Tehama Municipal Code Art. II Franchise Grant Authority and Conditions

A. It is unlawful to engage in or commence construction, operation or maintenance of a cable communications system without a franchise issued under this chapter. The board of supervisors may, by ordinance, award a nonexclusive franchise to construct, operate and maintain a cable communications system within all or any portion of the county to any person, whether operating under an existing franchise or not, who makes application for authority to furnish a cable communications system which complies with the terms and conditions of this chapter. Provided, that this section shall not be deemed to require the grant of a franchise to any particular person, or to prohibit the board from restricting the number of grantees, should it determine such a restriction would be in the public interest. In the event the county grants such additional franchises to construct, operate or maintain cable communications systems within the same service area of the county under more favorable terms and conditions than those granted to a grantee in a previous franchise, then the franchise shall be considered modified to include such more favorable terms and conditions.

B. Any franchise or license for the construction, maintenance and operation of cable television systems using the public streets, utility easements, other public rights-of-way or places shall conform to the provisions of this chapter.

(Ord. 1337 §3.1, 1986)

The provisions of this chapter shall be incorporated by reference in any franchise agreement or license approved hereunder.

(Ord. 1337 §3.2, 1986)

Any franchise granted under the provisions of this chapter by the county shall authorize the grantee, subject to the provisions herein contained:

A. To engage in the business of operating and providing cable communication service to subscribers within the county;

B. To erect, install, construct, repair, replace, reconstruct, upgrade, maintain and retain in, on, over, under, upon, across and along any street, such amplifiers and appliances, attachments, supporting structures, and other property as may be necessary and appurtenant to the cable communications system; and, in addition, so to use, operate and provide similar facilities or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other grantee franchised or permitted to do business in the county;

C. To maintain and operate the franchise properties for the origination, collection, transmission, amplification, distribution and reception of electromagnetic energy.

(Ord. 1337 §3.3, 1986)

A franchise shall be effective on the thirtyfirst day after approval of the franchise agreement or license, provided the grantee has filed, within twenty days after such effective date, a written instrument, addressed to the board of supervisors, accepting a franchise or license, together with the insurance policies and bond required by Sections 6.20.410 through 6.20.430 of this chapter, agreeing to comply with all the provisions hereof.

(Ord. 1337 §3.4.1, 1986)

A franchise or license shall expire fifteen years after acceptance thereof, unless sooner terminated by ordinance.

(Ord. 1337 §3.4.2, 1986)

A. The board may terminate any franchise granted pursuant to the provisions of this chapter in the event of the wilful failure or refusal by grantee to comply with any material requirement or limitation contained in this chapter, the franchise agreement or license.

B. The county board may make written demand that the grantee comply with any such requirement, limitation, term or condition. If the failure, refusal or neglect continues, after notice, for an unreasonable period of time, in no event to be less than sixty days following such written demand, the county board may consider termination of the franchise upon the next regular board meeting agenda. The county board shall cause to be served upon such grantee, at least thirty days prior to the date of such board meeting, a written notice of its intent to request such termination, and the time and place of the meeting.

C. The board of supervisors shall hear any persons interested therein, and shall determine, based upon a preponderance of evidence, whether the grantee has committed a material breach of this chapter or the franchise agreement or license.

D. If the board shall determine that the grantee has committed a material breach, the grantor shall notify the grantee in writing of such determination, specifying the grounds therefor, and shall direct the grantee to take appropriate remedial action within such time, in such manner and upon such terms and conditions as are reasonable under the circumstances.

E. If the grantee fails to begin appropriate remedial action within thirty days following receipt of notification of a material breach by the grantee, then the grantor may, by ordinance, declare that the franchise of such grantee be terminated.

F. In the event the grantor declares, by ordinance, the franchise of a grantee shall be terminated, then such grantee shall have the right to have such declaration of termination reviewed de novo, in a court of appropriate jurisdiction. No such termination shall be effective until a final decision is reached by the court, if such review is initiated by the grantee.

(Ord. 1337 §3.4.3, 1986)

A. In the event of termination, the county may purchase, or require any successor grantee to purchase grantee's facilities at its then fair market value, with a reduction for uncompensated actual damages incurred by the county in connection with the grantee's operation. In the event the parties are unable to agree on the fair market value of grantee's system as specified above, grantee and the purchaser shall each select one qualified appraiser experienced in the evaluation of cable communications systems.

B. The two selected appraisers shall select a third appraiser. The three appraisers shall be employed to determine the fair market value of grantee's system. The fair evaluation shall be the average of the three evaluations of the appraisers. The appraisers shall be directed to reach their determination within thirty days. Grantee and the purchaser shall each pay fifty percent of the costs of employing such appraisers.

C. In the event of a material breach resulting in a termination of the franchise in accordance with the provisions herein, the term "fair market value" shall include the value of the system as a going concern, but shall not include the rights granted pursuant to the franchise.

(Ord. 1337 §3.4.4, 1986)

Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the right of the county to acquire the property of the grantee through the exercise of the right of eminent domain, nor any other of the rights of the county under the franchise or any provision of law.

(Ord. 1337 §3.4.5, 1986)

In the event of any holding over after expiration or other termination of any franchise granted hereunder, the grantee shall pay to the county all fees consistent with the provisions of this chapter, as if there had not been such holding over, and as if the terms and conditions of the franchise continued in full force and effect. In the event of any such holding over, in direct contravention by grantee of a final valid order of the county expressed by resolution, upon notice, requiring grantee to cease and desist all operations upon a certain date, then and in that event, the grantee shall pay to the county reasonable compensation and damages of not less than one hundred percent of its gross revenue, derived from all sources within the county during said period. Actual payment shall be subject to court challenge.

(Ord. 1337 §3.4.6, 1986)

Unless otherwise specifically prescribed herein, the following provisions shall govern the interpretation and construction of a franchise:

A. Time is of the essence. The grantee shall not be relived of its obligation to promptly comply with any provision hereof, or the ordinance granting the franchise, by failure of the county to enforce prompt compliance with the same or any other provision.

B. Any right or power conferred, or duty imposed upon any any officer, employee, department or board of the county is subject to transfer by operation of law to any other officer, employee, department or board of the county.

C. The grantee shall have no recourse whatsoever against the county for any loss, costs, expense or damage arising out of any provision or requirement of a franchise, or the enforcement thereof, except to the extent that such loss, cost, expense or damage results from the negligence or intentional misconduct of the county.

D. A franchise does not relieve the grantee of any requirement of the county, or of any ordinance, rule, regulation or specification of the county, including but not limited to any requirement relating to street work, street excavation permits, or the use, removal or relocation of property in streets.

E. The granting of a franchise, or any of the provisions contained herein, shall not be construed to prevent the county from granting any identical or similar franchise to any person or corporation other than the grantee.

(Ord. 1337 §4.1, 1986)

A. No privilege or exemption is granted or conferred by a franchise except those specifically prescribed herein.

B. Any privilege claimed under a franchise by the grantee in any street shall be subordinate to any prior lawful occupancy of the street. The county reserves the right to reasonably designate where a grantee's facilities are to be placed within the public ways.

C. A franchise is a privilege to be held in personal trust by the original grantee. It cannot in any event be transferred in part, and it is not to be sold, transferred, leased, merged, assigned or disposed of as a whole, either by forced sale, merger, consolidation or otherwise, without prior consent of the county, expressed by resolution. 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.

D. The grantee shall at all times comply with all applicable rules of the Federal Communications Commission.

E. A grantee shall at all times during the life of its franchise, be subject to the lawful exercise of the county's police power, and such reasonable regulations of general applicability as the county board of supervisors may subsequently promulgate thereunder; provided, however, that no such exercise or regulation shall materially or unlawfully increase the burdens of the grantee in complying with this chapter, or materially or unlawfully diminish benefits to be obtained under this franchise.

F. Nothing contained in this chapter shall be deemed to prohibit in any way the right of the county to provide, for consideration, rights or privileges in addition to those set forth in Section 6.20.100.

G. Any franchise granted shall not relieve the grantee of any obligations involved in obtaining pole or conduit space from any department of the county, utility company, or from others maintaining utilities in the public ways.

H. Whenever, in the judgment of the grantor, it is deemed impractical to permit erection of poles or construction of underground conduit system by any utility which may at the time have authority to construct or maintain a conduit or poles in street area, the grantor may require the grantee to afford to such utility the right to use such poles or facilities of the grantee as the grantor finds practicable in common with the grantee, both as they may agree upon, but in case they fail to agree within a reasonable time, then upon such terms and conditions as may be deemed reasonable by a board of arbitration constituted and conducted in accordance with state law.

I. Any franchise granted shall be in lieu of any and all other conflicting rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by the grantee, or any successor to any interest of grantee, of or pertaining to the construction, operation or maintenance of any cable communications system in the county, as an abandonment of any and all of such rights, privileges, powers, immunities and authorities within the county, to the effect that, as between grantee and the county, all construction, operation and maintenance by any grantee of any cable communications system in the county shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to said franchise, and not under or pursuant to any other right, privilege, power, immunity or authority whatsoever.

J. No franchise shall authorize use of any public property other than public rightofway and public utility easements owned by the county, unless such franchise or subsequent approval of the county engineer expressly authorizes such other public property.

K. Grantee shall be subject to all provisions of the other ordinances, rules, regulations and other provisions of the county heretofore or hereafter adopted, including but not limited to those pertaining to works and activities in, on, over, under and about public rightsofway.

L. Any privilege claimed under such franchise granted, in any public rightofway or other public property, shall be subordinate to the public use and any other lawful use thereof.

M. Subject to grantee's constitutional protections against impairment of contracts, grantee shall be subject to the provisions of general laws of the state, or as hereafter amended, when applicable to the exercise of any privilege contained in any franchise granted pursuant to this chapter, including but not limited to those pertaining to works and activities in and about state highways.

N. If the Federal Communications Commission or any other federal or state body or agency shall not or hereafter exercise any paramount jurisdiction over the subject matter of any franchise granted, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the county, the jurisdiction of the county shall cease and no longer exist.

O. The preemption or preclusion of the exercise by the county of any of its police power shall not diminish, impair or affect any other contractual benefit to the county of grantee, nor any contractual obligation of the grantee under the franchise granted.

P. Any and all minimum technical performance standards governing the operations of grantee, and any and all minimum rates, ratios and charges specified in any franchise granted, existing now and at any time in the future, including such time as any paramount jurisdiction shall preempt or preclude that of the county, and any and all rights, powers, privileges and authorities of the county to determine, establish or fix any of the same, are each and all hereby declared by the county and by any grantees accepting any franchise to be contractual in nature and to be for the benefit of the county.

Q. The form of the grantee's contract with the subscriber shall also be subject to approval of the county.

R. It is not the county's intention to prohibit the erection or controlled use of individual television antennas, and no one is or will be required to receive cable communications service or connect with a cable communications system.

S. Should the grantee ever fail to pay any sum of money to the county owing to the county under the provisions of this chapter, or the franchise ordinance, when such sum becomes due and payable, grantee shall pay interest to the county on the delinquent sum, until it is fully paid, at two interest points above the prime rate of interest charged in the county area, as calculated by the county.

T. A franchise to proceed with operation, or construction and operation of a cable communications system shall not be construed as any limitation upon the right of the county to grant to other persons or corporations, rights, privileges or authority similar to or different from the rights, privileges or authority set forth herein, or the franchise document itself, in the same or other streets, alleys, public highways, public places, or other public rightsofway by agreement, franchise, permit or otherwise. Such rights, privileges or authority, however, shall only pertain insofar as they do not provide an unfair competitive advantage.

(Ord. 1337 §4.2, 1986)

A. There is hereby provided and reserved to the county every right and power which is required to be herein reserved or provided by any provision of the county or its ordinances, as amended, and the grantee by its acceptance of a franchise agrees to be bound thereby and to comply with any action or requirement of the county in its exercise of any such right or power; provided, however, that no such action or requirement shall materially and unlawfully increase the burdens of the grantee in complying with this chapter, or materially and unlawfully diminish benefits to be obtained under the franchise.

B. Neither the granting of a franchise nor any provision hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the county, including regulation of subscription rates as permitted by law.

C. Nothing herein and/or in the franchise shall be deemed or construed to impair or affect, in any way, to any extent, the county's right to acquire the franchised system, either by purchase or through the right of eminent domain, at a fair market value, which shall not include a value for the franchise, and nothing herein contained shall be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the county's right of eminent domain.

D. There shall be reserved to the county every right and power which is required to be reserved or provided by law, and insofar as provided for within the franchise agreement, and the grantee, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or agreements of the county in its exercise of such rights and power theretofore or thereafter enacted or established.

E. The county hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this chapter and/or grantee's franchise. The board may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter and/or grantee's franchise, and may determine any question of fact which may arise during the existence of any franchise granted. The county board is authorized to adjust, settle or compromise any controversy or charge arising from the operations of any grantee or any subscriber, in the best interest of the public. The grantee shall have the right to have any such decision by the board reviewed, de novo, in a court of appropriate jurisdiction. No such decision shall be effective until a final decision is reached by the court, if such review is initiated by the grantee.

F. The county, at its option, when for sufficient cause as deemed by the board, may require that the annual proofof performance tests, addressed in Sections 6.20.460 through 6.20.500 of this chapter, be conducted or observed by a qualified member of the county's staff, or its designated representatives. The county reserves the right to have the measurements associated with the countyobserved performance tests, conducted at countyselected points and at a greater number of test points than the minimum required by Section 76.601 of the FCC Rules.

G. Except where otherwise preempted by federal or state law, the county reserves the right to negotiate other reasonable technical and operational performance standards for system franchises granted pursuant to this chapter. Grantee shall have the duty to negotiate in good faith with the county.

H. The county reserves the right to enact reasonable regulations pertaining to any franchise granted pursuant to this chapter, which may include but are not limited to:

1. Construction and use of poles;

2. Use of poles and conduits by the county;

3. Common user;

4. Filing of pole user agreement;

5. Reservation of street rights;

6. Restoration of streets; and

7. Movement of facilities.

I. The county reserves the right to maintain, or establish and maintain, a cable communications advisory committee to assist the board in regulating cable activity in the county, the members and duties of any such committee, if any, to be established by the board.

J. The county reserves the right to join with one or more of the other local area city and/or county governments in the formation and operation of an intergovernmental administrative authority for the purpose of joint administration of the cable communications franchises of the various members of the joint authority. The county reserves the right to assign the administration of the provisions of any franchise granted pursuant to this chapter to such duly established joint authority, and to join with other members of the authority in developing such intergovernmental agreement bylaws, rules and regulations, as necessary for the proper administration of the joint authority.

K. Should the state of California, or any agency thereof, or the federal government or agency thereof, subsequently require grantee to act in a manner which is inconsistent with any provisions of this chapter, franchise ordinance, or associated resolutions and orders, the grantee shall notify the county immediately. Upon receipt of such notification, the county shall determine if a material provision of the franchise is affected. Upon such determination, the county shall have the right to modify or amend any of the sections of the franchise to such reasonable extent as may be necessary to carry out the full intent and purpose of this chapter.

L. The county shall have the right, free of charge, of installing, maintaining and operating, upon antenna towers, poles and in conduit of the grantee, coaxial cable, wire, fixtures and appurtenances necessary for a county communications system, provided such equipment is installed, maintained and operated so as not to interfere with property or operations of the grantee, and that the grantee shall not be responsible for any damage without his/her fault resulting to the signs, wires, cables or property of the county from such use by the county.

M. Any intrastate interconnection of interactive services between the system operated by the grantee and any other system shall be subject to the regulatory authority of the county, where such interconnection utilizes the city's public rightsofway.

N. The reservation of any particular right shall not be construed to limit the promulgation of any other reasonable rules and regulations.

(Ord. 1337 §4.3, 1986)