Visalia Municipal Code Ch. 5.60 Cable Television

A. The city council finds that the development of cable television and communications systems has the potential of having great benefit and positive impact upon the people of the city. Because of the complex and rapidly changing technology associated with cable television, the city council 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.

B. The cable ordinance shall apply to all franchises granted, renewed or otherwise extended after the adoption of the ordinance codified in this chapter. Nothing herein is intended to preempt, modify or supersede Ordinance No. 2226 (as amended by Ordinance No. 8033) of the city. Ordinance No. 2226 (as amended by Ordinance No. 8033) shall continue in full force and effect, controlling the franchise granted therein before the adoption of the cable ordinance, until such time as Ordinance No. 2226 (as amended by Ordinance No. 8033) shall expire by its own terms on December 31, 1995. (Ord. 9527 § 1 (part), 1995: prior code § 3800)

For the purpose of this chapter, the following terms, phrases, words and their derivations, whether capitalized or not, 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.

"Approval" or "consent" or "agree" or derivations of said words or words of similar import mean, unless otherwise expressly provided in this chapter or the grantee's franchise, the prior approval, consent or agreement of the person holding the right to approve, consent or agree with respect to the matter in question, and "require" or "judgment" or "satisfy" or derivations of said words or words of similar import mean the requirement, judgment or satisfaction of the person who may make a requirement or exercise judgment or who must be satisfied, which approval, consent, agreement, requirement, judgment or satisfaction shall, unless otherwise expressly provided in this chapter or the grantee's franchise, not be unreasonably withheld by the person holding the right to approve, consent or agree or make a requirement or judgment or who must be satisfied.

"Basic cable service" means the lowest priced level of service which includes the retransmission of local television broadcast signals (as authorized) and educational and governmental access channels.

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

"Cable system" or "system", means a system of antennas, cables, wires, lines, fiber optic cables, towers, waveguides or other conductors, converters, pedestals, equipment or facilities, used for distributing video programming to home subscribers, and/or producing, receiving, amplifying, storing, processing, or distributing audio, video, digital or other forms of signals.

"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 either one National Television Standards Committee ("NTSC") video signal, a number of audio, digital or other nonvideo signals, or some combination of such signals.

"City" means the city of Visalia.

"Council" means the city council of Visalia.

"Educational and governmental ("EG") access programming" means programming created, produced, or acquired by representatives of the educational community acting in their official capacity, or programming created, produced, or acquired by representatives of the city acting in their governmental capacity. Grantee shall not exercise any editorial control over EG access programming except as otherwise required by law.

"Franchise" means an initial authorization, or renewal thereof, issued hereunder which authorizes the construction or operation of a cable system.

"Grantee" means any person receiving a franchise pursuant to this chapter and under the granting franchise ordinance or agreement, and its successors, transferees or assignees, and further including any lessees, licensees, or permittees, of whatsoever kind and nature, except city and any public school district located in the city.

"Grantor" means the city as represented by the city council or any delegate acting within the scope of its jurisdiction and authority.

"Gross revenues" means any and all cash, credits, property of any kind or nature, compensation, or other consideration, received directly or indirectly by the grantee, its affiliates, subsidiaries, parent and any person in which the grantee has a financial interest, or from any source whatsoever, arising from or attributable to the sale or exchange of cable services by the grantee. Gross revenues shall include but not be limited to basic service monthly fees, pay tiers, premium channels, pay-per-view fees, leased channel fees, converter rental or sales, advertising revenue, any other payments by subscribers or users of the grantee's cable system directly or indirectly made to or received by any person who has contracted to provide cable service on the cable system, and such other revenues as agreed to in the franchise agreement. Gross revenues shall not include: (1) the amount of any refunds, credits, or other payments made to subscribers or users; (2) any taxes on cable service furnished by the grantee imposed directly on any subscribers or users by any municipal corporation, political subdivision, state or other governmental unit and collected by the grantee for the governmental unit; (3) the sale or transfer of tangible property (except as otherwise permitted in this definition); (4) the sale or transfer of the franchise; (5) the issuance, sale, or transfer of corporate stocks, bonds, or other securities; (6) nonforfeited equipment deposits; (7) uncollected bad debt; and (8) such other revenues expressly excluded in the franchise agreement. Gross revenues of the grantee shall not be reduced for any purposes other than provided herein.

"Installation" means the connection of the system from feeder cable to subscribers' terminals.

"Local origination programming" means programming, created, produced, purchased, or otherwise acquired by grantee for distribution to subscribers. The selection, creation, production, purchase, or other acquisition of local origination programming shall be exclusively within the editorial discretion of grantee.

"Other programming service" means information that a cable operator makes available to all subscribers generally.

"Person" means an individual, partnership, association, joint stock company, trust, corporation or governmental entity.

"Public property" means any real property owned by the city other than a street.

"Service area" or "franchise area" means the entire geographic area within the city designated in a franchise agreement to receive cable service.

"State" means the state of California.

"Street" means the surface of and the space above and below any public street, road, highway, freeway, lane, path, public way, alley, court, sidewalk, boulevard, parkway, drive or any easement or right-of- way now or hereafter held by the city, or dedicated for use by the city, use by the general public, or use compatible with cable system operations.

"Video programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. (Ord. 9527 § 1 (part), 1995: prior code § 3801)

A. A franchise granted by the city under the provisions of this chapter shall permit constructing, operating and maintaining a system in the service area, including the right to erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the streets and public property such lines, cables, fiber optics, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appropriate to the operation of the system.

B. It is unlawful for any person to construct, install or operate a cable television system in the city within any street or within any other right-of-way within the city without a properly granted franchise awarded pursuant to the provisions of this chapter, which franchise is in full force and effect. (Ord. 9527 § 1 (part), 1995: prior code § 3802)

A. Term. An initial franchise granted hereunder shall be for a term established in the franchise agreement. A renewal shall be granted for a minimum term of fifteen (15) years or a maximum of twenty (20) years.

B. Renewal.

1. A franchise granted hereunder may be renewed if:

a. The grantee has substantially complied with the material terms of the existing franchise and with applicable law;

b. The quality of the grantee's service, including signal quality, response to consumer complaints, and billing practices, but without regard to the mix, level or quality of cable services or other services provided over the system has been reasonable in light of community needs;

c. The grantee has the financial, legal, and technical ability to provide the services, facilities, and equipment set forth in the grantee's proposal; and

d. The grantee's proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests. The city may not declare grantee's proposal unreasonable and deny renewal, nor may community needs be established, on the basis of facilities, equipment, or services which another party has indicated it is willing to provide; except, nothing herein shall prohibit city from considering the adequacy or inadequacy of any proposed or requested upgrade of the cable system when determining whether grantee's proposal is reasonable.

2. In any renewal proceeding, the grantee shall be afforded adequate notice and the grantee and the city, or its designee, shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, and to question witnesses. A transcript shall be made of any such proceeding.

3. A proceeding under this subsection shall be completed within twelve (12) months of its commencement, within which time the city shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding, and transmit a copy of such decision to the grantee. Such decision shall state the reasons therefor.

4. Any denial of a proposal for renewal shall be based on one or more adverse findings made with respect to the factors described in subsection (B)(1) of this section, pursuant to the record of the proceeding under subsection B(2) and (3) of this section. Grantor may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under subsection B(1)(a) or on events considered under subsection B(1)(b) of this section unless the grantor has provided grantee notice and the opportunity to cure as provided in this chapter, or in any case in which grantor has waived its right to object, or the grantee has given grantor written notice of a failure to cure and the grantor fails to object within a reasonable time after receipt of such notice.

5. Grantee is expressly reserved its rights of appeal under federal and state law. In addition to such rights, the franchise shall remain in effect at all times during which a renewal proceeding or appeal remains pending.

6. Notwithstanding the provisions of subsections (B)(1) through (5) of this section, grantee may submit a proposal for the renewal of a franchise, and grantor may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The provisions of subsections (B)(1) through (B)(5) of this section shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with subsections (B)(1) through (5) of this section.

C. City may not, upon the expiration of this franchise, or otherwise, acquire an ownership interest in the system, or require a sale of the system to any other person, unless city or such other person acquires the ownership interest at not less than fair market value for the system as a going concern without allocating a value to the franchise itself. (Ord. 9527 § 1 (part), 1995: prior code § 3803)

Any franchise shall be within all of the territorial limits of the city, and within any area henceforth added to the territorial limits of the city during the term of the franchise. (Ord. 9527 § 1 (part), 1995: prior code § 3804)

This chapter shall be construed in a manner consistent with all applicable federal and state laws. Whenever the Federal Communications Commission ("FCC") or Public Utilities Commission ("PUC") of the state of California or any other federal or state agency shall now or hereafter exercise any paramount jurisdiction over, and in conflict with, any specific provisions of this chapter, such paramount jurisdiction shall preempt or preclude the exercise of like jurisdiction by the city. (Ord. 9527 § 1 (part), 1995: prior code § 3805)

A. Grantee shall not assign, or transfer control of, the franchise without the prior consent of the council, which consent will not be unreasonably denied. The council shall render its decision within seventy-five (75) days from the date on which consent is requested. Any attempt to assign the franchise without the consent of the council shall be null and void. No such consent shall be required for an assignment: (1) to any affiliate of and entirely owned or controlled by the grantee; (2) any person controlling, controlled by or under common control with the grantee, in each case as of the effective date of the existing franchise; or (3) in trust, mortgage or other hypothecation, in whole or in part, to secure an indebtedness; provided, further, that any such person agrees to be bound by the existing franchise.

B. The requirements of subsection (A) of this section shall apply only to a transfer in the control of grantee. The word "control" as used herein is limited to actual working control in whatever manner exercised. Thus, in the event that grantee is a corporation, prior approval of the council shall be required where ownership or control of more than fifty-one (51) percent of the voting stock is acquired by a person or group of persons acting in concert, none of whom own or control the voting stock of the grantee as of the effective date of the franchise, singularly or collectively.

C. The transferee shall be required to establish that it possesses the legal, financial and technical qualifications to operate and maintain the system and comply with all franchise requirements for the remainder of the term of the franchise. If the transferee demonstrates that it possesses such qualifications, 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 not be unreasonably denied or delayed.

D. Any financial institution having a pledge of the franchisee 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 of 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 within thirty (30) days of assuming such control that will insure 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. (Ord. 9527 § 1 (part), 1995: prior code § 3806)

All residential areas within the franchise area will be provided with access to service from the system unless a franchise provides otherwise in any line extension policy contained therein. (Ord. 9527 § 1 (part), 1995: prior code § 3807)

A. Any franchise granted shall be nonexclusive;

B. If the city elects to grant an additional cable television franchise in an area where a franchise has already been granted to a cable television operator to any applicant that was not authorized to provide cable television service within the city prior to the effective date of this chapter, it shall do so only after a public hearing noticed pursuant to Section 6066 of the Government Code, in a newspaper of general circulation as defined in Section 6000 of the Government Code, where all of the following have been considered:

1. Whether there will be significant positive or negative impacts on the community being served;

2. Whether there will be an unreasonable adverse economic or aesthetic impact upon public or private property within the area;

3. Whether there will be an unreasonable disruption or inconvenience to existing users, or any adverse effect on future use, of utility poles, public easements, and the public rights-of-way contrary to the intent of Section 767.5 of the Public Utilities Code;

4. Whether the franchise applicant has the technical and financial ability to perform;

5. Whether there is any impact on the franchising authority's interest in having universal cable service;

6. Whether other societal interests generally considered by franchising authorities will be met;

7. Whether the operation of an additional cable television system in the community is economically feasible;

8. Such other additional matters, both procedural and substantive, as the franchising authority may determine to be relevant.

C. Nothing in this section prevents the city from considering the approval or denial of an additional cable service franchise in any area of the city subject to compliance with subsection (E) of this section, or the imposing of additional terms and conditions upon the granting of the franchise, as the city determines is necessary or appropriate.

D. The city shall make a final determination as to whether to grant the additional franchise within six months of the application date unless the city can establish that the applicant has unreasonably delayed proceedings designed to consider the matters set forth in subparagraphs (1) to (8), inclusive, of subsection (B) of this section.

E. Any additional franchise granted to provide cable television service in an area in which a franchise has already been granted and where an existing cable operator is providing service or certifies to the franchising authority that it is ready, willing and able to provide service, shall require the franchisee to wire and serve the same geographical area within a reasonable time and in a sequence which does not discriminate against lower income or minority residents, and shall contain the same educational, and governmental access requirements that are set forth in the existing franchise. This subsection does not apply where all existing cable operators certify to the franchising authority that they do not intend to provide service within a reasonable time to the area to be initially served by the additional franchise. (Ord. 9527 § 1 (part), 1995: prior code § 3808)

The terms of Sections 5.60.110 through 5.60.180 shall not apply to applications for renewal of a franchise. (Ord. 9527 § 1 (part), 1995: prior code § 3809)

Any person desiring a franchise for a cable television system shall file an application with the city. A nonrefundable application fee established by the city shall accompany the application to cover all costs associated with processing and reviewing the application, including without limitation costs of administrative review, financial, legal and technical evaluation of the applicant, consultants (including technical and legal experts and all costs incurred by such experts), notice and publication requirements with respect to the consideration of the application and document preparation expenses. In the event such costs exceed the application fee, the applicant shall pay the difference to the city within thirty (30) days following receipt of an itemized statement of such costs from the city. In the event such application fee exceeds the amount of such costs, the city shall refund the amount of the excess to the applicant within thirty (30) days following completion of the proceedings relating to such application. (Ord. 9527 § 1 (part), 1995: prior code § 3810)

An application for a franchise for a cable television system shall contain, where applicable:

A. Designation of specific area to be served by franchise;

B. Resume of prior history of applicant, including the expertise of applicant in the cable television field;

C. List of the partners, general and limited, if the applicant is a partnership and a list of the persons and/or entities involved if the applicant is a joint venture;

D. List of the names and addresses of stockholders of applicant and percentage of stock owned or controlled by each shareholder. List shall include all persons having a legal or equitable interest in five percent or more of its voting stock;

E. List of officers, directors and managing employees of applicant, together with a description of education and business background of each such person;

F. A current financial statement of applicant verified by a CPA audit or otherwise certified to be true, complete and correct to the reasonable satisfaction of the city;

G. Proposed construction schedule, providing for at least thirty-three and one-third (33-1/3) percent construction per year for three years;

H. Street map of area to be served showing the location of proposed or existing head-end site (antenna site) and business office;

I. Legal description of area to be served;

J. Proposed rates and charges to be charged subscribers;

K. Itemized electronic equipment to be used, channels to be provided, pay TV, or additional services and type of converter;

L. Technical market survey of area and economic analysis including number of homes, population, income bracket and percent of those requesting and those projected or estimated to request service, if available, designed to demonstrate how the proposal will reasonably meet the future cable-related needs and interests of the community;

M. The names and addresses of any parent or subsidiary of applicant or any other business entity owning or controlling applicant in whole or in part, or owned or controlled in whole or in part by applicant;

N. A signed statement by an officer indicating whether any principal, officer, director or managing employee:

1. Has ever been convicted or held liable for acts involving moral turpitude (including, but not limited to, charges sustained before any federal or state agency, or violation of any tax or securities law), or is presently under any indictment, investigation or complaint charging any such acts,

2. Has ever had a judgment in an action for fraud, deceit or misrepresentation entered against it, her, him or them by any court of competent jurisdiction, or

3. Has pending any legal claim, lawsuit or administrative proceeding arising out of or involving a cable television system; and

O. Any reasonable additional requirements or information that the city deems to be applicable. (Ord. 9527 § 1 (part), 1995: prior code § 3811)

A. The council may, by advertisement or any other means, solicit and call for applications for cable television system franchises, and may determine and fix any date upon or after which the same shall be received by the city, or the date before which the same must be received, or the date after which the same shall not be received, and may make any other determinations and specify the soliciting, calling for, making and receiving of such applications.

B. Upon receipt of any application for a franchise, the council shall refer the same to the city manager, who shall prepare a report and make his recommendations respecting such application.

C. The city clerk shall set applications for hearing at a time and date approved by the city council. (Ord. 9527 § 1 (part), 1995: prior code § 3812)

Not less than fifteen (15) days before the hearing, the city clerk shall give notice to the applicant in writing of the time, date and place of hearing. The city clerk shall serve such notice upon the applicant either by first-class mail, postage-prepaid, or by personal delivery thereof to the applicant. (Ord. 9527 § 1 (part), 1995: prior code § 3813)

The city clerk shall cause a notice to be posted in three places within the area to be served stating the time, date and place of a hearing not less than fifteen (15) days prior to the hearing. The city clerk shall publish in a newspaper of general circulation circulated within the area to be served and pursuant to Section 6066 of the Government Code the same notice as is required to be posted. (Ord. 9527 § 1 (part), 1995: prior code § 3814)

Any person interested, any time after the filing of an application as provided in this chapter, and prior to the hearing thereon, may file with the city clerk written comments, protests, and/or suggestions, either for or against the granting of the franchise or to suggest any terms and conditions which should be included in the franchise. (Ord. 9527 § 1 (part), 1995: prior code § 3815)

At the time and place set for the hearing or at the time and place to which the hearing may be continued by the council, the council shall hear the applicant, who may present any relevant evidence to show why the franchise should be granted, why certain terms or conditions should be imposed or not imposed on such franchise if granted, and also shall hear testimony or statements of other persons who may attend the hearing. (Ord. 9527 § 1 (part), 1995: prior code § 3816)

Within thirty (30) days after the close of the hearing, the council shall make a decision based on the evidence received at the hearing as to whether or not the application should be granted, and, if granted, subject to what conditions. The council may grant one or more franchises, or may decline to grant any franchise. The council shall send a copy of its decision to the applicant. (Ord. 9527 § 1 (part), 1995: prior code § 3817)

Minimum service standards and standards governing consumer protection and response by grantee to subscriber complaints not otherwise provided for in this chapter may be established in the franchise agreement, and grantee shall comply with such standards in the operation of the cable television system. (Ord. 9527 § 1 (part), 1995: prior code § 3818)

After the franchise is granted, the grantee shall pay to the grantor a franchise fee of up to the maximum amount permitted by law which might be a percentage of gross revenues, in accordance with terms set forth in the franchise agreement. (Ord. 9527 § 1 (part), 1995: prior code § 3819)

Grantee shall, at all times during the life of the franchise, keep on file with the city council a bond running to the grantor in such amount established in the franchise agreement with sureties to be approved by the city council. The bond shall be available to grantor to satisfy an amount due grantor from grantee which arise in accordance with the terms and conditions of the franchise agreement. (Ord. 9527 § 1 (part), 1995: prior code § 3820)

A. Grantee shall obtain required permits from the city before commencing construction involving the opening or disturbance of any street or public property. The city shall cooperate with the grantee and use its best efforts in granting any permits required. Grantee shall arrange its lines, cables and other appurtenances, on any street or public property, in such a manner as to cause no unreasonable interference with the usual and customary use of said street or public property of any person.

B. Methods of construction, installation, and maintenance of the grantee's cable system shall comply with the National Electrical Safety Code to the extent that such code is consistent with local law affecting the construction, installation, and maintenance of electric supply and communication lines.

C. Any and all streets or public property which are disturbed or damaged during the construction, operation or maintenance of the system shall be promptly repaired by grantee, at its expense and to a condition reasonably comparable to its condition prior to the disturbance or damage.

D. Grantee may cut or trim trees and vegetation interfering with National Electrical Safety Code and other clearance requirements, so long as grantee is in compliance with Chapter 12.24 of this code.

E. In the event it is necessary temporarily to move or remove any of grantee's wires, cables, poles, or other facilities placed pursuant to the franchise, in order lawfully to move a large object, vehicle, building or other structure over the streets of city, upon thirty (30) days prior notice by city to grantee, grantee shall move at the expense of the person requesting the temporary removal such of his facilities as may be required to facilitate such movement.

F. Grantee shall at all times take reasonable precautions for preventing failures and accidents which are likely to cause damage or injury to the public, to employees of grantee, and to public or private property.

G. All lines, equipment, and facilities within the service area shall at all times be kept and maintained in a safe and suitable condition and in good order and repair.

H. In all other cases, grantee shall be eligible for relocation compensation to the same extent as the grantor compensates any utility companies. (Ord. 9527 § 1 (part), 1995: prior code § 3821)

A. The grantee shall construct, install, operate and maintain its system in a manner consistent with FCC technical standards. In addition, the grantee shall provide to the grantor, upon request, a written report of the results of the grantee's annual proof of performance tests conducted pursuant to FCC standards and requirements.

B. The grantee shall continue, through the term of the franchise, to maintain FCC technical standards. Should the grantor find that the grantee has failed to maintain FCC technical standards, and should the grantor specifically enumerate those standards with which grantee is not in compliance, the grantee shall make such improvements as are necessary to meet those standards. (Ord. 9527 § 1 (part), 1995: prior code § 3822)

If during the term of the franchise federal law permits municipal regulation of basic cable service rates, the city shall have the option, upon proper notice to the company and an opportunity for the company to comment, to regulate basic cable service rates, but only to the extent permitted by federal law. (Ord. 9527 § 1 (part), 1995: prior code § 3823)

The grantee shall indemnify, defend, and hold harmless the grantor, its council, officers, officials, employees, agents, boards and commissions from and against all liability, loss, damage, expense, costs (including without limitation attorneys' fees and other costs and fees in litigation) of every nature (whether in contract, tort or strict liability, including without limitation personal injury, death at any time and property damage) arising out of or in connection with the grantee's or any of its employees', agents' or contractors' performance of work, or failure to comply with any of the obligations, under this chapter or the franchise agreement, except such loss or damage which is caused by the sole negligence or willful misconduct of the grantor or its officials, employees or agents acting within the scope of their employment or authority. The indemnity provisions of this section shall be implemented pursuant to Section 3825 and the terms of the franchise agreement; provided, that the grantee's obligations under this section shall not be limited by any insurance provided or held by the grantee. (Ord. 9527 § 1 (part), 1995: prior code § 3824)

A. On or before commencement of franchise operations, the grantee shall obtain policies of liability, worker's compensation and property insurance from companies admitted and authorized to transact business in California by the Insurance Commissioner of California.

B. The policy of liability insurance shall:

1. Be issued to grantee and name grantor, its officers, officials, agents, and employees as additional insureds;

2. Indemnify for all liability for personal and bodily injury, death and damage to property arising from activities conducted and premises used pursuant to this chapter by providing coverage therefor, including but not limited to coverage for:

a. Negligent acts or omissions of grantee and its employees, committed in the conduct of franchise operations, and/or

b. Use of motor vehicles;

3. Provide a combined single limit for comprehensive general liability and comprehensive automobile liability insurance in the amount provided for in the franchise agreement; such insurance policy shall be subject to the review and approval of grantor's legal counsel;

• 4. Be noncancelable without thirty (30) days' prior written notice thereof directed to grantor; and
• 5. Contain such other provisions as required by the franchise.

• C. The policy of workers' compensation insurance shall:

1. Have been previously approved as to substance and form by the California Insurance Commissioner;

2. Cover all employees of grantee who in the course and scope of their employment are to conduct the franchise operations;

3. Provide for every benefit and payment presently or hereinafter conferred by Division 4 of the Labor Code of the state upon an injured employee, including vocational rehabilitation and death benefits; and

4. Contain such other provisions as required by the franchise.

D. Grantee shall file with the city clerk prior to commencement of franchise operations either certified copies of these insurance policies or a certificate of insurance for each of the required policies executed by the company issuing the policy or by a broker authorized to issue such a certificate, certifying that the policy is in force and providing the following information with respect to said policy:

1. The policy number;

2. The date upon which the policy will become effective and the date upon which it will expire;

3. The names of the named insureds and any additional insured required by this chapter or the franchise agreement;

• 4. The subject of the insurance;
• 5. The type of coverage provided by the insurance; and
• 6. Amount or limit of coverage provided by the insurance.

E. Conduct of franchise operations shall not commence until grantee has complied with the aforementioned provisions of this section, or with the specific insurance provisions that the grantor and grantee agreed to in the franchise agreement.

F. In the event grantee fails to maintain any of the above-described policies in full force and effect, grantor shall, upon forty-eight (48) hours notice to grantee, have the right to procure the required insurance and recover the cost thereof from grantee. Grantor shall also have the right to suspend the franchise during any period that grantee fails to maintain said policies in full force and effect. (Ord. 9527 § 1 (part), 1995: prior code § 3825)

A. Grantee shall at all times maintain:

1. A record of all formal written complaints received and interruptions or degradation of service experienced for the preceding two years; provided, that such complaints result in or require a service call, or concern the conduct of an employee of the grantee while performing a service call;

2. A full and complete set of plans, records and "as-built" maps showing the location of the cable television system installed or in use in the city, exclusive of subscriber service drops and equipment provided in subscribers' homes;

3. A record of service calls, identifying the number, general nature and disposition of such calls, on a monthly basis. A summary of such service calls shall be available to the grantor, upon request, within sixty (60) days following the end of each calendar quarter in a form reasonably acceptable to the grantor.

B. The grantor may impose reasonable requests for additional information, records and documents from time to time; provided, they reasonably relate to the scope of the city's rights under this chapter or the grantee's franchise agreement. (Ord. 9527 § 1 (part), 1995: prior code § 3826)

Upon prior written notice, but in no event more than twice in any calendar year, grantee shall permit examination by any duly authorized representative of the grantor, of all franchise property and facilities, together with any appurtenant property and facilities of grantee situated within or without the city, and all records relating to the franchise; provided, they reasonably relate to the scope of the city's rights under this chapter or the grantee's franchise agreement, subject (to the extent not otherwise required by law) to grantor's written agreement to maintain confidential, trade secret or proprietary information, and further subject to grantee's right to protect information not subject to discovery under standards of civil litigation. (Ord. 9527 § 1 (part), 1995: prior code § 3827)

Within thirty (30) days after request by grantor, grantee shall submit an annual plant survey report with respect to the preceding calendar year which shall be a complete survey of grantee's plant and a full report thereon. The requirements of this provision shall be satisfied by grantee providing copies of the system's most recent proof of performance reports prepared in accordance with the FCC's technical standards. (Ord. 9527 § 1 (part), 1995: prior code § 3828)

If grantee is publicly held, a copy of each grantee's annual and other periodic reports and those of its parent, shall be submitted to grantor within forty-five (45) days of request by grantor. (Ord. 9527 § 1 (part), 1995: prior code § 3829)

A. All reports, filings, documents or responses required of the grantee under this chapter or its franchise agreement shall be provided by the grantee to the city within the period required therefor and shall contain the information specified.

B. The willful refusal, failure, or neglect of grantee to file any of the reports required as and when due under this chapter, may be deemed a material breach of the franchise agreement if such reports are not provided to grantor within thirty (30) days after written request therefor, and may subject the grantee to all remedies, legal or equitable, which are available to grantor under the franchise or otherwise.

C. Any materially false or misleading statement or misrepresentation made knowingly and willfully by the grantee in any report required under this chapter or under the franchise agreement may be deemed a material breach of the franchise and may subject grantee to all remedies, legal or equitable, which are available to grantor under the franchise or otherwise. (Ord. 9527 § 1 (part), 1995: prior code § 3830)

The city shall provide grantee with a detailed written notice of any franchise violation upon which it proposes to take action, and a ninety (90) day period within which grantee may demonstrate that a violation does not exist or to cure an alleged violation or, if the violation cannot be corrected in ninety (90) days, to submit a plan satisfactory to the city to correct the violation. In the event that the franchise violation involves one that the city, in the exercise of its reasonable discretion, believes to be material, the time periods in Sections 5.60.320 and 5.60.330 shall be changed from ninety (90) days to thirty (30) days. (Ord. 9527 § 1 (part), 1995: prior code § 3831)

If grantee fails to disprove or correct the violation within ninety (90) days or, in the case of a violation which cannot be corrected in ninety (90) days and grantee has not timely submitted a satisfactory plan, then city may declare the grantee in default, which declaration must be in writing. Grantee will not be deemed in default if it has notified grantor of a failure or inability to cure and grantor fails to object within a reasonable time after such notice. In the event that the city declares grantee in default, the city shall have the right to institute legal proceedings to collect damages from the date of the violation, or to exercise any other rights and remedies afforded the city in law or equity; provided, however, that the city may institute such legal proceedings only after the hearing has been held and the written decision issued pursuant to Section 5.60.340 and the grantee opts not to seek judicial review of the Section 5.60.340 written decision pursuant to Section 5.60.350; and provided further that the city may institute revocation proceedings against grantee only after declaration of default, pursuant to Section 5.60.360 below and only on the grounds set forth therein. (Ord. 9527 § 1 (part), 1995: prior code § 3832)

Within fifteen (15) days after receipt of a written declaration of default from the city, grantee may request, in writing, a hearing before the city or its agent, in a full public proceeding affording due process. Such hearing shall be held within thirty (30) days of the receipt of the request therefor and a decision rendered within fifteen (15) days after the conclusion of the hearing. The time frame for decision may be extended only upon a clear and convincing showing of good cause. Any decision shall be in writing and shall be based upon written findings of fact. (Ord. 9527 § 1 (part), 1995: prior code § 3833)

Grantee may seek judicial review of any determination of default by city in accordance with Sections 1094.5 et seq. of the California Code of Civil Procedure. (Ord. 9527 § 1 (part), 1995: prior code § 3834)

The city may revoke the franchise only after a declaration of default has been affirmed by either: (1) the failure of grantee to seek judicial review of the determination of default by city in a timely fashion; or (2) the affirmation of the decision of the city council to revoke the franchise, after following the procedures set forth in Section 5.60.370, by a court of competent jurisdiction, or upon the conclusion of any mutually agreed upon alternative dispute resolution arising from the following circumstances:

A. Material misrepresentation by grantee to city in information required to be provided under the franchise; or

B. Willful violation of any material term of the franchise, or any applicable federal, state, or local laws, including this chapter, related to the provision of cable services. (Ord. 9527 § 1 (part), 1995: prior code § 3835)

A. The city shall give written notice to the grantee of its intent to revoke the franchise and the lawful grounds therefor. Such written notice shall include the date, time, and place for the city council meeting where the city will consider the revocation issue, and shall be given to the grantee. Notice of the city council's meeting shall also be published by the city at least once, ten days before such meeting in one newspaper of general circulation within the city.

B. At the designated meeting, the council shall give the grantee an opportunity to state its position on the matter, after which it shall determine whether or not the franchise shall be revoked. Grantee may seek judicial review of any adverse decision in the same manner as set forth in Section 5.60.350.

C. The council may, at its sole discretion, take any lawful action which it deems appropriate to enforce the city's rights under the franchise and this chapter in lieu of revocation of the franchise. (Ord. 9527 § 1 (part), 1995: prior code § 3836)

It is unlawful for any person to establish, operate or to carry on the business of distributing to any persons in the service area any video programming by means of a system unless a franchise therefor has first been obtained, and unless such franchise is in full force and effect. (Ord. 9527 § 1 (part), 1995: prior code § 3837)

A. No person shall intercept, descramble, decode or receive or assist in intercepting, descrambling, decoding or receiving any signals from the system unless specifically authorized to do so by grantee. "Assist in intercepting, descrambling, decoding or receiving" includes the manufacture or distribution of equipment intended by the manufacturer or distributor (as the case may be) for unauthorized reception of signals over a system.

B. No person shall tamper with, remove or injure any cable, wires or devices used with the system unless specifically authorized to do so by grantee.

C. No person shall intentionally deprive grantee of lawful charge for cable service.

D. No person shall resell grantee's cable service without grantee's expressed written consent.

E. Grantee may bring an action in its own name to restrain or enjoin a violation or threatened violation of this section and for damages resulting from the violation. City shall not be a party to any such action. Grantee shall be entitled to issuance of such an injunction upon a showing that a violation has occurred or will occur, without the need for demonstrating irreparable injury, inadequacy of legal remedies or probability of recovery. The court shall award the greater of five hundred dollars ($500.00) or triple damages and reasonable attorneys' fees to grantee if grantee prevails in an action hereunder.

F. In addition to any remedies available to grantee under subsection (E) of this section, any person knowingly violating any provisions of this section shall be guilty of an infraction and punishable by a fine not to exceed five hundred dollars ($500.00) for each day of violation.

G. If an unauthorized device designed to intercept, descramble or decode a cable television signal is present on the premises or property occupied and used by a person, it is presumed that the person knowingly used the device to intercept, descramble or decode cable signals. If an unauthorized cable connection is present on the premises or property occupied and used by a person, it is presumed that the person knowingly used the connection to intercept cable signals. If equipment of grantee which has been tampered with, changed, or modified is present on the premises or property occupied by a person, it is presumed that the person knowingly used the equipment to intercept, descramble or decode cable signals.

H. Grantee is expressly reserved its applicable rights and remedies available in law or in equity. (Ord. 9527 § 1 (part), 1995: prior code § 3838)

A. In the event that the use of any material portion of the system is discontinued for a period of twelve (12) consecutive months, grantee shall be deemed to have abandoned that portion of the system.

B. Grantor, upon such terms as grantor may impose, may give grantee permission to abandon, without removing, any system facility or equipment laid, directly constructed, operated or maintained under the franchise. Unless such permission is granted or unless otherwise provided in this chapter, the grantee shall remove all abandoned facilities and equipment upon receipt of written notice from grantor and shall restore the street to its former state at the time such facilities and equipment were removed, as near as may be, so as not to impair its usefulness. In removing its plant, structures and equipment, 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 such removal without materially interfering with any electrical or telephone cable or other utility wires, poles, or attachments. Grantor shall have the right to inspect and approve the condition of the public rights-of-way prior to and after removal. The liability, indemnity and insurance provisions of this chapter and the performance bond as provided herein shall continue in full force and effect during the period of removal and until full compliance by grantee with the terms and conditions of this section.

C. Upon abandonment of any portion of the system in place, the grantee, if required by the grantor, shall submit to the grantor an instrument, satisfactory in form to the city attorney, transferring to the grantor the ownership of the portion of the system.

D. At the expiration of the term for which the franchise is granted, or upon its revocation or earlier expiration, as provided for herein, in any such case without renewal, extension or transfer, the grantor shall have the right to require grantee to remove, at its own expense, all above ground portions of the cable television system from all streets and public ways within the city within a reasonable period of time, which shall not be less than one hundred eighty (180) days, or within such reasonable additional period as may be required therefor.

E. Notwithstanding anything to the contrary set forth in this chapter, the grantee may abandon any underground portion of the system in place so long as it does not materially interfere with the use of the street or public rights-of-way in which such portion of the system is located. The grantee shall not be required to remove any portion of the system which has been abandoned or deemed abandoned in accordance with the provisions of this chapter unless it constitutes a substantial portion of the system. (Ord. 9527 § 1 (part), 1995: prior code § 3839)

A. A franchise granted hereunder shall, at the option of grantor, cease and terminate one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of 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 (120) days, or unless: (1) such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all material terms and provisions of this chapter and the franchise granted pursuant hereto, and the receivers or trustees within said one hundred twenty (120) days shall have remedied all material faults under the franchise or provided a plan for the remedy of such faults which is satisfactory to the grantor; and (2) such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise herein granted.

B. In the case of a foreclosure or other judicial sale of the system, or any material part thereof, grantor may serve notice of termination upon grantee and the successful bidder at such sale, in which event the franchise herein granted and all rights and privileges of the grantee hereunder shall cease and terminate thirty (30) days after service of such notice, unless: (1) grantor shall have approved the transfer of the franchise, as and in the manner that this chapter provides; and (2) such successful bidder shall have covenanted and agreed with grantor to assume and be bound by all terms and conditions of the franchise. (Ord. 9527 § 1 (part), 1995: prior code § 3840)

The grantor shall have the right to waive any provision of the franchise, except those required by federal or state regulation, if the grantor determines: (1) that it is in the public interest to do so; and (2) that the enforcement of such provision will impose an undue hardship on the grantee or the subscribers. (Ord. 9527 § 1 (part), 1995: prior code § 3841)

A. Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users or general citizens on the basis of race, color, religion, national origin, age or sex. Grantee shall comply at all times with all other applicable federal and state laws and regulations, and all executive and administrative orders, relating to nondiscrimination, including without limitation Section 51 of the California Civil Code and Section 53066.2 of the Government Code.

B. Grantee shall adhere to the applicable equal employment opportunity requirements of the FCC and applicable state regulations, as now written or as amended from time to time. (Ord. 9527 § 1 (part), 1995: prior code § 3842)

A. Definitions.

1. "Cable operator" means each person franchised to provide cable service over a cable system within the political jurisdiction in which the subdivision is located.

2. "Developer" means each party responsible for the acquisition, ownership, construction, management, or operation of a residential subdivision.

3. "Easement" means the streets, highways, alleys, rights-of-way, easements and riser paths of any subdivision which are dedicated or to be designated for public utility use, whether by formal instrument of dedication or by actual use in the delivery of utility services to residents.

4. "Subdivision" means:

a. A real estate development;

b. A condominium, or cooperative, mobile home or multi-unit apartment;

c. Any other multiple unit dwelling.

B. Cable Television Access to Subdivisions.

1. Each cable operator has the right to use the easements of any subdivision for the construction, installation, maintenance and repair of a cable television system and for the provision of cable services to subscribers.

2. The developer of each subdivision for which a tentative map or parcel map is required pursuant to Section 66426 of the Government Code shall identify on the map land dedicated or to be dedicated to public utility and cable television use so as to provide a franchised cable television operator a path from which to extend cable television services to each residential parcel in the subdivision.

3. Each developer shall assure that each cable operator is provided timely access to:

a. Jointly-used trenches, at the time that the trenches are opened for utility and/or cable television installation. Access shall be provided on a cost shared basis, without discrimination among users;

b. Underground easements and all riser paths used for the installation of utility and/or cable television facilities. Access shall be provided prior to the paving or sealing of any pertinent road (if within the road right-of-way) and shall be offered at all other locations no later than the time of installation of telephone or cable television.

4. No developer shall unreasonably interfere with the free and complete exercise of a cable operator's rights hereunder, or enter into any arrangement with a third party to do so.

C. Procedures.

1. A developer shall assure delivery of reasonable advance notice to each cable operator of intended subdivision construction; and timely notice (within fourteen (14) days) of the issuance of work permits related to use of subdivision easements by utilities or cable television.

2. A developer shall assure delivery to each cable operator of thirty (30) days advance notice of the opening of joint-use trenches by utilities and the use of underground easements and of riser paths by utilities or cable television.

3. No request for any governmental approval or work permit required for a subdivision shall be accepted unless accompanied by written consent of each cable operator to the adequacy of arrangements under subsection (2) of this subsection 5.60.440(C).

4. All notices sent to a cable operator hereunder shall be sent registered mail, return receipt requested, to the general manager, system manager, or to the address on file with the city. No developer may omit notice without written confirmation from the city that there are no cable operators with respect to that subdivision.

5. If a cable operator fails to install its conduit within a shared trench within five working days of the date trenching is available, as designated in the developer's notice, the cable operator shall be responsible for all costs of reopening the trench. Separate trenches created by a cable operator for a distribution plant shall be installed during any period of installation by multiple cable operators, and as contiguous as reasonably practicable to other utility trenches.

D. Residents' Choice of Cable Operator.

1. Each resident of a subdivision shall be provided with the continuing option to receive cable service from any cable operator.

2. If a developer obtains or supplies cable service to residents of a subdivision on a bulk basis, charges to residents for such services may not be combined with any rent, fee, assessment or due. Charges for such services must be separately stated, and may not be charged at less than the developers' cost of supplying such service. If a resident in such a development elects to receive service from a cable operator which is not party to the bulk agreement, the developer shall make payment to that operator of the unit charge attributable to that resident, and the pro rata share of all other consideration provided to the party to the bulk agreement for rendering cable service.

3. No developer shall enter into an agreement which has the purpose or effect of interfering with a resident's or cable operator's free and complete exercise of the rights hereunder, or enter into any arrangement with a third party to do so.

E. Remedies. Any developer who violates this section shall be subject to a stop work order; to forfeiture of any cable franchise held by it, its affiliates, or by those with whom it has contractual arrangements; and shall be liable to an aggrieved resident or cable operator for all costs and expenses required to assure the rights afforded hereunder. (Ord. 9527 § 1 (part), 1995: prior code § 3843)

All poles and conduits installed within the city shall be made available for attachment or use by grantee, at just and reasonable rates applied to public utilities under the formula presently established in Section 767.5 of the Public Utilities Code. If such poles or facilities are not made so available, grantee may erect its own poles. (Ord. 9527 § 1 (part), 1995: prior code § 3844)

The city declares that as a result of this chapter and any franchise issued pursuant hereto, a possessory interest subject to property taxation may be created and any such property interest may be subject to property taxation if it is created. The grantee, as the party in whom the possessory interest will be vested, may be subject to the payment of property taxes levied upon such an interest. (Ord. 9527 § 1 (part), 1995: prior code § 3845)

A. Except as otherwise provided in this chapter, any person violating any provision of this chapter shall be deemed guilty of an infraction and shall be subject to the following fines:

• 1. One hundred dollars ($100.00) upon the first offense;
• 2. Two hundred fifty dollars ($250.00) upon the second offense;
• 3. Five hundred dollars ($500.00) upon the third and each subsequent offense.

B. If any violation be continued, each day's violation shall be deemed a separate violation. (Ord. 9527 § 1 (part), 1995: prior code § 3846)

If any provision of this chapter is held by any court or by any federal or state agency of competent jurisdiction, to be invalid as conflicting with any federal or state 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, such 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. (Ord. 9527 § 1 (part), 1995: prior code § 3847)