Sacramento Municipal Code Art. X Remedies

Violation of the provisions of Sections 5.28.220, 5.28.370 and 5.28.1440 of this chapter, shall constitute a misdemeanor. With the foregoing exception, violation of the provisions of this chapter shall not constitute a misdemeanor, infraction or other crime. (Prior code § 20.10.800)

At the time of issuance of any franchise under the provisions of this chapter, it will be impractical to reasonably ascertain the total extent of damages which may be incurred as a result of the breach by the franchisee of its obligations under the franchise documents as prescribed by Section 5.28.1810 of this chapter. The provisions of Section 5.28.1810 of this chapter, shall apply in the event of breach as liquidated damages therefor. Factors relating to the impracticality of ascertaining damages include, but are not limited to, the following:

A. The facts that:

1. The primary damage resulting from breaches by the franchisee of the schedules for construction and extension of the cable television system and provision of services prescribed by Sections 5.28.920 through 5.28.990, 5.28.1020 through 5.28.1060 and 5.28.1150 of this chapter, and of the duty prescribed pursuant to Section 5.28.1470 of this chapter, will be to members of the public who are denied services or denied quality or reliable services,

2. Such breaches cause inconvenience, anxiety, frustration and deprivation of the benefits of the franchise to individual members of the general public in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms,

3. That services might be available through the cable television system which are both necessary and available at a substantially lower cost than alternative services, and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms, and

4. Termination of a franchise for such breaches and other remedies are, at best, a means of future correction, and not remedies which make the public whole for past breaches,

B. The fact that the failure of a franchisee to make timely reports identifying its progress in installing its cable television system within service areas will make it difficult in ways which are not measurable for the commission to administer the construction schedule, delay initiation of enforcement proceedings, and impede compliance with the periods allowed for construction; and

C. The fact that the failure of a franchisee to file timely annual reports will deny information necessary to enable the commission to expeditiously, effectively and efficiently, administer the franchise and exercise its regulatory powers in relation thereto for the promotion and protection of the public convenience, health, safety and welfare.

Without the provisions of Section 5.28.1810 of this chapter, the actual damages for which a franchisee would be liable could greatly exceed the specified amount of liquidated damages. Therefore, the provisions of Section 5.28.1810 of this chapter, are of benefit to a franchisee. (Prior code § 20.10.802)

In its sole discretion, the board of directors of the cable television commission may assess a franchisee and the franchisee shall be liable for liquidated damages in the amount of one thousand dollars ($1,000.00) for each calendar day on which a franchisee is in breach and for each breach of any of the provisions of any of the following: Sections 5.28.920, through 5.28.960, 5.28.990, 5.28.1020 through 5.28.1060 and 5.28.1150 of this chapter; time limitations prescribed pursuant to Section 5.28.1110 of this chapter; or Sections 5.28.1470 and 5.28.1480 of this chapter, or such other provisions of this chapter as shall expressly refer to this provision. Said liquidated damage sum shall be separately applicable to each calendar day of delay in complying with the provisions of subsections (A)(1) through (4) of Section 5.28.950 of this chapter, and separately applicable for each calendar day of delay in complying with any of the provisions in the last paragraph of said Section 5.28.950 of this chapter. Said liquidated damage amount shall be separately applicable to each instance for each calendar day of delay in extending lines pursuant to the provisions of Section 5.28.1030 or 5.28.1040 of this chapter; provided that if more than one dwelling unit is subject to a particular extension from the boundaries of a service area, the total liquidated damages shall not exceed one thousand dollars ($1,000.00) for each calendar day of delay. Said liquidated damage sum shall be separately applicable to each calendar day of delay in complying with each approval or the conditions thereof issued pursuant to the provisions of said Section 5.28.1150 of this chapter.

In its sole discretion, the board of directors of the cable television commission may assess a franchisee and the franchisee shall be liable for liquidated damages in the amount of five hundred dollars ($500.00) for each calendar day in excess of five calendar days the franchisee is in breach of any of the provisions of any of the following: Section 5.28.980 or 5.28.1410 of this chapter, or such other provisions of the resolution as shall expressly refer to this provision. (Prior code § 20.10.804)

In addition to the foregoing liquidated damages, in its sole discretion, the board of directors of the cable television commission may reduce the term of any franchise one calendar month for each cumulative thirty (30) calendar days in excess of the first thirty (30) calendar days a franchisee is in breach of any of the provisions of subsection (A)(4) or the next to last paragraph in Section 5.28.950 of this chapter. The purpose of this section is to authorize the commission, after a franchisee has been in breach of said provisions of said section for the first thirty (30) calendar days, to reduce the term of the franchise for subsequent delays caused by the franchisee's breach on a month-to-month basis. (Prior code § 20.10.806)

The auditor of the cable television commission shall charge and transfer from the special account established pursuant to Section 5.28.1650 of this chapter, to the credit of the commission such amounts as are assessed as liquidated damages by determinations of the board of directors pursuant to Section 5.28.1130 of this chapter, which are not appealed to arbitration and become final, or which are affirmed by an arbitration panel under the provisions of Section 5.28.1140 of this chapter.

With respect to breaches of any of the provisions of Sections 5.28.1410, 5.28.1470 or 5.28.1480 of this chapter, the board of directors of the commission shall determine the amount of liquidated damages to be assessed, and mail notice thereof to the franchisee. Such a notice may provide for assessments for breaches occurring in advance of the notice and for periods of breach subsequent to issuance of the notice pending compliance by the franchisee. The determinations by the board of directors shall become final, binding and conclusive, not subject to judicial review or reversal by any authority, and judicially enforceable, unless within thirty (30) calendar days following the date of mailing of the notice of the determination the franchisee files with the clerk of the board of directors of the commission a written notice appealing the determination to arbitration pursuant to the provisions of Section 5.28.1840 of this chapter. The notice of appeal shall specifically identify the grounds for the appeal. The auditor of the commission shall charge and transfer from the special account established pursuant to Section 5.28.1650 of this chapter, to the credit of the commission, such amounts as are assessed as liquidated damages by determinations of the board of directors pursuant to this paragraph which are not appealed to arbitration and become final or which are affirmed by an arbitration panel under Section 5.28.1840 of this chapter.

With respect to breaches of any of the provisions of Sections 5.28.1520 or 5.28.1530 of this chapter, the auditor of the commission shall charge and transfer from the special account established pursuant to Section 5.28.1650 of this chapter, to the credit of the commission such amounts as are assessed as franchise fees, interests and liquidated damages by determinations of the board of directors pursuant to Section 5.28.1570 of this chapter, which are not appealed to arbitration and become final or which are affirmed by an arbitration panel under Section 5.28.1570 of this chapter, or such amounts of franchise fees, interests and liquidated damages as are prescribed by a judgment of a court.

The auditor shall mail notice to the franchisee of each transfer from the special account. The notice shall identify the amount transferred, the balance of the account after transfer (including accumulated interest), and the total amount, if any, which the franchisee is required to pay in order to replenish the account in accordance with the requirements of Section 5.28.1650 of this chapter.

Any amounts owing by a franchisee in excess of the current balance within the special account established pursuant to Section 5.28.1650 of this chapter, may be recovered from the surety on the performance bond filed pursuant to the provisions of Section 5.28.1640 of this chapter, or from the franchisee. (Prior code § 20.10.808)

With respect to arbitration proceedings conducted pursuant to the provisions of the second paragraph in Section 5.28.1830 of this chapter, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and cost divided in the manner prescribed by Sections 5.28.1920 through 5.28.1970 of this chapter. The questions which may be submitted to the arbitration panel and jurisdiction of the arbitration panel shall be limited to the following:

A. The interpretation of the provisions of the franchise documents solely in relation to the decision required by subsection B of this section; and

B. The amount, if any, owing by the franchisee.

The franchisee shall immediately pay any amount determined to be owing by the arbitration panel.

The arbitration award may be judicially enforced, shall be final, binding and conclusive upon the parties, and shall not be subject to judicial review or vacation except on grounds set forth in Section 1286.2 of the Code of Civil Procedure. (Prior code § 20.10.810)

Neither reduction of the term of the franchise nor liquidated damages shall be deemed to be the exclusive remedy for the types of breaches identified in Section 5.28.1810 of this chapter. Neither the right to assess liquidated damages nor the assessment of liquidated damages nor the right to reduce nor reduction of the term of the franchise shall be deemed to bar or otherwise limit the right of the cable television commission to obtain judicial enforcement of the franchisee's obligations by means of specific performance, injunctive relief, mandate or other remedies at law or in equity, other than monetary damages. (Prior code § 20.10.812)

The following material breaches of the obligations of a franchisee under the franchise documents shall constitute grounds for termination of a franchise by the cable television commission:

A. Cumulative unexcused delay in excess of:

1. One hundred eighty (180) calendar days in complying with the provisions of subsection (A)(2) of Section 5.28.950 of this chapter or beyond the times prescribed pursuant to Section 5.28.110 of this chapter in relation to subsection (A)(2) of Section 5.28.950 of this chapter, or

2. Three hundred sixty-five (365) calendar days in complying with the provisions of subsection (A)(4) of Section 5.28.950 of this chapter or beyond the times prescribed pursuant to Section 5.28.1110 of this chapter in relation to subsections (A)(2), (3) and (4) of Section 5.28.950 of this chapter, or

3. Three hundred sixty-five (365) calendar days in complying with the provisions of the last paragraph in Section 5.28.950 of this chapter or pursuant to Section 5.28.1110 of this chapter in relation to said last paragraph of Section 5.28.950 of this chapter;

B. The failure of a franchisee to make any payment to replenish the special account for security established under Section 5.28.1650 of this chapter, within the time required by said section;

C. Any violation of Section 5.28.1720, 5.28.1750 or 5.28.1770 of this chapter;

D. The failure to make any disclosure of fact within the application for the franchise which is required by this chapter or a request for proposals, or the misrepresentation of such a fact in the application;

E. The willful failure to make any payments required by Sections 5.28.1520 or 5.28.1530 of this chapter; or

F. Any other act or omission by the franchisee which materially violates the terms, conditions or requirements of the franchise documents or any order, directive, rule or regulation issued thereunder and which is not corrected or remedied within thirty (30) calendar days following mailing to the franchisee of written notice of the violation or within such period beyond the thirty (30) calendar days as is reasonable. (Prior code § 20.10.818)

The board of directors of the cable television commission shall not determine that a franchise shall be terminated either upon grounds identified by Section 5.28.1860 of this chapter, or pursuant to Section 5.28.210 of this chapter, until a hearing has been conducted upon the matter. Written notice of the time, date and place of the hearing shall be mailed to the franchisee and to the franchisee's surety on the performance bond filed pursuant to Section 5.28.1640 of this chapter, not later than thirty (30) calendar days in advance of the date of commencement of the hearing. The notice shall state the reasons for the hearing, describe the basis for termination, and identify the terms, conditions or requirements with respect to which the breach has occurred, if breach is the basis for termination.

The hearing may be conducted either by the board of directors of the commission or, at the sole discretion of the board, by a hearing officer appointed by the board to conduct the hearing. Any such hearing officer shall be an attorney licensed to practice under the laws of the state of California.

The cost of providing quarters for the hearing, the compensation for the hearing officer, if any, and the per diem cost of any reporter retained to record the proceedings shall be borne by the cable television commission. The cost of pre-paring a transcript and record of the hearing shall be borne by the franchisee. All costs incurred by the parties for attorneys fees, expert witness fees and other expenses shall be borne solely by the party incurring the costs. (Prior code § 20.10.820)

All witnesses testifying at the hearing concerning termination shall be sworn. Witnesses shall be subject to direct and cross-examination. However, formal rules of evidence applicable to the trial of civil or criminal proceedings in the trial courts of this state shall not be applicable to the hearing. The provisions of the Administrative Procedure Act, commencing at Section 11500 of the California Government Code or any successor legislative enactment, shall not be applicable to any such hearing. The hearing may be continued from time to time.

If the hearing is conducted by a hearing officer, the officer shall, upon conclusion of the hearing, prepare a recommended decision which includes findings of fact and conclusions. The recommended decision shall be filed with the clerk of the board of directors of the commission and mailed to the parties not later than thirty (30) calendar days after conclusion of the hearing. Upon receipt of such a recommended decision, the board of directors may, without a hearing except as otherwise required below, either:

A. Adopt the recommended decision, including findings of fact and conclusions submitted by the hearing officer;

B. Adopt the findings of fact and conclusions contained in the recommended decision, modify the decision, and adopt the recommended decision as so revised;

C. Based upon the record of the hearing, modify the findings of fact, conclusions or decision, and adopt the recommended decision as so revised; or

D. Reject the recommended decision and conduct a new hearing.

If the hearing is conducted by the board of directors of the commission, upon conclusion of the hearing, the board of directors shall adopt a decision which includes findings of fact and conclusions.

If the decision by the board of directors is that there are grounds for termination of the franchise and that the franchise should be terminated, the board shall adopt a resolution which terminates the franchise and includes its decision. The effective date of termination shall be such date as is prescribed by the board of directors, within its sole discretion, in the resolution, and the effective date may be made variable in relation to whether an appeal to arbitration is filed pursuant to Section 5.28.1890 of this chapter. (Prior code § 20.10.822)

Not later than thirty (30) calendar days following the date of mailing to the franchisee of the resolution of termination by the board of directors, the franchisee shall be authorized to appeal to arbitration the determination to terminate the franchise. The appeal shall be taken by filing a written notice thereof with the clerk of the board of directors. The notice of appeal shall state the specific reasons for appeal and shall be accompanied by a fee equal to the estimate by the clerk of the cost of preparing the transcript and record of the hearing. In the event the franchisee fails to file the notice of appeal with accompanying fee within thirty (30) calendar days following the date on which a copy of the resolution of termination was mailed to the franchisee, the termination the franchise shall become final, binding, conclusive and not subject to review or reversal by any authority. Judicial enforcement of the decision may be sought.

Except as otherwise provided herein, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by Sections 5.28.1920 through 5.28.1970 of this chapter.

The question which may be submitted to the arbitration panel and jurisdiction of the panel shall be limited to a decision as to whether the evidence received during the hearing preceding the determination by the board of directors established a basis for the termination of the franchise, and interpretation of the provisions of the franchise documents solely in relation to the question of whether there was a basis for termination. Under no circumstances shall the arbitration panel have authority or be vested with jurisdiction to review, reverse or otherwise nullify the exercise of discretion by the board of directors in terminating the franchise, if the panel determines that there are grounds for termination.

The hearing by the arbitration panel shall not be trial de novo, no new evidence shall be introduced, received, or considered, and the sole function of the panel shall be to review the record of the hearing preceding the decision by the board of directors to decide whether there was substantial evidence in the record to support the findings and to interpret the franchise documents in relation to the decision by the board of directors. The board's determination to terminate shall be sustained by the arbitration panel if it finds that there is substantial evidence in the record to sustain the determination, and that the conclusions are consistent with the provisions of the franchise documents. In determining whether there is substantial evidence in the record to support the findings, the panel shall conduct an independent review of the evidence in the record and determine the weight of the evidence contained in the record. The panel shall not substitute its discretion for that of the board with respect to the determination to terminate. If the panel decides that the determination by the board to terminate violates the provisions of the franchise documents it shall remand the matter to the board for further determination, reserving jurisdiction to review the determination. However, such remand shall not include a duty to receive further evidence, unless such evidence was initially offered and excluded during the hearing preceding the board's decision. Objections by the franchisee which were not presented during the hearing preceding the board's decision shall be deemed to have been waived.

The decision by the board of directors as affirmed by an arbitration award, may be judicially enforced, shall be final, binding and conclusive upon the parties, and shall not be subject to judicial review or vacation except on ground set forth in Section 1286.2 of the Code of Civil Procedure to the extent such grounds are consistent with the express terms of this chapter. (Prior code § 20.10.824)

Upon a final determination to terminate the franchise pursuant to Sections 5.28.1880 or 5.28.1890 of this chapter, the board of directors of the cable television commission, in its sole discretion, shall be authorized to purchase the property associated with the franchise, as defined by Section 5.28.560 of this chapter. Purchase of the property shall be made in accordance with the standards, procedures and provisions set forth in Sections 5.28.550 through 5.28.680 of this chapter. No compensation shall be payable by the commission or its assignee in relation either to the termination of the franchise or purchase of the property, except pursuant to and in accordance with said Sections 5.28.550 through 5.28.680 of this chapter. (Prior code § 20.10.826)

In the event a franchisee fails to operate its cable television system for seven consecutive days without prior approval by the board of directors of the cable television commission and for reasons which are not beyond its control, the commission through its officers, agents, employees or contractors may, at its option, enter upon the premises of the franchisee, occupy such premises and property constituting the cable television system, and operate the system until such time as the franchisee presents proof satisfactory to the board of directors that it is ready, willing and able to renew operation of the system. In operating the system, the commission or its contractor shall be vested with the powers of a receiver, and shall be authorized to contract in the name of the franchisee, incur expenses in the name of the franchisee, and take any and all other actions necessary to enable it to effectuate the purposes of this section. The costs incurred by the commission in undertaking such operation shall be a charge against the assets of the franchisee, and the commission or its contractor shall be authorized to reimburse itself for the costs incurred from revenues received during the period of operation. (Prior code § 20.10.828)

Except as otherwise provided by this chapter, arbitration proceedings of matters expressly made arbitrable under the provisions of this chapter shall be conducted in compliance with the provisions of the California Arbitration Act, commencing with Section 1280 of the California Code of Civil Procedure. (Prior code § 20.10.830)

Each arbitration shall be conducted by a panel of three arbitrators. One arbitrator shall be appointed by the franchisee, one arbitrator shall be appointed by the cable television commission, 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 in Sacramento County. Each member of the arbitration panel shall be an attorney licensed to practice within the courts of the state of California. No member of the panel shall be an officer, employee or attorney of any franchisee or any affiliate thereof, the county, cities or the commission.

The franchisee and commission shall each appoint its arbitrator and mail notice to the other of its selection not later than fifteen (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 thirty (30) calendar days following filing of the notice of appeal to arbitration or mailing of the initiation of arbitration. (Prior code § 20.10.832)

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 seventy-five (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 arbitrations, legal counsel to the cable television commission, the franchisee, and the franchisee's surety on the performance bond filed pursuant to the provisions of Section 5.28.1640 of this chapter, not later than twenty (20) calendar days in advance of the hearing. (Prior code § 20.10.834)

The compensation and expenses of the arbitrator appointed by the franchisee shall be borne and paid solely by the franchisee. The compensation and expenses of the arbitrator appointed by the cable television commission shall be borne and paid solely by the commission. The franchisee and commission 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 board of directors of the commission 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 franchisee.

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 section shall be divided equally between, borne and paid by the franchisee and commission. The arbitration panel shall not be empowered to order a division of costs, fees or expenses different from that prescribed by this section. (Prior code § 20.10.836)

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 ninety (90) calendar days following the close of the arbitration hearing. (Prior code § 20.10.838)

The arbitration panel shall have no authority to add to, delete or alter any provisions of the franchise documents, but shall limit its interpretation to the express terms of the franchise documents. Under no circumstances shall an arbitration panel be vested with authority or jurisdiction to determine or award monetary damages (by way of setoff, counter-claim, directly or otherwise) or any other relief against the county, the cities, the cable television commission, or their officers, agents or employees, except with respect to proceedings under Section 5.28.640 or 5.28.650 of this chapter to determine the value of property, and in such instances, any such award shall be limited to a determination of the value of the property according to the expressed terms and standards of the franchise documents. (Prior code § 20.10.840)

No provision of this chapter shall be deemed to bar the right of the county, cities or cable television commission to seek or obtain judicial relief from a violation of any provision of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in said chapter nor the exercise thereof shall be deemed to bar or otherwise limit the right of the county, cities or cable television commission to recover monetary damages (except where liquidated damages are otherwise prescribed) for such violation by the franchisee, or judicial enforcement of the franchisee's obligations by means of specific performance, injunctive relief or mandate, or any other judicial remedy at law or in equity. (Prior code § 20.10.842)

No franchisee shall have any recourse whatsoever against the county, cities, cable television commission, or their officers, agents, or employees for any loss, costs, expense, or damage arising out of or resulting from any provision or requirement of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder or because of the enforcement of any provision of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder, or in the event any provision of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder is determined to be invalid. (Prior code § 20.10.844)

A franchisee shall not be relieved or any obligation to comply with any of the provisions of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder by reason of any failure of the county, cities, cable television commission or their officers, agents or employees to enforce prompt compliance. (Prior code § 20.10.846)

Wherever within this chapter a requirement or provision is applicable to franchises issued by the commission, there is delegated to the commission the power to make such requirement or provision permissive and render such requirement or provision inapplicable to a given franchisee upon a showing of good cause therefor. (Prior code § 20.10.848)

Subsequent to the adoption of a resolution offering a franchise to any franchisee, the commission may adopt one or more amended and restated resolutions regarding the franchise issued to such franchisee. (Prior code § 20.10.850)

Except as otherwise expressly provided in any franchise issued by the city pursuant to its reserved powers under Section 5.28.170 of this chapter, all powers, rights, duties and obligations of the city pursuant to the provisions of Article 4.5 (commencing with Section 53088) of Chapter 1 of Division 2 of Title 5 of the California Government Code (hereinafter the "Video Customer Service Act"), as it now exists or should hereafter be amended, are delegated to and conferred upon the board of directors of the cable television commission as to any video provider included within the scope of its provisions, including without limitation those video providers who have received, or hereafter receive, a franchise issued by the commission pursuant to this article. (Prior code § 20.10.852)

The maximum monetary penalties set forth in Government Code Section 53088.1(o) are adopted and enacted as the applicable schedule of penalties for the material breach by a video provider of the provisions of Section 53088.1, as it now exists or should hereafter be amended, within the jurisdiction of the city. Subject to the procedures required by Government Code Section 53088.1(p), the board of directors of the commission is authorized to impose monetary penalties up to the maximum amounts so specified and subject to the terms thereof, provided that the schedule of penalties adopted shall not be deemed to reduce or delimit any other or additional penalties which the commission may otherwise be authorized to impose under law. (Prior code § 20.10.854)