Vallejo Municipal Code Ch. 2.70 Cable Communication Franchises and State Video Services Franchises

The city finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the residents of Vallejo. Because of the complex and rapidly changing technology associated with cable television, the city further finds that the public convenience, safety, and general welfare can best be served by establishing regulatory powers which should be vested in the city or such persons as the city shall designate. It is the intent of this chapter and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any franchise issued pursuant to this chapter shall be deemed to include this finding as an integral part thereof.

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

This chapter shall be known and may be cited as the "city of Vallejo cable communications regulatory ordinance."

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

For the purpose of this chapter the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given herein. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Words not defined shall be given their common and ordinary meaning.

A. "Basic residential service" means that service regularly provided to all subscribers at the basic monthly rate including, but not limited to, the retransmission of local and distant broadcast television and FM radio signals, nonpay satellite services, automated services, local origination and access services.

B. "Basic multiple residential and commercial service" may consist of fewer channels than the basic residential service; however, grantee shall ensure that residents of residential multiple unit bulk accounts may individually receive any services provided to residential accounts.

C. "Basic radio service" means the provision to subscribers of audio programs at a monthly rate.

D. "Bulk subscriber" means a subscriber who receives one billing for service to more than one unit of a residential or commercial building.

E. "Cable communications system" or "system," also referred to as "cable television system," "cable system," "CATV system," or "community antenna TV system" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment, that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

1. A facility that serves only to retransmit the television signals of one or more television broadcast stations;

2. A facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility uses any public right-of-way;

3. A facility of a common carrier, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or

4. Any facilities of any electric utility used solely for operating its electric utility system.

F. "Cable service" means the one-way transmission to subscribers of video or other programming services and/or subscriber interaction, if any, which is required for the selection of such video programming or other programming service.

G. "Channel" or "cable channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel as defined by the Federal Communications Commission.

H. "Commence construction" means that time and date when construction of the cable communications system is considered to have commenced which shall be when the first connection is physically made to a utility pole, or under grounding of cables is initiated, after preliminary engineering (strand mapping) and after all necessary permits and authorizations have been obtained.

I. "Commence operation" means that time and date when operation of the cable communications system is considered to have commenced which shall be when sufficient distribution facilities have been installed so as to permit the offering of full services to a dwelling unit located within the franchise area and such services are actually subscribed to by a resident of the franchise area.

J. "Commercial use channel(s)" means the channel capacity designated for commercial use as defined and required by federal law.

K. "Completion of construction" means that point in time when all distribution facilities specified in the franchise agreement have been installed by the grantee so as to permit the offering of cable service to all of the potential subscribers in the franchise area, as well as the provision, in an operational state, of any facilities required by the franchise agreement.

L. "Community access channel" or "access channel" means any channel or portion of a channel utilized for programming on a nonprofit basis.

M. "Council" means the city council, the governing body of the city of Vallejo.

N. "Federal Communications Commission" or "FCC" means the present federal agency of that name as constituted by the Communications Act of 1934, as amended, or any successor agency created by the United States Congress.

O. "Franchise" or "franchise agreement" means any authorization granted hereunder in terms of a franchise, privilege, permit, license, or otherwise to construct, operate, and maintain a cable communications system in the city.

P. "Franchise fees" means any tax, fee, or assessment of any kind imposed by a franchising authority or other governmental entity on a grantee or cable subscribers, or both, solely because of their status as such. The term "franchise fee" does not include:

1. Any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment which is unduly discriminatory against grantee or cable subscribers);

2. Capital costs which are required by the franchise to be incurred by grantee for public, educational, or governmental access facilities;

3. Requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or

4. Any fee imposed under Title 17, United States Code.

Q. "Grantee" means the person, firm, or corporation to whom or which a franchise, as hereinabove defined, is granted by the council under this chapter, and the lawful successor, transferee, or assignee of said person, firm, or corporation.

R. "Grantor" means the city of Vallejo as reprinted by the city council or any delegate acting within the scope of its jurisdiction.

S. "Gross annual revenues" or "gross annual receipts" means any and all compensation in whatever form, directly or indirectly received by grantee, from subscribers or users in payment for delivery of television or FM radio signals or services received within the city, but not including any taxes on services furnished by grantee which are imposed directly on a subscriber or user by a city, county, state; or other governmental unit and collected by the grantee for such entity.

T. "Installation" means the connection of the system from feeder cable to subscribers' terminals, and the provision of service.

U. "Institution" means a building or buildings where services may be utilized in connection with a public, educational, or governmental nonprofit agency or service.

V. "Institutional network" means a cable communications network designed primarily for the provision of cable services to public, educational, or governmental nonprofit agencies or services for use in connection with the ongoing operation of such institutions.

W. "Institutional services" means services delivered on the institutional network.

X. "Institutional subscriber" means a public, educational, or governmental nonprofit agency or service receiving institutional services on the institutional network.

Y. "Interactive services" means services provided to subscribers where the subscriber either (a) both receives information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or (b) transmits signals to any other location for any purpose.

Z. "Leased access channel" means any channel or portion of a channel available for programming to persons or entities other than the grantee for a fee or charge by the grantee.

AA. "Local origination channel" means any channel or portion of a channel where the grantee is the only designated programmer, and which is utilized to provide television programs to subscribers.

BB. "Nonbasic service" means any communications service in addition to regular subscriber services including, but not limited to, access channel carriage including local origination programming, pay television, burglar alarm service, fire alms service, data transmission, or facsimile service.

CC. "Ownership or control" means fifty-one percent financial ownership of the grantee.

DD. "Pay cable," "pay television" or "pay-per-view" means the delivery to subscribers, over the cable communications system, of television signals for a fee or charge to subscribers over and above the charge for basic cable service, on a per-program, per-channel, or other subscription basis.

EE. "Public access channel" means any channel or portion of a channel where any number of the general public may a programmer on a first come, first served basis, subject to appropriate rules formulated by grantee.

FF. "Public, educational or governmental access facilities" or "PEG facilities" means the channel capacity designated for public, educational, or governmental use and facilities and equipment for the use of such channel capacity.

GG. "Resident" means any person residing in the city as otherwise defined by applicable law.

HH. "Residential network" means a cable communications network designed principally for the delivery of entertainment, community access, and/or interactive service to individual dwelling units.

II. "Residential service" means services delivered on the residential network.

JJ. "Residential subscriber" means a subscriber who receives residential services on the residential network.

KK. "School" means any accredited nonprofit educational institution including primary and secondary schools, colleges, and universities, both public and private.

LL. "Section" means any section, subsection, or provision of the franchise ordinance codified in this chapter.

MM. "Service area" or "franchise area" means the entire geographic area within the city.

NN. "State" means the state of California.

OO. "Streets," "public way," or "rights-of-way," means the surface of and the space above and below any public street, avenue, road, highway, freeway, boulevard, lane, concourse, driveway, bridge, tunnel, park, parkway, sidewalk, waterway, dock, pier, alley, court, right-of-way, public utility easement, or any other public place, ground or water, now or hereafter existing within the city which have been dedicated to the public or hereafter dedicated to the public and maintained under public authority within the city limits.

PP. "Subscriber" means any person, firm, corporation, or other entity who elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connection with the cable communications system.

QQ. "Tapping" means the observing of a communications signal exchange where the observer is neither of the communicating parties, whether the exchange is observed by visual or electronic means, for any purpose whatsoever

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

A. Grant. In the event that grantor shall get to a grantee a nonexclusive, revocable franchise to construct, operate, maintain, and reconstruct, a cable communications system within the franchise area, or a renewal of an existing franchise, said franchise shall constitute both a right and an obligation to provide the services of a cable communications system as required by the provisions of this chapter and the franchise agreement.

Any franchise granted under the terms and conditions contained herein shall be consistent with federal laws and regulations and state general laws and regulations. In the event of conflict between the terms and conditions, of the franchise and the terms and conditions on which the grantor can grant a franchise, the general law and/or statutory requirements shall, without exception, control.

Nothing in the franchise shall be deemed to waive the requirements of the other codes and ordinances of the grantor regarding permits, fees to be paid, or manner of construction.

B. Franchise Required. No cable communications system shall be allowed to occupy or use the streets in the franchise area or be allowed to operate without a franchise having been obtained in accordance with the provisions of this chapter.

C. Establishment of Franchise Requirements. The grantor shall establish appropriate requirements for new franchises or franchise renewals.

D. Authority to Grant Franchise. The grantor may grant a franchise for all of the city. The service area shall be the entire area defined in the franchise agreement. The initial service area shall be that portion of the franchise area scheduled to receive initial service as stated in the franchise agreement.

E. Use of Public Streets and Ways. For the purpose of operating and maintaining a cable communications system in the franchise area, and subject to the provisions of Section 2.70.070 J of this chapter, the grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the public streets and ways within the franchise area such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of the cable communications system. Prior to construction or alteration, however, the grantee shall in each case file plans with the appropriate grantor agencies and local utility companies, and receive written approval before proceeding. Grantee shall in any event comply with all applicable grantor construction codes and procedures.

F. Duration. The term of any new franchise and all rights, privileges, obligations, and restrictions pertaining thereto shall be as established in the franchise agreement, unless terminated sooner as hereinafter provided.

G. Franchise Nonexclusive. Any franchise granted shall be nonexclusive. The grantor specifically reserves the right to grant, at any time, such additional franchises for a cable communications system as it deems appropriate; provided, however, that such additional grants shall not operate to materially modify, revoke, or terminate any rights previously granted to any grantee.

H. Franchise Applications. Applicants for a new franchise shall submit to the grantor written applications utilizing the standardized format provided by the grantor, at the time and place designated by the grantor for accepting applications and including the application fees designated by grantor.

Each application for a new franchise to construct and operate any cable communications system(s) in the city shall be filed with the city clerk and shall contain or be accompanied by the following as a minimum:

1. The name, address, and telephone number of the applicant;

2. A detailed statement of the corporate or other business entity organization of the applicant including, but not limited to, the following and to whatever extent required by the grantor:

a. The names, residence and business addresses of all officers, directors and associates of the applicant,

b. The names, residence and business addresses of all officers, persons, and entities having, controlling, or being entitled to have or control of one percent or more of the ownership of the applicant and the respective ownership share of each person or entity,

c. The names and addresses of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to cable television systems owned or controlled by the applicant, its parent and subsides and the areas teed thereby,

d. A detailed description of all previous experience of the applicant in providing cable television communications system service in related or similar fields,

e. A detailed and complete financial statement of the applicant,

f. A statement identifying, by place and date, any and all cable television franchises awarded the applicant, or its parent or subsidiary; the status of said franchises with respect to completion thereof; the total cost of such systems; and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof;

3. A thorough, detailed description of the proposed cable communications system and plan of operating of the applicant which shall include, but not be limited to, the following:

a. A detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be served,

b. A detailed, informative and referenced statement describing the actual equipment and operational standards proposed by the applicant. In no event shall said operational and performance standards be less than those adopted by the rules and regulations of the FCC,

c. A detailed estimate of the cost of constructing the applicant's proposed system,

d. A copy of the form of any agreement, undertaking or other instrument proposed to be entered into between the applicant and any subscriber,

e. A detailed statement setting forth in its entirety any and all agreements and undertakings, whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm or corporation which materially relate or pertain to or depend upon the application and the granting of the franchise,

f. A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of said classifications, including installation charges and service charges;

4. A copy of any agreement existing between the applicant and any public utility subject to regulation by the California Public Utilities Commission providing for the use of any facilities of the public, utility, including but not limited to, poles, lines or conduits, within the city and/or adjacent areas;

5. Any other details statements, information or references pertinent to the subject matter of such application which shall be required or requested by the grantor or by any provisions of any other ordinance of the city.

I. Grant Procedure. All new franchise applications when filed shall be available for public inspection at places designated by the grantor. No later than ninety days after the final date for filing applications, one or more public hearings shall be held on the applications. A decision shall be made by the grantor not later than ninety days after the conclusion of all such public hearings based upon an evaluation of the application(s), the hearings, and other information that the grantor may deem relevant. Grantor may get one or more franchises, or may decline to grant any franchise.

In making any determinations hereunder as to any application the grantor shall give due consideration to the character and quality of the service proposed, rates to subscribers, experience, character, background, and financial responsibility of any applicant, and its management and owners, technical and performance quality of equipment, willingness and ability to meet construction and physical requirements, and to abide by policy conditions, franchise limitations and requirements and any other consideration deemed pertinent by the council for safeguarding the interest of the city and the public. The council, in its discretion, shall determine the award of any franchise on the basis of such considerations and without competitive bidding.

J. Transfer of Ownership or Control.

1. Transfer of Franchise. Any franchise granted hereunder shall be a privilege to be held for the benefit of the public. Said franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to, by forced or voluntary sale, merger, consolidation, receivership, or other means without the prior written consent of the grantor, and then only under such reasonable conditions as the grantor may establish. Such consent as required by the grantor shall be given or denied no later than ninety days following any request, and shall not be unreasonably withheld.

2. Ownership or Control. The grantee shall promptly notify in writing the grantor of any proposed change in, or transfer of, or acquisition by any other party of, control of the grantee. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the grantor may inquire into the qualifications of the prospective controlling party, and the grantee shall assist the grantor in any such inquiry.

In seeking the grantor's consent to a change in ownership or control, the grantee shall have the responsibility:

a. To establish, to the satisfaction of the grantor, the financial solvency of the proposed transferee by submitting all current financial data for the proposed transferee which the grantee was required to submit in its franchise application, and such other data as the grantor may request. Financial statements shall be audited, certified, and qualified by a certified public accountant;

b. To establish to the satisfaction of the grantor that the financial and technical capability of the proposed transferee is such as shall enable it to maintain and operate the cable system for the remaining term of the franchise under the existing franchise agreement.

3. The grantor agrees that any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the grantor that it or its designee satisfactory to the grantor shall take control and operate the cable communications system, in the event of a grantee default in its financial obligations. Further, said financial institution shall also submit a plan for such operation that will ensure continued service and compliance with all franchise requirements during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year unless extended by the grantor in its discretion, and during said period of time it shall have the right to petition the grantor to transfer the franchise to another grantee. If the grantor finds that such transfer after considering the legal, financial, character, technical, and other public interest qualities of the applicant are satisfactory, the grantor shall transfer and assign the rights and obligations of such franchise as in the public interest. The consent of the grantor to such transfer shall be given or denied no less than ninety days after any request, and shall not be unreasonably withheld.

4. The consent or approval of the grantor to any transfer by the grantee shall not constitute a waiver or release of the rights of the grantor in and to the streets, and any transfer shall by its terms, be expressly subject to the terms and conditions of any franchise.

5. In the absence of extraordinary circumstances, the grantor shall not approve any transfer or assignment of the franchise prior to completion of initial construction of the cable system.

6. In no event shall a transfer of ownership or control be approved without the successor in interest becoming a signatory to the franchise agreement.

K. Franchise Renewal. Franchise renewal shall be as prescribed by applicable laws as set forth in Section 626 of the Cable Communications and Policy Act of 1984 (P.L. 98-549), or as may be amended.

L. Police Powers. A grantee shall, at all times during the life of its franchise, be subject to the lawful exercise of the city's police power and such reasonable regulations as the council may subsequently promulgate thereunder, provided, however, that no requirement, ordinance, rule, regulation or specification shall serve to unreasonably abrogate the contractual rights of the grantee as specified in the franchise agreement.

M. Franchise Fee.

1. Annual Franchise Payment. A grantee of a franchise hereunder shall pay to the grantor an annual fee in an amount as designated in the franchise agreement. Such annual payment shall commence as of the effective date of the franchise or any renewal date. The grantor, on an annual basis, shall be furnished a statement within sixty days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by a financial officer of the grantee, reflecting the total amounts of all gross annual receipts for the period covered by the payment. Upon ten days prior written notice, grantor shall have the right to conduct an independent audit of grantee's gross receipts, in accordance with generally accepted accounting procedures, and if such audit indicates a franchise fee underpayment of five percent or more, the grantee shall assume all reasonable costs of such an audit.

2. Acceptance by Grantor. No acceptance of any payment by the grantor shall be construed as a release or as an accord and satisfaction of any claim the grantor may have for further or additional sums payable as a franchise fee under this ordinance or for the performance of any other obligation of the grantee.

3. Failure to Make Required Payment. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, grantee shall pay as additional compensation:

a. An interest charge, computed from such due date, at an annual rate of ten percent during the period for which payment was due:

b. If the payment is late by forty-five days or more, a sum of money equal to five percent of the amount due in order to defray those additional expenses and costs incurred by the grantor by reason of delinquent payment.

4. Franchise fee payments shall be made in accordance with the schedule indicated in the franchise agreement.

5. Any grantee "pass through" or itemization of franchise fee costs on subscribers' bills shall be in accordance with federal law.

N. Termination/Revocation.

1. Grounds for Termination/Revocation. If the grantee has been given due notice and a reasonable opportunity to cure, the grantor reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default under this chapter and a material breach of the franchise agreement:

a. If the grantee shall default in the performance of any of its material obligations under this chapter or under such documents, agreements and other terms and provisions entered into by and between the grantor and the grantee, subject to the provisions of Section 2.70.130 C;

b. If the grantee should fail to provide or maintain in full force and effect, the liability and indemnification coverages or the security fund or bonds as required herein, or as otherwise set forth in a franchise agreement;

c. If the grantee ceases to provide all services for any reason within the control of the grantee over the cable communications system;

d. If the grantee wilfully violates any of the material provisions of this chapter or the franchise agreement or if found by a court of competent jurisdiction to have practiced any fraud or deceit upon the grantor;

e. If the grantee becomes insolvent, or upon issuance of an order for relief in favor of grantee in a bankruptcy proceeding.

2. Procedure to Termination/Revocation.

a. The grantor may make written demand that the grantee cure or correct any action deemed cause for revocation. In the event the stated violation is not reasonably curable within ninety days the franchise shall not be terminated or revoked or damages assessed, if the grantee provides within the said ninety days a plan, satisfactory to the grantor, to remedy the violation. If the failure, refusal, or neglect of the grantee continues for a period exceeding ninety days following receipt of such written demand by the grantee, the grantor may place its request for termination of the franchise upon a regular council meeting agenda. The grantor shall cause notice to be served upon such grantee, at least thirty days prior to the date of such meeting, a written notice of this intent to request such termination, and the time and place of the meeting, notice of which shall be published at least once, ten days before such meeting, in a newspaper of general circulation with the franchise area.

b. The grantor shall hear any persons interested therein, and shall determine, within ninety days, based upon the preponderance of the evidence, whether the grantee has committed a material breach of this chapter or the franchise agreement, and, if so, whether such breach was wilful.

c. If the grantor determines that the grantee has wilfully committed a material breach, then the grantor may, by resolution, declare that the franchise of such grantee shall be terminated and security fund and bonds, if any, be forfeited, or the grantor may, at its option if the material breach is capable of being cured by the grantee, direct the grantee to take appropriate remedial action within such time and manner and upon such terms and conditions as the grantor shall determine are reasonable under the circumstances.

O. Procedures in the Event of Termination or Expiration.

1. Disposition of Facilities. In the event a franchise expires, is revoked, or otherwise terminated, the grantor may order the removal of the aboveground system facilities from the franchise area within a reasonable period of time as determined by the grantor or require the grantee to maintain and operate its cable system for a period of not to exceed twelve months as indicated in subsection O(4) of this section. Grantor may agree, in the franchise agreement, to allow grantee to sell the cable, operation in accordance with the transfer procedures set forth herein during said twelve month period. Further, grantor may reserve the right to purchase a cable operation from grantee, pursuant to the terms and conditions set forth in a franchise agreement.

2. Restoration of Property. If grantee is required to remove its underground plant, structures, and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the grantee's removal of its equipment without affecting the electrical or telephone cable wires, or attachments. The liability, indemnity and insurance, and the security fund and bonds provided shall continue in full force and effect during the period of removal and until full compliance by the grantee with the terms and conditions of this subsection.

In the event grantee is not required to remove its underground structures and equipment, or if grantee fails to remove same within a reasonable time, grantee shall deemed to have abandoned to city such part of the system.

3. Restoration by Grantor, Reimbursement of Costs. In the event of a failure by the grantee to complete any work required by subsection O(1) of this section or any other work required by grantor by law or ordinance, within ninety days after receipt of written notice, and to the satisfaction of grantor, the grantor may cause such work to be done and the grantee shall reimburse the grantor the cost thereof within thirty days after receipt of an itemized list of such costs and the grantor may recover such costs through the security fund or bonds provided by grantee. The grantor shall permitted to seek legal and equitable relief to enforce the provisions of this subsection.

4. Extended Operation. Upon either the expiration or revocation of a franchise, the grantor may require the grantee to continue to operate the cable communications system for a defined period of time not to exceed twelve months from the date of such expiration or revocation. The grantee shall, as trustee for its successor in interest, continue to operate the cable communications system under the terms and conditions of this chapter and the franchise agreement and to provide the regular cable service and any of the other services that may be provided at that time. The grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this subsection.

5. Grantor's Right Not Affected. The termination and forfeiture of any franchise shall in no way affect any of the rights of the grantor under any provisions of law.

P. Receivership and Foreclosure.

1. Any franchise granted shall, at the option of the grantor, cease and terminate one hundred twenty days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the grantee whether in a receivership, reorganization; bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty days or unless:

a. Such receivers or trustees shall have, within one hundred twenty days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise granted pursuant thereto, and the receivers or trustees within said one hundred twenty days shall have remedied all defaults under the franchise agreement: and

b. Such receivers or trustees shall, within said one hundred twenty days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to bound by each and every term, provisions, and limitation of the franchise agreement.

2. In the case of a foreclosure or other involuntary sale of the plant, property, and equipment of the grantee, or any part thereof, the grantor may serve notice of termination upon the grantee and to the purchase at such sale, in which event the franchise and rights and privileges of the grantee hereunder shall cease and terminate thirty days after service of such notice, unless:

a. The grantor shall have approved the transfer of the franchise, as and in the manner in this chapter provided; and

b. Such successful purchaser shall have covenanted and agreed with the grantor to assume and be bound by all the terms and conditions of the franchise agreement.

Q. Franchise Processing Costs. For a new franchise award or transfer, costs to be borne by the grantee that receives the new franchise award or transfer, shall include, but shall not be limited to, all costs of publication of notices prior to any public meeting provided for pursuant to a franchise, development, and publication of relevant ordinances and franchise agreements, and any costs not covered by the application fees, incurred by the grantor in its study, preparation of proposal solicitation documents, evaluation of all applications, including, but not limited to, consultant and attorney fees.

These franchise processing costs are exclusive of the construction inspection and permit fees specified in Section 2.70.070 K(l) (a) and the franchise fee specified in subsection M of this section.

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

A. Regulatory Authority. The grantor shall exercise regulatory authority under the provisions of this chapter and applicable law. If the franchised cable communications system also serves other contiguous or neighboring communities, grantor may, at its sole option, participate in a joint regulatory agency, with delegated responsibility in the area of cable and related communications.

B. Regulatory Responsibility. The grantor, acting alone or acting jointly with other grantors, may exercise or delegate the following regulatory responsibility:

1. Administering and enforcing the provisions of the cable communications system franchise(s);

2. Coordination of the operation of any government access channel(s) and facilities;

3. Coordination of technical, programming and operational support to public agency users, such as government departments and schools;

4. Establishing jointly with the grantee, or as otherwise specified in the franchise agreement, procedures and standards for use of channels dedicated to public use and sharing of public facilities, if provided for in any franchise agreement;

5. Planning expansion and growth of public benefit cable services;

6. Analyzing the possibility of integrating cable communications with other local state or national telecommunications networks;

7. Formulating and recommending long-range public telecommunications policy.

C. Public Usage of the System. If so specified in the franchise agreement, the grantor may utilize a portion of the cable communications system capacity, and associated facilities and resources, to develop and provide noncommercial cable services that will be in the public interest. In furtherance of this purpose, the grantor may establish a commission, public corporation, or other entity to receive and allocate facilities support funds and other considerations provided by the grantor, the grantee, and/or others. Such an entity, if established, may be delegated responsibilities including, but not limited to, the following:

1. Receive and utilize or reallocate for utilization, channel capacity, facilities, funding and other support provided specifically for public usage of the cable communications system;

2. Review the status and progress of each service developed for public benefit;

3. Reallocate resources jointly with the grantee on a periodic basis to conform with changing priorities and public needs;

4. Report to the grantor and the grantee annually on the utilization of resources, the new public services developed and the benefits achieved for the grantor and its residents.

D. PEG Access Facility Management.

1. Intent. It is the intent of the grantor to ensure the PEG access facilities provided for in any franchise agreement shall be managed in the best public interest. Pursuant to this objective, the grantor may delegate the responsibility for PEG access facility management to a nonprofit entity such as the following:

a. A nonprofit public corporation;

b. An established nonprofit entity with special cablecasting capability, such as a local or regional community college, or a local public school district.

2. Functions. The entity designated to manage the PEG access facilities shall have the following functions:

a. Responsibility for program production and management of the public access facilities and community channels as may be designated in the franchise agreement for community-based programming;

b. To devise, establish, and administer all rules, regulations, and procedures pertaining to the use and scheduling of the PEG access facilities;

c. To prepare, in conjunction with the grantee, such regular or special reports as may be required or desirable;

d. To hire and supervise staff;

e. To make all purchases of materials and equipment that may be required;

f. To develop sources of funding, such as foundation or federal or state grants, to further community programming;

g. To perform such other functions relevant to the PEG access facilities as may be appropriate;

h. Establishment of budgets on an annual basis, and utilization of funds and resources received from the grantor or the public usage entity designated in subsection C of this section, for the purpose of PEG access programming.

3. Access Rules. The PEG access facility management entity shall promulgate a set of rules for the use of the PEG access facilities which shall be promptly forwarded to the grantor. The rules shall be prepared in cooperation with the grantee, and confirmed by agreement between the PEG access facility management entity and the grantee. The rules shall, at a minimum provide for:

a. Prohibition of commercial use by public access programming producers;

b. Prohibition of any presentation of obscene material;

c. Public inspection of the log of producers, which shall be retained by the PEG access facility management entity for a period of four years;

d. Procedures by which individuals or groups who violate any rule may be prevented from further access to the facilities;

e. Free use of such reasonable amounts of channel time, cablecasting facilities, and technical support as are provided for in the agreement between the PEG access facility management entity and the grantee.

4. PEG Access Facility Management Entity Reports to Grantor. The PEG access facility management entity shall provide a report to the grantor and the grantee, at least annually, indicating achievements in community based programming and services.

E. Reservation by Grantor. The grantor reserves the right, in its discretion, from time to time, to determine if the entities described in subsections C and D of this section, are performing their purposes in a manner satisfactory to the grantor, and if they are not, the grantor may receive and reallocate all or a portion of the channel capacity, operations appropriation, and capital appropriation, including any facilities and equipment purchased previously with such appropriation, to another entity. A new entity shall be required to comply in all respects with the legal responsibilities described in subsections C and D of this section.

F. Rates. The grantee shall establish rates for its services that must be applied fairly and uniformly to all categories of subscribers in the franchise area.

G. Periodic Review of Performance and Quality of Service. Grantor and grantee shall agree upon periodic review of grantee's performance and quality of service. Said agreement shall provide for a review within ninety days of the first anniversary of the effective date of each franchise, and periodic review thereafter throughout the term of the franchise, as agreed upon in the franchise agreement but in no event less than five year intervals. Grantor may hold a public hearing at which the grantee shall be present and may participate, to review the performance and quality of service of the cable communications system. The reports required in Section 2.70.140 regarding subscriber complaints, the records of performance tests, and the opinion survey report may be utilized as the basis for review.

1. Within thirty days after the conclusion of the public hearing, grantor may issue a report with respect to the adequacy of system performance and quality of service. If inadequacies are found, grantor may direct grantee to correct the inadequacies within a reasonable period of time.

2. Failure of grantee, after due notice, to correct the inadequacies shall be considered a breach of the franchise agreement, and grantor may, at its sole discretion, exercise any remedy within the scope of this chapter considered appropriate.

H. System and Services Review. To provide for technological, economic, and regulatory changes in the state of the art of cable communications, to promote the maximum degree of flexibility in the cable system, and to achieve a continuing, advanced modern system, the following system and services review procedures are hereby established:

1. Grantee shall agree, pursuant to a franchise agreement, to formally review advances and changes in cable communications systems and services on a periodic basis which review shall be in no less than five year intervals;

2. Sixty days prior to the scheduled system and services formal review, grantee shall submit a report to the grantor indicating the following:

a. Cable system services reported in cable industry trade journals that are being commonly provided on an operational basis, excluding tests and demonstration, to communities in Northern California with comparable populations, that are not provided to the grantor,

b. Any specific plans for provision of such new services by the grantee, or economic or technical justification indicating why grantee believes that such services are not feasible for the franchise area;

3. Topics for discussion and review at the system and services review shall include, but shall not necessarily be limited to, services provided, feasibility of providing new services, application of new technologies, and system technical performance;

4. Not later than sixty days after the conclusion of each system and service review, grantor may issue a report, including specifically a listing of any cable services not then being provided to the grantor that are considered technically and economically feasible. Grantor may request grantee to provide such services within a reasonable time, under reasonable rates and conditions, subject to the terms and conditions of a franchise agreement.

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

A. Construction Bond.

1. Within thirty days after the granting of a new franchise, or a renewal which requires significant system construction, and prior to the commencement of any construction work by the grantee, the grantor may require the grantee to file with the grantor a construction bond in the amount specified in the franchise agreement in favor of the grantor and any other person who may claim damages as a result of the breach of any duty by the grantee assured by such bond.

2. Such bond as contemplated herein shall be in the form approved by the grantor and shall, among other matters, cover the cost of removal of any properties installed by the grantee in the event said grantee shall default in the performance of its franchise obligation.

3. In no event shall the amount of said bond be construed to limit the liability of the grantee for damages.

4. Grantor, at its sole option, may waive this requirement, or permit consolidation of the construction bond with the performance bond and security fund specified respectively in subsections B and C of this section.

5. Upon completion of construction, any construction bonds then in force shall be released.

B. Performance Bond.

1. In addition to the construction bond set forth above, the grantor may require the grantee, at least thirty days prior to the commencement of operation, to file with the grantor a performance bond in the amount specified in the franchise agreement in favor of the grantor and any other person who may be entitled to damages as a result of any occurrence in the operation or termination of the cable communications system operated under the franchise agreement and including the payments required to be made to the grantor hereunder.

2. Such bond as contemplated herein shall be in the form approved by the grantor and shall among other matters cover the cost of removal of any properties installed by the grantee in the event said grantee shall default in the performance of its franchise obligation.

3. In no event shall the amount of said bond be construed to limit the liability of the grantee for damages.

C. Security Fund.

1. Within thirty days after the effective date of the franchise, the grantor may require that the grantee deposit into a bank account, established by the grantor and maintained on deposit through the term of this franchise or such lesser period of time as may be agreed upon in the franchise agreement, the sum specified in the franchise agreement, as security for the faithful performance by it of all the provisions of the franchise, and compliance with all orders, permits and directions of any agency of the grantor having jurisdiction over its acts or defaults under this chapter and the payment by the grantee of any claims, liens and taxes due the grantor which arise by reason of the construction, operation or maintenance of the system.

Subject to the provisions of subsection C(4) of this section, the security fund may be assessed by the grantor for purposes including, but not limited to, the following:

a. Failure of grantee to pay grantor sums due under the terms of the franchise;

b. Reimbursement of costs borne by the grantor to correct franchise violations not corrected by grantee, after due notice;

c. Monetary remedies or damages assessed against grantee due to default or violation of franchise requirements.

2. At grantor's sole option, some portion or all of the security fund may be provided in the acceptable form of an irrevocable letter of credit, in lieu of a cash deposit.

3. Within thirty days after notice to it that any amount has been withdrawn by the grantor from the security fund pursuant to subsection C(1) of this section, the grantee shall deposit a sum of money sufficient to restore such security fund to the amount required by the franchise agreement.

4. If the grantee fails, after thirty days written notice, to pay to the grantor any franchise fee or taxes due and unpaid; or, fails to pay the grantor within such thirty days, any damages, costs or expenses with the grantor shall be compelled to pay by reason of any act or default of the grantee in connection with the franchise; or fails, after thirty days notice of such failure by the grantor to comply with any material provision of the franchise agreement which the grantor reasonably determines can be remedied by an expenditure of the security fund, the grantor may thereafter withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the grantor shall notify the grantee of the amount and date thereof.

5. The security fund deposited pursuant to this section shall become the property of the grantor in the event that the franchise is revoked for cause by reason of the default of the grantee in accordance with the procedures of Section 2.70.040 N. The grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit no later than ninety days after the expiration of the term of the franchise, or upon a lesser period as agreed upon in a franchise agreement, provided that there is then no outstanding default on the part of the grantee. The grantee shall be entitled to any interest accrued on the cash portion of the security fund.

6. The rights reserved to the grantor with respect to the security fund are in addition to all other rights of the grantor whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall constitute an election of remedies or a waiver of any other right the grantor may have.

D. Indemnification.

1. The grantee on behalf of itself, its successors and assigns, shall defend, indemnify and hold harmless the grantor, its officers, officials, boards, commissions, agents and employees, and each of them, against and from any and all claims, demands, actions, suits, liabilities anti judgments of every kind and nature and regardless of the merits of the same, arising out of or related to the exercise or enjoyment of a franchise granted pursuant to this chapter, including costs of investigations, attorney's fees and court costs in the defense of any actions, to the extent that such claims or demands are found to be the result of any error, omission, intentional act or negligent act of grantee or any persons employed by grantee.

Grantee agrees to, and shall, defend grantor and its officers, officials, commissions, officers, agents and employees from any suits or actions at law or in equity for damages caused by reason of any of the aforesaid operations, provided as follows:

a. That grantor does not, and shall not, waive any rights against grantee which it may have by reason of the aforesaid hold harmless agreement, because of the acceptance by grantor, or the deposit with grantor by grantee, of any of the insurance policies described in this section:

b. That the aforesaid hold harmless agreement by grantee shall apply to all damages and claims for damages of any kind suffered by reason of any of the aforesaid operations referred to in this section, regardless of whether or not grantor has prepared, supplied, or approved the plans and/or specifications for the cable system improvements, or regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages.

2. In the event any such claims shall arise, the grantor or any other indemnified party shall tender the defense thereof to the grantee; provided, however, that the grantor in its sole discretion may participate in the defense of such claims at its expense, and in such event, grantee shall not agree to any settlement of claims without grantor approval.

3. The grantee shall not be required to indemnify the grantor for negligence or wilful misconduct on the part of grantor's offices, boards, commissions, agents or employees.

E. Insurance.

1. The grantee shall maintain throughout the term of the franchise agreement, insurance as follows:

a. Workers' Compensation Insurance. Such coverage as may be required by the workers' compensation insurance and safety laws of the state of California and amendments thereto;

b. Comprehensive General Liability Insurance. Comprehensive general liability insurance, including, but not limited to, coverage for bodily injury (including death) and property damage which shall be maintained at the sum(s) specified in the franchise agreement;

c. Comprehensive Automobile Liability Insurance. Comprehensive automobile liability insurance including, but not limited to, nonownership and hired vehicle coverage, as well as owned vehicles with coverage for bodily injury (including death) and property damage, which shall be maintained at the sum(s) specified in the franchise agreement.

2. The grantee shall furnish the grantor with copies of such insurance policies or certificates of insurance.

3. Such insurance policies provided for herein shall name the grantor, its officers, boards, commissions, agents, and employees as additional insured, and shall be primary to any insurance carried by grantor, and shall contain an endorsement substantially as follows:

It is hereby understood and agreed that this insurance policy may not canceled by the insurer, or the intention not to renew be stated by the insurer, until thirty (30) days after receipt by the City, by certified or registered mail, of written notice of such intention to cancel or not renew.

4. The minimum amounts set forth in the franchise agreement for such insurance shall not be construed to limit the liability of the grantee to the grantor under the franchise issued hereunder to the amounts of such insurance.

5. All insurance carriers providing coverage under subsection E(1) of this section, shall be duly licensed to do business in the state of California.

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

A. System Design. The cable communications system shall be constructed in accordance with the design requirements contained in the franchise agreement.

B. Geographical Coverage. The grantee shall design and construct the cable communications system in such a manner as to have the capability to pass by every single-family dwelling unit, multiple-dwelling unit, school and public agency within the franchise area. Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in the franchise agreement. Cable system construction and provision of service shall be nondiscriminatory, and grantee shall not delay or defer service to any sector of the franchise area on the grounds of economic preference.

C. Cablecasting Facilities. The grantee shall provide cablecasting facilities in accordance with the requirements of the franchise agreement.

D. System Construction Schedule.

a. The grantee shall comply with the requirements of the system construction schedule contained in the franchise agreement.

b. The grantee shall provide a detailed construction plan indicating progress schedule, area construction maps, test plan, and projected dates for offering service. In addition, the grantee shall update this information on a monthly basis, by submitting a copy of its normal internal progress reports, showing specifically whether schedules are being met and the reasons for any delay.

E. Remedies for Delay in Construction. The grantor may at its sole option, apply any or all of the remedies in connection with delays in system construction as specified in Section 2.70.130.

F. Provision of Service. After service has been established by activating trunk and distribution cables for any area, the grantee shall provide under normal circumstances service to any requesting subscriber within that area within thirty days from the date of request.

G. Undergrounding of Cable. The undergrounding of cable is encouraged. In any event, cables shall be in stalled underground at grantee's cost where utilities are already underground, or where required by law. Previously installed aerial cable shall be undergrounded and relocated in concert with other utilities, when such other utilities may convert from aerial to underground construction.

H. New Development Undergrounding.

1. In cases of new construction or property development where utilities are to be placed underground, upon request by the grantee, the developer or property owner shall give grantee at lest seventy-two hours notice of the particular date on which open trenching will be available for grantee's installation of conduit, pedestals and/or vaults to be provided at grantee's expense. Grantee shall also provide specifications as needed for trenching.

2. Costs of trenching and easements (if any) required to bring service to the development shall be borne by the developer or property owner; except that if grantee fails to install its conduit, pedestals and/or vaults within five working days of the date the trenches are available, as designated in the required written notice given by the developer or property owner, then if the trenches after having been opened for five working days are closed, then the cost of new trenching shall be borne by grantee.

I. Underground at Multiple Dwelling Units. In cases of multiple dwelling units serviced by aerial utilities, grantee shall make every effort to minimize the number of individual aerial drop cables giving preference to undergrounding of multiple drop cables between the pole and the dwelling unit.

J. Street Occupancy.

1. Grantee shall utilize existing poles, conduits and other facilities whenever possible and economically feasible, 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 until the written approval of the grantor is obtained.

2. Grantee shall notify the grantor at least ten days prior to the intention of the grantee to commence any construction in any streets. The grantor shall cooperate with the grantee in granting any permits required, providing such grant and subsequent construction by the grantee shall not unduly interfere with the use of such streets and that proposed construction shall be done in accordance with the pertinent provisions of the ordinances of the grantor.

3. All transmission lines, equipment and structures shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and at all times, shall be kept and maintained in a safe, adequate and substantial condition, and in good order and repair. The grantee shall, at all times, employ ordinary care and shall install and maintain use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights, flares or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures placed in any public way by the grantee shall be placed in such a manner as not to interfere with the usual travel on such public way.

4. Grantee shall, at its own expense, and in a manner approved by the grantor, restore to grantor's standards and specifications any damage or disturbance caused to the public way as a result of its operations or construction on its behalf.

5. Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the grantor to remove any of the grantee's facilities, no charge shall be made by the grantee against the grantor for restoration and repair.

6. Grantee shall have the authority to trim trees on public property at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and direction of the grantor.

7. Upon receipt of thirty days written notice, the grantee at its expense shall protect, support, temporarily disconnect, relocate, or remove any property of grantee when, in the opinion of the grantor, the same is required by reason of traffic conditions, public safety, street vacation, freeway or street grade, separation or realignment, 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, redevelopment, or any general program under which the grantor shall undertake to cause any such properties to be located beneath the surface of the ground. 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.

8. After receipt of thirty days written notice, upon failure of grantee to commence, pursue or complete any work required by law or by the provisions of this chapter to be done in any street, within the time prescribed and to the satisfaction of the grantor, the grantor may, at its option, cause such work to be done and the grantee shall pay to the grantor the cost thereof in the itemized amounts reported by the grantor to grantee within thirty days after receipt of such itemized report.

9. The grantee shall make no paving cuts or curb cuts unless absolutely necessary, and only after written permission has been given by the grantor.

10. Grantor reserves the right to require conduit for underground cabling in special areas.

K. Construction and Technical Standards.

1. Construction Standards.

a. Grantor Codes and Permits. Grantee shall comply with all applicable grantor construction codes and permit procedures. Grantor shall be entitled to charge reasonable permit and inspection fees to recover the special nonrecurring insertion costs imposed by the construction of the cable system.

b. Compliance with Safety Codes. All construction practices shall be in accordance with all applicable sections of Federal and State Occupational Safety and Health Acts and any amendments thereto as well as all state and local codes where applicable.

c. Compliance with Electrical Codes. All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the National Electrical Code, as amended, and all applicable state and local codes.

d. Antennas and Towers. Antenna supporting structures (towers) shall be designed for the proper loading as specified in Electronics Industry Association's R.S. 222-A specifications, and provisions of the Uniform Building Code, as modified.

e. Compliance with Aviation Requirements. Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable state or local codes and regulations.

f. Construction Stands and Requirements. All of the grantee's plant and equipment, including but not limited to, the antenna site, headend and distribution system towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere in any manner with the rights of any property owner, or to hinder or obstruct pedestrian and vehicular traffic.

g. Safety and Nuisance Requirements. The grantee shall at all times employ professional care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public.

2. Technical Standards. The cable communications system shall meet all technical and performance standards contained in the franchise agreement.

3. Test and Compliance Procedure. The grantee shall submit, upon demand from grantor, within sixty days after the effective date of the franchise agreement, the test plan utilized by the grantee describing the methods and schedules for testing the cable communication system on an ongoing basis to determine compliance with the provisions of the franchise agreement. The tests for basic cable services shall be performed at intervals no greater than twelve months. If more than ten percent of the locations tested fail to meet the performance standards, the grantee shall be required to indicate what corrective measures have been taken, and the entire test shall be repeated. A second failure of more than ten percent may result, at the grantor's option, in appropriate remedies, pursuant to a franchise agreement.

L. Areawide Interconnection.

1. Interconnection. The grantor may request grantee to interconnect public usage channels of the cable communications system with any or all other cable systems in adjacent areas. Interconnection of systems shall permit interactive transmission and reception of program material, and may be done by direct cable connection, microwave link, satellite, or other appropriate method.

2. Interconnection Procedure. Upon receiving the request of the grantor to interconnect, the grantee shall immediately initiate negotiations with the other affected system or systems and shall report to the grantor the results of such negotiations no later than sixty days after initiation.

3. Relief. The grantee may be granted reasonable extensions of time to interconnect or the grantor may rescind its request to interconnect upon petition by the grantee to the grantor, if the grantor finds that the grantee has negotiated in good faith and has failed to obtain an approval from the system or system of the proposed interconnection, or that the cost of the interconnection would cause an unreasonable or unacceptable increase in subscriber rates.

4. Cooperation Required. The grantee shall cooperate with any interconnection corporation, regional interconnection authority or city, county, state or federal regulatory agency which may be hereafter established for the purpose of regulating, financing, or otherwise providing for the interconnection of cable systems beyond the boundaries of the franchise area.

5. Initial Technical Requirements to Assure Future Interconnection Capability.

a. Every grantee receiving a franchise to operate a cable communications system within the franchise area shall use the same frequency allocations for commonly provided television signals so far as is technically and economically feasible.

b. Grantee shall make a reasonable effort to provide local origination and access equipment that is compatible throughout the area served by the cable system.

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

A. Basic System Capability—General.

A cable communications system, to be installed and operated pursuant to this chapter and a franchise granted hereunder shall, as a minimum, be operationally capable of relaying to subscriber terminals those television and radio broadcast signals for the carriage of what the grantee is now or thereafter authorized by the FCC, and distribute color television signals which it received in color, and provide channel capacity and basic equipment for program production in cablecasting public, educational, and government access uses.

The cable communications system(s) permitted to be installed and operated pursuant to this chapter may also engage in the business of transmitting original cablecast programming not received through television broadcast signals, and transmitting any satellite delivered signals permitted by the FCC.

The system may also transmit television pictures, film and videotape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers.

The system may also transmit and receive all other signals, digital, voice, and audio-visual except as may be prohibited by federal and state authorities.

B. Basic System Capability—Channel Capacity.

The cable communications system(s) to be installed and operated pursuant to this chapter and any franchise granted hereunder shall have a minimum downstream video channel capacity equal to or greater than one 550 mhz system (approximately seventy-six channels) and have two-way operational capability, the latter to be activated on a selective basis when technically and economically feasible or as mutually agreed upon by the grantor and grantee.

C. Basic Cable Service. The "basic cable service" shall include any service tier which includes the retransmission of local television signals. This service shall be provided to all subscribers at the established monthly subscription rates. The grantee shall provide, as a minimum, the initial services listed in the franchise agreement. Services shall not be reduced without prior notification to grantor.

D. Local Origination Channel(s). If local origination programming is provided, the grantee shall operate any cablecasting studios on a high-quality, professional basis for the purpose of providing cablecast programming responsive to local needs and interests.

E. Cable Channels for Commercial Use. The grantee shall designate channel capacity for commercial use as required by applicable law.

F. Universal Connection. In order to provide a service related to the public health, safety or welfare, the grantor may require that all dwelling units within the franchise area shall be provided with a service drop which can be connected physically to the cable system, whether or not the dwelling unit's occupants desire to subscribe to cable service. The cost and charges shall be determined by the grantor at the time such connection is required. Grantee shall be entitled to recover the incremental cost of providing a universal connection.

G. With respect to basic television service, the grantee shall provide a drop and all basic subscriber services, without cost, when the system passes such public facilities and as designated by the council, to public schools and community colleges within the city, and buildings owned and controlled by the city and used for public purposes and not for residential use.

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

A. Consumer Service Standards. The grantee shall maintain a local office to provide the necessary facilities, equipment and personnel to comply, with the following consumer standards under normal conditions of operation:

1. Sufficient toll-free telephone line capacity during normal business hours to assure that customer calls will be answered by a service representative within a reasonable time;

2. Emergency toll-free telephone line capacity on a twenty-four hour basis, including weekends and holidays;

3. A business and service office, within the city, open during normal business hours at least eight hours daily, and adequately staffed to accept subscriber payments and respond to service requests and complaints;

4. An emergency system maintenance and repair staff, capable of responding to and making repairs of major system malfunctions on a twenty-four hour basis;

5. An installation staff, capable of installing service to any subscriber within seven working days after receipt of a request in all areas where trunk and feeder cable have been activated;

6. Grantee shall make a good faith effort to schedule, within a specified four hour time period, all appointments with subscribers for installation or service.

B. Request for Cable Service and Repairs.

1. The grantee shall render efficient service, make repairs within a reasonable time, and interrupt service only for good cause and for the shortest time possible, in its business judgment. Scheduled interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system, preferably between midnight and six a.m. A written log or an equivalent stored in computer memory and capable of access and reproduction, shall be maintained for all service interruptions and requests for cable service as required by Section 2.70.140 E.

2. Grantee shall maintain a repair force of technicians normally capable of responding to subscriber requests for service, under normal operating conditions, within the following time frames:

a. System outage: Within four hours, including weekends, of receiving subscriber calls which by number identify system outage of sound or picture of one or more channels, affecting all the subscribers of the system or a considerable portion thereof;

b. Isolated outage: Within twenty-four hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one or more channels;

c. Inferior reception quality: Within forty-eight hours, including weekends, of receiving request for service identifying a problem concerning picture or sound quality.

Grantee shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives at the service location and begins work on the problem. In the case of a subscriber not being home when the technician arrives, response shall be deemed to have taken place if the technician leaves written notification of arrival.

No charge shall be made to the subscriber for any initial service call. For subsequent calls a charge may be levied if grantee can demonstrate the problem to be noncable system in origin or where such call is prompted by subscriber negligence.

C. Verification of Standards. Upon reasonable notice, grantee shall demonstrate compliance with any or all of the above standards required in subsections A or B of this section. Grantee shall provide sufficient detail by written record or computer memory equivalent to permit grantor to verify the extent of compliance.

D. Complaint Procedure.

1. Complaints to Grantee. Grantee shall establish written procedures for receiving, acting upon and resolving subscriber complaints without intervention by grantor. Written procedures shall prescribe the manner in which a subscriber may submit a complaint either orally or in writing that grantee has violated any provision of this chapter, or the terms and conditions of the subscriber's contract with the grantee. At the conclusion of grantee's investigation of a subscriber complaint, but in no event more than ten working days after receiving the complaint, grantee shall notify the subscriber and grantor in writing of the results of the investigation and its proposed action or resolution, if any. Grantee shall also notify subscriber of the subscriber's right to file a complaint with grantor in the event the subscriber is dissatisfied with the grantee's decision. Grantee's procedure shall be filed with the grantor. No other proceedings to resolve subscriber complaints shall be undertaken until the procedure established by this section has been exhausted.

2. Complaints to Grantor. A subscriber who is dissatisfied with grantee's proposed action or resolution, or who was not sent a written decision within the ten working day period, shall be entitled to have the complaint reviewed by grantor, or its designee. The subscriber shall initiate the review by filing a written complaint together with the grantee's written decision, if any with the grantor and by grantor notifying grantee of the filing. The subscriber shall make filing and notification within twenty days of receipt of grantee's decision or, if no grantee decision has been provided, within thirty days after filing the origin complaint with grantee. The grantor may extend these time limits for reasonable cause.

E. Review by the Grantor. The grantor shall determine, solely upon a review of a subscriber complaint and the grantee's decision, if any, whether further action is warranted. In the event the grantor does not initiate further proceedings within fifteen days of the filing of the complaint, the grantee's proposed action or resolution shall be final. If the grantor decides to initiate further investigation, the grantor shall require the grantee and the subscriber to submit, within ten days of notice thereof, a written statement of the facts and arguments in support of their respective positions. The grantee or the subscriber may request in such statement that a hearing to conducted by the grantor. A hearing if requested shall be conducted by the grantor following notice in writing specifying the time and place for such hearing. The hearing shall be conducted informally, and the parties may offer any evidence pertinent to the dispute. The parties shall produce any additional evidence, including testing reports from the grantee, which the grantor may deem necessary to an understanding and determination of the dispute. The grantor shall issue a written decision within fifteen days of receipt of the written statements or, if a hearing is requested, within fifteen days of the conclusion of the hearing, setting forth the basis of the decision. The decision may be appealed to the city council. The council's decision shall be final.

F. Remedies for Violations. The grantor may, as a part of a subscriber complaint decision issued under the provisions of this chapter, impose damages on the grantee if specified in the franchise agreement.

G. Notices.

1. Operating Policies. As subscribers are connected or reconnected to the cable system, and at lest once annually thereafter, the grantee shall provide each subscriber with written information concerning the procedures for making inquiries or complaints, including the name, address and local telephone number of the employee or employees or agent to whom such inquiries or complaints are to be addressed, and also furnish information concerning the grantor office responsible for administration of the franchise with the name and telephone number of the office. The notice shall also indicate grantee's busing hours, legal holidays and procedures for responding to inquiries after normal business hours.

The grantee shall provide all subscribers and the grantor written notice no less than thirty days prior to any proposed change in these policies.

2. Rates and Services. The grantee shall provide all subscribers and the grantor with at least thirty days written notice prior to the implementation of any change in rates or programming services.

3. Copies to Grantor. Copies of all notices provided to subscriber shall be filed concurrently with the grantor.

H. Quality of Service. The overall quality of service provided by grantee to subscribers may be subject to periodic review and evaluation by grantor, in conjunction with the reviews set forth in Section 2.70.050 G. Grantor's evaluation that service quality is inadequate may lead to direction to grantee to cure the inadequacies. Grantee shall commence corrective action within thirty days after receipt of written notice.

Grantor, after due process, may utilize the performance bond and/or security fund as provided for under Section 2.70.060 B and C, restively, to remedy any such franchise breach.

1. Tenant Rights. It is grantor's intent that tenants not be discriminated against in the ability to subscribe to cable services. Grantees shall be required to provide service to tenants in individual units of a multiple housing facility with all services offered to other dwelling units within the franchise area, so long as the owner of the facility consents in writing, if requested by grantee, to the following:

2. To grantee's providing the service to units of the facility;

3. To reasonable conditions and time for installation, maintenance, and inspection of the system on the facility premises:

4. To reasonable conditions promulgated by grantee to protect grantee's equipment and to encourage widespread use of the system; and

5. To not discriminate in rental charges, or otherwise, between tenants who receive cable service and those who do not.

J. Grantee Rules and Regulations. The grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the grantee to exercise its rights and perform its obligations under the franchise, and to assure an uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions of this chapter or applicable state and federal laws, rules and regulations.

K. Rights of Individuals.

1. Grantee shall not deny service, or otherwise discriminate against subscribers, or general citizens on the basis of race, color, religion, national origin, or sex. Grantee shall comply at all times with all other applicable federal, state and local laws and regulations, and all executive and administrative orders relating to nondiscrimination which are hereby incorporated and made part of this chapter by reference.

2. Grantee shall strictly adhere to the equal employment opportunity requirements of federal, state and local law and regulations in effect on the date of the franchise get, and as amended from time to time.

3. The grantee's policy with regard to personally identifiable information shall be consistent with federal law.

L. Continuity of Service Mandatory.

1. It shall be the right of all subscribers to continue receiving service insofar as their financial and other obligations to the grantee are honored. In the event that the grantee elects to overbuild, rebuild, modify, or sell the system, or the grantor gives notice of intent to terminate or fails to renew a franchise, the grantee shall act so as to ensure that all subscribers receive continuous, uninterrupted service, except as may be otherwise agreed in a franchise agreement.

In the event of a change of grantee, or in the event a new operator acquires the system, the original grantee shall cooperate with the grantor, new grantee or operator in maintaining continuity of service to all subscribers.

During such period, the original grantee shall be entitled to the revenues for any period during which it operates the system, and shall be entitled to reimbursement for reasonable costs for its services when it no longer operates the system.

2. In the event grantee fails to operate the system for seven consecutive days without prior approval of the grantor or without just cause, the grantor may, at its option, operate the system or designate an operator until such time as grantee restores service under conditions acceptable to the grantor or a permanent operator is selected. If the grantor is required to fulfill this obligation for the grantee, then during such period as the grantor fulfills such obligation, the grantor shall be entitled to collect all revenues from the system, and the grantee shall reimburse the grantor for all reasonable costs or damages in excess of the revenues collected by the grantor that are the result of the grantee's failure to perform.

M. Identification of Employees. Every employee of the grantee or its contractors or subcontractors shall be clearly identified on sight to the public as a representative of the grantee. Every vehicle of the grantee or its contractors or subcontractors shall be similarly identified. The grantee's telephone number shall also be clearly marked on all such vehicles.

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

A. Books and Records. The grantor, upon reasonable notice, shall have the right to inspect at any time during normal business hours, all nonfinancial books, records, maps, plans, service complaint logs, performance test results and other like materials of the grantee which relate to the operation of the franchise and are maintained at its local office as required by Section 2.70.090 A; provided, that the grantor shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of the grantee and provided further, that records shall be exempt from inspection pursuant to this section to the extent required by applicable law regarding subscriber privacy, and to the extent such records are protected by law regarding subscriber privacy, and to the extent such records are protected by law against discovery in civil litigation.

B. Records Required. In any event the grantee shall at all times maintain in the local office:

1. The complaint file required by Section 2.70.140 D;

2. A full and complete set of plans, records and "as-built" maps showing the exact location of all cable communications system equipment installed or in use in the franchise area.

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

A. Rights of Inspection of Construction. The grantor shall have the right to inspect all construction or installation work performed subject to the provisions of the franchise agreement and to make such tests as it shall find necessary to ensure compliance with the terms of this franchise and other pertinent provisions of law.

B. Right of Intervention. The grantor shall have the right of intervention in any suit or proceeding involving the cable system franchise to which the grantee is party, and the grantee shall not oppose such intervention by the grantor.

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

A. Right of Grantee. In the event of any dispute between grantee and grantor over this chapter or the franchise agreement, or with respect to any rights or obligations arising therefrom, grantee shall first pursue and exhaust all available administrative remedies. Thereafter grantee may pursue any appropriate legal action.

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

A. Remedies for Franchise Violations. If the grantee fails to perform any material obligation under the franchise agreement, or fails to do so in a timely manner, the grantor at its option, and in its sole discretion may:

1. Assess against the grantee monetary damages up to the limits established in the franchise agreement for material franchise violations, said assessment to be levied against the purity fund, if any, as hereinabove provided, and collected by grantor after completion of the procedures specified in subsection B of this section. The amount of such assessment shall be deemed to represent liquidation of damages actually sustained by grantor by reason of grantee's failure to perform. Such assessment shall not constitute a waiver by the grantor of any other right or remedy it may have under the franchise agreement or under applicable law, including without limitation, its right to recover from grantee such additional damages, losses, costs and expenses, including actual attorney's fees, as may have been suffered or incurred by grantor by reason of or arising out of such breach of the franchise agreement. This provision for assessment of damages is intended by the parties to be separate and apart from grantor's right to enforce the provisions of the construction and performance bonds, if any, as provided for in Section 2.70.060, and is intended to provide compensation to grantor or subscribers for actual damages;

2. Terminate the franchise, for any of the grounds stated in Section 2.70.040 N;

3. No remedy shall be imposed by grantor against grantee for any violation of the franchise without grantee being afforded due process of law, as provided for in subsection B of this section.

Grantor may impose any or both of the above enumerated measures against grantee, which shall be in addition to any and all other legal or equitable remedies it has under the franchise agreement or under any applicable law.

B. Procedure for Remedying Franchise Violations. In the event that the grantor determines that the grantee has violated any material provision of the franchise agreement, the grantor may make a written demand on the grantee that it remedy such violation. If the violation is not remedied, or in the process of being remedied, to the satisfaction of the grantor within thirty days following such demand, the grantor shall determine whether or not such violation by the grantee was excusable or inexcusable, in accordance with the following procedure:

1. An administrative hearing shall be held to review the alleged violation. If this hearing does not result in a satisfactory resolution, and/or the grantee requests a public hearing, then a public hearing shall be held, and the grantee shall be provided with an opportunity to be heard upon thirty days written notice to the grantee of the time and place of the hearing provided and the allegations of franchise violations.

2. If, after notice is given and, at the grantee's option, a full public proceeding is held, the grantor determines that such alleged violation by the grantee did not occur or was excusable as provided in subsection C of this section, the grantor shall either dismiss the alleged violation or direct the grantee to correct or remedy the same within such additional time, in such manner and upon such terms and conditions as the grantor may reasonably direct in the event that the violation was found to have occurred but was excusable under subsection C of this section.

3. If, after notice is given and, at the grantee's option, a full public proceeding is held, the grantor determines that such violation did occur and was inexcusable, then the grantor may impose a remedy in accordance with subsection A of this section.

C. Force Majeure—Grantee's Inability to Perform. In the event grantee's performance of any of the terms, conditions, obligations, or requirements of the franchise agreement is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided grantee has notified grantor in writing within thirty days of its discovery of the occurrence of such an event. Such causes beyond grantee's reasonable control or not reasonably foreseeable shall include, but shall not be limited to, Acts of God and civil emergencies, labor unrest or strikes, untimely delivery of equipment, inability to obtain free access to an individual's property and inability of grantee to secure all necessary permits to utilize utility poles or conduit so long as grand utilizes due diligence to timely obtain said permits.

(Ord. 1016 N.C.(2d) 2 (part), 1989.)

A. Annual Reports. Within one hundred twenty days after the close of grantee's fiscal year, the grantee may be required to submit a written annual report, in a form requested by the grantor, including, but not limited to, the following information:

1. A summer of the previous year's (or, in the case of the initial report year, the initial year's) activities in development of the cable system, including, but not limited to, services begun or discontinued during the reporting year, and the number of subscribers for each class of service;

2. A statement, of gross revenues, audited by an independent certified public accountant, or certified by an officer of the grantee;

3. A list of grantee's officers, members of its boards of directors, and other principals of grantee;

4. A list of stockholders or other equity investors holding five percent or more of the voting interest in the grantee and its parent corporation(s), if any, unless the parent is a public corporation whose annual reports are publicly available.

B. Copies of Federal and State Reports. The grantee may be required to maintain and allow grantor access to files containing copies of all applications, notifications, communications and documents submitted by the grantee to, as well as copies of all decisions, correspondence and actions by, any federal, state and local regulatory agencies and other government bodies relating to its cable television operations within the franchise area. Such confidential data exempt from public disclosure shall be retained in confidence by the grantor and its authorized agents and shall not be made available for public inspection.

C. Public Reports. If public reports are published, a copy of each of grantee's annual reports and those of its parent corporation, as the grantor requests, shall be submitted to the grantor within thirty days after receipt of such request.

D. Complaint File and Reports. An accurate and comprehensive file shall be kept by the grantee of any and all formal written complaints regarding the cable communications system. A procedure shall be established by the grantee by the time of installation of the cable system to remedy complaints quickly and reasonably to the satisfaction of the grantor. Complete records of grantee's actions in response to all complaints shall be kept. These files and records shall remain open to inspection by the grantor. In addition, a grantee shall provide, at lest annually, a log and summer of all service interruptions.

E. Inspection of Facilities. The grantee shall allow the grantor to make inspections of any of the grantee's facilities and equipment at any time during business hours, upon at least ten days notice, or to allow grantor to verify the accuracy of any submitted report.

F. Public Inspection. All reports subject to public disclosure, shall be available for public inspection at a designated grantee's local office during normal business hours.

G. Cost of Reports. One copy of all reports and records required under this or any other section of this chapter shall be furnished at the sole expense of the grantee.

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

A. Compliance with State and Federal Laws. Notwithstanding any other provisions of the franchise agreement to the contrary, the grantee shall at all times comply with all laws and regulations of the state and federal government or any administrative agencies thereof; provided, however, if any such state or federal law or regulation shall require the grantee to perform any service, or shall permit the grantee to perform any service, or shall prohibit the grantee from performing any service, in conflict with the terms of the franchise agreement or any law or regulation of the grantor, then as soon as possible following knowledge thereof, the grantee shall notify the grantor of the point of conflict believed to exist between such regulation or law and the laws or regulations of the grantor or the franchise agreement.

B. Separability—Nonmaterial Provisions. If any provision of this chapter or any related agreements is held by any court or by any federal, state, or local agency of competent jurisdiction to be invalid as conflicting with any federal, state or local law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, and if said provision is considered nonmaterial by the grantor, said provision shall be considered a separate, distinct and independent part of this chapter, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof or thereof which has been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, provided that the grantor shall give the grantee thirty days written notice of such change before requiring compliance with said provision.

C. Separability—Material Provisions. If any material provision of this chapter, as determined by the grantor and the tee, is held to be invalid or preempted by federal, state or local regulations or laws, resulting in a material adverse consequence to either party, the grantor and grantee shall attempt to negotiate appropriate modifications to the franchise agreement to provide reasonable relief to the grantor or grantee from such invalidity or preemption, including the payment of damages. If the parties are unable to reach agreement on such modifications, then the dispute shall be submitted to a mutually agreeable arbitrator, in accordance with state law, who shall determine what modifications and/or liquidated damages are appropriate. The arbitrator's decision shall be binding on the parties; provided, however, that no decision of the arbitrator shall require the grantor or grantee to be in violation of any federal or state law or regulation.

D. Notices. Grantee shall maintain throughout the term of the franchise, a local address for service of notices by mail.

E. Captions. The captions to sections throughout this chapter are intended solely to facilitate reading and reference. Such captions shall not affect the meaning or interpretation of this chapter.

F. No Recourse Against the Grantor. The grantee shall have no recourse whatsoever against the grantor or its officials, boards, commissions, agents, or employees for any loss, costs, expenses, or damages arising out of any provision or requirement of the franchise agreement or because of the enforcement of the franchise.

G. Nonenforcement by the Grantor. The grantee shall not be relieved of its obligation to comply with any of the provisions of this chapter by reason of any failure of the grantor to enforce prompt compliance.

(Ord. 1016 N.C.(2d) § 2 (part), 1989.)

A. Purpose. This subchapter is applicable to video service providers who have been awarded a state video franchise under the California Public Utilities Code section 5800 et seq. (the Digital Infrastructure and Video Competition Act of 2006 ["DIVCA"]), to provide cable or video services in any location(s) within the incorporated boundaries of the city. It is the purpose of this subchapter to implement within the incorporated boundaries of the city the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated thereunder that are applicable to a "local franchising entity" or a "local entity" as defined in DIVCA.

B. Rights Reserved.

1. The rights reserved to the city under this subchapter are in addition to all other rights of the city, whether reserved by this subchapter or authorized by law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the city.

2. Except as otherwise provided by DIVCA, a state franchise shall not include, or be a substitute for:

a. Compliance with applicable requirements for the privilege of transacting and carrying on a business within the city, including, but not limited to, compliance with the conditions that the city may establish before facilities may be constructed for, or providing, non-video services; and

b. Any permit or authorization required in connection with operations on or in public rights-of-way or public property, including, but not limited to, encroachment permits, street work permits, pole attachment permits and street cut permits; and

c. Any permit, agreement or authorization for occupying any other property of the city or any private person to which access is not specifically granted by the state franchise.

3. No permit issued by the city to a state franchise holder is itself a franchise, nor shall any permit create a vested right that would prohibit the city from revoking or amending the permit.

C. Compliance with City Ordinances. Nothing contained in this subchapter shall be construed so as to exempt a state franchise holder from compliance with all ordinances, rules or regulations of the city now in effect or which may be hereafter adopted which are consistent with this subchapter or California Public Utilities Code section 5800 et seq., or any obligations under any franchise issued by the city insofar as those obligations may be enforced under California Public Utilities Code section 5800 et seq.

D. Compliance with DIVCA. When a video service provider holding a state franchise provides notice to the city pursuant to California Public Utilities Code section 5840(n) that it is commencing to provide video service to the City, a holder of a local franchise shall seek a state franchise pursuant to California Public Utilities Code section 5930(c) and the upon issuance of a state franchise by the California Public Utilities Commission for the franchise area the local franchise shall terminate.

(Ord. 1626 N.C.(2d) § 3 (part), 2009.)

Definitions Generally — Interpretation of Language. For purposes of this subchapter, the following terms, phrases, words, and their derivations shall have the meaning given in this section 2.70.170. Words not defined in this Section 2.70.170. shall have the same meaning as established in: (1) DIVCA, and if not defined therein, (2) California Public Utilities Commission rules implementing DIVCA, and if not defined therein, (3) Title VI of Title 47 of the Communications Act of 1934, as amended, 47 USC i?1/21/21/21/21/21/21/21/2 521 et seq., and if not defined therein (4) their common and ordinary meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and "including" and "include" are not limiting. The words "shall" and "will" are always mandatory, but the use of those terms grants no private rights to any person with respect to the city. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

A. "Gross revenues" means all revenues actually received by the holder of a state franchise or its affiliates that are derived from the operation of the holder's network to provide cable service or video service within the incorporated areas of the city.

B. "PEG access," or "PEG" means the availability of a cable or state franchise holder's system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including organizations, groups, or individual members of the general public, educational institutions, and the city and its designated access providers, to acquire, create, and distribute programming not under a state franchise holder's editorial control.

C. "State franchise holder" means a cable operator or video service provider that has been issued a franchise by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in California Public Utilities Code section 5830, within any portion of the incorporated limits of the city.

(Ord. 1626 N.C.(2d) § 3 (part), 2009.)

A. State Franchise Fees. Any state franchise holder operating within the incorporated areas of the city shall pay to the city a state franchise fee equal to five percent of gross revenues that may be subject to a franchise fee under California Public Utilities Code section 5860.

B. Payment of Franchise Fees. The state franchise fee required pursuant to this Section 2.70.180. shall be paid quarterly, in a manner consistent with California Public Utilities Code section 5860. The state franchise holder shall deliver to the city, by check or other means, which shall be agreed to by the city, a separate payment for the state franchise fee not later than forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the payment was calculated, and shall include such additional information on the appropriate form as designated by the city.

C. Examination of Business Records. The city may examine the business records of the holder of a state franchise in a manner consistent with California Public Utilities Code section 5860(i).

D. Late Payments. In the event a state franchise holder fails to make payments required by this Section 2.70.180 on or before the due dates specified herein, the City shall impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent.

(Ord. 1626 N.C.(2d) i?1/21/21/21/21/21/21/21/2 3 (part), 2009.)

A. Customer Service Standards. A state franchise holder shall comply with sections 53055, 53055.1, 53055.2 and 53088.2 of the California Government Code; the FCC customer service and notice standards set forth in sections 76.309, 76.1602, 76.1603, and 76.1619 of Title 47 of the Code of Federal Regulations; section 637.5 of the California Penal Code; the privacy standards of section 551 of Title 47 of the United States Code; and, to the extent consistent with DIVCA, all other applicable state and federal customer service and consumer protection standards pertaining to the provision of video service, include any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this paragraph shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.

B. Penalties for Violations of Standards. The city shall enforce the compliance of state franchise holders with respect to the state and federal customer service and consumer protection standards set forth in subsection A above. The city will provide a state franchise holder with a written notice of any alleged material breaches, as defined in California Public Utilities Code section 5900, of applicable customer service or consumer protection standards, and will allow the state franchise holder thirty days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied by a state franchise holder within the thirty-day time period, irrespective of the number of customers affected, will be subject to the following penalties to be imposed by the city:

1. For the first occurrence of a material breach, a fine of five hundred dollars may be imposed for each day the violation remains in effect, not to exceed one thousand five hundred for each violation.

2. For a second material breach of the same nature within twelve months, a fine of one thousand dollars may be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation.

3. For a third material breach of the same nature within twelve months, a fine of two thousand five hundred dollars may be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars for each violation.

C. Any penalties imposed by the city shall be imposed in a manner consistent with California Public Utilities Code section 5900.

(Ord. 1626 N.C.(2d) § 3 (part), 2009.)

A. Except as expressly provided in this subchapter, all provisions of Title 10 (Streets and Sidewalks) of the Vallejo Municipal Code, and all city administrative rules and regulations developed to any of these provisions, as now existing or as hereafter amended, shall apply to all work performed by or on behalf of a state franchise holder on any city public rights-of-way, public property, or city easement.

B. Permits. Prior to commencing any work for which a permit is required by this Section 2.70.200, a state franchise holder shall apply for and obtain a permit in accordance with subsection A above and shall comply with all other applicable laws and regulations, including but not limited to all applicable requirements of Division 13 of the California Public Resources Code, section 21000, et seq. (the California Environmental Quality Act).

C. The city manager or his or her designee shall either approve or deny state franchise holder's application for any permit required under subsection A above within sixty days of receiving a completed permit application from the state franchise holder.

D. If the city manager or his or her designee denies a state franchise holder's application for a permit, the city manager or his or her designee shall at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial.

E. A state franchise holder that has been denied a permit by final decision of the city manager or his or her designee may appeal the denial to the city council. Upon receiving a notice of appeal, the city council shall take one of the following actions:

1. Affirm the action of the city manager or his or her designee without any further hearing; or

2. Refer the matter back to the city manager or his or her designee for further review with or without instructions; or

3. Set the matter for a de novo hearing before the city council.

F. In rendering its decision on the appeal, the city council shall not hear or consider any argument or evidence of any kind other than the record of the matter received from the city manager or his or her designee unless the city council is itself conducting a public hearing on the matter.

G. The issuance of a permit is not a franchise, and does not grant any vested rights in any location in the public rights-of-way, or in any particular manner of placement within the rights-of-way. Without limitation, a permit to place cabinets and similar appurtenances aboveground may be revoked and the permittee required to place facilities underground, in accordance with applicable law.

(Ord. 1626 N.C.(2d) § 3 (part), 2009.)

Each state franchise holder shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the state franchise holder's network.

(Ord. 1626 N.C, (2d) § 3 (part), 2009.)

A. PEG Channel Capacity.

1. A state franchise holder shall designate a sufficient amount of capacity on its network to allow the provision of at least three PEG channels to satisfy the requirement of section 5870 of the California Public Utilities Code, within the time limits specified therein.

2. A state franchise holder shall provide an additional PEG channel when the city satisfies the standards set forth in section 5870(d) of the California Public Utilities Code or any entity designated by the city to manage one or more of the PEG channels.

B. PEG Support.

1. Amount of PEG Support Fee. Any state franchise holder shall pay to the city — or if directed by the city, to the city's designated PEG provider — a PEG fee equal to one percent of gross revenues.

2. The PEG support fee shall be used for PEG activities, in a manner that is consistent with the terms of the incumbent cable operator's franchise and settlement agreements during the period of January 1, 2006 to December 30, 2006.

3. A state franchise holder shall remit the PEG support fee quarterly, within forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a summary, detailing how the PEG support fee was calculated.

4. In the event that a state franchise holder fails to pay the PEG support fee when due, or underpays the proper amount due, the state franchise holder shall pay interest at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent, or the maximum rate specified by state law.

C. PEG Carriage and Interconnection.

1. As set forth in sections 5870(b) and 5870(g)(3) of the California Public Utilities Code, state franchise holders shall ensure that all PEG channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a state franchise holder shall be of similar quality and functionality to that offered by commercial channels (unless the PEG signal is provided to the state franchise holder at a lower quality or with less functionality), shall be capable of carrying a National Television System Committee (NTSC) television signal, and shall be carried on the state franchise holder's lowest cost tier of service. To the extent feasible, the PEG channels shall not be separated numerically from other channels carried on the lowest cost tier of service and the channel numbers for the PEG channels shall be the same channel numbers used by any incumbent cable operator, unless prohibited by federal law. After the initial designation of the PEG channel numbers, the channel numbers shall not be changed without the agreement of the city unless federal law requires the change.

2. Where technically feasible, each state franchise holder and each incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. Interconnection may be accomplished by any means authorized under Public Utilities Code section 5870(h). Each state franchise holder and incumbent cable operator shall provide interconnection of PEG channels on reasonable terms and conditions and may not withhold the interconnection. If a state franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the city may require the incumbent cable operator to allow each state franchise holder to interconnect its network with the incumbent cable operator's network at a technically feasible point on the state franchise holder's network as identified by the state franchise holder. If no technically feasible point of interconnection is available, each state franchise holder shall make interconnection available to each PEG channel originator programming a channel in the city and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by each state franchise holder requesting the interconnection unless otherwise agreed to by the parties.

(Ord. 1626 N.C.(2d) § 3 (part), 2009.)

A. Each state franchise holder or applicant for a state franchise shall file with the city a copy of all applications or notices that the state franchise holder or applicant are required to file with the California Public Utilities Commission.

B. Unless otherwise specified in this subchapter, all notices or other documentation that a state franchise holder is required to provide to the city under this section or the California Public Utilities Code shall be provided to both the city manager and the city staff person in charge of cable and telecommunications, or their successors or designees.

(Ord. 1626 N.C.(2d) § 3 (part), 2009.)