Ventura Municipal Code Art. 9 Cable Franchise Revocation, Termination and Other Remedies

A cable franchise may be revoked or shortened by the city council for the franchisee’s failure to construct the cable system as required by this code or a cable franchise granted pursuant to the provisions of this code; for any other material violation of this code or material breach of such cable franchise; or for defrauding or attempting to defraud the city or subscribers; submission of false or misleading information; or if the franchisee abandons its cable system, or willfully refuses to provide services to the city or any part of the city. (Ord. No. 99-38, § 4, 10-18-99)

A. Before revoking or shortening the cable franchise, the city must give a franchisee notice (which notice will describe the nature of an alleged violation or breach) and (except as provided in this section) opportunity to cure.

B. If within 30 calendar days following receipt of written notice from the city to the franchisee the franchisee has not, to the city’s satisfaction, taken corrective action or corrective action is not being actively and expeditiously pursued to the city’s satisfaction, the city may give written notice to the franchisee of its intent to consider revocation or shortening of the cable franchise.

C. Not sooner than 30 calendar days after notifying the franchisee of its intent to consider revoking a cable franchise, the city council will hold a public hearing, at which the franchisee and the public will be given an opportunity to be heard. A cable franchise granted pursuant to the provisions of this code may provide for more specific procedures to streamline resolution of any dispute.

D. Following the public hearing the city council may determine whether to revoke or shorten the cable franchise based on the evidence presented at the hearing, and other evidence of record.

1. If the city council determines to revoke or shorten a cable franchise, it will issue a written decision setting forth the reasons for its decision.

2. A copy of such decision will be transmitted to the franchisee.

E. Notwithstanding the foregoing, an opportunity to cure is not required where the city finds that the defect in performance is due to willful misconduct, is an adjudicated violation of criminal law, or is part of a pattern of violations where the franchisee has already had notice and opportunity to cure. With respect to such violations, the city, in lieu of the requirements of this section, may provide a written notice of the breach and of its intent to revoke, and, not sooner than 30 days thereafter, conduct the proceeding required by this section. (Ord. No. 99-38, § 4, 10-18-99)

A. Notwithstanding any other provision of this chapter, a cable franchise will automatically terminate by force of law 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding.

B. However, the cable franchise may be reinstated if, within the 120-day period:

1. The assignment, receivership or trusteeship is vacated; or

2. The assignee, receiver, or trustee has fully complied with the terms and conditions of this article and the cable franchise and has executed an agreement, approved by a court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of the cable franchise grant and this code. (Ord. No. 99-38, § 4, 10-18-99)

A. Notwithstanding any other provision of this chapter, in the event of foreclosure or other judicial sale of any of franchisee’s facilities, equipment, or property, the city may revoke a cable franchise after a public hearing before the city council, by serving notice upon the franchisee and the successful bidder at the sale.

B. The cable franchise will be revoked and will terminate 30 calendar days after serving such notice, unless:

1. The city approves the transfer of the cable franchise to the successful bidder; and

2. The successful bidder agrees with the city to assume and be bound by the terms and conditions of the franchise and applicable law. (Ord. No. 99-38, § 4, 10-18-99)

If the city revokes a cable franchise granted pursuant to the provisions of this code, or if for any other reason a franchisee fails to operate its cable system or maintain service to its subscribers, or upon other termination of the cable franchise, the following procedures and rights are effective:

A. The city may require the former franchisee to remove its facilities and equipment at the former franchisee’s expense. If the former franchisee fails to do so within a reasonable period of time, the city may have the removal done at the former franchisee’s and/or surety’s expense except the franchisee may abandon any portion of its cable system in place that could have been abandoned in place under this article.

B. The city, by city council resolution, may acquire ownership or effect a transfer of the cable system at fair market value, or, where the cable franchise terminates or is revoked for cause, in accordance with the procedures set forth herein, at an equitable price. The term “equitable price” will be interpreted consistent with 47 U.S.C. Section 547. Fair market value will be determined in accordance with 47 U.S.C. Section 547(a)(1).

C. Subsection B of this section does not apply to an abandonment. If a cable system or any part thereof is abandoned by franchisee, the city may require the franchisee to transfer title to the abandoned portions to it at no charge, free and clear of encumbrances, and the same will become the city’s property and the city may keep, sell, assign, or transfer all or part of the assets of the cable system, or otherwise dispose of those assets as it sees fit. (Ord. No. 99-38, § 4, 10-18-99)

The provisions of this article governing the city’s acquisition of a cable system upon revocation or termination of a cable franchise does not limit the city’s ability to acquire a cable system in any other lawful manner. (Ord. No. 99-38, § 4, 10-18-99)

In addition to any other remedies available at law or equity, the city may apply any one or a combination of the following remedies in the event a franchisee violates its cable franchise or applicable law. (Ord. No. 99-38, § 4, 10-18-99)

All remedies in this article and the cable franchise grant are cumulative unless expressly stated otherwise. The exercise of one remedy will not foreclose use of another, nor will the exercise of a remedy or the payment of liquidated damages or penalties relieve a franchisee of its obligations to comply with its cable franchise grant. Remedies may be used singly or in combination; in addition, the city may exercise any rights it has at law or equity. Nothing herein will be read to authorize the double-recovery of damages; or to permit the city to collect damages or assess penalties in a manner that violates Section 6.460.692. (Ord. No. 99-38, § 4, 10-18-99)

Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise does not limit a franchisee’s duty to indemnify the city in any way; nor will such recovery relieve a franchisee of its obligations under a cable franchise grant, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have. Nothing herein will be read to authorize the double-recovery of damages. (Ord. No. 99-38, § 4, 10-18-99)

For violation of provisions of this article, penalties will be chargeable as provided under applicable law. (Ord. No. 99-38, § 4, 10-18-99)

The franchisee will pay to the city a sum of money sufficient to reimburse it for all expenses incurred by it in connection with the publication of a cable franchise. Such payment will be delivered to the city clerk within 30 days after the city furnishes the franchisee with a written statement of such expenses. (Ord. No. 99-38, § 4, 10-18-99)