Poway Municipal Code Art. I General Provisions

The City finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the people of the City. Because of the complex and rapidly changing technology associated with cable television, the City further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such persons as the City designates. It is the intent of the ordinance codified in this chapter and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise agreement issued pursuant to this chapter shall be deemed to include this finding as an integral part thereof.

(Ord. 129 § 1, 1984; Ord. 298 § 1, 1989)

Beginning January 1, 2007, any grantee of a City franchise that elects to terminate the City franchise and replace it with a State franchise pursuant to the Digital Infrastructure and Video Competition Act of 2006 (Division 2.5 of the Public Utilities Code, commencing at Section 5800) will no longer be governed by this chapter, but instead will be governed by Chapter 5.61 PMC.

(Ord. 660 § 1, 2007)

The ordinance codified in this chapter shall be known and may be cited as the “City of Poway Cable Television Franchise Ordinance.”

(Ord. 129 § 2, 1984)

For the purpose of this chapter the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word “shall” is mandatory and “may” is permissive. Words not defined shall be given their common and ordinary meaning.

“Additional subscriber service”

means any service not included in “basic television service,” or “basic subscriber radio service” or “institutional service,” including, but not limited to, “pay-cable.”

“Agency subscriber”

means a subscriber who receives a service in a government or public agency, school or nonprofit corporation as specified in the franchise agreement.

“Basic subscriber radio service”

means the provision to all subscribers of such audio programs as the retransmission of broadcast FM radio signals, the retransmission of shortwave, weather, news, time and other similar audio information and the transmission of cablecast audio signals, all provided to subscribers at a monthly rate.

“Basic service”

means the total of all of the following:

a.

The transmission to all subscribers of all broadcast television channel signals authorized by the FCC and provided for in a franchise agreement;

b.

The cablecasting to all subscribers of local origination programming and public, education and government access programming;

c.

The transmission to all subscribers of all other cablecasting open-channel signals.

“Broadcast signal” or “signal”

means a television or radio signal that is transmitted over the air to a wide geographic audience and is received by a cable communications system off-the-air or by microwave.

“Cable communications systems” or “system,” also referred to as “cable television system,” “CATV system,” or “broadband communications network,”

means a system of antennas, cables, amplifiers, towers, microwave links, cablecasting studios, and other conductors, converters, equipment or facilities, designed and constructed for the primary purpose of distributing video programming to home subscribers, and the secondary purpose of producing, receiving, amplifying, storing, processing, or distributing audio, video, digital, or other forms of electronic or electrical signals.

“Cablecast signal”

means a nonbroadcast signal that originates within the facilities of the cable communications system.

“Cable-mile”

means a linear mile of cable bearing strand as measured on the street or easement from pole to pole or pedestal to pedestal.

“Channel”

means a frequency band, which is capable of carrying either one standard television or video signal, a number of audio, digital or other nonvideo signals, or some combination of such signals.

“Class IV channel”

means a signaling path provided by a cable communications system to transmit signals of any type from a subscriber terminal to another point in the cable television system.

“Closed-circuit” or “institutional service”

means such video, audio, data and other services provided to institutional users on an individual requirement, private channel basis. These may include, but not be limited to, two-way video, audio or digital signals among institutions, or from institutions to residential subscribers.

“Commence construction”

means that time and date when construction of the cable communications system is considered to have commenced, which shall be when the first connection is physically made to a utility pole, or undergrounding of cables is initiated, construction does not include preliminary engineering (strand mapping) nor obtaining necessary permits and authorizations.

“Commence operation”

means that time and date when operation of the cable communications system is considered to have commenced which shall be when sufficient distribution facilities have been installed so as to permit the offering of full service to at least 10 percent of the dwelling units located within the service area.

“Commercial subscriber”

means a subscriber who receives a service in a place of business, where the service may be utilized in connection with a business, trade, or profession.

“Converter”

means an electronic device which converts signal carries from one form to another.

“Council”

means the governing body of the City of Poway.

“Education channel” or “education access channel”

means any channel where educational institutions are the primary designated programmers.

“FCC”

means the Federal Communications Commission and any legally appointed or elected successor.

“Franchise”

means the nonexclusive rights granted pursuant to this chapter to construct and operate a cable communications system along the public way within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of this City.

“Franchise agreement”

means a franchise awarded ordinance, or a contractual agreement, containing the specific provisions of the franchise granted, including referenced specifications, franchise applications, franchise requirements, ordinances and other related materials.

“Franchise fee”

means the fee paid by the grantee to the grantor in consideration of the use of the public streets and rights-of-way.

“Government channel” or “government access channel”

means any channel where local government agencies are the primary designated programmers.

“Grantee”

means any “person” receiving a franchise pursuant to this chapter and under the granting franchise ordinance, and its lawful successor, transferee or assignee.

“Grantor” or “City”

means the City of Poway as represented by the City Council or any delegate acting within the scope of its jurisdiction.

“Gross annual revenues” means the annual gross revenues received by the grantee from all sources of operations of the cable communications system as further defined in the franchise agreement.

“Initial service area”

means the area of the City which will receive service initially, as set forth in the franchise agreement.

“Installation”

means the connection of the system from the feeder cable to subscribers’ terminals, and the provision of service.

“Leased channel” or “leased access channel”

means any channel or portion of a channel available for lease and programming by persons or entities other than the grantee.

“Local origination channel”

means any channel where the grantee is the primary designated programmer, and provides video programs to subscribers.

“Monitoring”

means observing a communication signal, or the absence of a signal, where the observer is neither the subscriber nor the programmer, whether the signal is observed by visual or electronic means, for any purpose whatsoever. Monitoring shall not include systemwide, nonindividually addressed sweeps of the system for purposes of verifying system integrity, controlling return paths transmissions, billing for pay-cable, verifying compliance with FCC rules, or detecting unauthorized connections to the cable communications system.

“Nonbroadcast signal”

means a signal that is transmitted by a cable communications system and that is not involved in an over-the-air broadcast transmission path.

“Pay-cable” or “pay-television”

means the delivery to subscribers, over the cable communications system, of television signals for a fee or charge to subscribers over and above the charge for basic service, or a per program, per channel, or other subscription basis.

“Penetration”

means the result expressed in the percentage obtained by dividing the total number of potential subscribers in the franchise area into the number of subscribers receiving service.

“Person”

means an individual, partnership, association, corporation or any lawful successor, transferee or assignee of said individual, partnership, association, organization or corporation.

“Private channel,” or “closed-circuit channel”

means any channel which is available only to subscribers who are provided with special converter or terminal equipment to receive signals on that channel.

“Programmer”

means a person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital, or other signals, either live or from recorded tapes or other storage media, to subscribers, by means of the cable communications system.

“Public access channel” or “community access channel”

means any channel where any member of the general public or any noncommercial organization may be a programmer, without charge, on a first-come, first-served, nondiscriminatory basis, in accordance with the terms of the franchise agreement.

“Reasonable notice”

shall be written notice addressed to the grantee at its principal office or such other office as the grantee has designated to the grantor as the address to which notice should be transmitted to it, which notice shall be certified and postmarked not less than seven days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. In computing said seven days, Saturdays, Sundays and holidays recognized by the grantor shall be excluded.

“Reasonable order”

means written orders not excessive or extreme as to costs or time to comply, governed by sound thinking.

“Resident”

means any person residing in the City as otherwise defined by applicable law.

“Residential subscriber”

means a subscriber who receives a service in an individual dwelling unit, where the service is not to be utilized in connection with a business, trade, or profession.

“Sale”

shall include any sale, exchange, barter or offer for sale.

“School”

means any nonprofit educational institution including primary and secondary schools, colleges and universities, both public and private.

“Section”

means any section, subsection, or provision of this chapter.

“Service area” or “franchise area”

means the designated geographic area in which the grantee is authorized or obligated to construct a cable system as provided in the franchise agreement.

“State”

means the State of California.

“Street”

includes each of the following which have been dedicated to the public or hereafter dedicated to the public and maintained under public authority or by others and located within the City limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas that the grantor shall permit to be included within the definition of street from time to time.

“Subscriber” or “customer”

means any person, firm, corporation, or other entity who or which elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connection with the cable communications system.

“Substantially completed”

means that sufficient distribution facilities have been installed by the grantee so as to permit the offering of full network service to at least 90 percent of the potential subscribers in the service area which have not already been served by another franchised cable operator.

(Ord. 129 § 3, 1984; Ord. 298 § 1, 1989)