Santa Clara County Municipal Code Art. 3 Special Rules Applicable to Cable Systems

(a) An application must be filed for an initial cable system franchise. All applications under the provisions of this chapter shall be in writing and shall be filed in the Office of the Clerk of the Board.

(1) Each application for an initial franchise 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 this chapter and its franchise obligations. In addition, any application for an initial franchise must describe in detail the cable system that the applicant proposes to build or maintain, show where it is or 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.

(2) The County may demand and applicant shall provide, such supplementary, additional or other information as the County may deem reasonably necessary to determine whether the requested franchise should be granted. An applicant shall respond to any request for information from the County, by the time reasonably specified by the County.

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

(Ord. No. NS-905, § 2, 12-13-05)

(a) 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) as the same may be amended.

(b) Any person may apply for an initial or renewal franchise by submitting an application therefor 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 may conduct such investigations as are necessary to act on an application.

(c) Before taking final action on an application, the County shall conduct a public hearing in accordance with applicable state and federal law.

(d) 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 ordinance;

(2) Whether an applicant for renewal's quality of service under its existing franchise ordinance, 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 the County or other communities indicates that it can be relied upon to provide high-quality service throughout any franchise term and to comply with its obligations under applicable law and its franchise;

(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) Whether the applicant has proposed to provide adequate facilities, equipment, channels and other support for PEG use of the cable system;

(9) Such other matters as the County is authorized or required to consider, including California Govt. Code Section 53066.3, to the extent that it applies.

(e) If the County determines that issuance of a franchise would be in the public interest considering the factors described in this section, it may proffer a franchise ordinance to the applicant.

(f) Within 30 days after the effective date of the ordinance awarding a franchise or franchise renewal, or within such extended period of time as the County Board of Supervisors in its discretion may authorize, the successful applicant or franchisee shall file with the Office of the Clerk of the Board an unconditional written acceptance, in form satisfactory to County Counsel, of the franchise or franchise renewal. Such acceptance shall be acknowledged before a notary public and shall in form and content be satisfactory to and approved by County Counsel.

(Ord. No. NS-905, § 2, 12-13-05)

(a) This section establishes provisions that apply to applications for renewal governed by 47 U.S.C. Section 546(a)—(h) as the same may be amended.

(b) A franchisee that intends to exercise rights under 47 U.S.C. 546(a)—(g) as the same may be amended 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 is preliminarily denied, the County may conduct such proceedings as may be required by federal law, and by resolution establish such procedures and appoint such individuals as may be necessary to conduct any proceedings to review the application in conformance with the requirements of federal law.

(c) An application for renewal pursuant to 47 U.S.C. § 546(h) may be submitted at any time, and may be rejected by the County at any time after public hearing, for any reason.

(Ord. No. NS-905, § 2, 12-13-05)

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

(b) An application for transfer must contain all the information required by Section B10-90(b)(1), (2), all information required by the FCC Form 394 as it existed on January 1, 2000 to the extent the provision of such information is not prohibited by federal law, and all information that is required to be filed under applicable federal or state law.

(c) The County may within 30 days after receiving a transfer application, request in writing such supplementary, additional or other information as the County may deem reasonably necessary to permit the Board to make a determination as to whether the requested franchise should be granted based on the factors set forth in Section B10-93(d). The applicants (the transferor and proposed transferee) shall respond to any request for information from the County, and provide the information requested, within 30 days of the request.

(d) 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 the transfer 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 ordinance, or other applicable law. The proposed transferee shall pay all reasonable costs incurred by the County in reviewing and evaluating the applications.

(e) 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 ordinance, 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. NS-905, § 2, 12-13-05)

(a) (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 ordinance as the County may lawfully require.

(2) The applicant must not have had any cable system or OVS franchise revoked by the County within three years preceding the submission of the application. If franchisee challenges a revocation, it may not apply while the appeal is pending, or for three years after the final resolution of the appeal if the revocation is valid.

(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, anti-competitive 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 of Section B10-94(a)(1)—(4), the term applicant includes any affiliate of applicant.

(b) Notwithstanding Section B10-94(a), an applicant shall be provided a reasonable opportunity to show that a franchise should be issued even if the requirements of Section B10-94(a)(2)—(4) are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing there from 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. NS-905, § 2, 12-13-05)

Each cable system operator shall pay to the County a franchise fee in an amount equal to five percent of such cable system operator's gross revenues derived from the operation of the cable system to provide cable services, or such other amount as may be specified in the franchise ordinance; provided, however, that if the franchise ordinance specifies an amount, that amount shall be subject to increase should federal limits on fee payments be eliminated or changed. Where revenues are not reasonably attributable wholly to the operation of the cable system in the franchise area (as might be the case with sales of advertising, where the sale is for the carriage of the advertising in several franchise areas) revenues shall be allocated to the County on a per capita basis. For example, if an advertiser is charged $10,000.00 for carriage of an advertisement across systems serving 300,000 subscribers, a franchisee would divide the number of subscribers in the County by 300,000 and multiply the resulting percentage times $10,000.00 to determine the revenues allocable to the County.

(Ord. No. NS-905, § 2, 12-13-05)

(a) A franchisee may not directly or indirectly require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing cable service. A franchisee must provide service on a month to month basis, however, nothing in this section prevents a franchisee from entering into a longer term contract with a subscriber in exchange for discounted rates.

(b) It is the policy of the County to ensure that every cable system provide 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 ordinance 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. Cable service must be provided within time limits specified in Section 4.7 of the Customer Service Standards Resolution.

(c) Each franchisee shall, during the term of its 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 person. A franchise ordinance may establish more particular requirements under which these obligations will be satisfied.

(Ord. No. NS-905, § 2, 12-13-05)

(a) A cable system within the County shall meet or exceed the technical standards set forth in 47 C.F.R. § 76.601 and any other applicable technical standards as may be amended.

(b) Each cable operator shall perform at its expense such tests of its facilities as may be necessary: to show whether or not the franchisee is in compliance with applicable technical standards; to resolve customer complaints; or to demonstrate compliance with its franchise or applicable law.

(Ord. No. NS-905, § 2, 12-13-05)

(a) The County may regulate any 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 Executive 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. A franchisee must comply with all rate orders issued by the County Board of Supervisors pending appeals by the franchisee unless a stay order has been issued by the FCC.

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

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

(2) For each violation of a cable system customer service standard, penalties will be imposed as follows and shall not be charged or passed-through to subscribers:

(i) $200.00 for each day of each material breach, not to exceed $600.00 for each occurrence of material breach.

(ii) If there is a subsequent material breach of the same provision within 12 months, $400.00 for each day of each material breach, not to exceed $1,200.00 for each occurrence of the material breach.

(iii) If there is a third or additional material breach of the same provision within 12 months of the first, $1,000.00 for each day of each material breach, not to exceed $3,000.00 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. A citation may be served on the franchisee by providing a copy to the person to whom notices are to be sent under the franchise. Penalties will be imposed in a manner consistent with Cal. Govt. Code Sec. 53088.2(r).

(Ord. No. NS-905, § 2, 12-13-05)