Yolo County Municipal Code Art. 4 Franchise Grant

It shall be unlawful to commence or engage in the construction, operation, or maintenance of a cable communications system without a franchise issued under this chapter. The Board, by ordinance, may award a franchise to construct, operate, and maintain a cable communications system within all or any portion of the unincorporated area of the County to any person, whether operating under an existing franchise or not, who makes an application for authority to furnish a cable communications system which complies with the terms and conditions of this chapter; provided, however, this section shall not be deemed to require the grant of a franchise to any particular person or to prohibit the Board from restricting the number of grantees should the Board determine such a restriction would be in the public interests. Any franchise for the construction, maintenance, and operation of cable communications systems using the public streets, utility easements, other public rights-of-way, or places shall conform to the provisions of this chapter, (§ 1, Ord. 961, eff. October 27, 1983)

(a) The provisions of this chapter shall be incorporated by reference in any franchise agreement or license approved pursuant to this chapter.

(b) The provisions of any proposal submitted and accepted by the County shall be incorporated by reference in any applicable franchise or license. (§ 1, Ord. 961, eff. October 27, 1983)

Any franchise issued pursuant to the provisions of this chapter shall be deemed to:

(a) Authorize utilization of the streets for the public or quasi-public purpose of installing cables, wires, lines, and other facilities, in order to operate a cable communications system; and

(b) Be nonexclusive and neither expressly nor impliedly be deemed to preclude the issuance of subsequent franchises to operate cable communications systems within the Yolo County community.

Such a franchise shall not be deemed to authorize or either expressly or impliedly permit the grantee, except with the consent of the owners, or as otherwise provided by law, to provide cable communications system service to, or install antennas, cables, wires, lines, towers, waveguides, other conductors, converters, or any other equipment or facilities upon, private property, including, but not limited to, apartment complexes, condominiums, mobile home parks, and residential subdivision developments with private roads. The purpose of this paragraph is to require consent by the owner or as otherwise provided by law for the provision of service. This paragraph shall not be construed to prohibit a grantee from entering or utilizing private property as an incident to its use of the streets to the extent entry or use is expressly or impliedly authorized by the right conferred by this section to occupy the streets. (§ 1, Ord. 961, eff. October 27, 1983)

A franchise issued pursuant to the provisions of this chapter shall be deemed to constitute a contract between the grantee and the County. Each grantee shall be deemed to have contractually committed itself to comply with the terms, conditions, and provisions of the franchise documents, and with all rules, orders, regulations, and determinations applicable to the franchise which are issued, promulgated, or made pursuant to the provisions of this chapter. The regulatory authority conferred by the provisions of this chapter, including the power to amend the provisions of this chapter, as reserved under Section 11-1.404 of this article, shall constitute as reserved authority under the contract.

All terms, conditions, and provisions of the contract shall be deemed to be embodied in the franchise documents, and conflicts in the terms, conditions, or provisions of the franchise documents shall be resolved as follows:

(a) The express terms of this chapter shall prevail over conflicting or inconsistent provisions in any other franchise document.

(b) The express terms of the ordinance offering the franchise shall prevail over conflicting or inconsistent provisions in any other franchise document, except the express terms of this chapter.

(c) The express terms of the request for proposals shall prevail over conflicting or inconsistent provisions in either the application for the franchise or the certificate of acceptance of the franchise.

(d) The express terms of the application for the franchise shall prevail over the inconsistent or conflicting provisions in the certificate of acceptance of the franchise.

The provisions of the franchise documents shall be liberally construed in order to effectuate the purposes and objects thereof. Prior to the initial enactment of this chapter, the provisions of this chapter were developed pursuant to public hearings conducted for the purpose of receiving comments from the citizenry, operators interested in applying for a franchise in meetings with staff and through the submission by the operators of public oral and written comments, and the submission of independent staff recommendations. Operators interested in applying for a franchise have either directly or indirectly made it clear that any ordinance must contain minimum terms satisfactory to the operators in order to induce their interest in applying for a franchise. The franchise documents shall not be construed to constitute a contract of adhesion. (§ 1, Ord. 961, eff. October 27, 1983)

No provision of this chapter or any franchise issued pursuant to the provisions of this chapter shall be deemed to expressly or impliedly authorize the grantee to utilize poles owned by the Pacific Gas and Electric Company, Pacific Telephone, or any other public or private utility which is located within streets without the express consent of the utility. (§ 1, Ord. 961, eff. October 27, 1983)

All notices and other writings authorized or prescribed by this chapter to be “mailed” shall be deemed to have been given and served when deposited in the United States mail, postage prepaid, and addressed, with respect to a grantee, to any office maintained by the grantee within the Yolo County community and, with respect to other parties, to the last known address of such party.

Any notice or other writing authorized or required by this chapter to be “filed” shall be deemed “filed” when received in the business office of the party with whom such notice of writing is authorized or required to be “filed”.

Whenever a provision of this chapter requires a public hearing to be conducted by the Board, notice of the time, date, place, and purpose of the hearing shall be published at least once not later than ten (10) calendar days in advance of the date of the commencement of the hearing in a newspaper of general circulation which is published within the Yolo County community. (§ 1, Ord. 961, eff. October 27, 1983)

Any grantee, or parent, subsidiary, or affiliated company or agent thereof, who leases either real property situated within the Yolo County community or personal property to be located within the Yolo County community for use in connection with the provision of services under a franchise issued pursuant to the provisions of this chapter shall insure that each such lease contains a clause which either:

(a) Authorizes such lessee to assign the lease to the County or its assignee without the consent of the lessor or the payment of additional compensation by virtue of the assignment; or

(b) Authorizes such lessee to so assign such lease without the payment of additional compensation by virtue of the assignment and prohibits the lessor from unreasonably withholding consent to such assignment. (§ 1, Ord. 961, eff. October 27, 1983)

It is declared that this chapter is enacted pursuant to the authority conferred by Sections 53066, et seq. of the Government Code of the State. It is also enacted pursuant to the police powers conferred by Section 7 of Article XI of the Constitution of the State for the promotion and protection of the peace, heath, safety, and general welfare. (§ 1, Ord. 961, eff. October 27, 1983)

All zoning and other land use laws, building, electrical, plumbing, and mechanical Codes, business license laws, and all other laws of general application now in existence or hereafter enacted by the County shall be fully applicable to the exercise of any franchise issued pursuant to the provisions of this chapter, and the grantee shall comply therewith. In the event of a conflict between the provisions of this chapter and those of such a law of general application, the provisions of such law of general application shall prevail. (§ 1, Ord. 961, eff. October 27, 1983)

The County hereby expressly reserves the right to amend any section or part of this chapter so as to require additional or greater standards of construction, operation, maintenance, or otherwise on the part of a grantee for any reason determined to be desirable or necessary by the Board, including, but not limited to, new developments in the state of the technology of the cable communications industry and changes in Federal or State laws, rules, or regulations. The provisions of 47 CFR Part 76 shall be deemed to be incorporated by this chapter by reference, and any amendments thereto or revisions thereof shall be deemed to be incorporated into this chapter by operation of law. (§ 1, Ord. 961, eff. October 27, 1983)

There is hereby provided and reserved to the County every right and power which is required to be by this chapter reserved or provided by any provision of any law of the County in its exercise of any such right or power.

(a) Neither the granting of a franchise nor any provision of this chapter shall constitute a waiver or bar to the exercise of any governmental right or power of the County, including the regulation of subscription rates as permitted by law.

(b) Nothing in this chapter and/or in the franchise shall be deemed or construed to impair or affect, in any way, to any extent, the right of the County to acquire the property of the grantee, either by purchase or through the exercise of the right to eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted thereby, and nothing contained in this chapter shall be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the County’s right of eminent domain.

(c) There shall be reserved to the County every right and power which is required to be reserved or provided by law, and the grantee, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or agreement of the County in its exercise of such rights or powers theretofore or thereafter enacted or established.

(d) The County hereby reserves to itself the right to intervene in any suit, action, or proceeding involving any provision of this chapter and/or the grantee’s franchise. The Board may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter and/or the grantee’s franchise and may determine any question of fact which may arise during the existence of any franchise granted. The County Administrator and the County Counsel, with the approval of the Board, are hereby authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any grantee under a franchise, either on behalf of the County, the grantee, or any subscriber, in the best interests of the public.

(e) The County, at its option, when for sufficient cause as deemed by the County Administrator, may require that the annual proof-of-performance test, addressed in Article 8 of this chapter, be conducted or observed by a qualified member of the County’s staff or its designated representatives, associated with County-observed performance tests, conducted at County selected test points, and to a greater number of test points than the minimum required by Section 76.601 of the FCC Rules.

(f) Any delegable right, power, or duty of the Board, the County, or any official of the County may be transferred or delegated to an appropriate officer, employee, department, or body designated by the County.

(g) The County reserves the right to negotiate other reasonable technical and operational performance standards for system franchises granted pursuant to this chapter. The grantee shall have the duty to negotiate in good faith with the County.

(h) The County reserves the right to enact reasonable regulations pertaining to franchises granted pursuant to this chapter which may include, but are not limited to:

(1) The construction and use of poles;

(2) The use of poles and conduits by the County;

(3) Common users;

(4) Filing of pole user agreements;

(5) The reservation of street rights;

(6) The restoration of streets;

(7) The movement of facilities; and

(8) The trimming of trees.

(i) The County reserves the right to further regulate the conduct of the grantee in regard to the privacy and property rights of private citizens. Such regulations may include, but are not limited to, the security of all records by the grantee containing privacy sensitive information, personnel practices relating to such records, and any other matters related to privacy and individual rights.

(j) The County reserves the right to establish a cable communications advisory committee and cable communications area advisory commissions to assist the Board in regulating cable activity in the County. The members and duties of any such committee or commissions, if any, shall be established by the Board.

(k) Should the State, or any agency thereof, or the Federal government, or agency thereof, subsequently require the grantee to act in a manner which is inconsistent with any provision of this chapter, the franchise ordinance, or associated resolutions and orders, the grantee shall so notify the County. Upon the receipt of such notification, the County shall determine if a material provision of the franchise is affected. Upon such determination, the County shall have the right to modify or amend any of the sections of the franchise to such reasonable extent as may be necessary to carry out the full intent and purpose of this chapter or the franchise ordinance. In the event the original proposed terms of the franchise have been frustrated by such State or Federal requirement, the grantee shall renegotiate in good faith with the County a new franchise agreement. The County may terminate the franchise in the event it determines that no satisfactory new franchise agreement can be reached.

(l) No grantee nor any major stockholder of the grantee shall directly or indirectly with the County use the position as cable grantee to gain a competitive advantage in the business of selling, leasing, renting, servicing, or repairing radio or television sets, or other receivers or parts thereof, or data access and transfer equipment which make use of entertainment and information signals; provided, however, nothing set forth in this subsection shall prevent the grantee from making modifications to the tuner input circuit of the subscribers’ communications transmitters and/or receivers, and the fine tuning of the customers’ operating controls only, to ensure proper operation under conditions of cable connection at the time of installation, or in repairing receivers and other equipment belonging to other cable system operators for use in the conduct of their businesses.

(m) The County shall have the right, free of charge, of installing, maintaining, and operating upon antenna towers and poles, or in underground ducts of the grantee, the antennas, amplifiers, coaxial cable, wire, fixtures, and appurtenances necessary for a County communications system provided such equipment is installed, maintained, and operated so as not to interfere with the property or operations of the grantee, and that the grantee shall not be responsible for any damage without his fault resulting to the signs, wires, cables, or property of the County from such use by the County.

(n) The grantee shall manage all of its operations in accordance with a policy of totally open books and records. The County shall have the right to inspect at any time during normal business hours, at the local parent corporation offices of the grantee, all books, records, maps, plans, income tax returns, financial statements, service complaint logs, performance test results, and other like materials of the grantee which relate to the operation of the grantee. Access to such records shall not be denied by the grantee on the basis that such records contain “proprietary” information.

(o) Copies of all petitions, applications, communications, and reports submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other Federal or State regulatory commission or agency having jurisdiction in respect to any matters affecting cable communications operations authorized pursuant to the franchise shall also be submitted simultaneously to the grantor. Copies of responses or any other communications from the regulatory agencies to the grantee shall likewise be furnished simultaneously to the grantor.

(p) Any intrastate intercommunication of interactive services between the system operated by the grantee and any other system shall be subject to the regulatory authority of the County.

(q) The reservation of any particular right shall not be construed to limit the promulgation of other reasonable rules and regulations. (§ 1, Ord. 961, eff. October 27, 1983)

(a) Except as otherwise expressly provided by this chapter, any judicial proceeding, whether for the recovery of damages or otherwise, brought for the purpose of adjudicating the validity of any provision of this chapter or amendment thereof or any provision of the other franchise documents shall be commenced not later than thirty (30) calendar days following the latter of: (1) the effective date of the provisions; or (2) the accrual of the cause of action. Any such judicial proceeding brought for the purpose of adjudicating the validity of any rule, order, regulation, determination, or arbitration award which purports to have been made pursuant to the provisions of this chapter or of any of the other franchise documents shall be commenced not later than thirty (30) calendar days following the date of the adoption, issuance, or making of such rule, order, regulation, determination, or arbitration award or, as to the franchisee, not later than thirty (30) calendar days following the giving and serving of notice of such adoption, issuance, or making of such rule, regulation, determination, or arbitration award pursuant to the provisions of Section 11-1.406 of this article. No judicial proceeding shall be commenced in violation of the limitations prescribed by this section.

(b) The provisions of this section shall not be applicable to any judicial proceeding, whether for the recovery of damages or otherwise, commenced by the County for breach or enforcement of the provisions of this chapter or any regulation, determination, or arbitration award purporting to have been issued thereunder. (§ 1, Ord. 961, eff. October 27, 1983)

(a) It shall be unlawful for any person to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of a cable communications system for which a franchise has been issued pursuant to the provisions of this chapter for the purpose of taking or receiving or enabling himself or others to receive or use any television signal, radio signal, picture, program, or sound without payment to the owner of such system.

(b) It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove, injure, or vandalize any part of such a cable communications system, including any cable, wire, or equipment used for the distribution of television signals, radio signals, pictures, programs, or sound. (§ 1, Ord. 961, eff. October 27, 1983)

If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held illegal, invalid, or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter. The Board hereby declares that it would have adopted this chapter, and each section, subsection, sentence, clause, or phrase of this chapter, irrespective of the fact any one or more sections, subsections, sentences, clauses, or phrases be declared illegal, invalid, or unconstitutional. The invalidity of any portion of this chapter shall not abate, reduce, or otherwise affect any consideration or other obligation required of the grantee of any franchise granted pursuant to this chapter. (§ 1, Ord. 961, eff. October 27, 1983)

The inclusion within a municipality by reason of incorporation, annexation, or other proceedings of territory lying within a cable communications franchise shall not operate to divest the grantee of its authority to install or provide services through its cable communications system within the newly included territory. The terms and conditions of the franchise agreement shall inure to the benefit of and bind the municipality as to any such newly included territory. The terms and conditions of the franchise shall continue to inure to the benefit of and bind the County as to any remaining unincorporated territory. The County and any such municipality may act independently in the exercise of any authority granted or in the claim of any benefits derived from the franchise. Franchise fees based upon subscriber revenues shall be apportioned between the County and the municipality in accordance with the derivation of the subscriber revenue from either incorporated or unincorporated territory. Fees based on other revenues shall be allocated between the County and the municipality in the same proportion as fees based upon subscriber revenue are allocated. (§ 1, Ord. 961, eff. October 27, 1983, as amended by § 2, Ord. 1011, eff. August 8, 1985)

Repealed*. (§ 1, Ord. 961, eff. October 27, 1983, * § 1, Ord. 1011, eff. August 8, 1985)