Tustin Municipal Code Part 2 Regulations and Permits

a Regulation of Operation

(1) Prior to receiving any applications for franchises, the Council may adopt rules and regulations governing the operation of cable television systems in the City. Such rules and regulations shall apply to and shall govern the operations of the Grantee of any franchise hereunder, and are expressly declared a part of any franchise hereunder.

(2) Rules and regulations not adopted prior to receiving any application for a franchise shall be adopted by the Council at the first regular meeting of the Council next following the effective date of this Chapter, by Resolution which shall become effective upon the adoption and shall be applicable to any application for a franchise previously received.

(3) The rules and regulations adopted shall govern the nontechnical operation of the CATV system, except as provided in Section 7440. Technical operations shall include all areas of operation for which technical standards are set forth in rules promulgated by the Federal Communication Commission and as those standards may apply or be extended from time to time.

(4) (a)

Provided the same do not materially alter the content of the franchise without consent of the Grantee, the Council may, at any time, adopt new rules or regulations, or may amend, modify, delete or otherwise change its respective rules or regulations previously adopted, in the following manner: The Council shall pass its Resolution of Intention stating or describing the rules or regulations to be adopted, amended, modified, deleted, or otherwise changed, and fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or objection thereto may appear before the Council and be heard. Such Resolution shall direct the City Clerk to publish the same at least once within ten (10) days of the passage thereof in a newspaper of general circulation within the City, and to mail a copy of the same to any Grantee or Applicant for a franchise, not more than thirty (30) days nor less than fifteen (15) days prior to the time fixed for hearing thereon.

(b) At the time set for such hearing or at any adjournment thereof, the Council shall proceed to hear and pass upon such comments as may be presented. Thereafter, the Council, by its Resolution, may adopt, amend, modify, delete, or otherwise change its respective rules and regulations. Such determination by the Council shall be final and conclusive.

(c) Any rule or regulation as adopted, amended, modified, deleted, or otherwise changed by the Council shall become effective upon the tenth (10th) day following the adoption of such Resolution, unless a longer period shall be otherwise provided in such Resolution. (Ord. No. 791, Sec. 4, 2-5-79)

b Rates

1. Prior to granting any franchise hereunder the Council, by resolution, shall establish and fix all rates and charges for the Basic Service, herein defined, allowable to Grantee, such as:

(a) charges for installation;

(b) subscriber rates;

(c) service charges for separate classifications of service (e.g., additional connections, etc.)

Once established, such rates or charges shall not be changed at any time after granting of a franchise, except after due notice and hearing as provided herein.

2. Rates and charges for services, other than the Basic Service, shall also be approved by the Council by resolution, after due notice and hearing as provided herein.

3. In connection with any proposed change of any rates or charges of Grantee to subscribers initiated by Grantee, or the approval of rates for additional services, at any time after the granting of a franchise, the Council may direct the City Administrator of the City to conduct a preliminary hearing into the matter. If so directed by the Council, the City Administrator shall issue his written notice fixing and setting forth the day, hour, and place certain when and where any persons having any interest therein may appear and be heard.

The City Clerk shall cause such notice to be published in a newspaper of general circulation within the City. The City Clerk also shall cause a copy of such notice to be mailed to any Grantee at least ten (10) days prior to the date specified for the hearing. At the time set for such hearing, or at any adjournment thereof, the City Administrator shall proceed to hear the matter. Following the close of such hearing, the City Administrator shall prepare and file with the City Council his report of the hearing, his findings and an opinion containing his recommendations and the reasons therefore. After the expiration of ten (10) days following receipt of the City Administrator's report and opinion, and if no objection has been filed thereto, the Council shall determine whether to adopt the opinion or to hold a further hearing, and shall pass its resolution of intention to do so, describing and stating any rates or charges to be changed, the reasons of the Council therefor, fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein may appear before the Council and be heard.

Such resolution shall direct the City Clerk to publish the same resolution at least once within ten (10) days of the passage thereof in a newspaper of general circulation within the City. The City Clerk also shall cause a copy of such resolution to be mailed to the Grantee at least ten (10) days prior to the date specified for hearing thereon.

At the time set for any further hearing, or at any adjournment thereof, the Council shall proceed to hear the matter.

If upon receipt of report and opinion, and the expiration of said ten (10) days without objection, or following the holding of a further hearing, if the Council determines to do so, the Council shall find that the changing of any rates or charges of Grantee to subscribers will be fair to the system operator and not detrimental or injurious to the best interests and welfare of the subscribers and users, and of the City, then the Council, by resolution, shall authorize the change of rates or charges of Grantee to subscribers and users as determined. Such resolution shall thereupon become and shall be a part of any franchise granted thereunder and affected thereby.

4. Neither the Council nor the Grantee shall, as to rates charges, service, service facilities, rules, regulations, or in any other respect, make or grant any preference or advantage to any person, nor subject any person to prejudice or disadvantage. (Ord. No. 581, Sec. 110)

(a) Within thirty (30) days after acceptance of any franchise, the Grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility joint use attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable television systems, or associated micro-wave transmission facilities.

In connection therewith, copies of all petitions, applications and communications submitted by the Grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting Grantee's cable television operations, shall also be submitted simultaneously to the City Administrator.

(b) Within ninety (90) days after obtaining all necessary permits, licenses and authorizations, including right of access to poles and conduits, Grantee shall commence construction and installation of the cable television system.

(c) Within one year after the commencement of construction and installation of the system, Grantee shall proceed to render service to subscribers, and the completion of the installation and construction shall be pursued with reasonable diligence thereafter, so that service to all of the areas designated and scheduled on the map and plan of construction made part of the franchise shall be provided as set forth therein.

(d) Failure on the part of the 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. By resolution, the Council, in its discretion, may extend the time for the commencement and completion of installation and construction for additional periods in the event the Grantee, acting in good faith, experiences delays by reason of circumstances beyond his control.

By acceptance of the franchise granted hereunder, Grantee agrees that failure to comply with any time requirements referred to in subsections (a), (b) and (c) of this Section will result in damage to the City, and that it is and will be impracticable to determine the actual amount of such damage in the event of delay; and Grantee therefore agrees that, in addition to any other damage suffered by City, he will pay to City the sum of $25.00 per day for each and every day's delay beyond the time prescribed, plus authorized extensions thereof, for completion of any of the acts required to be done by this Section.

(e) Grantee shall utilize existing poles, conduits and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately-owned property unless and until first securing the written approval of the City Administrator.

Whenever Grantee shall not utilize existing poles, conduits and other facilities, or whenever existing conduits and other facilities shall be located beneath the surface of the streets, or whenever the City shall undertake a program designed to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the City, in the exercise of its police power or pursuant to the terms hereof, upon reasonable notice to Grantee, any such conduits or other facilities of Grantee shall be constructed, installed, placed, or replaced beneath the surface of the streets. Any construction, installation, placement, replacement, or changes which may be so required shall be made at the expense of Grantee, whose costs shall be determined as in the case of public utilities.

(f) The City shall have the right, free of charge, to make additional use, for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits, or other similar facilities erected, controlled or maintained exclusively by or for Grantee in any street, provided such use by City does not interfere with the use by Grantee.

(g) In those areas of the City where the transmission or distribution facilities of the respective public utilities providing telephone, communication and electric services are underground, or hereafter are placed underground, the Grantee likewise shall construct, operate and maintain all of his transmission and distribution facilities underground. The term "underground" shall include a partial underground system; provided, that upon obtaining the written approval of the City Administrator, amplifiers in the Grantee's transmission and distribution lines may be placed in appropriate housings upon the surface of the ground.

(h) The Grantee at his expense shall protect, support, temporarily disconnect, relocate, or remove any property of Grantee when, in the opinion of the City Administrator the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, waterpipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements by governmental agencies whether acting in a governmental or a proprietary capacity, or any other structure or public improvement, including but not limited to movement of buildings, urban renewal and redevelopment, and any general program under which the City shall undertake to cause all such properties to be located beneath the surface of the ground. The Grantee shall in all cases have the privilege, subject to the corresponding obligations, to abandon any property of Grantee in place, as herein provided. Nothing hereunder shall be deemed a taking of the property of Grantee, and Grantee shall be entitled to no surcharge by reason of anything hereunder.

(i) Upon the failure, refusal, or neglect of Grantee to cause any work or other act required by law or hereunder to be properly completed in, on, over, or under any street within any time prescribed therefor, or upon notice given, where no time is prescribed, the City Administrator may cause such work or other act to be completed in whole or in part, and upon so doing shall submit to Grantee an itemized statement of the costs thereof. The Grantee shall, within thirty (30) days after receipt of such statement, pay to the City the entire amount thereof.

(j) In the event that,

(1) the use of any part of the system of Grantee is discontinued for any reason for a continuous period of thirty (30) days, without prior written notice to and approval by the City; or

(2) any part of such system has been installed in any street or other area without complying with the requirements hereof; or

(3) any franchise shall be terminated, cancelled, or shall expire, then the Grantee shall, at the option of the City, and at the expense of Grantee and at no expense to the City, and upon demand of the City, promptly remove from any streets or other area all property of Grantee, and Grantee shall promptly restore the street or other area from which such property has been removed to such condition as the City Administrator shall approve.

The Council may, upon written application therefor by Grantee, approve the abandonment of any of such property in place by Grantee and under such terms and conditions as the Council may prescribe. Upon abandonment of any such property in place, Grantee shall cause to be executed, acknowledged, and delivered to the City such instruments as the City Attorney shall prescribe and approve, transferring and conveying the ownership of such property to the City. (Ord. No. 581, Sec. 120)

(a) A franchise granted to provide service within the City shall authorize and permit the Grantee to solicit, sell, distribute and make a charge to subscribers within the City for connection to the cable television system of Grantee, and shall also authorize and permit the Grantee to traverse any portion of the City in order to provide service outside the City.

(b) A franchise, easement, license or other permit granted to anyone other than the Grantee to traverse any portion of the City in order to provide service outside the City shall not authorize nor permit said person to solicit, sell, distribute, or make any charge to subscribers within the City, nor to render any service or connect any subscriber within the City to the cable television service system of Grantee.

(c) No franchise granted under this Chapter shall ever be given any value by any Court or other authority, public or private, in any proceeding of any nature or character, wherein or whereby the City shall be a party or affected therein or thereby.

(d) Grantee shall be subject to all provisions of the other ordinances, rules, regulations and specifications of the City heretofore or hereafter adopted, including but not limited to those pertaining to works and activities in, on, over, under and about streets.

Any privilege claimed under any franchise granted pursuant to this Chapter in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property.

Grantee also shall be subject to the provisions of general laws of the State of California, or as hereafter amended, when applicable to the exercise of any privilege contained in any franchise granted under this Chapter, including but not limited to those pertaining to works and activities in and about State highways.

(e) Grantee shall be prohibited from directly or indirectly doing any of the following:

(1) engaging in the business of selling at retail, leasing, renting, repairing or servicing of television sets or radios;

(2) imposing a fee or charge for any service or repair to subscriber-owned receiving devices except for the connection of its service or for the determination by Grantee of the quality of its signal to the recipients thereof;

(3) soliciting, referring, or causing or permitting the solicitation or referral of any subscriber to persons engaged in any business herein prohibited to be engaged in by Grantee.

(4) providing information concerning the viewing patterns of identifiable individual subscribers to any person, group or organization for any purpose.

(f) If the Federal Communications Commission or the Public Utilities Commission of the State of California or any other Federal or State body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of any franchise granted under this Chapter, that exercise of such paramount jurisdiction shall in no way diminish, impair, alter or affect any other portion, term or provision of any franchise not directly affected by the exercise of such paramount jurisdiction and to the extent that any exercise of such paramount jurisdiction shall affect any obligation of a Grantee or benefit to the City under the terms of this franchise, it is the intention of the parties hereto that the rules and regulations of the entity or agency having exercised such paramount jurisdiction shall control and that neither the City nor the Grantee shall be obligated to carry out any provision of or be subject to any obligation, term or condition of this franchise which is in conflict with the rules and regulations of the entity or agency exercising such paramount jurisdiction. The preemption or preclusion of the exercise by the City of its police power shall not diminish, impair, alter, or affect any contractual benefit to the City or Grantee nor any contractual obligation of the Grantee under any franchise issued hereunder.

(g) When not otherwise prescribed herein, all matters herein required to be filed with the City shall be filed with the City Clerk.

(h) No person, firm or corporation within the service area of the Grantee, and where trunk lines are in place, shall be refused service; provided, however, that the Grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or service charge.

(i) Before providing cable television service to any subscriber, the Grantee shall provide a written notice to the subscriber substantially as follows:

"Subscriber is hereby notified that in providing cable television service the Grantee is making use of public rights-of-way within the City of Tustin and that the continued use of such rights-of-way is in no way guaranteed. In the event the continued use of such rights-of-way is denied to Grantee for any reason, Grantee will make every reasonable effort to provide service over alternate routes. By accepting cable television service, subscriber agrees he will make no claim nor undertake any action against the City of Tustin, its officers, or its employees if the service to be provided hereunder is interrupted or discontinued."

(j) The form of the Grantee's contract with the subscriber shall also be subject to approval of the City. (Ord. No. 581, Sec. 130; Ord. No. 791, Sec. 5, 2-5-79)

In the carrying out of the construction, maintenance and operation of the cable television system, the Grantee shall not discriminate against any employee or applicant for employment because of race, creed, color, sex or national origin.

The Grantee shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.

The Grantee shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non-discrimination clause.

The Grantee shall, in all solicitations or advertisements for employees placed by or on behalf of the Grantee, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, sex, or national origin.

The Grantee shall incorporate the foregoing requirements in all of its contracts for work relative to construction, maintenance and operation of the cable television system, other than contracts for standard commercial supplies or raw materials, and shall require all of its contractors for such work to incorporate such requirements in all subcontracts for such work. (Ord. No. 581, Sec. 140)

(a) From and after the effective date of this Chapter, it shall be unlawful for any person to construct, install or maintain within any public street in the City, or within any other public property of the City, or within any privately-owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the City, any equipment or facilities for distributing any television signals or radio signals through a cable television system, unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this Chapter, and unless such franchise is in full force and effect, or approval for the installation of such conduct has been given by the City Council prior to the effective date of this Chapter.

(b) It shall be unlawful for any person, firm or corporation to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable television system within this City for the purpose of enabling himself or others to receive or use any television signal, radio signal, picture, program or sound, without payment to the owner of said system.

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. (Ord. No. 581, Sec. 150)

(c) Penalties for Grantee's Failure to Comply with State Customer Service Standards

(1) Video Customer Service Act.

(A) Subject to the procedures in subdivision (B) below, and without limiting the City's authority to prosecute the violations of this Chapter pursuant to Chapter 1 of Article 1 of this Code, or pursuant to judicial enforcement of a Grantee's obligations at law or in equity, and without limiting the City's authority to terminate a franchise for cause, instead of any liquidated damages that may be provided for in any franchise hereunder, the City Manager or designee may, with the approval of the City Attorney, impose fines of up to two hundred dollars ($200.00) for each day of each material breach of the Customer Service Standards established under the California Video Customer Service Act, Government Code §§ 53088 et seq., not to exceed six hundred dollars ($600.00) for each occurrence of material breach. However, where a material breach of any such provision has occurred and the City Manager or designee has provided notice and assessed the foregoing fines, in a subsequent material breach of the same nature occurring within twelve (12) months, the penalties may be increased by the City Manager or designee to a maximum of four hundred dollars ($400.00) for each day of each material breach, not to exceed twelve hundred dollars ($1,200.00) for each occurrence of the material breach. Where a third or further material breach of the same nature occurs within those same twelve (12) months, and the City Manager or designee has provided notice and assessed penalties, the penalties may be increased to a maximum of one thousand dollars ($1,000.00) for each day of each material breach, not to exceed three thousand dollars ($3,000.00) for each occurrence of the material breach.

(B) Prior to imposing fines pursuant subdivision (A) above, the City Manager or designee shall give the Grantee written notice of any alleged material breaches of the consumer service standards of the California Video Customer Service Act, Government Code §§ 53088 et seq., and allow the Grantee at least thirty (30) days from receipt of the notice to remedy the specified breach.

(C) A material breach for the purposes of assessing the fines in subdivision (B) above shall be deemed to have occurred for each day, following the expiration of the period specified in subdivision (B) above, that any material breach has not been remedied by the Grantee, irrespective of the number of subscribers affected.

(2) Cable Television and Video Provider Customer Service and Information Act.

(A) Subject to the procedures in subdivision (B) below, and without limiting the City's authority to prosecute the violations of this Chapter pursuant to Chapter 1 of Article 1 of this Code, or pursuant to judicial enforcement of a Grantee's obligations at law or in equity, and without limiting the City's authority to terminate a franchise for cause, instead of any liquidated damages that may be provided for in any franchise hereunder, the City Manager or designee may, with the approval of the City Attorney, impose fines of up to five hundred dollars ($500.00) for each year in which the notice required under the California Cable Television and Video Provider Customer Service and Information Act, Government Code §§ 53054 et seq., is not distributed to all subscribers.

(B) Prior to imposing the fines pursuant subdivision (A) above, the City Manager or designee shall give the Grantee written notice of any alleged failure to distribute to all subscriber the annual notice provided for in subdivision (A) above. If the Grantee distributes this notice to all subscribers within sixty (60) days after receipt of the notice from the City Manager or designee, no penalty shall be imposed upon the Grantee pursuant to subdivision (A).

(d) Penalties for Third Parties Violating the Provisions of this Chapter

Any person not a Grantee convicted of violating the provisions of this Chapter shall be guilty of a misdemeanor pursuant to Chapter 1 of Article 1 of this Code. (Ord. No. 1245, Sec. 3, 10-1-01)