Santa Barbara County Municipal Code Art. II County Cable TV and Video Franchises—Special Rules Applicable to Cable…

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Editor's note— Ord. No. 4785, § 2, adopted April 19, 2011, changed the title of art. II from "Special Rules Applicable to Cable Systems" to "County Cable TV and Video Franchises—Special Rules Applicable to Cable Systems".

(a) Application required. An application must be filed for an initial and renewal cable system franchise, or for approval of a transfer. A request for renewal filed under 47 U.S.C. Section 546(h) need not contain the information required by section 43-17(b)(1)—(2).

(b) Application Contents.

(1) The county administrator may specify the information that must be provided in connection with an application, and the form in which the information is to be provided.

(2) At a minimum each application must identify the applicant, show that the applicant is financially, technically and legally qualified to construct, maintain and operate the cable system, contain a pro forma showing capital expenditures and expected income and expenses for the first five years the applicant is to hold the franchise, and show that the applicant is willing to comply unconditionally with its franchise obligations. In addition, any application for an initial or renewal franchise must describe in detail the cable system that the applicant proposes to build, show where it will be located, set out the system construction schedule, and show that the applicant will provide adequate channels, facilities and other support for public, educational and government use (including institutional network use) of the cable system. To be accepted for filing, an original and six copies of a complete application must be submitted. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

(3) An applicant (and the transferor and transferee, in the case of a transfer) shall respond to any request for information from the county, by the time specified by the county.

(c) Incomplete Applications. An application may be rejected if it is incomplete, or if the response to requests for information is not timely and complete.

(Ord. No. 4371, § 2)

(a) Scope. This section establishes additional provisions that apply to an application for an initial franchise, or a renewal franchise application that is not governed by 47 U.S.C. Section 546(a)-(h).

(b) Process. Any person may apply for an initial or renewal franchise by submitting an application therefore on that person's own initiative, or in response to a request for proposals issued by the county. If the county receives an unsolicited application, it may choose to issue a request for additional proposals, and require the applicant to amend its proposal to respond thereto. The county shall promptly conduct such investigations as are necessary to act on an application.

(c) Consideration of Application. In determining whether to grant a franchise, the County may consider:

(1) The extent to which an applicant for renewal has substantially complied with the applicable law and the material terms of any existing cable franchise;

(2) Whether an applicant for renewal's quality of service under its existing franchise, including signal quality, response to customer complaints, billing practices, and the like has been reasonable in light of the needs of the community;

(3) Where the applicant has not previously held a cable system franchise in the county, whether the applicant's record in other communities indicates that it can be relied upon to provide high-quality service throughout any franchise term;

(4) Whether the applicant has the financial, legal and technical ability to provide the services, facilities, and equipment set forth in an application, and to satisfy any minimum requirements established by the county;

(5) Whether the applicant's application is reasonable to meet the future cable-related needs and interests of the county, taking into account the cost of meeting such needs and interests;

(6) Whether issuance of a franchise is warranted in the public interest considering the immediate and future effect on streets, public property and private property that will be used by the applicant's cable system;

(7) Whether issuance of the franchise would reduce competition in the provision of cable service in the county;

(8) Such other matters as the county is authorized or required to consider.

(d) Issuance of Franchise. It the county determines that issuance of a franchise would be in the public interest considering the factors described above, it may proffer a franchise agreement to the applicant. No franchise shall become effective until the applicant unconditionally accepts the franchise, and the franchise agreement is signed.

(Ord. No. 4371, § 2)

(a) Scope. This section establishes additional provisions that apply to applications for renewal governed by 47 U.S.C. Section 546(a)—(g).

(b) Process. A franchisee that intends to exercise rights under 47 U.S.C. Section 546(a)—(g) shall submit a notice in writing to the county in a timely manner clearly stating that it is activating the procedures set forth in those sections. The county shall thereafter commence any proceedings that may be required under federal law, and upon completion of those proceedings, the county may issue a request for proposals and an application may be submitted for renewal. The county may preliminarily deny the application by resolution, and if the application isu preliminarily denied, the county may conduct such proceedings and by resolution establish such procedures and appoint such individuals as may be necessary to conduct any proceedings to review the application.

(Ord. No. 4371, § 2)

(a) Scope. This section establishes additional provisions that apply to applications for transfer approval.

(b) Information. An application for transfer must contain all the information required by the county administrator, by section 43-17, and all information required by any FCC transfer form.

(c) Consideration of Application. In determining whether a transfer application should be granted, denied or granted subject to conditions, the county may consider the legal, financial and technical qualifications of the transferee to operate the cable system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in compliance with its franchise; whether the transferee owns or controls any other cable system in the county, whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the county; and whether operation by the transferee or approval of the transfer would otherwise adversely affect subscribers, the public, or the county's interest under this chapter. the franchise, or other applicable law. The proposed transferee shall pay all reasonable costs incurred by the county in reviewing and evaluating the applications.

(d) Minimum Conditions. In order to obtain approval of a transfer, an applicant must show, at a minimum that the transferee is qualified; the transfer will not adversely affect the interests of subscribers, the public, or the county; and that noncompliance issues have been resolved. No application shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee for all purposes.

(Ord. No. 4371, § 2)

(a) Standards.

(1) The applicant must be willing to comply with the provisions of this chapter and applicable laws and to comply with such requirements of a franchise as the county may lawfully require.

(2) The applicant must not have had any cable system or OVS franchise validly revoked, (including any appeals) by the county within three years preceding the submission of the application.

(3) The applicant may not have had an application to the county for an initial or renewal cable system franchise denied on the ground that the applicant failed to propose a cable system meeting the cable-related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved (including any appeals) adversely to the applicant, within three years preceding the submission of the application; and may not have had an application for an initial or renewal OVS franchise denied on any ground within three years of the application.

(4) The applicant shall not be issued a franchise if, at any time during the ten years preceding the submission of the application, applicant was convicted of fraud, racketeering, anticompetitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the county and the subscribers, or to substantially comply with its obligations.

(5) Applicant must have the necessary authority under California and federal law to operate a cable system, or show that it is in a position to obtain that authority.

(6) The applicant shall not be issued a franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide.

(7) For purposes section 43-21(a)(2)—(4), the term applicant includes any affiliate of applicant.

(b) Exception. Notwithstanding section 43-21(a), an applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of section 43-21(a)(3)—(4) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system.

(Ord. No. 4371, § 2)

A cable operator shall pay to the county a franchise fee in an amount equal to five percent of gross revenues, or such other amount as may be specified in the franchise; provided, however, that if the franchise specifies an amount, that amount shall be subject to increase should federal limits on fee payments be eliminated or changed and other cable operators are subject to a higher fee.

(Ord. No. 4371, § 2)

(a) A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service. However, nothing herein prevents a franchisee from entering into an otherwise lawful, mutually desired exclusive arrangement with a building owner or manager of a multiple dwelling unit or commercial subscriber.

(b) No franchisee shall enter into or cooperate with any agreement with any other utility, cable system, OVS or other entity which provides for the exclusive right to attach equipment to utility poles or use underground conduit. This provision is not intended, however, to interfere with any utility, cable system, OVS or other entity from obtaining reasonable compensation for the use of their facilities by other entities.

(Ord. No. 4371, § 2)

In addition to satisfying such additional or stricter conditions as the county finds necessary based on its investigations, the following elements shall be required in every franchise serving more than one thousand subscribers: an operator who provides service in an area which is defined as "isolated rural" maybe exempted from the minimum franchise requirements for that area.

(a) System Design. Each franchisee shall provide a cable system that uses at least seven hundred fifty MHz equipment of high quality and reliability. Each franchisee shall install and activate the return portion of the cable system in the sub-low frequency spectrum of five MHz to thirty MHz.

(b) Public, Educational and Government Use of the System.

(1) A franchisee shall provide channels for PEG access to each subscriber; the number of channels shall be specified in the franchise.

(2) Each franchisee shall install, maintain and replace as necessary, a dedicated, bi-directional fiber optic link between its headend and a location designated by the county as the primary access center.

(3) Each franchisee shall install, maintain and replace activated two-way cable plant and all headend, cable plant, and node equipment required to make it operable so that the county, schools and all designated PEG access centers and access facilities located within the franchise area will be able to send and receive signals (video, audio and data) using the activated two-way cable plant.

(4) Each franchisee shall ensure that technically adequate signal quality, routing systems, and switching and/or processing equipment are initially and continuously provided for all access interconnections both within franchisee's cable system and with other cable systems throughout the duration of its franchise.

(5) In the event a franchisee makes any change in the cable system and related equipment and facilities or in the franchisee's signal delivery technology which directly or indirectly substantially affects the signal quality or transmission of access programming, the franchisee shall at its expense take necessary steps or provide necessary technical assistance, including the acquisition of all necessary equipment, to ensure that the capabilities of access programmers are not diminished or adversely affected by such change.

(6) A franchisee shall maintain all access channels (both upstream channels and downstream channels) and all interconnections of access channels at the same level of technical quality and reliability as the best commercial channels carried on the system.

(c) Service to Franchise Area. It is the policy of the County to ensure that every cable system provides service in its franchise area upon request to any person or any government building. Each franchisee shall extend service upon request within its franchise area; provided that, a franchise may permit a franchisee to require a potential subscriber to contribute a fair share of the capital costs of installation or extension as a condition of extension or installation in cases where such extension or installation may be unduly expensive. Service must be provided within time limits specified in section 43-24(d).

(d) Time for Extension. Except as a franchise otherwise provides, service must be extended upon request to any person or to any government building in a franchisee's franchise area: (i) within seven days of the request, where service can be provided by activating or installing a drop; (ii) within ninety days of the request where an extension of one-half mile or less is required; or (iii) within six months where an extension of one-half mile or more is required.

(e) Technical Standards. A cable system within the county shall meet or exceed the technical standards set forth in 47 C.F.R. Section 76.601 and any other applicable technical standards.

(f) Testing. Each cable operator shall perform at its expense such tests as may be necessary to show whether or not the franchisee is in compliance with its obligations under applicable FCC standards, this chapter or a franchise.

(g) Interconnection. Upon request of the county, every cable system shall be required to interconnect with every other cable system within the county, or adjacent to the county, on fair and reasonable terms for purposes of providing PEG and I-Net services.

(h) Continuity of Service. Each franchisee shall, during the term of the franchise, ensure that subscribers are able to receive continuous service. In the event the franchise is revoked or terminated, the franchisee may be required to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity. A franchise may establish more particular requirements under which these obligations will be satisfied.

(Ord. No. 4371, § 2)

(a) All Rates Subject to Regulation. The county may regulate any of the cable operator's rates and charges, except to the extent it is prohibited from doing so by law. The county will regulate rates in accordance with FCC rules and regulations, where applicable. Except to the extent FCC rules provide otherwise, all rates and charges that are subject to regulation, and changes in those rates or charges must be approved in advance. The county administrator may take any required steps to file complaints, toll rates, issue accounting orders or take any other steps required to comply with FCC regulations. The county board of supervisors shall be responsible for issuing rate orders that establish rates or order refunds.

(b) No Rate Discrimination. Except to the extent the county may not enforce such a requirement, a cable operator is prohibited from discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential subscribers; provided, however, that a franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such discounts are offered on a non-discriminatory basis to similar classes of subscribers throughout the franchise area; and a franchisee may offer discounts for the elderly, the disabled. or the economically disadvantaged; and such other discounts as it is expressly entitled to provide under federal law, if such discounts are applied in a uniform and consistent manner.

(c) Redlining Prohibited. A cable operator shall not deny access or charge different rates for the same services to any group of subscribers or potential subscribers because of the income of the residents of the local area in which such group resides.

(d) Customer Service.

(1) Each cable operator must satisfy FCC, state and county cable customer service standards or consumer protection standards. County cable customer service standards may be adopted by resolution. In the case of a conflict among standards, the stricter standard shall apply.

(2) For violation of cable customer service standards (Appendix A), penalties will be imposed as follows:

(A) Two hundred dollars for each day of each material breach, not to exceed six hundred dollars for each occurrence of material breach.

(B) If there is a subsequent material breach of the same provision within twelve months, four hundred dollars for each day of each material breach, not to exceed one thousand two hundred dollars for each occurrence of the material breach.

(C) If there is a third or additional material breach of the same provision within twelve months of the first, one thousand dollars for each day of each material breach, not to exceed three thousand dollars for each occurrence of the material breach.

(3) Any penalty assessed under this section will be reduced dollar for dollar to the extent any liquidated damage provision of a franchise imposes a monetary obligation on a franchisee for the same customer service failures, and no other monetary damages may be assessed. The county will provide notice, and impose penalties, under this section pursuant to the procedures established by California Government Code Section 53088.2(r).

(Ord. No. 4371, § 2)