Chapter 15.28

CABLE TELEVISION SYSTEMS*

Parts:

• 1 Definitions

• 2 General Provisions

• 3 Application for Franchise

• 4 Prerequisites to Effectiveness of Franchise

• 5 Conditions, Limitations and Regulations 6 Cable Television Rates and Service

• 7 Franchise Fees and Records

• 8 Unauthorized Acts

• 9 Review Sessions

• 10 Interim Cable System Franchise

Part 1

DEFINITIONS

Sections:

*State law reference— For statutory provisions authorizing any city to license, authorize by franchise and regulate a community antenna tell vision system, see Gov. Code § 53066.

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For purposes of this Chapter 15.28, certain words, phrases and terms used in this chapter and hereinafter defined in this Part 1 shall be deemed to have the meanings specified in this part unless it is apparent from the text that a different meaning is intended.

(Prior code § 1021.1; Ord. 22101.)

der common ownership, control, or management, unless each facility or facilities uses any public right-of-way;

• C. A facility of a common carrier, except that such facility shall be considered a cable system to the extent that such facility is used in the transmission of video programming directly to subscribers; or

• D. Any facilities of any electric utility used solely for operating its electric utility systems.

• (Ord. 22101.)

"FM" means frequency modulation radio transmission.

(Prior code § 10121.5; Ord. 22101.)

"Cable act" means the Communications Act of 1934 (47 U.S.C. § 151 et seq. (1934)), as amended by the Cable Communications Policy Act of 1984 (P.L. 98-549, 98th Cong., 2d Sess. (1984); 47 U.S.C. § 521 et seq.), as further amended by the Cable Television Consumer Protection and Competition Act of 1992 (P.L. 102-385, 102nd Cong., 2d Sess. (1992); 106 Stat. 1460), as the same may be further amended from time to time. (Ords. 22101, 24623.)

"Cable system" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

• A. A facility that serves only to retransmit the television signals or one or more television broadcast stations;

• B. A facility that serves only subscribers in one or more multiple unit dwellings un-

"Gross revenues" means any and all compensation and other consideration, in any form whatsoever, and any contributing grant or subsidy, received directly or indirectly by a grantee from subscribers or users of a cable system in payment for television or radio signal or service received within the city from such cable systems, excluding installation fees, line extension fees and any additional revenues of grantee specified in a franchise agreement. Gross revenues shall not include any taxes on services furnished by the grantee imposed directly on any user or subscriber by any city, state or other governmental unit and controlled by the grantee for such governmental unit. (Prior code § 10121.6; Ord. 22101.)

"Grantee" means the person, individual, partnership, association, joint stock company, trust, corporation or governmental entity to whom or which a franchise or franchise renewal is granted by the council, pursuant to the provisions of this chapter, and the lawful successor or assignee thereof. (Prior code § 10121.7; Ord. 22101.)

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"Property of grantee" means all property owned, installed or used by a grantee in the conduct of a cable television business in the city. (Prior code § 10121.8; Ord. 22101.)

"Service area" means the area in which the grantee is permitted to provide subscribers with cable television service pursuant to a franchise or franchise renewal granted under the provisions of this chapter.

(Prior code § 10121.9; Ord. 22101.)

signals by means of such cable system, or the establishing or carrying on of any business within the city which is designed to or does furnish any cable services to the inhabitants of the said city, should be regulated by said city pursuant to the purposes and authority established by the cable act and the provisions of the California Government Code, Section 53066. Also, the use of any public street or public property, or of any area proposed to be a public street for any of the above purposes, is of great concern to the city and should be regulated by the city. It is the purpose of this chapter to provide such regulation.

(Prior code § 10122.1; Ord. 22101.)

"Street," for purposes of this chapter, means the surface of, and the space above and below, a public street, road, highway, freeway, lane, alley, court, sidewalk, parkway, drive or easement dedicated to uses compatible with a cable system, now or hereafter existing as such within the city. (Prior code § 10121.10; Ord. 22101.)

"Subscriber" means any person receiving for any purpose any cable television service provided by a grantee.

(Prior code § 10121.11; Ord. 22101.)

Part 2

GENERAL PROVISIONS

Sections:

It is hereby declared and determined that the business of establishing and/or operating a cable system for the purpose of supplying any person in the City of San José with television signals or radio

• A. Except as specifically allowed by this chapter, it is unlawful for any person to establish or operate a cable system in the city unless a franchise or franchise renewal has first been obtained pursuant to this chapter and the franchise or franchise renewal is in full force and effect.

• B. Except as specifically allowed by this chapter, it is unlawful for any person to construct, install or maintain within any public street or other public property of the city, or within any privately owned area within the city that is not a public street but has been designated or delineated as a proposed public street on any tentative subdivision map approved by the city, any equipment or facilities for a cable system, unless a franchise or franchise renewal authorizing the use of the public street, other public property or proposed public street has first been obtained pursuant to this chapter and the franchise or franchise renewal is in full force and effect.

• C. The provisions of this chapter do not apply to a cable television system that was in operation on September 2, 1965, but shall apply when that cable television system is required to obtain a franchise or franchise renewal pursuant to the Cable Act and this chapter and during

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the period when a franchise application has been submitted but not finally decided upon by the city council pursuant to this chapter.

• D. Previously Constructed Systems:

  1. It is unlawful for any person to operate a cable system on any previously constructed, installed and existing system or network of any kind without first obtaining a franchise pursuant to this chapter.

  2. A grantee under this chapter may operate a cable system over a previously constructed and installed system or network as long as the system or network was constructed and installed pursuant to and in accordance with all applicable laws, regulations and rulings in effect at the time of that construction and installation.

(Prior code § 10122.2; Ords. 22101, 25121.)

Whenever it deems such to be for the public good, the council, subject to other provisions of this chapter, may and is hereby empowered to grant, by ordinance, to any person, whether operating under an existing franchise or not a nonexclusive franchise to operate or carry on the business of distributing to people in the city, or to people in a certain area or areas in the city, television signals or radio signals by means of a cable system, and/or to construct, install or maintain within specified public streets in the city, or within other specified public property of the city, or, subject to approval of the owner of such private area, within any privately owned area in the city which has not yet become a public street but which is designated or delineated as a proposed public street on any tentative subdivision map which has been approved by the city, any equipment or facilities for distributing television signals or radio signals by means of a cable system. (Prior code § 10122.3; Ord. 22101.)

provision of this chapter shall be deemed to require restricting the number of franchises or franchise renewals to one or any particular number, and no provision of this chapter shall be deemed to prohibit or prevent the council from refusing to grant any franchise or franchise renewal if and whenever it finds or believes that the grant of any such franchise or franchise renewal is not for the public good.

• B. All franchises and franchise renewals shall be subject to terms and conditions specified in the charter of the City of San José, and to terms and conditions specified in this chapter. Also, in granting any franchise or franchise renewal, the council may prescribe such other and additional terms and conditions, not in conflict with said charter or this chapter, whether governmental or contractual in character, as in the judgment of the council are in the public interest or as the people by initiative, indicate they desire to have so imposed.

• (Prior code § 10122.4; Ord. 22101.)

Part 3

APPLICATION FOR FRANCHISE

Sections:

15.28.220 Resolution giving notice of application and of time and place of hearing.

• 15.28.230 Hearing - Time - Notice publication.

15.28.240 Hearing - Procedures.

• 15.28.250 Council decision - Criteria for consideration - Granting of franchise - Conditions.

15.28.260 Application for renewal of franchise.

• A. All franchises and franchise renewals issued under this chapter shall be nonexclusive. No

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§ 15.28.200

All applications for franchises or franchise renewals under the provisions of this chapter shall be in writing and shall be filed in the office of the city clerk.

(Prior code § 10123.1; Ord. 22101.)

• A. Each application for a franchise shall contain the following information:

  1. The name and address of the applicant. If the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application shall also state the names and addresses of its directors, main offices, major stockholders and associations, and the names and addresses of parent and subsidiary companies;

  2. A statement of the type of franchise applied for, and a general description of what applicant proposes to do pursuant to the requested franchise;

  3. A statement and description of the cable system proposed to be constructed, installed, maintained or operated by the applicant; the proposed location of such system and its various components; the manner in which applicant proposes to construct, install, maintain and operate the same; and, particularly, the extent and manner in which existing or future poles or other facilities of other public utilities will be used for such system;

  4. A description, in detail, of the public streets, public places and proposed public streets within which applicant proposes or seeks authority to construct, install or maintain any cable television equipment or facilities; a detailed description of the equipment or facilities proposed to be constructed, installed or maintained therein; and the proposed specific location thereof;

  5. A map specifically showing and delineating the proposed service area or areas within which applicant proposes to provide people of the city with cable television services and for which a franchise is requested;

  6. A financial statement prepared by a certified public accountant, or otherwise satisfactory to the council, showing applicant's financial status and his financial ability to complete the construction and installation of his proposed cable system;

  7. A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any person, firm or corporation with respect to the proposed franchise or the proposed cable system. If a franchise is granted to a person, firm, group or corporation posing as a front or as the representative of another person, firm, group or corporation, and such information is not disclosed in the original application, such franchise shall be deemed void and of no force and effect whatsoever.

• B. The council may at any time demand, and applicant shall provide, such supplementary, additional or other information as the council may deem reasonably necessary to determine whether the requested franchise should be granted.

(Prior code § 10123.2; Ord. 22101.)

Upon receiving an application for a franchise under the provisions of this chapter, the city clerk shall present the same to the council at the next regular meeting. The council shall thereupon, or within a reasonable time thereafter, pass a resolution giving notice of the application and of the time and place of a public hearing thereon. The resolution shall give notice that an application has been filed for a cable television franchise under and pur-

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suant to the provisions of this chapter, shall refer to the application on file in the office of the city clerk for full information respecting such application, and shall contain a notice of the time and place the council will hear persons desiring to be heard in favor of or in opposition to the granting of a franchise to applicant.

(Prior code § 10123.3; Ord. 22101.)

The hearing on an application for a franchise shall be held not earlier than the fourteenth day immediately following the date of adoption of the resolution giving notice of the application. The city clerk shall cause the resolution giving notice of the application and of the time and place of hearing thereon to be published in a newspaper of general circulation in the city at least twice the first publication to be not later than the tenth day immediately preceding the date of hearing. (Prior code § 10123.4; Ord. 22101.)

At the hearing on an application for a franchise, the council shall give all persons desiring to be heard a reasonable opportunity to present evidence or to be otherwise heard in favor of or in opposition to the granting of a franchise to the applicant. At such hearing, the council may demand such additional information as it may deem relevant and necessary. The hearing may be continued or adjourned, from time to time, to a stated time and place without the giving of further notice. (Prior code § 10123.5; Ord. 22101.)

consideration - Granting of franchise - Conditions.

• A. Upon conclusion of the hearing on the application for a franchise, or within a reasonable time thereafter, the council shall render its decision thereon. If it deems such action to be for the public good, it may refuse to grant the requested franchise, or it may, by ordinance, grant the same, or it may, by ordinance, grant

such other cable television franchise as it may deem to be for the public good, subject to such terms, conditions, rules, regulations, restrictions and limitations, governmental or contractual in nature, as it may deem advisable to protect individual subscribers to the services of the cable system, to preserve the rights, interests and liability of the city in its streets and public places, and to otherwise protect the interests of the city and its people.

• B. In making its decision, the council may consider whether the applicant is qualified, or better qualified than others, to render prompt and efficient cable television service to subscribers; quality of service; rates to the subscriber; income to the city; experience and financial responsibility of the applicant; and any other consideration that will safeguard the city's public interest.

• C. The cable television franchise granted by the council to the applicant need not be identical to or the same as that requested by applicant, but may vary or be different therefrom. For example, the rights or privileges granted thereby may be less or more limited than those requested by applicant.

• D. No franchise shall be granted except by ordinance. No franchise shall become effective unless and until all things required by the provisions of Part 4 of this chapter have been done and completed.

(Prior code § 10123.6; Ord. 22101.)

• A. Any applicant for renewal of a franchise granted pursuant to this chapter shall file an application in the office of the city clerk. Such application shall contain the information required of a franchise applicant by subparts Al and A2 of Section 15.28.210 of this chapter.

• B. At any time during a franchise term or after the expiration of a franchise granted pursuant to this chapter, the council may negotiate the terms of a renewal of such franchise. Such renewal may be granted after ten days notice

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§ 15.28.260

to the general public by publication in a newspaper of general circulation in the city of a summary of such renewal and a hearing to permit the public to comment on the terms of such renewal. Such renewal shall be by ordinance and shall become effective upon compliance by the applicant with the provisions of Part 4 of this chapter.

• C. In lieu of proceeding to negotiate and grant a franchise renewal pursuant to subsections A and B of this section, the council may, on its own initiative, or must, upon the request of grantee, during the six-month period which begins with the thirty-sixth month before the franchise expires, commence renewal proceedings according to the procedures set forth in the section 626 of the cable act.

• (Ord. 22101.)

Part 4

PREREQUISITES TO EFFECTIVENESS OF FRANCHISE OR RENEWAL

are not done and completed in the time and manner required, the council may declare the franchise or franchise renewal null and void. (Prior code § 10124.1; Ord. 22101.)

Within thirty-one days after the effective date of the ordinance awarding a franchise or franchise renewal, or within such extended period of time as the council in its discretion may authorize, the successful applicant or grantee shall file with the city clerk his written acceptance, in form satisfactory to the city attorney, of the franchise or franchise renewal, together with his agreement to be bound by and to comply with and to do all things required of him by applicable provisions of the city's charter, provisions of this chapter and provisions of the franchise or franchise renewal. Such acceptance and agreement shall be acknowledged by the successful applicant before a notary public and shall in form and content be satisfactory to and approved by the city attorney.

(Prior code § 10124.2; Ord. 22101.)

Sections:

• 15.28.310 Acceptance of franchise or renewal - Agreement to comply.

• 15.28.320 Faithful performance bond requirements.

• 15.28.330 Public liability insurance.

• 15.28.340 Filing of contracts with public utilities.

No franchise or franchise renewal granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance granting the same has become effective and, in addition, unless and until all things required of the grantee by the provisions of this Part 4, all of such things being hereby declared to be conditions precedent, are done and completed. In the event any of such things

• A. Within thirty-one days from and after the effective date of the ordinance awarding the franchise or franchise renewal, or within such extended period of time as the council in its discretion may authorize, the grantee shall file with the city clerk, and thereby deliver to the city, a corporate surety bond, executed by grantee as principal and by one or more corporate sureties, authorized to engage in such business in the state of California, as surety, in the principal sum of fifty thousand dollars, conditioned that in the event that grantee, during the term of said bond, shall fail to comply with and do all things required of him by applicable provisions of the city's charter, by provisions of this chapter, by provisions of the franchise or franchise renewal, or by provisions of any lawful requirement of the city,

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then said principal and said surety shall be jointly and severally bound and liable to the city, and there shall be recoverable by the city from said principal and surety, jointly and severally, any and all damages, up to the full amount of said bond, suffered by the city as a result thereof, including but not limited to the full amount of any franchise fee, compensation, indemnification or cost of removal or abandonment of property owing by grantee to the city pursuant to the provisions of this chapter, or of said franchise or franchise renewal, for which grantee may be in default.

• B. The term of said bond shall be the entire term of the franchise, or, in lieu thereof, the grantee may file and deliver, successively, two or more such bonds, each for a term of not less than one year, unless the council authorizes otherwise, covering the entire term of the franchise. In the latter event, the first such bond shall be filed and delivered as aforesaid within thirtyone days from and after the effective date of the ordinance awarding the franchise, or within such extended period of time as the council in its discretion may authorize, and each subsequent bond shall be filed and delivered on or before the thirtieth day immediately preceding the date of expiration of the bond then in effect.

• C. Neither the provisions of this section nor any bond accepted by the city pursuant thereto, nor the recovery by the city of any damages shall be construed to excuse faithful performance by the grantee of all obligations which he may have under this chapter or under said franchise or franchise renewal, nor excuse or limit the grantee's liability for any damages, either to the full amount of the bond or otherwise.

• D. Each abovementioned bond shall be in form satisfactory to and approved by the city attorney.

• E. Any damages recovered by the city pursuant to this section shall not be general revenue to

the grantor but shall be used only for purposes related to the operation, maintenance and programming of the system.

(Prior code § 10124.3; Ord. 22101.)

• A. Within thirty-one days from and after the effective date of the ordinance awarding the franchise, or within such extended period of time as the council in its discretion may authorize, the grantee shall furnish and file with the city clerk, and all times thereafter maintain in full force and effect, at grantee's sole cost and expense, a general comprehensive insurance policy, in a company authorized to do business in the state, said policy to be in form satisfactory to the city attorney, protecting the city, its boards, commissions, officers, agents and employees from and against any and all loss, damage or liability for damages, and from all suits or actions for or because of bodily injury, death and property damage occasioned by operations or omissions of grantee under said franchise. Both bodily injury liability coverage and property damage liability coverage must be on an occurrence basis; and said policy shall provide that the insurance afforded to the city, its boards, commissions, officers, agents and employees, shall be primary insurance to the full limits of liability stated in the declarations, and if the city, its boards, commissions, officers, agents or employees have other insurance against a loss covered by said policy, that other insurance shall be excess insurance only. Said policy of insurance shall provide coverage in the following minimum amounts: For bodily injury liability, two hundred fifty thousand dollars per each person and five hundred thousand dollars per each occurrence; for property damage liability, five hundred thousand on account of any one occurrence.

• B. The policy mentioned in the foregoing paragraph shall contain a provision that a written notice of any cancellation or reduction in coverage of said policy shall be delivered to the

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city not less than ten days in advance of the effective date thereof. If such insurance is provided by a policy which also covers grantee or any entity or person other than those above named, then such policy shall contain a standard cross-liability endorsement.

(Prior code § 10124.4; Ord. 22101.)

Within one hundred eighty days from and after the effective date of the ordinance awarding the franchise or franchise renewal, or within such extended period of time as the council in its discretion may authorize, the grantee shall file with the city clerk copies of all contracts which it may have with all public utility companies, including but not limited to the Pacific Telephone and Telegraph Company and the Pacific Gas and Electric Company, whereby grantee is granted any right to use any of the property, equipment or facilities of such utility or utilities in the conduct of any operations pursuant to the franchise or franchise renewal awarded to said grantee.

(Prior code § 10124.5; Ord. 22101.)

Part 5

CONDITIONS, LIMITATIONS AND REGULATIONS

Sections:

• 15.28.360 Franchise or renewal not exclusive.

• 15.28.370 Compliance with council orders.

• 15.28.380 Enforcement of franchise obligations - Breaches.

• 15.28.385 Enforcement of franchise obligations - Sanctions.

• 15.28.390 Limitation on rights and privileges granted.

• 15.28.400 Rights reserved to city.

• 15.28.410 Restricted use of cable system.

• 15.28.420 Franchise or renewal transfer or assignment restrictions.

• 15.28.440 Franchise or renewal subordinate to public use of public property.

• 15.28.450 Franchise or renewal subordinate to public utility franchises.

• 15.28.460 Grantee's rights subject to applicable city requirements.

• 15.28.470 City officers and employees - Rights, powers and duties transferable.

• 15.28.480 Grantee not relieved of other obligations.

• 15.28.490 No recourse against city for loss.

• 15.28.500 Indemnification of city.

• 15.28.510 Prompt compliance required.

15.28.540 Map of installations - Filing requirements.

• 15.28.550 Inspection of property and records.

• 15.28.560 Installation and construction of grantee's property.

• 15.28.570 When facilities must be underground.

• 15.28.580 Changes required by public improvements.

• 15.28.590 Streets - Occupancy requirements generally.

• 15.28.600 Streets - Use restrictions.

• 15.28.610 Streets - Restoration of sidewalks, pavement or other surfacing.

• 15.28.620 Facilities - Relocation required when.

• 15.28.630 Facilities - Temporary removal required when.

• 15.28.640 Removal of property from streets or sidewalks - Abandonment conditions.

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§ 15.28.385

Any franchise or franchise renewal granted under the provisions of this chapter shall be for such term as the council may specify; excepting, however, that no franchise or franchise renewal shall be granted for a term in excess of twenty-five years from and after the effective date of the ordinance which grants the same.

(Prior code § 10125.1; Ord. 22101.)

Any franchise or franchise renewal granted under the provisions of this chapter shall be nonexclusive, and neither the granting of such a franchise or franchise renewal nor any of the provisions contained therein shall prevent the city from granting any identical, similar or different franchise to any person other than grantee for all or any areas of the city.

(Prior code § 10125.13; Ord. 22101.)

Every grantee shall obey and comply with every order, direction, rule, resolution or ordinance made or prescribed by the council. (Prior code § 10125.28; Ord. 22101.)

In addition to all other rights and powers pertaining to the city by virtue of this chapter and otherwise, the city reserves the right to impose liquidated damages, penalties or sanctions, or to terminate, cancel and revoke any franchise or franchise renewal granted hereunder and all rights and privileges of a grantee hereunder in the event that any grantee breaches any material requirement of this chapter or any franchise or franchise renewal granted pursuant to this chapter. (Ord. 22101.)

• A. In the event that any cause for liquidated damages, penalties or sanctions, or termination, cancellation or revocation under this section occurs, the following procedures shall apply:

  1. The city manager shall make written demand that the grantee correct or comply with any such requirement, limitation, term, condition, rule or regulation that is a part of the cause for sanctions, termination, cancellation or revocation.

  2. In the event of any failure, breach, refusal or neglect to cure, the city manager may place a request for liquidated damages, penalties, sanctions, termination, cancellation or revocation of the franchise upon a regular council meeting agenda. The city manager shall cause to be served upon such grantee, at least thirty days prior to the date of such council meeting, a written notice of the intent to request such sanctions, termination, cancellation or revocation and the time and place of the meeting, notice of which shall be published by the clerk of the council at least once ten days before such meeting in a newspaper of general circulation within the city.

  3. After providing grantee with notice and an opportunity to be heard and in the event that the council determines that the grantee, by its acts or omissions, has given the city cause for sanctions, termination, cancellation or revocation of the franchise, the council may:

     • a. Instruct the city manager to make written demand upon grantee for full compliance within such time as the council may direct; or

     • b. Declare the franchise terminated and of no further force and effect; or

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§ 15.28.385

• c. Impose liquidated damages, penalties or sanctions as follows:

  • i. For material failure to complete system improvements in accordance with any agreement or approved the delay by motion or resolution, due to the occurrence of conditions beyond grantee's control; a grantee shall pay five hundred dollars per day for each day, or part thereof, the deficiency continues.

• d. For the purposes of this subsection, an occurrence shall he deemed a separate occurrence for each twentyfour-hour period in which it continues. In no event shall total liquidated damages exceed ten thousand dollars per month.

• e. Liquidated damages levied by the grantor pursuant to this subsection shall not be general revenue to the grantor and shall be used by the grantor only for purposes related to the operation, maintenance and programming of the system.

• B. No franchise shall he terminated, canceled or revoked when the grantee thereunder has made a reasonable and diligent effort in good faith, to correct or remedy the breach, failure, refusal or neglect.

• C. If the council declares the franchise terminated, the city may pursue any remedies available to the city pursuant to this chapter, the franchise agreement or any other remedy available to the city as provided by law.

• (Ord. 22101.)

No right, privilege or exemption is granted or conferred to, or otherwise acquired by a grantee of

a franchise awarded pursuant to this chapter except those expressly and specifically granted to him in and by the franchise.

(Prior code § 10125.4; Ord. 22101.)

There is hereby reserved to the city every right and power which is required to be herein reserved or the exercise of which is provided for by any provision of any lawful ordinance or resolution of the city heretofore or hereafter enacted, and the grantee, by its acceptance of any franchise, agrees to be bound thereby and to comply with any action or requirement of the city in its exercise of any such right or power.

(Prior code § 10125.24; Ord. 22101.)

The cable system authorized by any franchise granted under the provisions of this chapter shall be used solely and exclusively for the purpose or purposes expressly authorized by the franchise, and for no other purpose.

(Prior code § 10125.3; Ord. 22101.)

Any franchise or franchise renewal granted pursuant to this chapter is a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned, or disposed of, either in whole or in part, either by forced sale, merger, consolidation or otherwise, without the prior consent of the council expressed by ordinance, and such consent shall not be unreasonably withheld. No such consent shall be required for any transfer in trust, mortgage or other hypothecation, as a whole, to secure an indebtedness. No sale, transfer, lease assignment or other disposition shall relieve a grantee from any of its duties and obligations under such franchise or franchise renewal. Nothing in this section shall prohibit a grantee's leasing of channel capacity. However, no grantee shall lease more than twenty-five percent of the video programming channels of its system. (Prior code 10125.7; Ord. 22101.)

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§ 15.28.490

Neither the granting of any franchise or franchise renewal, nor any provision thereof shall constitute a waiver or bar to the exercise of any governmental right or power of the city. (Prior code § 10125.25; Ord. 22101.)

public use of public property.

All franchises or franchise renewals granted under the provisions of this chapter, and all rights and privileges granted thereby, are and shall be subordinate to the right of city and of the general public to use and occupy, and any occupancy by them of any public street or public property for municipal or public purposes, including but not limited to occupancy or use of such streets and property for traffic purposes, and for poles, lines, conduits, cables, pipelines and other municipal or public uses or purposes.

(Prior code § 10125.6; Ord. 22101.)

All franchises or franchise renewals granted under the provisions of this chapter are and shall be subordinate to any existing public utility franchises, any public utility franchises hereafter granted, or any lawful occupancy of any public highway, street, easement, road or other public property for the purpose of erecting poles, lines, conduits, cables, pipelines and other necessary fixtures and appurtenances where the same are used in connection with the purposes of the existing public utility franchise or any public utility franchises hereafter granted or any extension thereof.

(Prior code § 10125.5; Ord. 22101.)

The grantee, and all rights granted to him under this chapter, shall be subject to all applicable requirements of the city's municipal code and of all ordinances, rules, regulations and specifications of

the city heretofore or hereafter enacted or established, including but not limited to those concerning street work, street excavation, use, removal and relocation of property with a street, and other street work, and grantee shall comply with the same. (Prior code § 10125.11; Ord. 22101.)

Any right, power or duty given to or impressed upon any officer, employee, department or board of the city shall be subject to transfer by the city to any other officer, employee, department or board of the city.

(Prior code § 10125.9; Ord. 22101.)

Nothing in this chapter, or in any franchises or franchise renewals granted under this chapter, shall be deemed to give any grantee of any such franchise or franchise renewal any right to occupy or use any poles, conduits, cables or any other property owned by the city or any public or private person or body, situate within any street or in any other place, without obtaining special permission therefor from the owner thereof or without paying such consideration or assuming such obligations therefor, or complying with such conditions, limitations, terms and restrictions as the owner thereof may impose or require, except to the extent the franchise or franchise renewal may expressly, clearly and specifically give such right with respect to specified property owned by the city.

(Prior code § 10125.12; Ord. 22101.)

The grantee shall have no recourse whatsoever against the city, its officers, employees or agents, for any loss, cost, expense or damage arising out of any provision or requirement of this chapter or of any franchise or franchise renewal issued under such chapter, or because of its enforcement. (Prior code § 10125.10; Ord. 22101.)

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§ 15.28.500

The grantee shall indemnify, and shall agree to indemnify the city, its officers and employees against all claims, demands, actions, suits and proceedings by others, and against all liability to others, and against any loss, cost and expense resulting therefrom, including reasonable attorney's fees arising out of or resulting from the exercise of enjoyment of any franchise or franchise renewal or any act or omission of grantee with respect thereto, irrespective to the amount of the comprehensive liability insurance policy required under the provisions of this chapter.

(Prior code § 10125.14; Ord. 22101.)

This is and shall be of the essence of any franchise or franchise renewal granted under this chapter. The grantee shall comply, and shall not be relieved of his obligation to comply, promptly with each and every provision of this chapter and of the franchise or franchise renewal. He shall not be deemed relieved of such obligation by or because of the failure of the city to enforce prompt compliance.

(Prior code § 10125.8; Ord. 22101.)

• A. Any cable system installed by the grantee pursuant to any franchise or franchise renewal shall be installed and maintained in accordance with the highest and best accepted standards of the industry so that subscribers shall receive the highest possible quality service. The cable system shall also meet any technical requirements for cable systems established by the Federal Communications Commission.

• B. The grantee shall furnish and maintain such adequate, efficient, just and reasonable service, instrumentalities, equipment and facilities as are necessary to promote the safety, health, comfort and convenience of its subscribers, employees and the public.

• C. The council shall have the right and power, to the extent permitted by applicable state and

federal law, to establish such minimum standards as it may deem advisable for the above purposes, and grantee shall comply with them. (Prior code § 10125.15; Ord. 22101.)

The grantee shall prepare and furnish to the city engineer, director of finance, city auditor and city manager, at the times and in the form prescribed by said officers, or prescribed in the franchise or franchise renewal agreement, 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.

(Prior code § 10125.17; Ord. 22101.)

Grantee shall maintain, on its premises, an accurate set of maps showing all cable system equipment installed in the streets of the city. Such plans shall be made available for inspection by city officials on request during normal business hours. Grantee shall furnish such other information relating to the construction and installation of the cable system as required by the franchise or franchise renewal agreement. (Prior code § 10125.18; Ord. 22101.)

• A. At all reasonable times, the grantee shall permit any duly authorized representative of the city engineer and/or the director of finance to examine all franchised property, 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 treat of the operations, affairs, transactions or property of the grantee with respect thereto. If any of such maps or records are not kept in the city, then upon request, they shall be made available in the city.

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• B. The grantee shall, at all times, make and keep in the city full and complete plans, maps and records showing the exact location of all cable system equipment installed or in use by grantee in the streets, alleys and public places of the city.

(Prior code § 10125.16; Ord. 22101.)

Property of the grantee shall be constructed or installed in streets, or in public service easements, only at such locations and in such manner as shall be approved by the city engineer of the city, acting in the exercise of reasonable discretion. Construction or installation of property of grantee in all other public places shall be subject to prior approval of and regulation of the city council. (Prior code § 10125.19; Ords. 20183, 22101.)

In those areas or portions of the city where the transmission or distribution facilities of the public utility companies providing telephone service and electrical service are underground, or are hereafter required to be placed underground by the city, the grantee shall likewise construct, operate and maintain all transmission and distribution facilities underground. Amplifiers and couplings on the transmission and distribution lines may be constructed and maintained above-ground, if approved by the city engineer, in appropriate metal or concrete boxes or vaults as prescribed by the city engineer. (Prior code § 10125.21; Ords. 20183, 22101.)

• A. The grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the same street, alley or public property or place, or remove from any street, alley or public property or place, any of its property when required by the city engineer by reason of traffic conditions, public safety, street vacation, freeway or street construction, street wid-

ening, 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 the city or other governmental agencies when acting in a governmental or proprietary capacity, or any other structures or public improvements.

• B. Upon failure of the grantee to commence, pursue or complete any work required by law or by the provisions of this chapter or by any franchise or franchise renewal to be done in any street, public place or public property within the time prescribed and to the satisfaction of the city engineer, the city engineer may, at his option, cause such work to be done, and the grantee shall pay to the city the costs thereof within thirty days after receipt of an itemized report of such costs from the city engineer.

• (Prior code § 10125.22; Ord. 22101.)

In addition to other requirements of this chapter, the grantee of any franchise or franchise renewal granted under the provisions of this chapter shall do all things required of him by the provisions set forth in Sections 15.28.600 through 15.28.630, and otherwise comply with such provisions. (Prior code § 10125.23; Ord. 22101.)

All distribution and other structures, lines, equipment and property erected or placed by the grantee within the city shall be so located as to cause no interference with proper use of streets, alleys and other public ways and property, and to cause no interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways or property.

(Prior code § 10125.23(a); Ord. 22101.)

pavement or other surfacing.

If grantee disturbs any pavement, sidewalk, driveway or other surfacing, or other improvements

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within any streets, alleys or other public ways or other public property, the grantee shall, at its own cost and expense, replace and restore all paving, sidewalk, driveway or other surfacing or other improvements disturbed, in good condition as before said work was commenced, and to the satisfaction of the city engineer.

(Prior code § 10125.23(b); Ord. 22101.)

If at any time during the term of such franchise or franchise renewal the city elects to alter, change the grade of or construct any street, alley or other public way, or any public property, the grantee, upon reasonable notice by the city, shall remove and relocate its structures, lines and equipment, at its own cost and expense, to the extent the city deems such to be reasonably necessary for the above purpose.

(Prior code § 10125.23(c); Ord. 22101.)

The grantee shall, at the request of any person who holds a building moving permit issued by the city, temporarily remove, raise or lower its wires to permit the moving of buildings. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same.

(Prior code § 10125.23.(d); Ord. 22101.)

• A. In the event the franchise or franchise renewal has been cancelled or terminated for any reason, or in the event the city council finds and determines that the use of any property of grantee has been abandoned for a period of six months, or in the event any property of grantee has been installed in any street or other public place without complying with the requirements of this chapter or the franchise granted by the city, then such property of grantee shall be promptly removed, other than

that which the council may permit to be abandoned in place. In the event of any such removal, the grantee shall promptly restore the street or other area from which the property has been removed to a condition satisfactory to the city engineer.

• B. Property of grantee to be abandoned in place shall be abandoned in such manner as the city engineer shall prescribe. Upon permanent abandonment of any such property in place, the grantee shall submit to the city manager an instrument, satisfactory to the city attorney, transferring to the city the ownership of such property.

(Prior code § 10125.20; Ord. 22101.)

• A. The city council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter.

• B. 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 accept, reject or modify the decision of the city manager, and 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.

(Prior code § 10125.27; Ord. 22101.)

The power to amend 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, is hereby expressly reserved to the city.

(Prior code § 10125.26; Ord. 22101.)

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• A. All notices required by the provisions of this chapter or of any franchise or franchise renewal, to be given by the city, or by its council or any officer, employee or agent of the city to the grantee or any of his assigns or successors, and all other notices which the city may give pursuant to this chapter or any franchise or franchise renewal, may be personally served, or may be given by ordinary United States mail, postage prepaid, addressed to grantee at his office in San José, the address of which shall be filed by grantee with the city clerk, or at the address given in the franchise or franchise renewal.

• B. All notices required by the provisions of this chapter, or of any franchise or franchise renewal, to be given by grantee to the city, and all other notices which grantee may give to the city pursuant to this chapter or of any franchise or franchise renewal granted thereunder, shall be personally delivered to the city clerk in his office at the City Hall, or may be given by ordinary United States mail, postage prepaid, addressed to the city, care of the city clerk, City Hall, San José, California.

• C. All documents and papers required to be filed with the city shall be filed with the city clerk in the city's City Hall.

(Prior code § 10125.29; Ord. 22101.)

Part 6

CABLE TELEVISION RATES AND SERVICE

Sections:

• 15.28.700 Establishment of service - Time restrictions.

• 15.28.710 Office in city for maintenance service.

• 15.28.720 Minimum cable system services.

• 15.28.730 Line extension charges.

• 15.28.740 Charges for repair or replacement prohibited - Exception.

• A. Grantee shall proceed, within a reasonable time from the effective date of the ordinance granting the franchise or franchise renewal, to obtain all necessary permits, contracts and authorizations which are required in the conduct of its business, including public utility joint-use agreements and any microwave carrier license or other licenses granted or required by duly constituted regulatory agencies having jurisdiction over such facilities. Further, grantee shall commence the work of construction of facilities required to be installed to comply with the franchise or franchise renewal within a reasonable time subsequent to the obtaining of all necessary permits and authorizations. The completion of the installation shall be pursued with reasonable diligence so that service to all subscribers within each service area for which grantee has a franchise shall be provided or be available within such reasonable time as is set forth in said franchise or franchise renewal.

• B. If the necessary permits, contracts, agreements and licenses have not been secured within eighteen months from the effective date of the ordinance, the city shall have the right to terminate the franchise or franchise renewal, after holding a public hearing and determining that the public interest requires that the franchise or franchise renewal be terminated. If the council determines at said hearing that the public interest would not be served by the cancellation of said franchise or franchise renewal, and that with reasonable diligence on the part of grantee such permits, contracts, agreements and licenses can be obtained within

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• a further period specified by the council, said franchise or franchise renewal may be extended for such additional period.

• C. Failure on the part of grantee to commence and diligently pursue each of the foregoing requirements and to complete each of the matters set forth herein shall be grounds for termination of such franchise or franchise renewal. Delays beyond the control of grantee shall be taken into consideration by the council, but shall not prevent a cancellation or termination if the council determines that the public interest so requires.

• D. After the grantee shall have established service pursuant to this chapter, such service shall not be suspended or abandoned unless such suspension or abandonment is authorized by resolution of the city council. A finding by the city council of an unauthorized suspension or abandonment for a period of more than ten days shall constitute cause for revocation of the franchise or franchise renewal.

• (Prior code § 10126.1; Ord. 22101.)

The grantee shall maintain an office in the city so that cable system maintenance shall be promptly available to subscribers upon telephone request. Said office shall be open and full maintenance service shall be available during all hours that grantee is furnishing or supplying signals to subscribers. (Prior code § 10126.8; Ord. 22101.)

• A. The cable system permitted to be installed and operated hereunder shall, at minimum:

  1. Distribute color television signals which it receives in color; and

  2. Have the capacity to receive and distribute signals from satellites; and

  3. Provide channel capacity for public, educational, and governmental use. The number of such channels shall be set forth in a franchise or franchise renewal agreement; and

• B. Subscriber Complaints. Grantee shall establish a subscriber complaint procedure as specified in the franchise or franchise renewal agreement and shall respond to subscriber complaints according to the requirements of such procedure. Grantee shall maintain a log recording subscriber complaints as specified in the franchise or franchise renewal agreement.

• (Ord. 22101.)

• A. No line extension charge to subscribers shall be made by grantee in any areas where the number of occupied houses is greater than fifty per mile of trunk line.

• B. No line extension charge shall be made which is greater than the actual cost to grantee of the time and materials involved.

• C. Grantee shall be permitted to assess a line extension charge on any subscriber who requests installation of services to a location which is more than one hundred fifty feet from existing cable plant, or which requires the expenditure of more than four hundred dollars to install. Nothing in this subsection shall relieve the grantee of any obligation to provide line extensions required by this ordinance or any franchise or franchise renewal agreement.

• (Prior code § 10126.11; Ord. 22101.)

No charge shall be made to any subscriber by reason of the maintenance, repair, removal or replacement of any property of grantee, unless the same was caused by the deliberate act or negligence of subscriber, or acts of domestic animals on the subscriber's premises.

(Prior code § 10126.12; Ord. 22101.)

• A. No residential dwelling or similar unit in the service area shall be refused cable television

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service unless the providing of such service would not, in the opinion of the city council, be in the public interest; provided, however, that grantee shall not be required to provide service to any subscriber who does not pay the regular connection fee or the regular monthly service charge; provided further that under no circumstances will any group of potential residential cable subscribers be denied access to cable service because of the income of the residents of the local area in which such group resides. Any violation of this section shall be deemed a material breach of the franchise granted under this ordinance and shall be grounds for termination of this franchise if such a determination is made pursuant to the provisions and procedures of Section 15.28.385.

• B. No grantee shall make or grant any preference on the basis of any improper classification including race, color, religion, national origin, age or sex, to rates, charges, services, facilities, rebates, or in any other respect, or subject any person to any prejudice or disadvantage. Provided, however, that this section shall not prohibit grantee from offering a special rate to senior citizens.

At any and all public hearings before the city council required to be held under the provisions of the cable act, this chapter or other applicable laws pertaining to rates subject to regulation under the cable act, the city council shall hear and consider the views of all interested parties. The provisions of this section are declarative of existing practice and procedure.

(Ord. 24623.)

Notwithstanding any specific term or provision of this chapter to the contrary, wherever the provisions of the cable act, or regulations duly promulgated thereunder, pertaining to customer service standards of grantee are more restrictive than or cover matters not addressed by the provisions of this chapter, then those provisions of the cable act and regulations shall apply and control. (Ord. 24623.)

Part 7

FRANCHISE FEES AND RECORDS

(Prior code § 10126.13; Ord. 22101.)

Sections:

• A. Notwithstanding any specific term or provision of this chapter to the contrary, wherever the provisions of the cable act, or regulations duly promulgated thereunder, pertaining to rates subject to regulation by the city under the cable act are more restrictive than or cover matters not addressed by the provisions of this chapter, then those provisions of the cable act and regulations promulgated thereunder shall apply and control.

• B. The city shall administer and enforce its laws pertaining to rates subject to regulation under the cable act and regulate those rates in a manner that is consistent with the cable act and regulations promulgated thereunder.

• (Ord. 24623.)

15.28.850 Franchise fee - Amount.

• 15.28.860 Franchise fee - Where payable. 15.28.870 Franchise fee - When payable.

• 15.28.880 Statement to accompany payment.

• 15.28.890 Payment to be in lieu of other license fees.

15.28.900 Accounting and recordkeeping requirements - City inspection authority.

Any grantee granted a franchise or franchise renewal pursuant to the provisions of this chapter shall pay to the city, during the life of such franchise or renewal, and at the times specified in this part, a

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sum of money not to exceed that allowable by applicable state and federal law, as specified in the franchise or franchise renewal agreement. (Prior code § 10127.1; Ord. 22101.)

The franchise fee shall be paid to the city by delivery of the same to the city's director of finance. (Prior code § 10127.2; Ord. 22101.)

Franchise fee payments shall be made quarterly. Within thirty days from and after the end of each quarter of each calendar year, the grantee shall pay to the city the franchise fee for the immediately preceding quarter year. (Prior code § 10127.3; Ord. 22101.)

Each payment shall be accompanied by a statement, in duplicate, verified by grantee, or by a general officer or other duly authorized representative of the grantee, showing in such form and detail as the city's director of finance may require from time to time the facts material to a determination of the amount due.

(Prior code § 10127.4; Ord. 22101.)

The payment made to the city by the grantee pursuant to this chapter for any calendar year shall be in lieu of any license fee or business license tax prescribed by the city for the same period, but only to the extent of such payment. (Prior code § 10127.6; Ord. 22101.)

The grantee shall at all times maintain accurate and complete accounts of all revenue and income arising out of its operations under said franchise or franchise renewal. Grantee's books, accounts, and records shall at all times be open to

inspection and examination by authorized officers, agents and employees of the city, and shall be kept in such form as to enable such authorized officers, agents and employees to ascertain the amounts of money due the city and to determine such other acts as may be necessary to determine whether or not grantee is complying with the terms of said franchise. The right is reserved to the city of audit and recomputation of any and all amounts paid by grantee, and no acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the city may have for further or additional sums payable under such franchise or for the performance of any other obligation thereunder. In the event of any holding over after expiration or other termination of said franchise or franchise renewal, without the consent of the city, the grantee shall pay to the city a reasonable compensation and damages.

(Prior code § 10127.5; Ord. 22101.)

Part 8

UNAUTHORIZED ACTS

Sections:

It shall be unlawful for any person, firm or corporation to make any unauthorized connection in physical contact with any part of a franchise cable system within this city for the purpose of taking or receiving television signals, radio signals, pictures, programs, or sound.

(Prior code § 10128.1; Ord. 22101.)

It shall be unlawful for any person, firm or corporation to make any unauthorized connection

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in physical contact with any part of a franchised cable 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 said system. (Prior code § 10128.2; Ord. 22101.)

It shall be unlawful for any person, without the consent of the owner, to wilfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound. (Prior code § 10128.3; Ord. 22101.)

• D. Any scheduled review session may be opened to the general public.

• E. The franchise or renewed franchise granted under the provisions of this chapter may thereupon be amended by mutual consent of the grantor and the grantee. If, after any review meeting, grantor and grantee agree that a given service is technically and economically feasible, then grantee shall use its best efforts to provide such service.

• (Ord. 22101.)

Part 10

INTERIM CABLE SYSTEM FRANCHISE

Part 9

Sections:

REVIEW SESSIONS

To provide for periodic review and revision of the cable system, grantor and grantee shall comply with the following system and services review provisions:

• A. At grantor's or grantee's option, grantor shall schedule a system and services review session at any time after the third anniversary date of the franchise agreement.

• B. Ninety days prior to the scheduled system and services review session, grantor shall notify grantee of the issues it wishes to discuss at the review session, and shall specify any questions of particular concern it may have.

• C. Sixty days prior to the scheduled review session, grantee shall provide written responses to the questions specified by grantor. Grantee may select and report on any additional topics for discussion at such review session.

15.28.1040 Franchise terms.

15.28.1050 Renewal.

Notwithstanding other provisions of this chapter, on or before December 31, 1997, a cable system franchise applicant may choose to apply for and the city council may grant an interim cable system franchise agreement for the establishment, construction, installation, maintenance or operation of a cable system pursuant to the provisions of this part. (Ord. 25121.)

The purpose of an interim cable system franchise is to allow an interim cable system franchise applicant an opportunity to receive a similar franchise as that of an incumbent cable system operator for the remaining term of the incumbent operator's franchise agreement. The interim cable system franchise is intended to allow an expedited consider-

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ation of the cable system franchise application and negotiation of the cable system franchise agreement.

(Ord. 25121.)

incumbent cable system provider to the effective date of the interim cable system franchise agreement of the applicant.

(Ord. 25121.)

All of the provisions of Parts 1 through 9 of this Chapter 15.28 shall apply to an interim cable system franchise application and agreement, except as specifically and expressly modified by the provisions of this part. (Ord. 25121.)

The term of an interim cable system franchise agreement shall not exceed the period of time remaining on the franchise agreement of an incumbent cable system provider in the city or five years, whichever is less. (Ord. 25121.)

• A. An interim cable system franchise agreement shall require, without limitation:

  1. The grantee of the interim cable system franchise to provide cable service to the same geographical area as an incumbent cable service provider within a reasonable period of time and in a manner that does not discriminate against lower income or minority residents; and

  2. The same public, educational and governmental access requirements as are required under a franchise agreement with an incumbent cable system operator.

• B. For the purposes of this section, "the same" means comparable after consideration of relevant changes in the physical characteristics, geography, density, and demographics of the franchise area, as well as relevant changes in technology and monetary inflation, and any other relevant changes occurring from the effective date of the franchise agreement of the

A cable system operator that is operating pursuant to the terms and conditions of an interim cable system franchise agreement may, at any time beginning with the thirty-sixth month prior to the expiration of the interim cable system franchise agreement, commence a process for the renewal of a cable system franchise in accordance with all applicable laws, rules, regulations, policies and procedures in effect at the time of the renewal. (Ord. 25121.)