San Leandro Municipal Code Ch. 3 Basic Cable Television Service Tier—rate Regulations

AICPA.

"AICPA" means American Institute of Certified Public Accounts.

Cable Act of 1992.

"Cable Act of 1992" means the Cable Television Consumer Protection and Competition Act of 1992 (47 U.S.C. sec 521 et seq.).

Citation.

These Regulations may be cited as the "Basic Service Tier Rate Regulations."

Council.

"Council" means the City of San Leandro City Council.

City Manager.

"City Manager" means the City of San Leandro's City Manager or designee thereof.

Company.

"Company" as used herein means any cable television franchise of the City.

Customer.

"Customer" as used herein means any person or entity utilizing or desiring to utilize cable television services provided by the Company for consideration. "Customer" also means "customer" and/or "subscriber(s)" as those terms are used in the Cable Act of 1992 and the FCC rules and regulations adopted thereunder.

Effective Date.

"Effective Date" means the date the Basic Service Rate Regulations become effective as provided for in 47 CFR §76.910.

FCC.

"FCC" means the Federal Communications Council.

The Council hereby incorporates by reference the FCC rules and regulations implementing the Cable Act of 1992 as part of these Regulations including, but not limited to, those rules and regulations regarding subscriber rate regulations as set forth in 47 CFR §§76.900-76.985. Amendments to FCC rules and regulations implementing the Cable Act of 1992 made subsequent to the Effective Date of these Regulations shall also be incorporated by reference as part of these Regulations without further action on the part of the Council.

These Regulations shall at all times fully comply with Cable Act of 1992, as amended, and then-current FCC rules and regulations implementing the Cable Act of 1992. In the event any provision of these Regulations shall be invalidated for any reason or cause, any remaining portions shall be deemed severed therefrom and thereupon remain in full force and effect thereafter.

(a) Materials to be Submitted by Company to the City Manager. In connection with the submission of a completed FCC Form 393, or such other similar form as may be hereafter utilized by the FCC for the determination of maximum initial permitted rates for regulated cable services and actual cost of regulated equipment, and/or any other materials required by the Cable Act of 1992 and FCC rules and regulations implementing the Cable Act of 1992, the Company shall submit therewith the City Manager information necessary for the Council to ensure that the rates are consistent with the Cable Act of 1992.

(b) Scheduling of Review by Council. Upon the submission by Company of a complete submittal, pursuant to §2.3.115(a), the City Manager shall schedule review of Company's request. The City Manager is authorized on behalf of Council to toll the 30 day period pursuant to 47 CFR §76.933.

(c) Council's Power to Audit Company. Nothing contained in these Regulations shall abrogate the Council's powers under any other ordinance or resolution related to the franchising of cable television service, to conduct its own audit of the financial records of the company, or to require such audit to be performed.

(d) Comment by Interested Parties. The Council shall hold a public hearing providing for the comment of interested parties on any proposed determination or order of the Council pursuant to these regulations, provided that no public hearing shall be required where the proposed action before the Council is to receive information and refer to the City Manager for further report, or to toll the review period pursuant to 47 CFR §76.933, and the Council makes no order with regard to the setting of rates, refunds, or the imposition of enforcement sanctions on the Company.

All refunds owing by Company to Customers pursuant to 47 CFR §76.942 shall be paid by the Company to Customers by direct payment, credit to the Customer's bill or a prospective percentage reduction in rates pursuant to 47 CFR §76.942(d)(1) or (2) within 90 days from the date of the implementation of a prospective rate reduction pursuant to 47 CFR §76.942(c)(1) or (2).

(a) Informal Resolution. In the event that the Company shall fail, refuse or neglect to comply fully with the requirements of these Regulations, the City Manager shall, except in instances in which time is of the essence in obtaining the Company's compliance and/or the City Manager determines that such efforts would be futile, attempt informal resolution and rectification of the Company's non-compliance by informal meeting and/or telephone conference between the Company and the City Manager. Said informal resolution efforts shall be initiated by the City Manager's general statement of the alleged violations under investigation and the general nature of the evidence then known by the City Manager. Notwithstanding the foregoing, the nature and extent of evidence which may be presented by the City Manager in any subsequent Enforcement Hearing pursuant to §2.3.125(d) below shall not be limited or abridged by reason of the presentment or non-presentment or recitation or non-recitation of such evidence in the course of the informal resolution efforts.

(b) Council Preference for Cure. To the extent reasonably consistent with the goal of obtaining compliance with the Regulations, it shall be the policy of the City Council to notify the Company of a possible or alleged violation and, if said violation is then curable, allow a reasonable time for the Company to cure the possible or alleged violation. If the Company does so cure, in the absence of aggravating circumstances, it shall be the preference of the City Council to abstain from further enforcement action.

(c) Determination of Probable Cause for Enforcement Hearing. In the event that the informal efforts at resolution are ineffective or otherwise inappropriate:

(1) The City Manager may notice the Company to meet with the City Manager on not less than 10 days notice to determine whether or not probable cause exists to believe that the Company has failed, neglected or refused to comply with the provisions of these Regulations; or

(2) In the sole discretion of the City Manager, the City Manager may notice the Company to meet with the Council on not less than 10 days notice to determine whether or not probable cause exists to believe that the Company has failed, neglected or refused to comply with the provisions of these Regulations.

In either event, the probable cause determination shall be initiated by the City Manager's general statement of the alleged violations under investigation and the general nature of the evidence then known to the City Manager and/or the Council. Notwithstanding the foregoing, the nature and extent of evidence which may be presented by the City Manager in any subsequent Enforcement Hearing pursuant to §2.3.125(d) below shall not be limited or abridged by reason of the presentment or non-presentment or recitation or non-recitation of such evidence in the course of the probable cause determination.

(d) Enforcement Hearings. Upon a determination of the City Manager or the Council pursuant to §2.3.125(a) above, the probable cause exists to believe that the Company has failed, neglected or refused to comply with the provisions of these Regulations, the City Council may hold such hearings, conduct such procedures and impose such remedies as are authorized by these Regulations.

(e) Conduct of Enforcement Hearings. The hearing may be conducted either by the City Council or, at the sole discretion of the City Council, by a hearing officer appointed by the City Manager to conduct the hearing.

(f) Selection of Hearing Officer. If the matter shall be referred to a hearing officer, the City Manager and the Company shall each exchange to the other party, not later than 10 business days after said order of referral by the City Council, the names of three qualified, neutral and unaffiliated potential hearing officers. Thereupon, each party shall have 10 business days to strike two of the other party's named potential hearing officers and the hearing officer shall be thereafter determined, as between the two remaining names, by lot. Any such hearing officer shall be a person whose professional and technical expertise would qualify that person to act as a neutral, third party in the capacity of a hearing officer. 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 equally by the Company and the City Council. If Company fails to pay their share, City Council is authorized to pursue all legal means to obtain reimbursement. The costs incurred by the parties for attorney's fees, expert witness fees and other expenses shall be borne solely by the party incurring the costs.

(g) Burden of Proof at Enforcement Hearings. At any hearing conducted pursuant to §2.3.125 above, the City Manager shall have the burden of establishing the violation of these Regulations to the satisfaction of the Council or the hearing officer by a preponderance of the evidence. The Company may present such evidence, consistent with §2.3.125(h) below, as it may desire.

(h) Process of the Enforcement Hearing. All witnesses testifying at the hearing 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 apply to evidence adduced at the hearing only to the extent that such rules are reasonably necessary to the preservation of the probative nature of the evidence proffered. The provisions of the Administrative Procedures Act, commencing at Section 11500 of the Government Code or any successor legislative enactment, shall not be applicable to any such hearing. The hearing may be continued from time to time.

(i) Recommended Decision of Hearing Officer. 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 City Clerk and mailed to the parties not later than 30 calendar days after conclusion of the hearing. Upon receipt of such a recommended decision, the City Council may, without a hearing except as otherwise required below, either:

(1) Adopt the recommended decision, including findings of fact and conclusions submitted by the hearing officer;

(2) Adopt the findings of fact and conclusions contained in the recommended decision, modify the decision, and adopt the recommended decision as so revised;

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

(4) Reject the recommended decision and conduct a new hearing before a hearing officer provided at Council's expense.

(j) Findings by City Council. If the hearing is conducted by the City Council, upon conclusion of the proceedings, the Council shall adopt a decision which includes findings of fact and conclusions.

(a) Monetary Sanctions. Monetary sanctions may be imposed by the City Council upon a finding that the Company has not complied with one or more provisions of these Regulations. At the conclusion of a noticed hearing pursuant to §2.3.125(a) above, the City Council may impose monetary sanctions for a violation of an order the City Council issued pursuant to these Regulations. Each violation so found, is not to exceed the amount(s) set forth for the commitment of the applicable violation(s) as set forth below.

(b) Conscious Violation. A Conscious Violation is any failure, neglect or refusal of the Company to materially comply with any order issued pursuant to these Regulations, under such circumstances as to indicate:

(1) A conscious policy of non-compliance with the requirements thereof; or

(2) A conscious lack of a policy of compliance with the requirements thereof. A prior finding of a violation under §2.3.125 or 2.3.130 for substantially the same or similar conduct shall create a rebuttable presumption of conscious action or inaction on the part of the Company. For each such violation, the Council may impose a monetary sanction in an amount not to exceed Fifty thousand dollars and in additional like sum for each month or portion thereof during which the Company shall fail, neglect or refuse to rectify said violation beginning 30 days after written notice thereof from the Council to the Company.

(3) The maximum amount specified above shall be doubled for the second violation under that section for substantially the same or similar conduct occurring within any given 24 month period and shall be quintupled for the third violation under that section for substantially the same or similar conduct within any given 24 month period.

(c) Inadvertent Subscriber Violation. An Inadvertent Subscriber Violation is any failure, neglect or refusal of the Company to comply with the requirements of an Order issued under these Regulations as to its obligations hereunder in relation to one or more subscribers, including but not limited to refunding or crediting monies to subscribers pursuant to §2.3.120 hereof and/or 47 CFR §76.942(d)(1) or (2), under such circumstances as do not to indicate a pattern of behavior by the Company in derogation of the referenced requirement. For each such violation, the Council may impose a monetary sanction:

(1) In an amount not to exceed One hundred dollars for each such subscriber and Five thousand dollars in accumulation of the violations as to all such subscribers resulting from any substantially continuous behavior, act or omission; and

(2) In an additional like sum for each month or portion thereof during which the Company shall fail, neglect or refuse to rectify said violation beginning 30 days after written notice thereof from the Council to the Company.

(d) Inadvertent Company Violation. An Inadvertent Company Violation is any failure, neglect or refusal of the Company to materially comply with the requirements of an Order issued under these Regulations with respect to the Company in relation to the Council. For each such violation, the Council may impose a monetary sanction in an amount not to exceed Five thousand dollars and in an additional like sum for each month or portion thereof during which the Company shall fail, neglect or refuse to rectify said violation beginning 30 days after written notice thereof from the Council to the Company.

(e) Alternative Remedies. Neither monetary sanctions imposed hereunder nor any order issued by the Council related hereto shall be deemed to bar or otherwise limit the right of the Council to obtain judicial enforcement of the Company's obligations by means of specific performance, injunctive relief, mandate or other remedies at law or in equity, other than monetary damages.

(f) Temporary Stay of Remedies. Application of the remedies provided herein shall be stayed for the period of time during which any order of the Council pursuant to these regulations is under appeal by the Company to the FCC, pursuant to 47 CFR §76.944.

Editor's Note: Former Title 31, Chapter 1, Cable Television: Basic Cable Television Service Tier—Rate Regulations, was editorially renumbered to be Title 2, Chapter 3, City Manager: Basic Cable Television Service Tier—Rate Regulations, during the 2005-06 republication. Legislative history for Title 31, Chapter 1: Resolution No. 94-165, 08/15/1994 [§§31.1.100-31.1.130]

(Resolution No. 2006-123, 11/20/2006 [§§2.3.100-2.3.130])