Ventura Municipal Code Art. 1 General Provisions

This article is adopted pursuant to the municipal affairs provision of the City Charter for the purpose of establishing the procedures, policies, terms, and conditions for granting, modifying, renewing, transferring, and performing cable franchises. (Ord. No. 99-38, § 4, 10-18-99)

Unless the contrary is stated or clearly appears from the context, the following definitions will govern the construction of the words and phrases used in this chapter. Except as expressly stated otherwise, words not defined below have the same meaning as stated in the Cable Act, and any successor statute or regulation.

“Affiliate” means any person who owns or controls, is owned or controlled by, or is under common ownership or control with a franchisee.

“Applicable law” means all lawfully enacted federal, state, and the city laws, ordinances, codes, rules, regulations, orders, and any amendments or successors thereto.

“Applicant” means any person submitting an application within the meaning of this article.

“Basic cable service” or “basic service” means the service tier that includes the retransmission of local television broadcast signals.

“Cable Act” means the Cable Communications Policy Act of 1984 (47 U.S.C. Section 521 et seq.), as amended by the Cable Television Consumer Protection and Competition Act of 1992, the Telecommunications Act of 1996, any additional amendments, and any successor statute or regulation.

“Cable franchise” means the authorization granted by the city to a cable system operator giving the operator the nonexclusive right to occupy, place or use facilities upon, across, beneath or over any public right-of-way in the city to provide cable service within a franchise area. The term “cable franchise” does not include:

1. Any other permit or authorization required by applicable law for transacting and maintaining a business within the city;

2. Any other permit, agreement, or authorization required for using public rights-of-way or other public property including, by way of example and not limitation, street cut permits;

3. Express or implicit authorization to provide cable service to, or install a cable system on, private property without owner consent (except insofar as the issuance of a cable franchise constitutes such an authorization as a matter of federal law).

“Cable franchise grant” means the ordinance adopted by the city council of the city granting a cable franchise to the operator of a cable system, and includes all of the terms and conditions of such ordinance bearing on the construction, operation and maintenance of the cable system in the franchise area and the exercise of any other rights provided for therein.

“Cable service” means:

1. The one-way transmission to subscribers of video programming or other programming service; and

2. Subscriber interaction, if any, required for the selection or use of such video programming or other programming service.

“Cable system” is any facility that is a cable system under the Cable Act, or that is a “community antenna television system” under California law. A reference to a “cable system” refers to any part thereof, and any devices, structures or facilities appurtenant thereto, including, by way of example and not limitation, equipment cabinets.

“Complaints” means complaints about any aspect of the cable system or franchisee’s operations, including, without limitation, complaints requiring service calls, and complaints about employee courtesy, billing, prices, programming, outages and signal quality.

“Construction,” “operation,” “repair,” and similar formulations of those terms, means any actions associated with servicing the cable system such as installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, excavation, and tree trimming. Reference to these terms should be construed as broadly as permitted under applicable law.

“Director” means the city manager, or designee.

“FCC” means the Federal Communications Commission, its designee or successor agency.

“Franchise area” means the area of the city that a franchisee is authorized to serve by its cable franchise grant.

“Franchisee” means a natural person, partnership, domestic or foreign corporation, association, joint venture, or other organization that was granted a franchise.

“Gross revenues” means any and all cash, credits or other consideration of any kind or nature derived by a cable operator, or by another person subject to a franchise fee under applicable law. For a franchisee, gross revenues means the franchisee’s gross revenues or the gross revenues of any other cable operator of that franchisee’s cable system and, to prevent evasion of fees owed, revenues of affiliates of franchisee derived from the operation of that cable system to provide cable services. By way of illustration, without limitation, “gross revenues” includes monthly fees charged subscribers for basic, optional, premium, per-channel, or per-program service; online service fees; installation, disconnection, reconnection, and change-in-service fees; leased channel fees; late fees and administrative fees; revenues received from programmers for carriage of programming on the cable system; revenues from rentals or sales of converters or other equipment; advertising revenues; and revenues from home shopping channels. Gross revenues are the basis for computing the franchise fee under any franchise. “Gross revenues” does not include:

1. Taxes on services furnished by a franchisee that are directly imposed on subscribers or users by the city or state and which are collected by a franchisee on behalf of the city or state (the franchise fee is not such a tax);

2. Programming revenues of any affiliate whose programming is carried on the cable system where such revenues are paid to said affiliate by the franchisee and recovered by the franchisee through charges to subscribers that are included in gross revenues;

3. Amounts booked as revenues which are bad subscriber debt, net of any collections; or amounts booked as advertising revenues which are bad debt, net of any collections. A franchisee that takes advantage of this bad debt exception must exercise due diligence and utilize all reasonable means to collect debt owed to it.

“Overbuild” means a cable system constructed to serve subscribers in an area of the city served by an existing cable system.

“PEG channel” means any channel on a cable system set aside by a franchisee for public, educational, or governmental use.

“Person” means an individual, partnership, association, joint stock company, organization, corporation, or any lawful successor thereto or transferee thereof, but such term does not include the city.

“Public rights-of-way” means the public streets and easements which, under the City Charter, city ordinances, and applicable laws, the city has authority to grant franchises for use thereof or has regulatory authority thereover.

“Sale” means any sale, exchange, or similar transaction.

“Service tier” means a category of cable service or other services provided by a cable operator and for which a separate rate is charged by the cable operator.

“Subscriber” means the city or any person who legally receives any cable service from a cable operator delivered over that cable operator’s cable system.

“Transfer” means any transaction in which:

1. The cable system is sold or assigned (except the term does not include sale of portions of the cable system that are removed from service);

2. There is any change, acquisition, or transfer of control of the franchisee or its direct or indirect parents, whether by merger, consolidation, sale of assets or ownership interests, or by any other means. A transfer will be deemed to have occurred whenever there is a change, acquisition or transfer of control of more than a 10 percent ownership in the franchisee or its direct or indirect parents by any entity, or a group of entities acting in concert. However, a transfer also occurs whenever there is a change in actual working control, in whatever manner exercised, over the affairs of a franchisee or its direct or indirect parents. Without limiting the above, any change in the general partners of a franchisee will be presumed a change in control;

3. The rights and/or obligations held by the franchisee under the cable franchise are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party.

“User” means a person or the city utilizing a channel, capacity, or equipment and facilities to produce or transmit material, in contrast to receiving material in the capacity of a subscriber. (Ord. No. 99-38, § 4, 10-18-99)

Except as provided by applicable law, it is unlawful for a person to construct or operate a cable system without a valid cable franchise. Pursuant to the City Charter, a valid cable franchise must be granted by cable franchise grant and must be accepted by the franchisee in writing in order to be effective. (Ord. No. 99-38, § 4, 10-18-99)

The city may grant one or more cable franchises in accordance with and subject to the provisions of the City Charter and this code. Nothing contained in this code is, nor should it be construed to be, a contract between the city and a franchisee; nothing contained in this code or in a franchise granted pursuant to this code prohibits, or should be construed to prohibit, the city from amending this code at any time and for any reason. (Ord. No. 99-38, § 4, 10-18-99)

A cable franchise authorizes construction, operation, and maintenance of a cable system to provide cable services except as expressly stated in such cable franchise. A cable franchise does not authorize the provision of any other service. A franchisee that wishes to construct, operate or install facilities to provide other services must apply for such authorizations as may be required, and comply with all local laws pertaining to the provision of such services. (Ord. No. 99-38, § 4, 10-18-99)

A. A cable franchise is nonexclusive and does not explicitly or implicitly preclude the city from granting other cable franchises or affect the city’s right to construct, operate, or maintain its own cable system. However, a franchisee by accepting a cable franchise does not waive any rights it may have to claim that a particular cable franchise was issued to another person in violation of applicable law.

B. All privileges prescribed by a cable franchise are subordinate to any prior lawful occupancy of public rights-of-way. The city has the right to designate where a franchisee’s facilities may be placed within public rights-of-way.

C. A cable franchise is a privilege held in public trust and personal to the original franchisee. A cable franchise cannot be validly transferred without obtaining the city’s prior consent pursuant to this code.

D. A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service. However, nothing prevents a franchisee from entering into an otherwise lawful exclusive arrangement with a building owner or manager of a multiple dwelling unit or commercial subscriber. (Ord. No. 99-38, § 4, 10-18-99)

The city may regulate rate and charges of each franchisee, and to order refunds of unreasonable rates charged, except to the extent that it is preempted from doing so by applicable law. Any initial rate or change in a rate or charge will be subject to the prior review and approval of the city, except as applicable law provides otherwise. To the extent that procedures for reviewing rates are established by state or federal law, the city will follow those procedures. An order establishing rates or ordering refunds will be issued by the city council, but the director may investigate and issue any other order that may be required in order to fully effectuate and protect the city’s interests. (Ord. No. 99-38, § 4, 10-18-99)

Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under any cable franchise and/or applicable law, and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time will be computed so as to exclude the first and include the last day of the prescribed or fixed period of duration time. (Ord. No. 99-38, § 4, 10-18-99)

A franchisee will not engage in any unfair trade practices, take any action or enter into any agreement that is intended to, or likely to have the effect of, restraining competition in the provision of cable services. (Ord. No. 99-38, § 4, 10-18-99)

Every cable franchise granted pursuant to the provisions of this code will provide that, without limiting such immunities as the city or other persons may have under applicable law, a franchisee will not have any monetary recourse against the city or its officials, boards, commissions, agents or employees for any loss, costs, expense, or damage arising out the construction, operation or repair of its cable system, or the activities of the city or any entity authorized by the city to use public rights-of-way or other public property unless the same will be caused by the city’s criminal acts or by the city’s sole and willful or gross negligence. (Ord. No. 99-38, § 4, 10-18-99)

Any act that a cable franchise grant or applicable law requires or allows a franchisee to perform, will be performed at the franchisee’s expense, unless expressly provided otherwise in the cable franchise grant or applicable law. (Ord. No. 99-38, § 4, 10-18-99)

A. Except as specified in the cable franchise grant, the franchisee is subject to all applicable law.

B. The city retains every right and power that it has under applicable law.

C. Nothing in any cable franchise grant will be read to waive any of the city’s governmental rights or police powers.

D. The director may adjust, settle, or compromise any controversy involving performance or charges arising from a franchisee’s operations. The city council may accept, reject, or modify the director’s decision and may adjust, settle, or compromise any controversy or cancel any charge arising from a franchisee’s operations. (Ord. No. 99-38, § 4, 10-18-99)