Woodside Municipal Code § 113.15 Records required

(A) The Town, pursuant to Cal. Gov't Code § 53066, is authorized to grant one or more nonexclusive revocable franchises to construct, operate, maintain and reconstruct cable television systems within the Town limits.

(B) The Town Council finds that the development of cable television and communications systems has the potential of having great benefit and impact upon the people of the Town. Because of the complex and rapidly changing technology associated with cable television, the Town 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 Town or such persons as the Town shall designate. It is the intent of this chapter and subsequent amendments to provide for and specify the means to attain the best possible cable television service to the public and any franchises issued pursuant to this chapter shall be deemed to include this finding as an integral part thereof.

(1975 Code, § 7-1.01) (Ord. 1990-432, effective 5-10-90)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

Basic cable service. Any service tier which includes the retransmission of local television broadcast signals.

Cable communications system or system also referred to as cable television systems or cable system. 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 rights-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.

Cable service. Total of the following:

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

(2) Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.

Channel or cable channel. 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.

Council. The Town Council of the Town of Woodside.

Franchise. An initial authorization, or renewal thereof, issued by the Town Council, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system.

Franchise agreement. A franchise grant ordinance, or a contractual agreement, containing the specific provisions of the franchise granted, including references specifications, requirements and other related matters.

Franchise fees. Any tax, fee or assessment of any kind imposed by a franchising authority or other governmental entity on a grantee or cable subscriber, 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 cable operators 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.

Grantee. Any person receiving a franchise pursuant to this chapter and under the granting franchise ordinance or agreement, and its lawful successor, transferee or assignee.

Grantor. The Town of Woodside as represented by the Council or any delegate acting within the scope of its jurisdiction.

Gross annual receipts. The annual gross receipts received by a grantee from all sources of operations of the cable communications system within the Town utilizing the public streets and rights-of-way for which a franchise is required in order to deliver such cable service, excluding refundable deposits, except that any sales, excise or other taxes collected for direct pass-through to local, state or federal government shall not be included.

Initial service area. The area of the Town which will receive service initially, as set forth in the franchise agreement.

Installation. The connection of the system to subscribers' terminals, and the provision of service.

Public, educational or government access facilities or PEG access facilities. The total of the following:

(1) Channel capacity designated for public, education, or governmental use; and

(2) Facilities and equipment for the use of such channel capacity.

Section. Any section, subsection, or provision of this chapter.

Service area or franchise area. The entire geographic area within the Town designated in a franchise agreement to receive cable service.

Service tier. A category of cable service or other services provided by a grantee and for which a separate rate is charged by the grantee.

State. The State of California.

Street. Each of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the Town limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and solar public property and areas that the grantor shall permit to be included within the definition of street from time to time.

Subscriber. Any person who or which elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connection with the cable system.

Town. The Town of Woodside.

(1975 Code, § 7-1.02) (Ord. 1990-432, effective 5-10-90)

A franchise granted by the Town under the provisions of this chapter shall encompass the following purposes:

(A) To engage in the business of cable television service and the distribution and sale of such service to subscribers within the designated service area;

(B) To erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain, cable, lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of a cable system in, on, over, under, upon, along and across streets or other public places within the designated service area;

(C) To maintain and operate the franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals and for the delivery of cable services;

(D) To set forth the obligations of a grantee under the franchise.

(1975 Code, § 7-1.03) (Ord. 1990-432, effective 5-10-90)

(A) It shall be unlawful for any person to construct, install or operate a cable television system in the Town within any public street or right-of-way without a properly granted franchise awarded pursuant to the provisions of this chapter.

(1975 Code, § 7-1.04)

(B) A franchise granted hereunder shall be for a term established in the franchise agreement, commencing on the effective date of the franchise agreement, or upon the grantor's adoption of an ordinance authorizing the franchise.

(C) A franchise granted hereunder may be renewed upon application by the grantee pursuant to the provisions of applicable state and federal law and of this chapter.

(1975 Code, § 7-1.05)

(D) Any franchise shall be within all or a specified portion of the territorial limits of the Town, and within any area henceforth added to the territorial limits of the Town during the term of the franchise.

(1975 Code, § 7-1.06) (Ord. 1990-432, effective 5-10-90)

Cross reference— Penalty, see § 10.99.

(A) 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 any specific provisions of this chapter, such paramount jurisdiction shall preempt or preclude the exercise of like jurisdiction by the Town. Any modification of such federal or state law shall to the extent applicable be considered a part of this chapter as of the effective date of such modification.

(B) In the event that the state or federal government discontinues preemption in any area of cable communication over which it currently exercises jurisdiction in such manner as to expand rather than limit municipal regulatory authority, grantor may, if it so elects adopt rules and regulations in these areas, provided that such rules and regulations shall not apply to any franchise issued pursuant to this chapter prior to the adoption of such rules and regulations to the extent they materially adversely affect such franchise, including without limitation requirements with respect to system rebuilds, channel capacity, system design, construction and performance requirements, public, educational or governmental access facilities, support for any such facilities, interconnect commitments, activation of interactive capability or institutional networks. Such new municipal regulatory powers may, however, affect existing franchises with respect to franchise renewal procedures, franchise fees, consumer protection provisions, regulation of rates, technical standards and related provisions.

(1975 Code, § 7-1.07) (Ord. 1990-432, effective 5-10-90)

(A) Grantee shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation or otherwise, the franchise or any of the rights or privileges therein granted, without the prior consent of the Council and then only upon such terms and conditions as may be prescribed by the Council, which consent will not be unreasonably denied or delayed. Any attempt to sell, transfer, lease, assign or otherwise dispose of the franchise without the consent of the Council shall be null and void.

(B) The requirements of division (A) above shall apply to any change in the control of grantee. The word "control" as used herein is not limited to major stockholders or partnership interests, but includes actual working control in whatever manner exercised. In the event that grantee is a corporation, prior approval of the Council shall be required where ownership or control of more than ten percent of the voting stock of grantee 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) Grantee shall notify grantor in writing of any foreclosure or any other judicial sale of all or a substantial part of the franchise property of the grantee or upon the termination of any lease or interest covering all or a substantial part of said franchise property. Such notification shall be considered by grantor as notice that a change in control of ownership of the franchise has taken place and the provisions under this section governing the consent of grantor to such change in control of ownership shall apply.

(D) For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, grantor may inquire into the qualifications of the prospective transferee or controlling party, and grantee shall assist grantor in any such inquiry. In seeking grantor's consent to any change of ownership or control, grantee shall have the responsibility of insuring that transferee completes an application in form and substance reasonably satisfactory to grantor, which application shall include the information required under Section 113.09(A) subsections (2) through (6). An application shall be submitted to grantor not less than 60 days prior to the date of transfer. Grantee or its proposed transferee shall reimburse the grantor all its costs associated with processing and evaluating the proposed transfer. The transferee shall be required to establish that it possesses the qualifications and financial and technical capability to operate and maintain the system and comply with all franchise requirements for the remainder of the term of the franchise.

(E) 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 30 days of assuming such control 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, after considering the legal, financial, character, technical and other public interest qualities of the applicant and determining that they are satisfactory, the grantor finds that such transfer is acceptable, 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.

(1975 Code, § 7-1.08) (Ord. 1990-432, effective 5-10-90)

(A) Grantee shall design, construct and maintain the cable television system to have the capability to pass every dwelling unit in the territorial limits of the Town.

(B) After service has been established by activating trunk and/or distribution cables for any area, grantee shall provide service to any requesting subscriber within that area within 30 days from the date of request, provided that the grantee is able to secure all rights-of-way necessary to extend service to such subscriber within such 30-day period on reasonable terms and conditions.

(1975 Code, § 7-1.09) (Ord. 1990-432, effective 5-10-90)

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 or any component thereof, as it deems appropriate, provided however, that such additional grants shall not operate to modify, revoke or terminate any rights then held by any grantee.

(1975 Code, § 7-1.10) (Ord. 1990-432, effective 5-10-90)

Any person desiring a franchise or franchise renewal for a cable television system shall file an application with the Town. A nonrefundable application fee established by the Town shall accompany the application or renewal 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 selected grantee(s) shall pay the difference to the Town within 30 days following receipt of an itemized statement of such costs.

(A) Contents. An application for a franchise for a cable television system shall contain, where applicable:

(1) Designation of specific area to be served by franchise;

(2) Resume of prior history of applicant, including the expertise of applicant in the cable television field;

(3) List of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each shareholder, if a corporation;

(4) List of officers, directors and managing employees of applicant, together with a description of the background of each such person;

(5) 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;

(6) 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 Town;

(7) Proposed construction and service schedule;

(8) Any reasonable additional information that the Town deems applicable.

(B) Solicitation of applications.

(1) 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 before which the same shall be received by the Town, and may specify any other times, terms, conditions, or limitations respecting the soliciting and receiving of such applications.

(2) Upon receipt of any application for a franchise, the Council shall refer the same to the Town Manager, who shall prepare a report and make his/her recommendations respecting such application.

(3) A public hearing shall be set prior to any franchise grant, at a time and date approved by the Council.

(4) Within 30 days after the close of the hearing, the Council shall make a decision based upon the evidence received at the hearing as to whether or not the franchise(s) 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.

(C) Fee. Following the issuance and acceptance of the franchise, the grantee shall pay to the grantor a franchise fee in the amount set forth in the franchise agreement.

(1975 Code, §§ 7-1.11, 7-1.12, 7-1.13, 7-1.15) (Ord. 1990-432, effective 5-10-90)

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. A verified and continuing pattern of noncompliance may be deemed a breach of the franchise.

(1975 Code, § 7-1.14) (Ord. 1990-432, effective 5-10-90)

(A) Grantor may require grantee to deposit into an interest bearing account established by grantor a sum established in the franchise agreement as a security fund. This sum shall be maintained on deposit throughout the term of the franchise, with any interest payable to grantee.

(B) The security fund shall be available to grantor to satisfy any and all claims, lines and/or taxes due grantor from grantee which arise by reason of construction, operation, or maintenance of the system, and to satisfy any remedies or liquidated damages arising out of a franchise breach, subject to the procedures and amounts designated in the franchise agreement.

(C) Subject to grantor approval, the security fund requirements may be satisfied by conveyance of an irrevocable letter of credit to the grantor, in a form approved by grantor.

(1975 Code, § 7-1.16) (Ord. 1990-432, effective 5-10-90)

(A) Design and construction requirements.

(1) Grantee shall not construct any cable system facilities until grantee has secured the necessary permits from grantor, or other cognizant public agencies.

(2) In those areas of the Town where transmission or distribution facilities of the public utilities providing telephone and electric power service are underground, the grantee likewise shall construct, operate and maintain its transmission and distribution facilities therein underground.

(3) In those areas of the Town where grantee's cables are located on the above-ground transmission or distribution facilities of the public utility providing telephone or electric power service, and in the event that the facilities of both such public utilities subsequently are placed underground, then the grantee likewise shall reconstruct, operate and maintain its transmission and distribution facilities underground, at grantee's cost.

(B) Technical standards.

(1) The grantee shall construct, install, operate and maintain its system in a manner consistent with all applicable laws, ordinances, construction standards, governmental requirements, FCC technical standards, and any detailed standards set forth in its franchise agreement. 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 guidelines.

(2) Failures to maintain specified technical standards shall constitute a breach of the franchise.

(1975 Code, §§ 7-1.17, 7-1.18) (Ord. 1990-432, effective 5-10-90)

Cross reference— Penalty, see § 10.99.

The grantee shall indemnify, defend and hold grantor, its officers, agents and employees harmless from any liability, claims, damages, costs or expenses, including reasonable attorneys' fees, arising from injury to persons or damages to property to the extent caused by any conduct undertaken by the grantee, its agents or employees, by reason of the franchise. Grantee shall at its sole cost and expense, upon demand of grantor, appear in and defend any and all suits, actions or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative or otherwise, brought or instituted or had by third persons or duly constituted authorities, against or affecting grantor, its officers, agents or employees, and arising out of or pertaining to any conduct of the grantee, its agents or employees which is within the scope of this indemnity.

(1975 Code, § 7-1.19) (Ord. 1990-432, effective 5-10-90)

(A) On or before commencement of franchise operations, the grantee shall obtain policies of liability, workers' compensation and property insurance from companies 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, 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: negligent acts or omissions of grantee and its agents, servants and employees, committed in the conduct of franchise operations, and/or, 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; and

(4) Be noncancellable without 30 days' prior written notice thereof directed to grantor.

(C) The policy of worker's 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 Cal. Lab. Code Division 4 upon an injured employee, including vocational rehabilitation and death benefits.

(D) The policy of property insurance shall provide fire insurance with extended coverage on the franchise property used by grantee in the conduct of franchise operations in an amount adequate to enable grantee to resume franchise operations following the occurrence of any risk covered by this insurance.

(E) Grantee shale file with grantor 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 the 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.

(F) Conduct of franchise operations shall not commence until grantee has complied with the aforementioned provisions of this section.

(G) In the event grantee fails to maintain any of the above described policies in full force and effect, grantor shall, upon 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.

(H) No more than once during any three-year period, grantor shall have the right to order grantee to increase the amounts of the insurance coverage provided herein. Such order may be made by grantor after complying with the hearing procedure provided for herein. Increases in insurance coverage shall be based upon evidence of prudent business practices of like enterprises involving the same or similar risks.

(1975 Code, § 7-1.20) (Ord. 1990-432, effective 5-10-90)

(A) Grantee shall at all times maintain:

(1) A record of all 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.

(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 Town, 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 submitted to the grantor within 30 days following the end of each month 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 Town's rights under this chapter or the grantee's franchise agreement.

(C) At all reasonable times, 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 Town, and all records relating to the franchise, provided they reasonably relate to the scope of grantor's rights under this chapter or the grantee's franchise agreement.

(1975 Code, § 7-1.21) (Ord. 1990-432, effective 5-10-90)

(A) Annual reports. Within 90 days after a request from grantor, grantee shall submit a written annual report to grantor with respect to the preceding calendar year in a form approved by grantor, including, but not limited to, the following information:

(1) A summary of the previous year's (or in the case of the initial reporting 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;

(2) A current statement of costs of construction by component categories;

(3) A list of grantee's officers, members of its board 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 grantee and its parent, subsidiary and affiliated corporations and other entities, if any;

(5) An indication on a map of those areas where service is planned and a schedule describing the planned implementation;

(6) Information as to the number of homes passed, subscribers, additional television, outlets, and penetration of basic and pay service in the service area.

(B) Copies of federal and state reports. The grantee shall submit to grantor copies of all pleadings, applications and reports submitted by grantee to, as well as copies of all decisions, correspondence and actions by any federal, state or local court, regulatory agency, or other governmental body which are non-routine in nature and which will materially affect its cable television operations within the franchise area. The grantee shall submit such documents to grantor simultaneously with their submission to such court, agency and/or body; or within five days after their receipt from such court, agency and/or body. Information otherwise confidential by law and so designated by grantee, which is submitted to grantor, shall be retained in confidence by grantor and its authorized agents and shall not be made available for public inspection.

(C) Public reports. 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 45 days of request by grantor.

(D) Complaint report and opinion survey.

(1) The grantee shall furnish to the grantor the results of any opinion survey conducted by the grantee which identifies satisfaction or dissatisfaction among subscribers within the Town with the grantee's cable service. The results of such survey shall be furnished to the grantor within 30 days following completion of the survey.

(2) Upon request of the grantor, but not more than once annually, the grantee shall conduct a subscriber satisfaction survey pertaining to quality of service, which may be transmitted to subscribers in subscriber statements for cable services. The form and content of such survey shall be reasonably acceptable to the grantor. The cost of such survey shall be borne by the grantee.

(E) Privacy report. Upon grantor's request, but no more than annually, grantee shall submit to grantor an annual report indicating the degree of compliance with the privacy provisions contained in this chapter and all steps taken to assure that the privacy rights of individuals have been protected.

(F) General requirements.

(1) All reports required under this chapter, except those confidential by law, shall be available for public inspection in the grantor's offices during normal business hours.

(2) All reports and records required under this chapter shall be furnished at the sole expense of grantee, except as otherwise provided in this chapter or the franchise agreement:

(3) The wilful 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 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.

(4) Any materially false or misleading statement or representation made knowingly and wilfully 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.

(1975 Code, §§ 7-1.22—7-1.27) (Ord. 1990-432, effective 5-10-90)

(A) Annual review.

(1) Each year throughout the term of the franchise, if requested by the grantor, grantor and grantee shall meet publicly to review system performance and quality of service.

(2) The various reports required pursuant to this chapter shall be utilized as the basis for review. In addition, any subscriber may submit comments or complaints during the review meetings, either orally or in writing, and these shall be considered. Within 30 days after conclusion of a system performance review meeting, grantor may issue findings with respect to the adequacy of system performance and quality of service.

(3) If the cable system is determined not to comply with the requirements of this chapter or the grantee's franchise, grantor may direct grantee to correct the areas of noncompliance within a reasonable period of time. Failure of grantee, after due notice, to correct the areas of noncompliance within the period specified therefor or to commence compliance within such period and diligently achieve compliance thereafter shall be considered a material breach of the franchise, and grantor may exercise any remedy within the scope of this chapter and the franchise agreement considered appropriate.

(B) Special review. When there have been complaints made or where there exists other evidence which, in the judgment of the grantor, casts reasonable doubt on the reliability or quality of cable service to the effect that the grantee is not in compliance with the requirements of this chapter or its franchise, the grantor shall have the right to compel the grantee to test, analyze and report on the performance of the system in order to protect the public against substandard cable service. Such test or tests shall be made and the report thereof shall be delivered to the grantor no later than 30 days after the grantor notifies the grantee that it is exercising such right. Such report shall include the following information: the nature of the complaints which precipitated the special tests; what system component was tested; the equipment used and procedures employed in said testing; the results of such tests; and the method by which such complaints were resolved. Any other information pertinent to the special test shall be recorded.

(C) Special evaluation sessions. The grantor may hold special evaluation sessions at any time during the term of a franchise, provided such sessions are held no more often than once every three years. The grantee shall be notified of the place, time and date thereof and the topics to be discussed. Such sessions shall be open to the public and advertised in a newspaper of general circulation at least 30 days before each session.

(1975 Code, §§ 7-1.28, 7-1.29, 7-1.30) (Ord. 1990-432, effective 5-10-90)

(A) If grantee fails to perform in a timely manner any obligation required by this chapter or a franchise granted under this chapter following notice from the grantor and an opportunity to cure such nonperformance in accordance with the provisions of this chapter, grantor may at its option and in its sole discretion:

(1) Cure the violation and recover the actual cost thereof from the security fund established in this chapter if such violation is not cured within five days after written notice to the grantee of grantor's intention to cure and draw upon the security fund;

(2) Assess against grantee liquidated damages in an amount set forth in the franchise agreement for any such violation(s) if such violation is not cured within five days after written notice to the grantee of grantors intention to assess liquidated damages. By acceptance of a franchise under this chapter, grantee hereby agrees to pay any assessment to be levied against the security fund provided for in this chapter and collected by grantor immediately upon such assessment. Such assessment shall not constitute a waiver by grantor of any other right or remedy it may have under the franchise or under applicable law, including without limitation, its right to recover from grantee such additional damages, losses, costs and expenses, including actual attorneys' fees, as may have been suffered or incurred by grantor by reason of or arising out of such breach of the franchise;

(3) For violations which have materially degraded the quality of service, order and direct grantee to issue rebates or credits to subscribers, in an amount to be determined by grantor to be reasonably related to the nature of the degradation in service and measured by the period of the degradation, to provide monetary relief substantially equal to the reduced quality of service resulting from grantee's failure to perform.

(B) Prior to imposing any remedy or other sanction against grantee specified in this chapter, grantor shall give grantee notice and opportunity to be heard on the matter, in accordance with the following procedures:

(1) Grantor shall first notify grantee of the violation in writing by personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall not be less than five days in the case of the failure of the grantee to pay any sum or other amount due the grantor under this chapter or the grantee's franchise and 30 days in all other cases. If grantee fails to correct the violation within the time prescribed or if grantee fails to commence correction of the violation within the time prescribed and diligently remedy such violation thereafter, the grantor shall then give written notice of not less than 20 days of a public hearing to be held before the Council. Said notice shall specify the violations alleged to have occurred.

(2) At the public hearing, the Council shall hear and consider all relevant evidence, and thereafter render findings and its decision.

(3) In the event the Council finds that grantee has corrected the violation or has diligently commenced correction of such violation after notice thereof from grantor and is diligently proceeding to fully remedy such violation, or that no violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.

(4) In the event the Council finds that the alleged violations exist and that grantee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation after notice thereof from grantor and is not diligently proceeding to fully remedy such violation, the grantor may impose one or more of the remedies specified herein as it, in its discretion, deems appropriate under the circumstances.

(1975 Code, §§ 7-1.31, 7-1.33) (Ord. 1990-432, effective 5-10-90)

(A) The grantor reserves the right to revoke any franchise granted pursuant to this chapter and rescind all rights and privileges associated with it in the following circumstances, each of which shall represent a default by grantee and material breach under the franchise grant:

(1) If grantee shall default in the performance of its material obligations under this chapter or under such agreements, contracts or other terms and provisions entered into by and between grantor and the grantee;

(2) If grantee shall fail to provide or maintain in full force and effect the insurance coverage or security fund as required herein;

(3) If grantee shall violate any order or ruling of any regulatory body having jurisdiction over the grantee relative to the grantee's franchise, unless such order or ruling is being contested by grantee by appropriate proceedings conducted in good faith;

(4) If grantee attempts to evade any provision of this chapter or practices any fraud or deceit upon grantor;

(5) If grantee persistently fails to remedy defaults for which lesser penalties have previously been imposed;

(6) If grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt.

(B) The termination and forfeiture of the grantee's franchise shall in no way affect any right of grantor to pursue any remedy under the franchise or any provision of law.

(1975 Code, § 7-1.32) (Ord. 1990-432, effective 5-10-90)

In the event grantee's performance of any of the terms, conditions or obligations required by this chapter or a franchise granted hereunder is prevented by a cause or event not within grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof; provided, however, that such inability to perform shall not relieve a grantee from the obligations imposed by Section 113.18(A)(3), pertaining to refunds and credits for interruptions in service. For the purpose of this section, causes or events not within the control of grantee shall include without limitation acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires, but shall not include financial inability of the grantee to perform or failure of the grantee to obtain any necessary permits or licenses form other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of grantee, or the failure of the grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or repair of the cable communications system where the grantee has failed to exercise reasonable diligence to secure such supplies, services or equipment.

(1975 Code, § 7-1.34) (Ord. 1990-432, effective 5-10-90)

(A) In the event that the use of any franchise property or a portion thereof is discontinued for a continuous period of 12 months, grantee shall be deemed to have abandoned that franchise property.

(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 installed, 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 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 ways, public places, cables, wires, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this chapter and the security fund as provided in this chapter 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 franchise property in place, the grantee, if required by the grantor, shall submit to the grantor an instrument, satisfactory in form to the Town Attorney, transferring to the grantor the ownership of the franchise property abandoned.

(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 aboveground portions of the cable television system from all streets and public ways within the Town within a reasonable period of time, which shall not be less than 180 days.

(E) Notwithstanding anything to the contrary set forth in this chapter, the grantee may abandon any underground franchise property in place so long as it does not materially interfere with the use of the street or public rights-of-way in which such property is located or with the use thereof by any public utility.

(1975 Code, § 7-1.35) (Ord. 1990-432, effective 5-10-90)

In the event of a failure by grantee to complete any work required herein or by any other law or ordinance, and if such work is not completed within 30 days after receipt of written notice thereof from grantor or, if more than 30 days are reasonably required therefor, if grantee does not commence such work within such 30 day period and diligently complete the work thereafter (except in cases of emergency constituting a threat to public health, safety or welfare), grantor may cause such work to be done and grantee shall reimburse grantor the costs thereof within 30 days after receipt of an itemized list of such costs, or grantor may recover such costs through the security fund provided by grantee.

(1975 Code, § 7-1.36) (Ord. 1990-432, effective 5-10-90)

Upon either expiration or revocation of the franchise, the grantor shall have discretion to permit grantee to continue to operate the cable television system for an extended period of time not to exceed 12 months from the date of such expiration or revocation, unless extended by resolution of grantor. Grantee shall, as trustee for its successor-in-interest, continue to operate the system under the terms and conditions of this chapter and the franchise and to provide the regular subscriber service and any and all of the services that may be provided at that time. It shall be the right of all subscribers to continue to receive all available services provided their financial and other obligations to grantee are honored. The grantee shall use reasonable efforts to provide continuous, uninterrupted service to its subscribers, including operation of the system during transitional periods following franchise expiration or termination.

(1975 Code, § 7-1.37) (Ord. 1990-432, effective 5-10-90)

(A) A franchise granted hereunder shall, at the option of grantor, cease and terminate 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 120 days, or unless such receivers or trustees shall have, within 120 days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise granted pursuant hereto, and the receivership or trustees within said 120 days shall have remedied all the faults under the franchise or provided a plan for the remedy of such faults which is satisfactory to the grantor; and such receivers or trustees shall, within said 120 days, execute an agreement duly approved by the court leaving 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 franchise property, 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 granted in this chapter and all rights and privileges of the grantee hereunder shall cease and terminate 30 days after service of such notice, unless grantor shall have approved the transfer of the franchise, as and in the manner that this chapter provides; and such successful bidder shall have covenanted and agreed with grantor to assume and be bound by all terms and conditions of the franchise.

(1975 Code, § 7-1.38) (Ord. 1990-432, effective 5-10-90)

(A) In addition to any rights specifically reserved to the grantor by this chapter, the grantor reserves to itself every right and power which is required to be reserved by a provision of any ordinance or under the franchise, and the grantee by accepting a franchise hereunder agrees to be bound thereby and to comply with any action or requirement of the grantor in its exercise of any such right or power.

(B) 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 that it is in the public interest to do so, and that the enforcement of such provision will impose an undue hardship on the grantee or the subscribers. To be effective such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of the grantor. Waiver of any provision in one instance shall not be deemed a waiver of such provision subsequent to such instance nor be deemed a waiver of any other provision of the franchise unless the statement so recites.

(1975 Code, § 7-1.39) (Ord. 1990-432, effective 5-10-90)

(A) The 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. The 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, including without limitation Cal. Civ. Code § 51 which is incorporated in this section by reference.

(B) Grantee shall adhere to the applicable equal employment opportunity requirements of the FCC, state and local regulations, as now written or as amended from time to time.

(C) Neither the grantee, nor any person, agency, or entity shall, without the subscriber's consent, tap, or arrange for the tapping, of any cable, line, signal input device, or subscriber outlet or receiver for any purpose except routine maintenance of the system, detection of unauthorized service, polling with audience participating, or audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified.

(D) In the conduct of providing its services or in pursuit of any collateral commercial enterprise resulting therefrom, grantee shall take reasonable steps to prevent the invasion of a subscriber's or general citizen's right of privacy or other personal rights through the use of the system as such rights are delineated or defined by applicable law. The grantee shall not without lawful court order or other applicable valid legal authority utilize the system's interactive two-way equipment or capability for unauthorized personal surveillance of any subscriber or general citizen.

(E) No cable line, wire, amplifier, converter, or other piece of equipment owned by the grantee shall be installed by the grantee in the subscriber's premises without first securing any required consent. If a subscriber requests service, permission to install upon subscriber's property shall be presumed.

(F) The grantee shall credit or refund to the subscriber upon request, for interruptions in service, as provided in the grantee's franchise agreement.

(G) The grantee, or any of its agents or employees, shall not sell, or otherwise make available to any party:

(1) Any list of the names and addresses of subscribers containing the names and addresses of subscribers who request in writing to be removed from such list; and

(2) Any list which identifies the viewing habits of individual subscribers, without the prior written consent of such subscribers. This does not prohibit the grantee from providing composite ratings of subscriber viewing to any party.

(1975 Code, § 7-1.40) (Ord. 1990-432, effective 5-10-90)

If any provision of the ordinance codified in 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 herein. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof which had been held invalid or modified is no longer in conflict with such law, rule or regulation, said provision shall thereupon return to full force and effect and shall thereafter be binding on grantor and grantee, provided that grantor shall give grantee 30 days written notice of such change before requiring compliance with said provision or such longer period of time as may be reasonably required for grantee to comply with such provision.

(1975 Code, § 7-1.41) (Ord. 1990-432, effective 5-10-90)