

(7) A grantee shall not tabulate any test results, 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 prior valid authorization of the subscriber.

(8) 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.

(Ord. 127 § 4.04.155, 1987.)

(1) In the carrying out of the construction, maintenance, and operation of the cable television system, the grantee shall not discriminate against any employee or applicant for employment because of race, creed, color, sex, or national origin.

(2) The grantee shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, sex, or national origin. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion and transfer, recruitment and recruitment advertising, layoff and termination, rates of pay, and other forms of compensation and selection for training including apprenticeship.

(3) The grantee shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause.

(4) The grantee shall, in all solicitations or advertisements for employees placed by or on behalf of the grantee, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, sex, or national origin.

(5) The grantee shall incorporate the foregoing requirements in all of its contracts for work relative to construction, maintenance, and operation-of the cable television system, other than contracts for standard commercial supplies or raw materials, and shall require all of its contractors for such work to incorporate such requirements in all subcontracts for such work.

(Ord. 127 § 4.04.160, 1987.)

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:

(1) At 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 years thereafter.

(2) Sixty days prior to the scheduled system and services review session, grantee shall submit a report to grantor indicating the following:

(a) A survey of cable system services that are being provided on an operational basis, excluding tests and demonstrations, to cities in the United States of similar size and complexity.

(b) A plan for provision of those services not provided by the grantee or an explanation indicating why such services are not feasible for the franchise area.

(3) Topics for discussion and review at the system and services review sessions shall include but shall not be limited to services provided, rate structure, adequacy of rate of return to grantee, 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.

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

(5) Not later than 60 days after the conclusion of each system and services review session, 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. Grantor may request grantee to provide such services within a reasonable time, under reasonable rates and conditions. Failure to provide such requested services may be considered a breach of the franchise, subject to remedies as provided in this chapter.

(Ord. 127 § 4.04.170, 1987.)

(1) Arbitration. A dispute as to any decision arising out of the effect or interpretation of the sections specified in subsection (2) of this section may be appealed to arbitration subject to the consent of both parties. If the parties consent 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 (7) of this section.

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

(a) PAMC 5.15.065(3), the amount or length of liquidated damages, penalties or sanctions.

(b) PAMC 5.15.130(2)(c)(ii), the denial of a rate increase.

(c) PAMC 5.15.135(4), rebates to subscribers.

(d) PAMC 5.15.170(5), requests arising out of systems review.

(3) Procedure. Arbitration proceedings shall be conducted in compliance with the California Arbitration Act, Section 51280 et seq., of the California Code of Civil Procedure, except as elsewhere provided in this section.

(4) Arbitration Panel. Each arbitration shall be conducted by a panel of three 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 arbitrators. If the other two arbitrators are unable to agree upon an appointment, the third arbitrator shall be appointed by the presiding judge of the Superior Court of Mendocino County. No member of the panel shall be an officer, employee or attorney of the grantee or 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 15 calendar days following filing of a notice of appeal to arbitration or mailing of the initiation of arbitration. The third arbitrator shall be appointed not later than 30 calendar days following filing of the notice of appeal to arbitration or mailing of the initiation of arbitration.

(5) Arbitration Hearing. 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 75 calendar days following 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 arbitrators, legal counsel to the grantor, the grantee, and the grantee's surety on the performance bond not later than 20 calendar days in advance of the hearing.

(6) 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 transcripts of the arbitration hearing, and any other costs 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.

(7) Arbitration Award. 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, it 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 90 calendar days following the close of the arbitration hearing.

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

(Ord. 127 § 4.04.180, 1987.)

(1) Any provision of this chapter may be waived, at the sole discretion of the city, by resolution of the city council.

(2) Grantee may submit a request for waiver to the city council of the city of Point Arena at any time during the franchise term. Such request for waiver shall be set for public hearing and acted upon within 180 days following the submission.

(3) The city council may authorize the economic, technical or legal evaluation of such waiver request and grantee shall be required to reimburse the city for any expenditures incurred by city in connection with such evaluation.

(Ord. 127 § 4.04.185, 1987.)

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 labor dispute, material shortage, war or act of war (whether an actual declaration of war is made or not), insurrection, riot, act of 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 grantee's control.

(Ord. 127 § 4.04.190, 1987.)