Ordinance 1997-01ORDINANCE NO. 97-1
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY REPEALING IN
ITS ENTIRETY CHAPTER 24, ARTICLE III OF THE GILROY CITY CODE AND
SUBSTITUTING THEREFOR CHAPTER 24, ARTICLE III, THE FOLLOWING
SECTIONS TO REVISE THE PROCEDURES AND REQUIREMENTS RELATING TO
CABLE TELEVISION FRANCHISES; TO REFLECT CHANGES IN APPLICABLE LAW;
AND TO BETTER ENSURE THAT USE OF PUBLIC RIGHTS-OF-WAY BY CABLE
SYSTEMS SERVES THE PUBLIC INTEREST.
THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS
FOLLOWS:
Section 24.1 GENERAL PROVISIONS
1.1 Short Title. This Ordinance shall be known and may be cited as "Cable
Communications Regulatory Code."
1.2 Authorization. This Ordinance is enacted pursuant to the authorization of
Article XIII, Section 1300 et. seq., of the Charter of the City of Gilroy governing the City
of Gilroy, a municipal corporation..
1.3 General Findin,qs. The City of Gilroy (hereinafter called the "City") finds
that cable communication systems have the potential of benefiting its residents if
properly regulated. The City further finds that the public convenience, safety, and
general welfare are served through a franchising process that specifies certain
conditions for review but allows for future flexibility to meet cable-related needs and
interests.
1.4 Purpose. It is the City's purpose to promote the public health, safety, and
general welfare by granting one or more Franchises for the construction, upgrade,
operation, and repair of cable communication systems within the City; to regulate (to
the extent not expressly prohibited by law) each cable communication system within the
City; to require each Franchisee to pay a franchise fee to the City for the use of streets;
to promote availability of quality cable service to City residents, businesses, the City,
and other public institutions; to encourage the development of and to improve local
programming including public, educational, and governmental access programming; to
promote competitive cable rates and services; to provide safe and efficient use of
streets and rights of way; to optimize the use of public property; to provide a diversity of
information to the community; to provide a wide range of programming services which
individually may not be desired by all subscribers, but collectively improve the overall
value of a cable communication system; to maximize channel capacity, facilities, and
programming access for governmental and educational agencies, as well as other
groups and individual members of the general public, so as to promote open
government, educational opportunity, and a diversity of community information and
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opinion; and to allow flexibility to respond to changes in technology, subscriber
interests, and competitive factors within the cable communication service market and
the larger market for entertainment and information.
Section 24.2 DEFINITIONS AND WORD USAGE
2.1 General. For the purposes of this Ordinance, the following terms,
phrases, words, and abbreviations shall have the meanings given herein, unless
otherwise expressly stated. When not inconsistent with the context, words used in the
present tense include the future tense; words in the plural number include the singular
number; and words in the singular number include the plural number; and the
masculine gender includes the feminine gender. The words "shall" and "will" are
mandatory, and "may" is permissive. Unless otherwise expressly stated, words not
defined herein shall be given the meaning set forth in Title 47 of the United States
Code, Chapter 5, Subchapter V-A, 47 U.S.C. 521 et seq., as amended, and, if not
defined therein, their common and ordinary meaning. References to governmental
entities (whether persons or entities) refer to those entities or their successors in
authority. If specific provisions of law referred to herein are renumbered, then the
reference shall be read to refer to the renumbered provision.
2.2 Access. "Access" means the availability of the cable system(s) (as it
relates to PEG access) for use by various agencies, institutions, organizations, groups,
and individuals in the community, including the City and its designees, to acquire,
create, and distribute programming not under a Franchisee's editorial control, including,
but not limited to:
2.2.A Public Access. "Public Access" means access where
organizations, groups, or individual members of the general public, on a non-
discriminatory basis, are the primary or designated programmers or users having
editorial control over their programming;
2.2.B Educational Access. "Educational Access" means access where
accredited educational institutions are the primary or designated programmers or users
having editorial control over their programming;
2.2.C Governmental Access. "Governmental Access" means access
where governmental institutions or their designees are the primary or designated
programmers or users having editorial control over their programming; and
2.2.D PG Access. "PEG Access" means public access, educational
access, and governmental access, collectively.
2.3 Access Channel. "Access Channel" means any channel capacity on a
Cable System set aside by a Franchisee for public, educational, or governmental use.
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2.4 Affiliate. "Affiliate" means any Person who owns or controls, is owned or
controlled by, or is under common ownership or control with a Franchisee.
2.5 Applicant. "Applicant" means any Person submitting an Application within
the meaning of this Ordinance.
2.6 Application. "Application" means any proposal, submission or request to
(i) construct and/or operate a cable system within the City; (ii) Transfer a Franchise; (iii)
renew a Franchise; (iv) modify a Franchise; or (v) seek any other relief from the City
pursuant to this Ordinance or a Franchise Agreement. An Application includes an
Applicant's initial proposal, submission or request, as well as any and all subsequent
amendments or supplements to the proposal and relevant correspondence.
2.7 Applicable Law. "Applicable Law" means all duly enacted and applicable
federal, state, and City laws, ordinances, codes, rules, regulations and orders as the
same may be amended from time to time.
2.8 Basic Cable Service or Basic Service. "Basic Cable Service" or "Basic
Service" means any Service Tier that includes the retransmission of local television
broadcast signals or such other definition as may be adopted by federal law. It shall
include all PEG Access Channels.
2.9 Cable Act. "Cable Act" means the Cable Communications Policy Act of
1984, 47 U.S.C. 521 et seq., as amended by the Cable Television Consumer Protection
and Competition Act of 1992, and the Telecommunications Act of 1996, and as further
amended from time to time.
2.10 Cable Ordinance. "Cable Ordinance" shall refer to this [City] Enabling
Ordinance.
2.11 Cable Service. "Cable Service" means (i) the one-way transmission to
Subscribers of video programming or other programming services; and (ii) Subscriber
interaction, if any, which is required for the selection or use of such video programming
or other programming service.
2.12 Cable System or System. "Cable System" or "System" means a facility
consisting of a set of closed transmission paths and associated signal generation,
reception, and control equipment that is designed to provide cable television service
which includes video programming and which is provided to multiple customers within
the City, but such term does not include (i) a facility that serves only to retransmit the
television signals of one or more television broadcast stations; (ii) a facility that serves
subscribers without using any public right-of-way, including streets or easements; (iii) a
facility of a common carrier which is subject, in whole or in part, to the provisions of
Title II of the Communications Act of 1934, except that such facility shall be considered
a Cable System (other than for purposes of 47 U.S.C. 541(c)) if such facility is used in
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the transmission of video programming directly to subscribers, unless the extent of
such use is solely to provide interactive on-demand services; or (iv) any facilities of any
electric utility used solely for operating its electric utility systems. Notwithstanding the
above, the term cable system also includes any facility that is a community antenna
television system under California law, and the term cable system shall only apply to
open video systems that comply with 47 U.S.C. 573 as specifically provided herein. A
reference to a Cable System refers to any part thereof, inCluding, without limitation,
converters.
2.13 City. "City" means the City of Gilroy. Any act that may be taken by the
City may be taken by the City Council or any agency, department, agent or other entity
now or hereafter authorized to act on the City's behalf.
2.14 City Council. "City Council" means the governing body of the City of
Gilroy.
2.15 City Administrator. "City Administrator" means the City Administrator of
the City. Any act that may be taken by the City Administrator may be taken by any
agency, department, agent or other entity now or hereafter authorized to act on behalf
of the City Administrator.
2.16 Construction, Operation or Repair. "Construction", "operation", or "repair"
and similar formulations of those terms mean the named actions interpreted broadly,
encompassing, among other things, installation, extension, maintenance, replacement
of components, relocation, undergrounding, grading, site preparation, adjusting,
testing, make-ready, excavation and tree trimming.
2.17 Designated Access Provider. "Designated Access Provider" means the
entity or entities designated by the City under Section 6.3.
2.18 Document or Record. "Document" or "Record" means those materials
normally generated, used and retained in the operation and management of a cable
system, in whatever form stored, including but not limited to computerized records and
programs, paper records, and video or audio-taped records.
2.19 Downstream Channel. "Downstream Channel" means a channel capable
of carrying a transmission from the headend to remote points on the cable system or to
interconnection points on the cable system.
2.20 Equitable Price. "Equitable Price" means Fair Market Value adjusted
downward for the harm to the City or Subscribers, if any, resulting from a Franchisee's
breach of its Franchise Agreement or violation of this Ordinance and as further
adjusted to account for other equitable factors that may be considered consistent with
47 U.S.C. 547.
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2.21 Fair Market Value. "Fair Market Value" means the price for the Cable
System valued as a going concern but with no value allocated to the Franchise itself.
2.22 FCC. "FCC" means the Federal Communications Commission or its
designee.
2.23 Franchise. "Franchise" means a non-exclusive authorization granted in
accordance with this Ordinance to install cables, wires, lines, optical fiber, underground
conduit, and other devices necessary and appurtenant to the Construction, rebuilding,
operation, and maintenance of a Cable System along the Public Rights-of-Way within
all or a specified area of the City. Any such authorization, in whatever form granted,
shall not mean or include: (i) any other permit or authorization required for the privilege
of transacting and carrying on a business within the City required by the ordinances
and laws of the City; (ii) any permit or authorization required in connection with
operations on public streets or property including, without limitation, permits for
attaching devices to poles or other structures, whether owned by the City or a private
entity, or for excavating or performing other work in or along Public Rights-of-Way; (iii)
agreements required for the use of conduits and poles, whether publicly or privately
owned; or (iv) express or implicit authorization to provide service to, or install a Cable
System on, private property without owner consent (except for use of compatible
easements pursuant to Section 621(a)(2) of the Cable Act, 47 U.S.C. 541(a)(2)).
2.24 Franchise Agreement. "Franchise Agreement" means a contract entered
into in accordance with the provisions of this Ordinance between the City and a
Franchisee that sets forth, subject to this Ordinance, the terms and conditions under
which a Franchise will be exercised.
2.25 Franchise Area. "Franchise Area" means the geographic area of the City
that a Franchisee is authorized to serve by its Franchise Agreement. The Franchise
Area may be specified to authorize provision of service not only in areas within the
existing City limits, but also in other areas, as those areas are annexed in the future.
2.26 Franchisee. "Franchisee" means a natural Person, partnership, domestic
or foreign corporation, association, joint venture, or organization of any kind that has
been granted a cable television Franchise by the City.
2.27 Gross Revenues. "Gross Revenues" means any and all cash, credits,
property or other consideration of any kind or nature received directly or indirectly by a
Franchisee, its Affiliates, or by any other entity that is a cable operator of a System,
arising from, attributable to, or in any way derived from the operation of a Franchisee's
Cable System to provide cable services, including the studios and other facilities
associated therewith. Gross Revenues include, by way of illustration and not limitation,
monthly fees charged Subscribers for any basic, optional, premium, per-channel, or
per-program service; installation, disconnection, reconnection, and change-in-service
fees; leased channel fees; late fees and administrative fees; fees, payments, or other
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consideration received from programmers for carriage of programming on the Cable
System; revenues from rentals or sales of converters or other equipment; studio rental,
production equipment, and personnel fees; advertising revenues including a per capita
share of advertising revenues for advertising carried on more than one cable system;
barter; revenues from sales of and/or program guides; revenues from the sale or
carriage of non-cable services, including information services and bypass services; and
revenues from home shopping and bank-at-home channels and such other revenue as
may now exist or hereafter develop. Gross Revenues shall be the basis for computing
the franchise fee under any Franchise and shall be interpreted in a manner which
permits the City to collect the maximum franchise fee permitted by law, irrespective of
the source of revenue. Gross Revenues shall not include: (i) any taxes on services
furnished by a Franchisee which are imposed directly on any Subscriber or user by the
state, City, or other governmental unit and which are collected by a Franchisee on
behalf of said governmental unit (the franchise fee is not such a tax); (ii) any bad debt
(defined as unpaid Subscriber or advertiser accounts) and (iii) programming revenues
of any Affiliate of a Franchisee whose programming is carried on the Cable System
where such revenues are paid to said Affiliate by the Franchisee and recovered by the
Franchisee through charges to Subscribers that are included in Gross Revenues. A
franchise fee is not a tax. The amount paid as a franchise fee shall not be deducted
from gross revenues unless required to be deducted under federal law.
2.28 Headend. "Headend" means a facility for signal reception and
dissemination on the cable system, including cable, antennas, wires, fibers, satellite
dishes, monitors, switchers, modulators, laser transmitters, laser receivers, processors
for television broadcast signals, equipment for the interconnection of the cable system
with adjacent cable systems, and interconnection of any separate networks which are
part of the cable system, and all other related equipment and facilities.
2.29 Interconnect or Interconnection. "Interconnect" or "lnterconnection"
means the provision by a Franchisee of technical, engineering, physical, and all other
necessary components to accomplish, complete, and adequately maintain a physical
linking of a Franchisee's cable system and cable services or any designated channel or
signal pathway thereof, with any other designated cable system so that cable services
of technically adequate quality may be sent to and received from such other systems.
2.30 Open Video System. "Open Video System" means a facility consisting of
a set of 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, provided that the
Federal Communication Commission (FCC) has certified that such system complies
with applicable FCC rules and regulations.
2.31 Overbuild. "Overbuild" means a Cable System constructed to serve
Subscribers in an area of the City served by an existing Cable System.
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2.32 Person. "Person" means an individual, sole proprietorship, partnership,
association, joint stock company, organization, corporation, or any other form of
organization authorized to do business in the State of California, and including any
natural person, or any lawful successor thereto or transferee thereof, but such term
does not include the City.
2.33 Programming. "Programming" means the process of causing television
programs or other patterns of signals in video, voice, or data formats to be transmitted
on the cable system either upstream or downstream, and includes all programs or
patterns of signals transmitted or capable of being transmitted on the cable system.
2.34 Public Property. "Public Property" means any real property owned by the
City or any other governmental unit that is not otherwise defined herein as a public
rights-of-way.
2.35 Public Rights. "Public Rights-of-Way" means the surface, the air space
above the surface, and the area below the surface of any public street, road, highway,
freeway, lane, path, alley, court, sidewalk, boulevard, drive, bridge, tunnel, park,
parkway, waterway, easement, rights-of-way or other public way, or similar property in
which the City now or hereafter holds any property interest, now or hereafter existing
which, consistent with the purposes for which it was dedicated, may be used for the
purpose of installing, maintaining and operating a Cable System. No reference herein,
or in any Franchise Agreement, to a "Public Right-of-Way" shall be deemed to be a
representation or guarantee by the City that its interest or other right to control the use
of such property is sufficient to permit its use for such purposes, and a Franchisee shall
be deemed to gain only those rights to use as are properly in the City and as the City
may have the undisputed right and power to give.
2.36 Rebuild. "Rebuild" means to alter a cable system through the
replacement of cable, amplifiers, passive devices, and headend electronics as
necessary so as to increase the channel capacity of the system by at least twenty
channels.
2.37 Sale. "Sale" means any sale, exchange, or barter transaction.
2.38 Service Tier. "Service Tier" means a package of two or more cable
services for which a separate charge is made by the Franchisee, other than a package
of premium and pay-per-view services that is not subject to rate regulation under the
Cable Act and applicable FCC regulations because those services are also sold on a
true B la carte basis.
2.39 Subscriber. "Subscriber" means any Person who legally receives for any
purpose or reason any service delivered by a Franchisee by means of or in connection
with a Cable System whether or not a fee is paid for such service.
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2.40 Transfer.
2.40.A"Transfer". means any transaction in which: (i) all or substantially
all of the Cable System is sold or assigned; or (ii) there is any change, acquisition, or
transfer of control of the Franchisee; (iii) the rights and/or obligations held by the
Franchisee under the Franchise are transferred, sold, assigned, or leased, in whole or
in part, directly or indirectly, to another party.
2.40. B"Control of the Franchisee". for purposes of this Section means
the ability to exert actual working control, in whatever manner exercised, over the
affairs of a Franchisee or a Cable Operator of a Cable System, either directly or
indirectly. Without limiting the above, any change in the managing general partners of
the Franchisee shall be presumed a change in Control.
2.41 Up~rade. "Upgrade" means an improvement in channel capacity or other
technical aspect of cable system capacity which may be accomplished without a rebuild
of the cable system.
2.42 Upstream Channel. "Upstream Channel" means a channel capable of
carrying a transmission to the headend from remote points on the cable system or from
interconnection points on the cable system.
2.43 User. "User" means a Person or organization utilizing a channel, capacity
or equipment and facilities for purposes of producing or transmitting material, as
contrasted with the receipt thereof in the capacity of a Subscriber.
2.44 Other Terms. Words not defined herein shall be given the meaning set
forth in the Cable Communications Policy Act of 1984, 47 U.S.C. 521 et seq., as
amended.
Section 24.3.
THE FRANCHISE
3.1 Grant of Franchise. The City may grant one or more Cable System
Franchises, and each such Franchise shall be awarded in accordance with and subject
to the provisions of this Ordinance. In no event shall this Ordinance be considered a
contract between the City and a Franchisee such that the City would be prohibited from
amending any provision hereof.
3.2 Scope of Franchise. A Franchise shall, by its terms, authorize the
Construction, operation and maintenance of a Cable System to provide Cable Services.
A Franchisee may at any time (as part of an Application for a Franchise under this
chapter, or separately) apply to expand the scope of its Franchise, subject to
appropriate conditions, or may apply for a separate authorization to provide services
other than Cable Services, pursuant to such procedures as the City may lawfully
establish from time to time.
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3.3 Franchise Required. Except as federal law may otherwise provide, no
Person may construct or operate a Cable System without a Franchise granted by the
City. No Person may be granted a Franchise without having entered into a Franchise
Agreement with the City pursuant to this Ordinance, having received the City's approval
of the Franchise Agreement and having filed an unconditional acceptance of the
Franchise in a form acceptable to the City Attorney.
3.4 Length of Franchise. No Franchise shall be granted for a period of more
than ten (10) years, except that a Franchisee may apply for renewal or extension
pursuant to Section 4 of this Ordinance.
3.5 Non-Exclusive Franchises. A Franchise is non-exclusive and will not
explicitly or implicitly preclude the issuance of other Franchises to operate Cable
Systems within the City; affect the City's right to authorize use of Public Rights-of-Way
by other Persons to operate Cable Systems or for other purposes as it determines
appropriate; or affect the City's right to itself construct, operate, or maintain a Cable
System, with or without a Franchise.
3.6 Franchise Aqreement. Once a Franchise Agreement has been accepted
and executed by the City and a Franchisee, such Franchise Agreement shall constitute
a contract between the Franchisee and the City, and the terms, conditions, and
provisions of such Franchise Agreement, subject to this Ordinance and all other duly
enacted and Applicable Law, shall define the rights and obligations of the Franchisee
and the City relating to the Franchise. In addition to other matters that may or must be
addressed therein consistent with the Cable Act, the Franchise Agreement shall specify
(i) the franchise area for which the Franchise is awarded, and the terms and conditions
under which the Franchisee must extend service to persons within that franchise area;
(ii) the term of the Franchise; (iii) requirements for cable system design and
performance; (iv) equipment and facilities requirements; and (v) requirements related to
channels, facilities, and equipment for PEG access and community use (including
institutional uses). The franchise area may be larger, smaller, or the same as the
franchise area identified by the applicant.
3.7 Prior Lawful Occupancy Prevails. All privileges prescribed by a Franchise
shall be subordinate to any prior lawful occupancy of the Public Rights-of-Way, and the
City reserves the right to reasonably designate where a Franchisee's facilities are to be
placed within the Public Rights-of-Way.
3.8 Exclusive Contracts for Cable Service Prohibited. A Franchisee may nOt
require a Subscriber or a building owner or manager to enter into an exclusive contract
as a condition of providing or continuing service. However, nothing herein prevents a
Franchisee from entering into an otherwise lawful exclusive arrangement with a
building owner or manager of a multiple dwelling unit or commercial Subscriber.
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3.9 Franchisee Subject to Other Laws, Police Power. A Franchisee shall at
all times be subject to and shall comply with all applicable federal, state, and local laws.
Without limiting the foregoing, a Franchisee shall at all times be subject to all lawful
exercise of the police power of the City, including all rights the City may have under 47
U.S.C. 552 and laws governing permitting, zoning and control of streets and Public
Rights-of-Way.
3.10 No Waiver, Express Waivers. No course of dealing between a
Franchisee and the City, or any delay on the part of the City in exercising any rights
under this Ordinance, shall operate as a waiver of any such rights or powers of the
City, including the right of the City to acquire the property of the Franchisee through the
exercise of the right of eminent domain. Nor shall the City's acquiescence in the actions
of a Franchisee in contravention of rights or powers operate as a waiver except to the
extent expressly waived by the City or expressly provided for in a Franchise
Agreement. Nothing herein contained shall be construed to contract away or to waive,
modify or abridge, either for a term or in perpetuity, the City's right of eminent domain
with respect to any entity, including but not limited to any public utility.
3.11 Reserved Riqhts. The City shall have the maximum plenary authority to
regulate Cable Systems, Franchisees, and Franchises as may now or hereafter be
lawfully permissible. Except where rights are expressly waived by the City in a
Franchise Agreement, this Ordinance or by any Ordinance or resolution of the City, the
rights are reserved, whether expressly enumerated or not, and a Franchisee, by its
acceptance of a Franchise, agrees to be bound thereby and to comply with any action
or requirements of the City in its exercise of any of its rights or powers.
3.12 Interpretation of Franchise Terms, Applicable Law.
3.12.AConflict. In the event of a conflict between this Ordinance and a
Franchise Agreement, the provision that the City determines is to its greatest benefit
shall control, except where it is otherwise expressly provided to the contrary in a
Franchise Agreement.
3.12.BControllin,q Law. Except as to matters that are governed solely by
federal law or regulation, a Franchise Agreement will be governed by and construed in
accordance with the laws of the State of California.
3.13 Operation of a Cable System Without a Franchise. Any Person who
occupies Public Rights-of-Way for the purpose of operating or constructing a Cable
System and who does not hold a valid Franchise from the City shall be, to the extent
permitted by Applicable Law, subject to all provisions of this Ordinance including,
without limitation, Section 5 regarding Construction standards; Section 6 regarding
access requirements, except that to the extent that the most recent Franchise granted
by the City contains access requirements that are different than those contained herein,
such Person will be required to match the provisions contained in such recent
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Franchise; Section 10 regarding franchise fees, which providing that the amount paid
shall be in lieu of franchise fees for use of the right of way to provide Cable Service but
not in lieu of any other fees, such as fees for use of the Public Rights-of-Way to provide
telecommunication services that may be imposed under state or local law; Section 11
regarding insurance and indemnification, such proof of insurance in the amounts
provided therein to be submitted to the City and such indemnification being provided in
accordance with terms provided in Section 11.8 and contained in an agreement which
is executed by and enforceable against such Person and submitted to the City prior to
the commencement of Construction of such Cable System; Section 12 regarding
performance guarantees to be provided in the same amounts and under the same
terms as provided thereunder; and Section 13 regarding violation of the Ordinance or
Applicable Law.
In its discretion, the City at any time may require such Person to enter into a
Franchise Agreement within thirty (30) days of receipt of a written notice by the City
that a Franchise Agreement is required; require such Person to remove its property and
restore the area to a condition satisfactory to the City within such time period; remove
the property itself and restore the area to a satisfactory condition and charge the
Person the costs therefor; and/or take any other action it is entitled to take under
Applicable Law, including filing for and seeking damages for trespass. In no event
shall a Franchise be created unless it is issued by action of the City and is
memorialized in a written Franchise Agreement.
3.14 Acts at Franchisee's Expense. Any act that a Franchisee is or may be
required to perform under this Ordinance, a Franchise Agreement, or Applicable Law
shall be performed at the Franchisee's expense, unless expressly provided to the
contrary in this Ordinance, the Franchise Agreement, or Applicable Law.
Section 24.4. APPLICATIONS FOR GRANT, RENEWAL OR MODIFICATION
OF FRANCHISES
4.1 Written Application. A written Application shall be filed with the City for (i)
grant of an initial Franchise; (ii) renewal of a Franchise under 47 U.S.C. 546(a)-(g); or
(iii) modification of a Franchise Agreement pursuant to this Ordinance or a Franchise
Agreement.
4.2 Filing Requirements. To be acceptable for filing, a signed original of the
Application shall be submitted together with an initial filing of fifteen (15) copies. The
Application must conform to any applicable request for proposals and contain all
required information. All Applications shall include the names and addresses of
Persons authorized to act on behalf of the Applicant with respect to the Application.
4.3. Public Inspection. All Applications accepted for filing shall be made
available by the City for public inspection.
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4.4 Contents of Applications. A Request for Proposals ("RFP") for the grant
of a Franchise, including for a renewal Franchise under 47 U.S.C. 546(c), shall require,
and any Application submitted (other than an Application submitted pursuant to 47
U.S.C. 546(h) or to Section 4.4 contained herein) shall contain, at a minimum, the
following information:
4.4.A Applicant Information. Name and address of the Applicant and
identification of the ownership and control of the Applicant including: the names and
addresses of the ten (10) largest holders of an ownership interest in the Applicant and
in all Persons in the Applicant's direct ownership chain; the names and addresses of all
Persons with ten percent (10%) or more ownership interest in the Applicant and in
Persons in the Applicant's direct ownership chain; the Persons who control the
Applicant and Persons in the Applicant's direct ownership chain; and all officers and
directors of the Applicant and Persons in the Applicant's direct ownership chain;
4.4. B Interest in Applicant. A list of all City employees, officials, or
appointees that have any interest, direct or indirect, in the Applicant or any Affiliate;
4.4.C Technical Ability. A demonstration of the Applicant's technical
ability to construct and/or operate the proposed Cable System, including identification
of key personnel;
4.4. D Legal Qualifications. A demonstration of the Applicant's legal
qualifications to construct and/or operate the proposed Cable System, including but not
limited to providing information that shows that the Applicant meets the following
criteria:
4.4. D(1) The Applicant must be willing to comply with the
provisions of this Ordinance and Applicable Laws; and to comply with such
requirements of a Franchise Agreement as the City may lawfully require;
4.4. D(2) The Applicant must not have submitted an Application
for an initial or renewal Franchise to the City, which was denied on the ground that the
Applicant failed to propose a Cable System meeting the cable-related needs and
interests of the community, or as to which any challenges to such franchising decision
were finally resolved (including any appeals) adversely to the Applicant, within three (3)
years preceding the submission of the Application;
4.4.D(3) The Applicant must not have had any cable television
franchise validly revoked (including any appeals) by any franchising authority within
three (3) years preceding the submission of the Application;
4.4. D(4) The Applicant must have the necessary authority
under California law to operate a Cable System;
\LAC\326402.03
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4.4. D(5) The Applicant shall not be issued a Franchise if it
may not hold the Franchise as a matter of applicable law. An Applicant must have, or
show that it is qualified to obtain, any necessary federal or state authorizations or
waivers required to operate the Cable System proposed;
4.4. D(6) The Applicant shall not be issued a Franchise if, at
any time during the five (5) years preceding the submission of the Application, the
Applicant was convicted of any act or omission of such character that the Applicant
cannot be relied upon to deal truthfully with the City and the Subscribers of the Cable
System, or to substantially comply with its lawful obligations under Applicable Law,
including obligations under consumer protection laws and laws prohibiting
anticompetitive acts, fraud, racketeering, or other similar conduct;
4.4.D(7) The Applicant shall not be issued a Franchise if it
files materially misleading information in its Application or intentionally withholds
information that the Applicant lawfully is required to provide; and
4.4. D(8) The Applicant shall not be issued a Franchise if an
elected official of the City holds a controlling interest in the Applicant or an Affiliate of
the Applicant.
4.4. E Other Circumstances. Notwithstanding the foregoing, the City shall
provide an opportunity to an Applicant to show that it would be inappropriate to deny it
a Franchise under Section 4.4. D(3) or (6), by virtue of the particular circumstances
surrounding the matter and the steps taken by the Applicant to cure all harms flowing
therefrom and prevent their recurrence, the lack of involvement of the Applicant's
principals, or the remoteness of the matter from the operation of Cable Systems.
Nothing in this section prevents an Applicant from raising other issues with the City
relevant to the consideration of the Applicant's legal qualifications under Section
4.4. D(3) or (6).
4.4. F Accountant Statement. A statement prepared by a certified public
accountant regarding the Applicant's financial ability to complete the Construction and
operation of the Cable System proposed;
4.4.G Prior Cable Experience. A description of the Applicant's prior
experience in Cable System ownership, Construction, and operation, and identification
of cities and counties in California in which the Applicant or any of its principals have a
cable Franchise or any interest therein, provided that an Applicant that holds a
Franchise for the City and is seeking renewal of that Franchise need only provide this
information for other cities and counties in California where its Franchise is scheduled
to expire in the two (2) calendar years prior to or after its Application is submitted to the
City; If an Applicant has no other Franchise in California, it shall provide the
information for its operations in other states;
\LAC\326402.03 - ]. 3-
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4.4. H Proposed Franchise Area. Identification of the area of the City to
be served by the proposed Cable System, including a description of the proposed
Franchise Area's boundaries;
4.4.1 Facilities Description. A detailed description of the physical
facilities proposed, including channel capacity, technical design, performance
characteristics, institutional network, headend, and PEG access facilities;
4.4.J Construction Description. Where applicable, a description of the
Construction of the proposed Cable System, including an estimate of plant mileage and
its location; the proposed Construction schedule; a description, where appropriate, of
how services will be converted from existing facilities to new facilities; and information
on the availability of space in conduits including, where appropriate, an estimate of the
cost of any necessary rearrangement of existing facilities;
4.4. K Rate Structure. The proposed rate structure, including projected
charges for each Service Tier, installation, converters, and all other proposed
equipment or services;
4.4. L Community Needs. A demonstration of how the Applicant will
reasonably meet the future cable-related needs and interests of the community,
including descriptions of the capacity, facilities and support for Public, Educational, and
Governmental use of the Cable System (including institutional networks) Applicant
proposes to provide and why Applicant believes that the proposal is adequate to meet
the future cable-related needs and interests of the community;
4.4.M Pro Formas. Pro forma financial projections for the proposed
Franchise term, including a statement of projected income, and a schedule of planned
capital additions, with all significant assumptions explained in notes or supporting
schedules;
4.4. N Existing Cable Franchise. If the Applicant proposes to provide
Cable Service to an area already served by an existing cable Franchisee, the
identification of the area where the overbuild would occur, the potential Subscriber
density in the area that would encompass the overbuild, and the ability of the Public
Rights-of-Way and other property that would be used by the APplicant to accommodate
an additional System;
4.4.O Information Regarding Compliance. Any other information as may
be reasonably necessary to demonstrate compliance with the requirements of this
Ordinance;
4.4.P Additional Information. Information that the City may request of the
Applicant that is relevant to the City's consideration of the Application; and
\LAC\326402.03 - ! 4-
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4.4.Q Affidavit. An affidavit or declaration of the Applicant or authorized
officer thereof certifying the truth and accuracy of the information in the Application,
acknowledging the enforceability of Application commitments, and certifying that the
Application meets all requirements of Applicable Law.
4.5
Franchise.
Application for Grant of a Franchise, Other Than a Cable Act Renewal
4.5.A RFP Request. A Person may apply for a Franchise by submitting a
request for issuance of a Request for Proposals ("RFP") and requesting an evaluation
of its Application pursuant to Section 4.5.C. Upon receipt of a request for an RFP, the
City shall, if necessary, commence a proceeding to identify the future cable-related
needs and interests of the community and, upon completion of that proceeding, shall
promptly issue an RFP and proposed Franchise Agreement along with an invitation to
comment on such proposed Franchise Agreement, which shall be mailed to the Person
requesting its issuance, and any existing Cable System franchisee, and made available
to any other interested party. The Applicant shall respond within the time directed by
the City, providing the information and material set forth in Section 4.4. The
procedures, instructions, and requirements set forth in the RFP shall be followed by
each Applicant as if set forth and required herein. The City or its designee may seek
additional information from any Applicant and establish deadlines for the submission of
such information (which deadlines shall be not less than 20 days from issuance of a
request for additional information). An existing Franchisee shall have the right to file
comments regarding any Applicant and their Application, which comments shall be
treated as part of the record before the City.
4.5. B Unsolicited Applications. Notwithstanding the provisions of Section
4.5.A, a Person may apply for an initial Franchise by submitting an unsolicited
Application containing the information required in Section 4.4 and requesting an
evaluation of that Application pursuant to Section 4.5.C. Prior to evaluating that
Application, the City may conduct such investigations as are necessary to determine
whether the Application satisfies the standards set forth in Section 4.5.C and may seek
additional Applications.
4.5.C Evaluation. In evaluating an Application or a Franchise, the City
shall consider, among other things, the following factors:
4.5.c(1)
complied with the Applicable
Franchise for the City;
The extent to which the Applicant has substantially
Law and the material terms of any existing cable
4.5.C(2) Whether the quality of the Applicant's service under
any existing Franchise in the City, including signal quality, response to customer
complaints, billing practices, and the like, has been reasonable in light of the needs
and interests of the communities served;
\LAC\326402.03 - ] 5-
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4.5.C(3) Whether the Applicant has the financial, technical,
and legal qualifications to hold a cable Franchise;
4.5.C(4) Whether the Application satisfies any minimum
requirements established by the City and is otherwise reasonable to meet the future
cable-related needs and interests of the community, taking into account the cost of
meeting such needs and interests;
4.5.C(5) Whether, to the extent not considered as part of
Section 4.5.C(4), the Applicant will provide adequate Public, Educational, and
Governmental Access use capacity, facilities, or financial support;
4.5.C(6) Whether issuance of a Franchise is in the public
interest considering the immediate and future effect on the Public Rights-of-Way and
private property that would be used by the Cable System, including the extent to which
installation or maintenance as planned would require replacement of property or
involve disruption of property, public services, or use of the Public Rights-of-Way; the
effect of granting an overbuild Franchise on the ability of any existing Franchisee to
meet the cable-related needs and interests of the community; and the comparative
superiority or inferiority of competing Applications; and
4.5. C(7) Whether the approval of the Application may
eliminate or reduce competition in the delivery of Cable Service in the City.
4.5. D Approval or Denial; No Standing. If the City finds that it is in the
public interest to issue a Franchise considering the factors set forth above, and subject
to the Applicant's entry into an appropriate Franchise Agreement, it shall issue a
Franchise. If the City denies a Franchise, it will issue a written decision explaining why
the Franchise was denied. The City also may grant or deny a request for a Franchise
based on its review of an Application without further proceedings and may reject any
Application that is incomplete or fails to respond to an RFP. This Ordinance is not
intended and shall not be interpreted to grant any Applicant or existing Franchisee
standing to challenge the issuance of a Franchise to another.
4.6 Application for Grant of a Cable Act Renewal Franchise. Applications for
renewal under the Cable Act shall be received and reviewed in a manner consistent
with Section 626 of the Cable Act, 47 U.S.C. 546. It is the proposal submitted by a
Franchisee under 47 U.S.C. 546(b), and not the request for commencement of the
renewal proceedings submitted under 47 U.S.C. 546(a), that must contain the
information required under Section 4.4. If neither a Franchisee nor the City activates in
a timely manner, or can activate the renewal process set forth in 47 U.S.C. 546(a)-(g)
(including, for example, if the provisions are repealed), and except as to Applications
submitted pursuant to 47 U.S.C. 546(h), the provisions of Section 4.5 shall apply and a
renewal request shall be evaluated using the same criteria as any other request for a
\LAC~26402.03
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Franchise. The following requirements shall apply to renewal requests properly
submitted pursuant to the Cable Act:
4.6.A If the provisions of 47 U.S.C. 546(a)-(g) are properly invoked, the
City shall issue an RFP after conducting a proceeding to review the Franchisee's past
performance and to identify future cable-related community needs and interests. The
City shall make available for review by a Franchisee the results of the City's review and
ascertainment proceedings. The City shall establish deadlines and procedures for
responding to the RFP (which deadlines shall not be less than 30 days after issuance
of the RFP), may seek additional information from the Franchisee related to the City's
evaluation of the proposal given the standards for review of that proposal under
Applicable Law, and shall establish deadlines for the submission of that additional
information (which deadlines shall not be less than 20 days after issuance of the
request). Following receipt of the Application responding to that RFP (and such
additional information as may be provided in response to requests), the City Council
will determine that the Franchise should be renewed, or make a preliminary
assessment that the Franchise should not be renewed in accordance with the
provisions of the Cable Act applicable to that preliminary decision. The preliminary
determination shall be made by resolution. If the City Council determines that the
Franchise should not be renewed, and the Franchisee notifies the City, either in its
RFP response or within thirty (30) business days of the preliminary assessment, that it
wishes to pursue any rights to an administrative proceeding it has under the Cable Act,
then the City shall commence an administrative proceeding after providing prompt
public notice thereof, in accordance with the Cable Act. If the City Council decides
preliminarily to grant renewal, it shall prepare a final Franchise Agreement that
incorporates, as appropriate, the commitments made by the Franchisee in the
Application. If the Franchisee accepts the Franchise Agreement, and the final
agreement is ratified by the City Council, the Franchise shall be renewed. If the
Franchise Agreement is not so accepted and ratified within the time limits established
by 47 U.S.C. 546(c)(1), renewal shall be deemed preliminarily denied, and an
administrative proceeding commenced if the Franchisee requests it within thirty (30)
business days of the expiration of the time limit established by 47 U.S.C. 546(c)(1),
unless the time limit is extended by mutual agreement of the City and the Franchisee.
4.6. B Administrative Hearin,q. If an administrative hearing is commenced
pursuant to 47 U.S.C. 546(c), the Applicant's renewal Application shall be evaluated
considering such matters as may be considered consistent with federal law. The
following procedures shall apply:
4.6. B(1) The City Council shall appoint an administrative
hearing officer or officers (referred to hereafter as "hearing officer"). The City Council
may appoint itself as hearing officer.
4.6.B(2) The proceeding shall be timely conducted in
accordance with such lawful procedures as established by the City.
\LAC\32640203 - ] 7-
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4.6.B(3) The hearing officer shall establish a schedule for
proceeding. The hearing officer shall have the authority to require the production of
evidence from any Person as the interests of justice may require. Any order regarding
the production of evidence may be enforced by a court of competent jurisdiction or by
imposing appropriate sanctions in the administrative hearing.
4.6. B(4) The hearing officer may conduct a prehearing
conference and establish appropriate prehearing orders. Intervention by non-parties is
not authorized except to the extent required by the Cable Act.
4.6.B(5) The hearing officer shall require the City and the
Franchisee to submit prepared testimony prior to the hearing. Unless the parties agree
otherwise, the Franchisee shall present evidence first, and the City shall present
evidence second.
4.6.B(6) Any reports or the transcript or summary of any
proceedings conducted pursuant to 47 U.S.C. 546(a) shall be, for purposes of the
administrative hearing, regarded no differently than any other evidence. The City and
the Franchisee shall be afforded fair opportunity for full participation in the proceeding,
including the right to introduce evidence (including evidence related to issues raised in
the proceeding under subsection 47 U.S.C. 546(a)), to require the production of
evidence, and to question witnesses.
4.6. B(7) Following completion of any hearing, the hearing
officer may require the parties to submit, and any party may submit, proposed findings
of fact with respect to the matters that the City is entitled to consider in determining
whether renewal ought to be granted. Based on the entire record of the administrative
hearing, the hearing officer shall then prepare written findings, and submit those
findings to the City Council and to the parties (unless the hearing officer is the City
Council, in which case the written findings shall constitute the final decision of the City).
4.6. B(8) If the hearing officer is not the City Council, the
parties shall have thirty (30) days from the date the findings are submitted to the City
Council to file exceptions to those findings. The City Council shall thereafter issue a
written decision granting or denying the Application for renewal, consistent with the
requirements of the Cable Act and based on the record of such proceeding. A copy of
the final decision of the City Council shall be provided promptly to the Applicant.
4.6.C Informal Renewal Application. This Section does not prohibit any
Franchisee from submitting an informal renewal Application pursuant to 47 U.S.C.
546(h), which Application may be granted or denied in accordance with the provisions
of 47 U.S.C. 546(h). If such an informal renewal Application is granted, then the steps
specified in subsections 4.5.A and 4.5.C(1)-(8) of this section need not be taken,
notwithstanding the provisions of those subsections.
\LAC\326402.03
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4.7 Application for Modification of a Franchise. An Application for
modification of a Franchise Agreement shall include, at minimum, the following
information:
4.7.A The specific modification requested;
4.7.B The justification for the requested modification, including the
impact of the requested modification on Subscribers and others, and the financial
impact on the Applicant if the modification is approved or disapproved, demonstrated
through, inter alia, submission of pro forma financial statements;
4.7.C A statement indicating whether the modification is sought pursuant
to Section 625 of the Cable Act, 47 USC. 545, and, if so, a demonstration that the
requested modification meets the standards set forth in 47 U.S.C. 545;
4.7.D Any other information that the Applicant believes is necessary for
the City to make an informed determination on the Application for modification; and
4.7.E An affidavit or declaration of the Applicant or Applicant's authorized
officer certifying the truth and accuracy of the information in the Application, and
certifying that the Application is consistent with the requirements of Applicable Law.
4.8 Filing Fees.
4.8.A To be acceptable for filing, an Application submitted after the
effective date of this Ordinance shall be accompanied by all filing fees required by and
in such amounts as shall be set by resolution adopted by the City Council from time to
time.
4.9 Notice and Public Hearings. The City shall provide reasonable public
notice of an application, including information on filing protests to the granting of the
Franchise and shall hold one or more public hearings prior to a decision on the
Franchise. An Applicant shall be notified of any public hearings held in connection with
the evaluation of its Application, and all persons shall be given an opportunity to be
heard.
4.10 Consistent with Cable Act. The provisions of this Section 4 shall be read
and applied so that they are consistent with Sections 625 and 626 of the Cable Act, 47
U.S.C. 545 -47 U.S.C. 546.
Section 25.5SYSTEM CAPABILITY AND CONSTRUCTION PROVISIONS
5.1 General. Based upon studies of this community, a review of other
communities, comments received at a public hearing, meetings, interviews, surveys, a
\LACk326402.03 - 19-
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detailed analysis of cable television systems serving the area, and the experience of
other communities in the development of cable television systems as well as general
developments in the cable industry, the City has determined that the following system
capacity requirements are necessary to provide the most basic cable system necessary
to meet the cable needs of the City. In any specific Franchise grants or renewals,
system channel capacity may be required to accommodate cable needs of the City.
5.2 Initial System Capacity. A Franchisee shall provide a cable system which
uses at least 550-MHz equipment of high quality and reliability. At minimum, a
Franchisee shall integrate optical fiber or other network facilities and equipment
providing equivalent or greater functionality, performance and capacity into any cable
system Construction and design in a manner which permits it to take full advantage of
the benefits of that technology.
5.3 Subscriber Upstream Activation. At minimum, Franchisee shall install and
activate the return portion of the cable system in the sub-low frequency spectrum of 5
MHz to 30 MHz.
5.4 Headend C Access Center Link. A Franchisee shall install, maintain, and
replace as necessary equipment and facilities to transmit and receive all access
channels between the primary access center and the headend.
5.5. Public A,qencies. A Franchisee shall install, maintain, and replace as
necessary activated two-way cable plant and all equipment and facilities required to
make it operable so that City government buildings, buildings of accredited educational
institutions, and all designated PEG access centers and access facilities located within
the Franchise area will be able to send and receive signals (video, audio, and data).
5.6. Other. A Franchisee shall initially include a sufficient number of
Downstream and Upstream channels with sufficient capability and technical quality to
enable the implementation and performance of all the requirements of this Ordinance,
including but not limited to, remote access transmissions and transmissions to and from
access centers and interconnection points, as set forth in, in but not limited to, this
Ordinance.
5.7 System Construction Schedule.
5.7.A Construction Schedule and Plan. Every Franchise Agreement
shall specify the Construction schedule that will apply to any required Construction,
upgrade, or rebuild of the Cable System. The schedule shall provide for prompt
completion of the project, considering the amount and type of Construction required.
The Franchise Agreement shall require the Franchisee to include a plan for the rebuild,
containing at least the following information: a concise description of the Cable System
proposed to be erected or installed, including engineering drawings, if required by the
City, together with a an electronic map and plans indicating the proposed location of all
\LAC~326402.03 -20-
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such facilities. The Franchise Agreement shall further provide that the Construction
schedule and plan shall be subject to City review and approval.
5.7.B Failure to Comply. Failure on the part of a Franchisee to
commence and diligently pursue each of the requirements and complete each of the
matters set forth in its Franchise Agreement or to comply with the Cable System design
and Construction plan approved by the City, including the failure to provide the
equipment specified (or its equivalent) and the failure to follow the distribution system
design plan, Construction plan and installation practices manual (except insofar as
those plans or practices, if carried out, would result in Construction of a system which
could not meet requirements of federal, state or local law; and except for such minor
modifications as are typical in the industry), shall be grounds for termination of its
Franchise under and pursuant to the terms of Section 13.2; provided, however, that the
City in its discretion may extend the time for the completion of Construction and
installation for additional periods in the event a Franchisee, acting in good faith,
experiences delays by reason of circumstances beyond its control. A Franchisee's
failure to comply with provisions of the Construction plan approved by the City shall be
subject to penalties pursuant to Section 13.9.
5.8 Construction Procedures.
5.8.A Compliance with Laws. A Franchisee shall construct, operate and
maintain the Cable System subject to the supervision of all of the authorities of the City
who have jurisdiction in such matters, and in strict compliance with all laws, ordinances,
departmental rules and regulations affecting the Cable System.
5.8. B Periodic Inspection. The Cable System shall be subject to the right
of periodic inspection by the City.
5.8.C Permits. No Construction, reconstruction or relocation of the Cable
System within the Public Rights-of-Way shall be commenced until written permits have
been obtained from the proper City officials. In any permit so issued, such officials may
impose such conditions and regulations as a condition of the granting of the permit as
are necessary for the purpose of protecting any structures in the Public Rights-of-Way,
for the proper restoration of such Public Rights-of-Way and structures, and for the
protection of the public and the continuity of pedestrian and vehicular traffic, including
the requirement that Franchisee bore rather than open trench in connection with work
performed by Franchisee, and may levy appropriate fees for the issuance of the
permits.
5.8. D Regulation. The City Council may, from time to time, issue such
reasonable rules and regulations concerning the Construction, operation and
maintenance of the Cable System as are consistent with the provisions of this
Ordinance and the Franchise issued pursuant to this Ordinance.
\LAC~326402.03 -2, ]-
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5.9 Construction Standards.
5.9.A Compliance with Applicable Standards and Laws. The
Construction, operation, maintenance, and repair of a Cable System shall be in
accordance with all applicable sections of the Occupational Safety and Health Act of
1970, as amended, the National Electrical Safety Code, the National Electric Code,
National Cable Television Association Standards of Good Engineering Practices;
Obstruction Marking and Lighting, ,AC 70/7460 i.e., Federal Aviation Administration;
Construction, Marking and Lighting of Antenna Structures, Federal Communications
Commission Rules Part 17; ,AT&T Manual of Construction Procedures (Blue Book);
California Public Utility Commission Construction Requirements applicable to cable
systems; Franchising Construction Procedures Manual; other applicable federal, state,
or local laws and regulations that may apply to the operation, Construction,
maintenance, or repair of a Cable System, including, without limitation, local zoning
and Construction codes, and laws and accepted industry practices, all as hereafter may
be amended or adopted. In the event of a conflict among codes and standards, the
most stringent code or standard shall apply (except insofar as that standard, if followed,
would result in a system that could not meet requirements of federal, state or local law).
The City may adopt additional standards as required to ensure that work continues to
be performed in an orderly and workmanlike manner, or to reflect changes in standards
which may occur over the Franchise term.
5.9. B Minimum Interference. All wires, cable lines, and other
transmission lines, equipment, and structures shall be installed and located to cause
minimum interference with the rights and convenience of property owners.
5.9.C Electronic Equipment. All installation of electronic equipment shall
be of a permanent nature, using durable components.
5.9. D Antennae. Without limiting the foregoing, antennae and their
supporting structures (towers) shall be designed in accordance with the Uniform
Building Code as amended, and shall be painted, lighted, erected, and maintained in
accordance with all applicable rules and regulations of the Federal Aviation
Administration and all other Applicable Law, all as hereafter may be amended or
adopted.
5.9. E Placement of Facilities. Without limiting the foregoing, all of a
Franchisee's plant and equipment, including, but not limited to, the antenna sites,
headend and distribution system, towers, house connections, structures, poles, wires,
cable, coaxial cable, fiber optic cable, fixtures, and apparatuses shall be installed,
located, erected, constructed, reconstructed, replaced, removed, repaired, maintained,
and operated in accordance with good engineering practices, performed by
experienced and properly trained maintenance and Construction personnel so as not to
endanger or interfere with improvements the City shall deem appropriate to make or to
interfere in any manner with the Public Rights-of-Way or any gas, electric, telephone,
~_AC\326402.03 -22-
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telecommunications, water, sewer, or other utility facilities, or obstruct or hinder in any
manner such entities' use of any Public Rights-of-Way, or legal rights of any property
owner or to unnecessarily hinder or obstruct pedestrian or vehicular traffic.
5.9. F Safety. All safety practices required by law shall be used during
Construction, maintenance, and repair of a Cable System. ^ Franchisee shall at all
times employ reasonable care and shall install and maintain in use commonly accepted
methods and devices preventing failures and accidents that are likely to cause
damage, injury, or nuisance to the public.
5.9.G Prompt Repairs. Any and all Public Rights-of-Way, public
property, or private property that is disturbed or damaged during the Construction,
repair, replacement, relocation, operation, maintenance, or Construction of a Cable
System shall be promptly repaired or restored by the Franchisee within 10 days of the
date of damage, at its expense, to as good condition as before said work was
commenced as is possible to the reasonable satisfaction of the City (in the case of
Public Rights-of-Way) or the owner (in the case of private property).
5.9. H Tree Trimming. A Franchisee shall have the authority to trim trees
that overhang a Public Right-of-Way of the City so as to prevent the branches of such
trees from coming in contact with the wires and cables of the Franchisee, and shall
comply with the relevant provisions of Gilroy City Code Chapter 26. Notwithstanding
that grant of authority, if the Franchisee performs the work, it shall be fully liable for any
damages caused thereby, and shall be responsible for replacing damaged trees and
shrubs. At the option of the City, such trimming may be done by the City, at
Franchisee's expense.
5.9.1 Underground n,q
5.9.1(1) Except in underground utility districts, Franchisee's
Cable System may be constructed overhead where poles now exist and electric and
telephone lines are now overhead, but where either electric or telephone lines are
underground, or are being initially placed underground, the Cable System shall be
constructed underground in accordance with existing City ordinances, regulations and
practices at the time the Cable System is constructed subject to any waivers that may
be granted. Whenever and wherever the owner of the poles moves its plant from
overhead to underground placement in an area, all Cable System facilities and plant in
that area shall be similarly moved underground by the Franchisee as directed by the
City Administrator in accordance with then-existing City practices, subject to any
waivers that may be granted.
5.9.1(2) A Franchisee is expected to use, with the owner's
permission, existing underground conduits or overhead utility facilities whenever
feasible. Copies of agreements for use of conduits or other facilities shall be filed with
the City as required by a Franchise Agreement or upon request by the City. No poles
\LAC\326402.03 -23-
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or conduits shall be erected or installed without the prior permission of the City. If the
City grants permission to place poles or conduits in the Public Rights-of-Way, the City
shall have the right to install and maintain free of charge upon any poles or in any
conduit owned by a Franchisee any wire and pole fixtures that do not unreasonably
interfere with the Cable System operations of the Franchisee. Franchisee shall notify
the City when it enters into an agreement with a third party for use of its poles and
conduits. Copies of agreements for use of Franchisee's conduits or poles in the Public
Rights-of-Way or on other public property shall be available for review upon the City°s
request.
5.9.1(3) Franchisee shall cooperate in the planning, locating
and Construction of its Cable System in utility joint trenches or common duct banks with
other telecommunications providers. The City will provide advance notice to any
Franchisee when it plans to open a trench and each Franchisee shall provide advance
notice to the City when it plans to open a trench and obtain any applicable City or other
public agency permits. The Franchisee and the City will offer to make space available
to the other, and to other persons who participate in joint trenching, on reasonable
terms.
5.9.J Contractors. Any contractor or subcontractor used for work or
Construction, installation, operation, maintenance, or repair of Cable System
equipment must be properly licensed under laws of the State and all applicable local
ordinances, and each contractor or subcontractor shall have the same obligations with
respect to its work as Franchisee would have under this Ordinance and Applicable Law
if the work were performed by Franchisee. The Franchisee shall be responsible for
ensuring that the work of contractors and subcontractors is performed consistent with
its Franchise Agreement and Applicable Law, shall be fully responsible for all acts or
omissions of contractors or subcontractors, shall be responsible for promptly correcting
acts or omissions by any contractor or subcontractor, and shall implement a quality
control program to ensure that the work is properly performed. This section is not
meant to alter tort liability of Franchisee to third parties.
5.9. K Publicizing Proposed Construction Work. A Franchisee shall
publicize proposed Construction work at least one (1) week prior to commencement of
that work by causing written notice of such Construction work to be delivered to the City
and by notifying those Persons most likely to be affected by the work in at least two (2)
of the following ways: by telephone, in person, by mail, by distribution of flyers to
residences, by publication in local newspapers, or in any other manner reasonably
calculated to provide adequate notice. In addition, before entering onto any Person's
property to construct or repair the Cable System, a Franchisee shall provide written
notice to the property owner and the tenant, or in the case of residential property, the
resident at least one (1) day in advance. If a Franchisee must enter premises, it must
schedule an appointment at the convenience of the owner or resident.
5.9. L Location of Facilities. A Franchisee shall perform all tasks of an
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"operator" under California Government Code 42.16 ("Underground Service Alert") and
shall be a member of Underground Service Alert of Northern California and Nevada. A
Franchisee shall maintain current records of the location of its Cable System for both
underground and aerial cables. A Franchisee shall provide information regarding the
location of its Cable System, including current "as-built" maps, upon request of the City
or any authorized governmental body as soon as possible but in no event later than
one (1) business day from date of request.
5.10 Relocation Requirements.
5.10.ARelocation - Governmental Bodies. A Franchisee shall, by a time
specified by the City, protect, support, temporarily disconnect, relocate, or remove any
of its property when required by the City or any other governmental entity, without
expense to the City or governmental entity, by reason of traffic conditions; public safety;
Public Right-of-Way Construction (including extension or widening of existing Right-of-
Way or creation of new Right-of-Way); Public Right-of-Way maintenance or repair
(including resurfacing or widening); change of Public Right-of-Way grade;
Construction, installation or repair of sewers, drains, water pipes, power lines, signal
lines, tracks, or any other type of government-owned communications system, public
work or improvement or any government-owned utility; Public Right-of-Way vacation; or
for any other purpose where the convenience of the City or such entity would be served
thereby; provided, however, that the Franchisee shall, in all such cases, have the
privilege of abandoning any property in place.
5.10. B Relocation - Other Authorized Entities. If any removal, relaying, or
relocation is required to accommodate the Construction, operation, or repair of the
facilities of another Person that is authorized to use the Public Rights-of-Way, a
Franchisee shall, after thirty (30) days advance written notice, take action to effect the
necessary changes requested by the responsible entity. The City may resolve disputes
as to responsibility for costs associated with the removal, relaying, or relocation of
facilities as among entities authorized to install facilities in the Public Rights-of-Way if
the parties are unable to do so themselves, and if the matter is not governed by a valid
contract between the parties or a state or federal law or regulation.
5.10. C Relocation - Emergency. In the event of an emergency, or where a
Cable System creates or is contributing to an imminent danger to health, safety, or
property, the City may remove, relay, or relocate any or all parts of that Cable System
without prior notice.
5.10.DRelocation - Third Persons. A Franchisee shall, on the request of
any Person holding a valid permit issued by a governmental authority, temporarily raise
or lower its wires to permit the moving of buildings or other structures. The expense of
such temporary removal or raising or lowering of wires shall be paid by the Person
requesting same, and the Franchisee shall have the authority to require such payment
in advance. The Franchisee shall be given not less than forty-eight (48) hours advance
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notice to arrange for such temporary wire changes.
5.11 Provision of Service/Quality of Service. In addition to satisfying such
requirements as may be established through the Franchise, every Cable System shall
be subject to the following conditions, except as prohibited by federal law:
5.11.AProvision of Service. Unless standards are otherwise specified in
a Franchise Agreement, after Cable Service has been established by activating trunk
distribution cable for an area specified in a Franchise Agreement, a Franchisee shall
provide Cable Service to any household or commercial establishment requesting Cable
Service within that area, including each multiple dwelling unit in that area, except for
multiple dwelling units to which it cannot legally obtain access, provided that, a
Franchise Agreement may permit a Franchisee to require a potential Subscriber to
contribute a fair share of the capital costs of installation or extension as a condition of
extension or installation in cases where such extension or installation may be unduly
expensive. Service must be provided within time limits specified in Section 5.11.B.
5.11.BTime for Extension of Service. A Franchisee must extend service
to any person who requests it (i) within five (5) days of the request, where service can
be provided by activating or installing a drop; (ii) within thirty (30) days of the request
where an extension of one-half mile or less is required; or (iii) within six months for
areas where an extension of one-half mile or more is required. Provided that, in cases
where a Franchise Agreement permits a Franchisee to require a potential Subscriber to
bear a share of extension or installation costs, and Franchisee requires the potential
Subscriber to bear such costs, the time for extension shall be measured from the date
the potential Subscriber agrees to bear such costs or, if a Franchisee requires
prepayment of a portion of the estimated costs, from the date the prepayment is made.
A Franchisee that requires a potential Subscriber to bear a portion of installation or
extension costs must prepare and deliver to the requesting potential Subscriber a
written estimate of extension costs within seven days of a request for an installation or
extension that would be subject to cost-sharing.
5.11.CTechnical Standards. Any Cable System within the City shall meet
or exceed the technical standards set forth in 47 C.F.R. 76.601 and any other
applicable technical standards.
5.11.DTests. A Franchisee shall perform all tests necessary to
demonstrate compliance with the requirements of the Franchise and other performance
standards established by Applicable Law. Unless a Franchise Agreement or Applicable
Law provides otherwise, all tests shall be conducted in accordance with federal rules
and in accordance with the most recent edition of National Cable Television
Association's "Recommended Practices for Measurements on Cable Television
Systems," or if no recent edition exists, such other appropriate manual as the parties
may designate. A Franchisee shall notify the City on an annual basis of its testing
schedule. A written report of any test results shall be filed with the City within seven (7)
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days of a request by the City. If the location fails to meet performance specifications,
within a reasonable time the Franchisee, without requirement of additional notice or
request from City, shall take corrective action, retest the locations and advise the City
of the action taken and results achieved.
5.11.Elnspections. The City may conduct inspections of the Cable
System including, without limitation, the headend, Construction areas and Subscriber
installations to assess, among other things, the Franchisee's compliance with its
Franchise Agreement and Applicable Law. If the Franchisee is notified of any
violations found during course of inspections, the Franchisee must bring violations into
compliance within thirty (30) days of the date notice of violation is given, and must
submit a report to the City describing the steps taken to bring itself into compliance.
Inspection does not relieve the Franchisee of its obligation to build a Cable System in
compliance with all provisions of its Franchise Agreement and Applicable Law.
5.12 System Maintenance.
5.12.Alnterruptions to be Minimized. A Franchisee shall schedule
maintenance so that activities likely to result in an interruption of service are performed
during periods of minimum Subscriber use of the Cable System.
5.12. BMaintenance Practices. Each Franchise Agreement shall provide
that the Franchisee will be obligated to follow maintenance practices that will ensure
that its Cable System is maintained in accordance with the highest industry standards.
5.13 Continuity of Service. Each Franchise Agreement shall provide that
Subscribers are able to receive continuous service and that, in the event the Franchise
is revoked or terminated, the Franchisee shall be obligated to continue to provide
service for a reasonable period to assure an orderly transition of service from the
Franchisee to a another entity.
Section 26.6 MINIMUM ACCESS REQUIREMENTS
6.1 Franchisee Compliance. A Franchisee shall meet or exceed the minimum
access requirements set forth in this Ordinance.
6.2 PEG Access. Based upon studies of this community, a review of other
communities, comments received at a public hearing, meetings, interviews, surveys,
and the experience of other communities in the development of such cable television
systems as well as general developments in the cable industry, the City has determined
that a minimum number of channels should be designated for public, educational and
governmental access, and that additional channels should be available as channel use
grows. It further concludes that, to facilitate the reception and efficient use of available
resources, there must be guarantees: (i) that ensure each Franchisee shall bear a fair
share of the cost associated with public, educational and governmental access; (ii) that
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require such connections so that programming might be simultaneously transmitted
over each Cable System; and, (iii) to ensure that access facilities and equipment can
continue to be used as Cable System technology changes. In any specific Franchise
grants or renewals, different access requirements may be imposed to accommodate
changes in access needs of the City, so long as the relative burden on any particular
Cable System compared to the burden on others is fair, considering other franchise
differences, the time at which the Franchise was issued, and the franchise term.
Nothing in this section shall be read to impose obligations inconsistent with the
requirements of 47 U.S.C. 546.
6.3. Designated PEG Access Providers.
6.3.A The City may designate PEG access providers, including itself for
governmental access purposes, to control and manage the use of any or all access
facilities provided by a Franchisee under this Ordinance. To the extent authorized by
the City, the designated access provider shall have sole responsibility for operating and
managing such access facilities.
6.3B A Franchisee shall cooperate with designated access providers in
the use of the cable system and access facilities for the provision of PEG access. A
Franchisee may enter into operating agreements with designated access providers
under which the designated access providers will facilitate and coordinate the provision
of PEG access services.
6.4 PEG Channel Capacity.
6.4.A A Franchisee shall provide a minimum of four (4) Downstream and
Upstream channels for PEG access.
6.4. B If PEG access channels are not being used for access purposes, a
Franchisee may request the City to establish rules and procedures to permit the
Franchisee to use such channel capacity for other services, together with rules and
procedures providing for such use to cease when the channel capacity is required for
access purposes.
6.5 Access Interconnections. A Franchisee shall ensure that technically
adequate signal quality, routing systems, and switching and/or processing equipment
are initially and continuously provided for all access interconnections both within
Franchisee's Cable System and with other cable systems throughout the duration of
this Ordinance.
6.6 Change in Technology. In the event a Franchisee makes any change in
the cable system and related equipment and facilities or in the Franchisee's signal
delivery technology which directly or indirectly substantially affects the signal quality or
transmission of access programming, the Franchisee shall at its expense take
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necessary steps or provide necessary technical assistance, including the acquisition of
all necessary equipment, to ensure that the capabilities of access programmers are not
diminished or adversely affected by such change.
6.7 Technical Quality. A Franchisee shall maintain all access channels (both
Upstream channels and Downstream channels) and all interconnections of access
channels at the same level of technical quality and reliability required by this Ordinance
and all other applicable laws, rules, and regulations for subscriber channels.
Section 24.7OPERATION AND REPORTING PROVISIONS
7.1 Open Books and Records.
7.1.A Inspection. The City shall have the right upon 30 days advance
written notice to inspect and copy at any time during normal business hours all books
and records reasonably necessary to monitor compliance with the terms of this
Ordinance, a Franchise Agreement, or Applicable Law; or reasonably necessary for the
exercise of any right or duty of the City under the same. This right includes the right to
inspect not only the books and records of a Franchisee, but any such books and
records held by an Affiliate regardless of who holds them, a Cable Operator of the
Cable System, or any contractor, subcontractor or any person holding any form of
management contract for the Cable System. Each Franchisee shall be responsible for
collecting the information and producing it. For purposes of this Ordinance, the terms
"books and records" shall be read expansively to include information in whatever
format stored. Books and records requested shall be produced to the City at City Hall,
except by agreement or pursuant to Section 7.5 and subject to Section 7.1.B. Books
and records shall be maintained in accordance with Generally Accepted Accounting
Principles.
7.1.B Proprietary Information. Access to a Franchisee's books and
records shall not be denied by the Franchisee on the basis that said books and records
contain proprietary information. However, all proprietary information received by the
City from a Franchisee and clearly marked as such shall not be publicly disclosed
insofar as permitted by the California Public Records Act, Government Code 6254, et
seq., and other Applicable Law. The City will notify Franchisee if any third party seeks
release of any document marked confidential and the City will withhold release for the
maximum period permitted by law to provide the Franchisee the opportunity to seek
court protection against the release of the requested documents.
7.1.C Public Inspection. The Franchisee shall maintain a file of records
open to public inspection in accordance with applicable FCC rules and regulations.
7.2 Production of Documents Upon Request
7.2.A Agency Reports. Upon request, and except as provided under
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Section 7.3, a Franchisee shall file with the City all reports required by the FCC
including, without limitation, any proof of performance tests and results, Equal
Employment Opportunity ("EEO") reports, and all petitions, applications, and
communications of all types directly related to the Cable System, or a group of Cable
Systems of which the Franchisee's Cable System is a part, submitted or received by the
Franchisee, an Affiliate, or any other Person on the behalf of the Franchisee, either to
or from the FCC, the Security and Exchange Commission, or any other federal or state
regulatory commission or agency having jurisdiction over any matter affecting operation
of the Franchisee's Cable System. Provided that, nothing herein requires the
Franchisee to produce regulatory or court filings that are treated by the agency or court
as confidential, such as Hart-Scott-Rodino Act filings. Nothing in this Section 7.2.A
affects any rights the City may have to obtain books and records under Section 7.1.
7.2.B Automatic Delivery of Certain Documents. Franchisee shall also
deliver to the City the following:
7.2.B(1) notices of deficiency or forfeiture related to the
operation of the Cable System; and
7.2.B(2) copies of any request for protection under bankruptcy
laws, or any judgment related to a declaration of bankruptcy by the Franchisee or by
any partnership or corporation that owns or controls the Franchisee directly or
indirectly. This material shall be submitted to the City at the time it is filed or within ten
(10) days of the date it is received.
7.3 Reports.
quarter, a
information:
7.3.A Quarterly Reports. Within 45 days of the end of each calendar
Franchisee shall submit a report to the City containing the following
7.3.A(1) the number of service calls (calls requiring a truck
roll) received by type during the prior quarter, and the percentage of service calls
compared to the Subscriber base by type of complaint; and
7.3.A(2) the number and type of outages known by the
Franchisee for the prior quarter, identifying separately the following: each planned
outage, the time it occurred, its duration, and the estimated area and number of
Subscribers affected; each known unplanned outage, the time it occurred, its estimated
duration and the estimated area and the number of Subscribers affected, and if known,
the cause; the total estimated hours of known outages as a percentage of total hours of
Cable System operation. An outage is a loss of sound or video on any signal, or a
significant deterioration of any signal affecting two or more Subscribers; and other
information a Franchisee is required to submit to the City on a quarterly basis pursuant
to this Ordinance.
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7.3. B Annual Reports: No later than ninety (90) days after the end of its
fiscal year, a Franchisee shall submit a written report to the City Administrator in a form
directed by the City Administrator, which shall include:
7.3.B(1) a summary of the previous year's activities in the
development of the Cable System, including, but not limited to descriptions of services
begun or discontinued, the number of Subscribers gained or lost for each category of
service;
7.3. B(2) a summary of complaints for which records are
required under 7.4.^, identifying both the number and nature of the complaints received
and an explanation of their dispositions;
7.3.B(3) a balance sheet as of the last day of the fiscal year
and the related statement of revenues, expenses and charges in retained earnings,
and statement of cash flows for the year then ended, all of which shall be fully audited
or shall be certified;
7.3. B(4) an ownership report, indicating all Persons who at the
time of the filing control or own an interest in the Franchisee of ten percent (10%) or
more;
7.3. B(5) a list of officers and members of the Board of
Directors of the Franchisee and any Affiliates directly involved in the operation or the
maintenance of the Cable System;
7.3. B(6) an organizational chart showing all corporations or
partnerships with more than a ten (10) percent interest ownership in the Franchisee,
and the nature of that ownership interest (limited partner, general partner, preferred
shareholder, etc.); and showing the same information for each corporation or
partnership that holds such an interest in the corporations or partnerships so identified
and so on until the ultimate corporate and partnership interests are identified;
7.3. B(7) an annual report of each entity identified in
subsection 7.3. B(4) which issues an annual report;
7.3. B(8)
a report on the Cable System's technical tests and
measurements;
7.3.B(9) a complete report on its plant, which shall state the
physical miles of plant Construction and plant in operation during the fiscal year,
including any revisions to the Cable System "as built" maps filed with the City, and
which shall report the results of appropriate electronic measurements conducted in
conformance with applicable law;
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7.3. B(10)
upcoming fiscal year; and
a proposed schedule of plant construction for the
7.3. B(11) such other information as the City Administrator or
the City Council may direct. If, as of January 1 of any year, the information required by
Sections 7.3. B(4)-(6) is the same as was reported to the City in the prior year, the
Franchisee need only so state.
7.3.C Presentation of Report. The annual report shall be presented at a
regular public meeting of the City Council to be held no earlier than ten (10) days
following submission of the report.
7.3. D Special Reports. Upon the City's request, each Franchisee shall
submit Construction reports and make available for review updated as-built system
design maps for its Cable System for any Construction undertaken during the term of
the Franchise. The maps shall be developed on the basis of post-Construction
inspection by the Franchisee and Construction personnel to assess compliance with
System design. Any material departures from design must be indicated.
7.3. E General Reports. Each Franchisee shall prepare and furnish to
the City, at the times and in the form prescribed by the City, such reports with respect
to its operation, affairs, transactions or property, as may be reasonably necessary or
appropriate to the performance of any of the rights, functions or duties of the City in
connection with this Ordinance or a Franchise Agreement.
7.4 Records Required. A Franchisee shall at all times maintain:
7.4.A Complaints. Records of all complaints received with information
sufficient to allow the Franchisee to prepare the reports required in this Section 7. The
term "complaints" as used herein and throughout this Ordinance refers to complaints
about any aspect of the Cable System or Franchisee's operations, including, without
limitation, complaints requiring service calls, and complaints about employee courtesy,
billing, prices, programming, outages and signal quality;
7.4. B Plans. A full and complete set of plans, records, and "as built"
maps showing the exact location of all System equipment installed or in use in the City,
including Subscriber service drops;
7.4.C Outages. Records of outages, indicating date, duration, area, and
the estimated number of Subscribers affected, type of outage, and cause;
7.4. D Service Calls. Records of service calls for repair and maintenance
indicating the date and time service was required, the date of acknowledgment and
date and time service was scheduled (if it was scheduled), and the date and time
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service was provided, and (if different) the date and time the problem was solved;
7.4.E Installations. Records of installation/reconnection and requests for
service extension, indicating date of request, date of acknowledgment, and the date
and time service was extended; and
7.4. F Public File. A public file showing its plan and timetable for
Construction of the Cable System.
7.5 Voluminous Materials. If any books, records, plans, or other documents
requested under this Ordinance are too voluminous, or for security reasons cannot be
copied and moved, then a Franchisee may request that the inspection take place at
some other location, provided that (i) the Franchisee must make necessary
arrangements for copying documents selected by the City after review; and (ii) the
Franchisee must pay all travel and copying expenses incurred by the City in inspecting
those documents or having those documents inspected by its designee.
7.6 Retention of Records; Relation to Privacy Rights. Franchisee shall
ensure that it is able to provide the City all information which must be provided or may
be requested under this Ordinance or a Franchise Agreement, including providing
appropriate Subscriber privacy notices. Nothing in this Section shall be read to require
a Franchisee to violate 47 U.S.C. 551. Franchisee shall be responsible for preserving
the confidentiality of any data that federal law prevents it from providing to the City.
Records shall be kept for at least five (5) years.
Section 24.8 PERFORMANCE EVALUATION
8.1 Performance Evaluation Sessions. The City may, at its discretion, hold
performance evaluation sessions. All such evaluation sessions shall be open to the
public, and announced in a newspaper of general circulation.
8.1.A Evaluation Topics. Topics that may be discussed at any evaluation
session may include, but are not limited to, System Construction and performance,
Franchisee compliance with this Ordinance and the Franchise Agreement, customer
service and complaint response, Subscriber privacy, services provided, programming
offered, service rate structures, franchise fees, penalties, free or discounted services,
applications of new technologies, judicial and FCC filings, and line extensions.
8.1.B Full Cooperation. During the review and evaluation by the City, a
Franchisee shall fully cooperate with the City and shall provide such information and
documents as the City may need to reasonably perform its review.
Section 24.9 RATE REGULATION
9.1 Scope and Applicability. The City reserves all rights to implement and
impose regulation of a Franchisee's rates and charges to the maximum extent
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permitted by law, and may do so by amendment to this Ordinance, by separate
ordinance, by amendment to a Franchise Agreement, or in any other lawful manner.
Nothing in this Ordinance shall prohibit the City from regulating a Franchisee's rates
and charges.
9.2 Changes of Rates and Charges by Franchisee. Except as federal law
may otherwise expressly provide, a Franchisee may not change its rates and charges
unless it has first given a minimum thirty (30) calendar days prior written notice of such
change to the City and to all Subscribers.
9.3 Regulation of Rates For Basic Cable Service. The City regulates rates for
basic Cable Service and equipment within the City to the extent permitted under
Applicable Law. City of Gilroy Resolution 93-69 and 47 C.F.R., Part 76, Subpart N
govern the regulation of rates for basic Cable Service and equipment within the City for
any Franchisee which has been notified that (i) the City has been certified to regulate
its basic service and equipment rates; and (ii) the City has adopted regulations
governing regulation of basic service and equipment rates.
Section 24.10
FRANCHISE FEE
10.1 Amount of Franchise Fee. A Franchisee, as compensation for the
privilege granted under a Franchise for the use of the Public Rights-of-Way to construct
and operate a Cable System to provide Cable Service, shall pay to the City a franchise
fee in an amount up to a maximum of either (1) five percent (5%) of Gross Revenues;
or (2) if a greater amount than that specified in (1) above, the maximum amount
permitted by the Cable Act, as amended. The amount of compensation is based upon
the nature of the services to be provided. If a Franchise, either specifically or as a
matter of law, permits a Franchisee to provide services in addition to Cable Service,
then the City may require the Franchisee to pay additional compensation.
10.2 Payment of Franchise Fee. Unless otherwise specified in a Franchise
Agreement, a Franchisee shall pay the franchise fee due to the City on a quarterly
basis. Payment for each quarter shall be made to the City not later than thirty (30)
days after the end of each calendar quarter.
10.3 Quarterly Statement of Gross Revenues. Unless a Franchise Agreement
provides otherwise, a Franchisee or other entity subject to a fee under this provision
shall file with the City within thirty (30)days of the end of each calendar quarter a
financial statement showing the Franchisee's or such entity's gross revenues during the
preceding quarter and the number of Subscribers served.
10.4 Acceptance of Payment Not A Release. No acceptance by the City of any
franchise fee payment shall be construed as an accord that the amount paid is in fact
the correct amount, nor shall such acceptance of payment be construed as a release of
any claim the City may have for additional sums payable.
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10.5 Franchise Fee Not in Lieu of Taxes. The franchise fee payment is not a
payment in lieu of any tax, fee or other assessment (including but not limited to,
business license fees).
10.6 Annual Statement of Gross Revenue. A Franchisee or other entity
subject to a fee under this provision shall file within ninety (90) days following the end
of each of its fiscal years a statement setting forth the computation of Gross Revenues
used to calculate the franchise fee for the preceding year and a detailed explanation of
the method of computation including, without limitation, a detailed analysis of franchise
fee payments made by the Franchisee, or any Affiliate, during the life of the Franchise,
showing (i)total gross revenues, by category (e.g., basic, pay, pay-per-view,
advertising, installation, equipment, late charges, miscellaneous, other); (ii)what
revenues, by category, were included in the calculation of the franchise fee, so that it is
clear what, if any, revenues were not included and the dollar value of those exclusions;
(iii) the value of any non-cash compensation received (e.,q., trades for advertising
spots), showing what amounts of non-cash compensation were included in the
franchise fee calculation; (iv) what, if any, deductions were made from revenues in
calculating the franchise fee (e..q., bad debt), and the amount of each deduction; (v) if
an outside agency was used to collect revenue (e.g., a collection agency, an
advertising agency paid on the basis of percentage of sales), how much revenue was
received by these agencies; and (vi) the total amount of revenues included for
purposes of the franchise fee calculation. The statement shall be certified by a certified
public accountant or the chief financial officer of the person or persons paying the fee.
The Franchisee will bear the cost of the preparation of such financial statements. To
the extent that Franchisee submits financial statements that are prepared by other than
an independent certified public accountant or which are not audited, the City shall
require Franchisee to submit to the City, but no more than once in a three-year period,
an audited report of an independent certified public accountant which verifies the
accuracy of the financial statements submitted by the Franchisee during the previous
three-year period, which audit shall be performed by an independent certified public
accountant in good standing with the California State Board of Accountancy. The audit
shall be conducted in accordance with generally accepted auditing standards. If an
audited report discloses that additional amounts are owing to City, the statutes of
limitations as to the additional amounts owed shall not begin to accrue until the audited
report is delivered to City.
10.7 City's Ri.qht to Audit Books and Records. The City may, from time to time,
and upon reasonable notice, inspect and audit any and all books and records relevant
to the determination of gross revenues and the computation of franchise fees due, and
may recompute any amounts determined to be payable. If, as a result of the audit, the
City determines that the Franchisee has underpaid the franchise fees owed in an
amount exceeding three percent (3%) of the franchise fees actually paid, the cost of the
audit shall be borne by the Person responsible to pay the fee. The audit shall be
performed in the City, and it shall be the responsibility of the Person subject to the fee
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to have all books and records necessary to satisfactorily perform the audit readily
available to the auditors.
10.8 Failure to Pay Franchise Fee. In the event that a franchise fee payment
is not received by the City on or before the due date set forth in Subsection 10.2 above,
or is underpaid, the Person subject to the fee will be charged interest from the due date
at an interest rate equal to three percent (3%) above the rate for three-month federal
Treasury Bills at the most recent United States Treasury Department sale of such
Treasury Bills occurring prior to the due date of the franchise fee payment. In addition,
the Person subject to the fee will pay a late charge of five percent (5%) of the amount
of the unpaid or underpaid franchise fee payment.
10.9 Final Statement of Gross Revenues. When a Franchise terminates for
whatever reason, the Franchisee shall file with the City within ninety (90) calendar days
of the date its operations in the City cease a financial statement, certified by a certified
public accountant or the Franchisee's chief financial officer, showing the gross
revenues received by the Franchisee since the end of the previous fiscal year.
Adjustments will be made at that time for franchise fees due to the date that the
Franchisee's operations ceased.
Section 24.11
INSURANCE; INDEMNIFICATION
11.1. Insurance Required. Throughout the entire term of the Franchise, a
Franchisee shall maintain, and by its acceptance of a Franchise specifically agrees that
it will maintain, at least the following liability insurance coverage insuring the City and
the Franchisee, all at Franchisee's sole cost: worker's compensation and employer
liability insurance to meet all requirements of California law and comprehensive general
liability insurance with respect to the Construction, operation, and maintenance of the
Cable System and the conduct of the Franchisee's business in the City, in the minimum
amounts of:
11.1.A $1,000,000 for property damage resulting from any one accident;
11.1.B $5,000,000 for personal bodily injury or death resulting from any
one accident; and
11.1.C $2,000,000 for all other types of liability.
Such insurance shall be written on an occurrence basis and not on a claims
made basis.
11.2 Business Automobile Insurance. Franchisee shall during the entire term
of the Franchise and at no expense to City, maintain business automobile insurance, in
the amount of $1,000,000 per occurrence on account of bodily or personal injuries,
including death, and on account of property damage, arising from or caused directly or
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indirectly, by the conduct of Franchisee's business in the City. This insurance shall be
a per occurrence policy and shall not be written on a claims made basis.
11.3 Additional Insurance. Franchisee, in addition to all other insurance
requirements herein, shall maintain insurance in the type and amount as may be
required in any license, permit or agreement obtained in connection with the
Construction, operation, or repair of its cable system or which is necessary to complete
any Construction, operation, or repair (e.g., Highway Permit, Railroad Crossing
Agreement, Corps of Engineers Permit), regardless of who secured the license, permit,
or agreement.
11.4 Qualifications of Insurers. All insurance policies shall be with insurers
qualified to do business in the State of California, with an A-1 or better rating of
insurance by Best's Key Rating Guide, Property/Casualty Edition, and in a form
approved by the City.
11.5 Policies Available for Review. All insurance policies shall be available for
review by the City at City's offices within two days after request by City, and a
Franchisee shall keep on file with the City certificates of insurance executed by the
insurance company or companies involved and submitted to the City before or at the
time Franchisee executed a Franchise Agreement. Not later than thirty (30) days
before expiration of a policy, new certificates of insurance shall be filed with City
evidencing extension of the policy term. All insurance amounts shall be subject to
increase from time to time by resolution of the City Council, provided increase shall
occur not more than once per year.
11.6 Additional Insureds; Prior Notice of Policy Cancellation. All general
liability insurance policies shall name the City, its officers, boards, commissions,
commissioners, agents, and employees as additional insureds, and all policies shall
further provide that any cancellation or reduction' in coverage shall not be effective
unless thirty (30) days prior written notice thereof has been given to the City. A
Franchisee shall not cancel any required insurance policy without submission of proof
that the Franchisee has obtained alternative insurance satisfactory to the City which
complies with this Ordinance.
11.7 Failure Constitutes Material Violation. Failure to comply with the
insurance requirements set forth in this Section shall constitute a material violation of a
Franchise.
11.8 Indemnification.
11.8.A Each Franchise Agreement shall contain an indemnification
provision which shall provide that the Franchisee shall, at its sole cost and expense,
indemnify, hold harmless, and defend the City, its officials, boards, commissions,
commissioners, agents, and employees, against any and all claims, suits, causes of
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action, actions, proceedings, judgments, damages, equitable relief, costs, fees, losses,
liabilities and expenses arising out of the Construction, maintenance, or operation of its
Cable System; copyright infringements or a failure by the Franchisee to secure
consents from the owners, authorized distributors, or franchisees of programs to be
delivered by the Cable System; the conduct of the Franchisee's business in the City; or
in any way arising out of the Franchisee's enjoyment or exercise of a Franchise granted
hereunder, regardless of whether the act or omission complained of is authorized,
allowed, or prohibited by Applicable Law or a Franchise Agreement.
11.8.B. Without limiting the foregoing, the Franchisee shall, at its sole cost
and expense, fully indemnify, defend, and hold harmless the City, and City's officials,
boards, commissions, commissioners, agents, and employees from and against any
and all claims, suits, actions, proceedings, judgments, damages, equitable relief, costs,
fees, liabilities and expenses subject to Section 638 of the Cable Act, 47 U.S.C. 558,
arising out of or alleged to arise out of the installation, Construction, operation, or
maintenance of its System, including but not limited to any claim against the
Franchisee for invasion of the right of privacy, defamation of any Person, firm or
corporation, or the violation or infringement of any copyright, trade mark, trade name,
service mark, or patent, or of any other right of any Person, firm, or corporation. This
indemnity does not apply to programming carried on any channel set aside for Public,
Educational, or Governmental Access use, or channels leased pursuant to 47 U.S.C.
532, unless the Franchisee was in any respect engaged in determining the editorial
content of the program, or adopts a policy of prescreening programming for the
purported purpose of banning or regulating indecent or obscene programming.
11.8.C The indemnity provision includes, but is not limited to, the City's
reasonable attorneys' fees incurred in defending against any such claim, suit, or
proceeding.
11.8. D The City shall notify the Franchisee in writing of its duty to
indemnify in any case subject to the indemnity in which the Franchisee is not named
defendant or plaintiff. The Franchisee shall employ competent counsel, reasonably
acceptable to the City Attorney.
11.9 No Limit of Liability. The provisions of this Section 11 shall not be
construed to limit the liability of a Franchisee for damages under any Franchise issued
hereunder.
Section 24.12
PERFORMANCE GUARANTEES
12.1 Security Fund.
12.1.A Security Fund Deposit. Prior to a Franchise becoming effective,
the Franchisee shall post with the City and maintain a cash security deposit to be used
as a security fund to ensure the Franchisee's faithful performance of and compliance
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with all provisions of this Ordinance, the Franchise Agreement, and other Applicable
Law, and compliance with all orders, permits, and directions of the City, and the
payment by the Franchisee of any claims, liens, fees, or taxes due the City which arise
by reason of the Construction, operation, or maintenance of the Cable System. The
amount of the security fund shall be set forth in the Franchise Agreement in an amount
not less than $50,000 except that a Franchise Agreement may provide for a smaller
security fund for Cable Systems franchised to serve less than the entire City where the
City determines that the size of the Cable System justifies a smaller security fund.
12.1.B Letter of Credit. In lieu of a cash security fund, a Franchisee may
file and maintain with the City an irrevocable letter of credit with an acceptable surety in
the amount specified in the preceding paragraph to serve the same purposes as set
forth therein. Said letter of credit shall remain in effect for the full term of the Franchise
plus an additional six (6) months thereafter. The Franchisee and its surety shall be
jointly and severally liable under the terms of the letter of credit for the Franchisee's
failure to its faithfully perform and comply with all provisions of this Ordinance, the
Franchise Agreement, and other Applicable Law, and to comply with all orders, permits,
and directions of the City, and to pay any claims, liens, fees, or taxes due the City
which arise by reason of the Construction, operation, or maintenance of the Cable
System. The letter of credit shall provide for thirty (30) days prior written notice to the
City of any intention on the part of the Franchisee to fail to renew or otherwise
materially alter its terms. Neither the filing of a letter of credit with the City, nor the
receipt of any damages recovered by the City thereunder, shall be construed to excuse
faithful performance by the Franchisee or limit the liability of the Franchisee under the
terms of its Franchise for damages, either to the full amount of the letter of credit or
otherwise.
12.1.C Reserved Rights. The rights reserved to the City with respect to
the security fund are in addition to all other rights of the City, whether reserved by this
Ordinance or authorized by other law or a Franchise Agreement, and no action,
proceeding, or exercise of a right with respect to such security fund or letter of credit
will affect any other right the City may have.
12.1.D Procedures. The Franchise Agreement shall set forth the
procedures for drawing on the security fund and letter of credit.
12.2 Performance Bond.
12.2.A Performance Bond. Prior to any Cable System Construction,
upgrade, or other work in the Public Rights-of-Way required by the Franchise
Agreement, a Franchisee shall establish in the City's favor a performance bond in an
amount, and subject to such terms, established by the City consistent with its normal
practices, and said bond shall state that it ensures the Franchisee's faithful
performance of the Construction, upgrade, or other work.
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12.2.B Recovery. In the event a Franchisee subject to such a
performance bond fails to complete the Cable System Construction, upgrade, or other
work in the Public Rights-of-Way in a safe, timely, and competent manner in accord
with the provisions of a Franchise Agreement, there shall be recoverable, jointly and
severally from the principal and surety of the bond, any damages or loss suffered by
the City as a result, including the full amount of any compensation, indemnification, or
cost of removal or abandonment of any property of the Franchisee, or the cost of
completing or repairing the Cable System Construction, upgrade, or other work in the
Public Rights-of-Way, plus a reasonable attorneys' fee. The City may also recover
against the bond any amount recoverable against the security fund where such amount
exceeds that available under the security fund, and said bond shall so state.
12.2.C Elimination of Bond. Upon completion of the Cable System
Construction, upgrade, or other work in the Public Rights-of-Way and payment of all
Construction obligations of the Cable System to the satisfaction of the City, the City
shall eliminate the bond or reduce its amount after a time appropriate to determine
whether the work performed was satisfactory, which time shall be established
considering the nature of the work performed. The City may subsequently require a
new bond or an increase in the bond amount for any subsequent Construction,
upgrade, or other work in the Public Rights-of-Way.
12.2.D Bond Rating. The performance bond shall be issued by a surety
with an A-1 or better rating of insurance in Best's Key Rating Guide, Property/Casualty
Edition; shall be subject to the approval of the City; and shall contain the following
endorsement:
"This bond may not be canceled, or allowed to lapse, until
sixty (60) days after receipt by the City, by certified mail,
return receipt requested, of a written notice from the issuer
of the bond of intent to cancel or not to renew."
12.3 Failure Constitutes Material Violation.
Failure to maintain the security fund, letter of credit, or performance bond shall
constitute a material violation of a Franchise.
Section 24.13
REMEDIES AND PENALTIES
13.1 Remedies. In addition to any other remedies available at law or equity,
the City may apply any one or a combination of the following remedies in the event a
Franchisee violates this Ordinance, its Franchise Agreement, or Applicable Law:
13.1.A Revocation/Shortened Term. Revoke the Franchise or shorten the
term thereof pursuant to the procedures specified in this Ordinance.
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13.1.B Penalties. Impose any penalties or remedies available under
applicable state or local laws for violation of City ordinances.
13.1.C Other Relief. In addition to or instead of any other remedy, seek
legal or equitable relief from any court of competent jurisdiction.
13.1.D Franchise Agreement Remedies. Apply any remedy provided for in
a Franchise Agreement, including liquidated damages and/or enforcement provisions, if
any.
13.2 Revocation or Termination of Franchise.
13.2.A Material Breach. A Franchise may be revoked or shortened by the
City Council for the Franchisee's failure to Construct, operate or maintain the Cable
System as required by this Ordinance or the Franchise Agreement, or for any other
material violation of this Ordinance or material breach of the Franchise Agreement. If
within thirty (30) calendar days following written notice from the City to the Franchisee
that it is in material violation of this Ordinance or in material breach of the Franchise
Agreement, the Franchisee has not, to the City's satisfaction, taken corrective action or
corrective action is not being actively and expeditiously pursued, the City may give
written notice to the Franchisee of its intent to consider revocation or shortening of the
Franchise, stating its reasons.
13.2.B Public Hearing. Prior to revoking or shortening a Franchise, the
City Council shall hold a public hearing, upon at least thirty (30) calendar days notice,
at which time the Franchisee and the public shall be given an opportunity to be heard.
Following the public hearing the City Council may determine whether to revoke or
shorten the Franchise based on the evidence presented at the hearing, and other
evidence in the record. If the City Council determines to revoke or shorten a
Franchise, it shall issue a written decision setting forth the reasons for its decision. A
copy of such decision shall be transmitted to the Franchisee.
13.3.C Bankruptcy1 Receivership1 etc. Any Franchise may, at the option of
the City following a public hearing before the City Council, be revoked or shortened
one hundred twenty (120) calendar days after an assignment for the benefit of creditors
or the appointment of a receiver or trustee to take over the business of the Franchisee,
whether in a receivership, reorganization, bankruptcy assignment for the benefit of
creditors, or other action or proceeding, unless within that one hundred twenty (120)
day period:
vacated; or
(i) Such assignment, receivership or trusteeship has been
(ii) Such assignee, receiver or trustee has fully complied with
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the terms and conditions of this Ordinance and the Franchise Agreement and has
executed an agreement, approved by a court having jurisdiction, assuming and
agreeing to be bound by the terms and conditions of this Ordinance and the Franchise
Agreement.
13.3 Foreclosure. In the event of foreclosure or other judicial sale of any of the
facilities, equipment or property of a Franchisee, the City may revoke or shorten the
Franchise, following a public hearing before the City Council, by serving notice upon
the Franchisee and the successful bidder at the sale, in which event the Franchise and
all rights and privileges of the Franchise will be revoked and will terminate thirty (30)
calendar days after serving such notice, unless:
13.3.A Transfer Approval. The City Council has approved the Transfer of
the Franchise to the successful bidder; and
13.3.B Bidder Covenants. The successful bidder has covenanted and
agreed with the City to assume and be bound by the terms and conditions of the
Franchise Agreement and this Ordinance.
13.4 Procedures Upon Revocation or Abandonment of a Franchise. If the City
revokes a Franchise, or if for any other reason a Franchisee abandons, or fails to
operate or maintain service to its Subscribers, the following procedures and rights are
effective:
13.4,A Equipment and Removal. The City may require the former
Franchisee to remove its facilities and equipment at the former Franchisee's expense.
If the former Franchisee fails to do so within a reasonable period of time, the City may
have the removal done at the former Franchisee's and/or surety's expense;
13.4. B Acquisition or Transfer. The City, by resolution of the City Council,
may acquire ownership or effect a Transfer of the Cable System at an Equitable Price;
or
13.4.C Abandonment. If a Cable System is abandoned by a Franchisee,
the City may sell, assign or Transfer at an Equitable Price all or part of the assets of the
Cable System.
13.4. D Continuity of Service. The provisions herein shall be subject to
and be interpreted so that they are consistent with any provisions in a Franchise
Agreement designed to ensure continuity of service in the event a Franchise is revoked
or terminated, or the Cable System is abandoned.
13.5 City's Acquisition of a Cable System. The City may, upon resolution of
the City Council, acquire ownership of and operate a Cable System, whether or not
such ownership is acquired following revocation or forfeiture of a Franchise.
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13.6 Forfeiture.
13.6.A Automatic Forfeiture. Where the City has issued a Franchise
specifically conditioned in the Franchise Agreement upon the completion of
Construction, system upgrade or other specific obligations by a specified date, failure
of the Franchisee to complete such Construction or upgrade, or to comply with such
other specific obligations as required will result in the automatic forfeiture of the
Franchise without further action by the City where it is so provided in the Franchise
Agreement, unless the City, at its discretion and for good cause demonstrated by the
Franchisee, grants an extension of time.
13.6. B Public Hearing. No adverse action against a Franchisee may be
taken by the City pursuant to this Section 13.6.A except after a noticed public hearing
at which the Franchisee is given an opportunity to participate.
13.7 Remedies Cumulative. All remedies under this Ordinance and the
Franchise Agreement are cumulative unless otherwise expressly stated. The exercise
of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or
the payment of liquidated damages or penalties relieve a Franchisee of its obligations
to comply with its Franchise. Remedies may be used singly or in combination; in
addition, the City may exercise any rights it has at law or equity. Nothing herein shall
be read to authorize the double-recovery of damages.
13.8 Relation to Insurance and Indemnity Requirements. Recovery by the City
of any amounts under insurance, the performance bond, the security fund or letter of
credit, or otherwise does not limit a Franchisee's duty to indemnify the City in any way;
nor shall such recovery relieve a Franchisee of its obligations under a Franchise, limit
the amounts owed to the City, or in any respect prevent the City from exercising any
other right or remedy it may have. Nothing herein shall be read to authorize the
double-recovery of damages.
13.9 Penalties. For violation of provisions of this Ordinance or a Franchise
granted pursuant to this Ordinance, penalties shall be chargeable as follows:
13.9.A Pursuant to the Charter of the City, Section 1305, for exercising
any privilege for which a franchise is required without possessing a valid and existing
franchise: a misdemeanor punishable upon conviction by a fine not exceeding five
hundred dollars ($500.00) or by imprisonment for a term not exceeding six (6) months
or by both such fine and imprisonment. Each day such condition continues shall
constitute a separate violation.
13.9. B Pursuant to California Government Code section 53088, for
material breach, where the breach is out of the reasonable control of the Franchisee, of
consumer protection requirements and customer service standards adopted by the City
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or required by the Franchise, this Ordinance, or by Federal Communications
Commission (FCC) regulation: not more than two hundred dollars ($200.00) for each
day of each material breach, not to exceed six hundred dollars ($600.00) for each
occurrence of material breach. However, where the City has provided notice and a fine
or penalty has been assessed, in a subsequent material breach of the same nature
occurring within twelve (12) months, said penalties shall be increased to a maximum of
four hundred dollars ($400.00) for each day of each material breach, not to exceed one
thousand two hundred dollars ($1,200.00) for each occurrence of the material breach.
Where a third or further material breach of the same nature occurs within those same
twelve months, and the City has provided notice and a fine or penalty has been
assessed, the penalties may be increased to a maximum of one thousand dollars
($1,000.00) for each day of each material breach, not to exceed three thousand dollars
($3,000.00) for each occurrence of the material breach. With respect to Persons
subject to a Franchise or license, any monetary penalties assessed hereunder shall be
reduced dollar-for-dollar to the extent any liquidated damage or penalty provision of a
franchise agreement or license agreement imposes a monetary obligation upon a
Person for the same customer service failures, and no other monetary damages may
be assessed.
The City shall give a Person written notice of any alleged material
breach of the customer service standards referred to herein and shall allow said Person
at least thirty (30) days from receipt of the notice to remedy the specified breach.
Material breach for the purposes of assessing penalties hereunder
shall be deemed to have occurred for each day, following the expiration of the notice
period, that any material breach has not been remedied by the Person, irrespective of
the number of customers affected.
13.9.C For failure to distribute the annual notice to Subscribers as
required by the City's Consumer Protection Standards for cable service subscribers:
five hundred dollars ($500.00) for each year in which the notice is not distributed to all
Subscribers; provided, however, that City shall give written notice of any alleged failure
to distribute to all customers the annual notice prior to imposing this penalty, and if the
violation is cured within sixty (60) days after receipt of said notice, then no penalty shall
be imposed.
13.9. D For failure to commence operations or to complete Construction in
accordance with the requirements of the Franchise: one thousand dollars ($1,000.00)
per day or part thereof for each day a violation continues.
13.9. E For Transferring the Franchise without approval: two thousand
dollars ($2,000.00) per day or part thereof for each day a violation continues.
13.9. F For all other violations: two hundred and fifty dollars ($250.00) per
day or part thereof for each day a violation continues.
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Section 24.14 TRANSFERS
14.1 City Approval Required. No Transfer shall occur without prior written
notice to and written approval of the City Council, and only then upon such terms and
conditions as the City deems necessary and proper. The Franchisee's obligations
under the Franchise involves personal services whose performance involves personal
credit, trust, and confidence in the Franchisee, and Transfer without the prior written
approval of the City shall be considered to impair the City's assurance of due
performance. The granting of approval for a Transfer in one instance shall not render
unnecessary approval of any subsequent Transfer.
14.2 Application.
14.2.A Prompt Notice. The Franchisee shall promptly notify the City of
any proposed Transfer. If any Transfer should take place without prior notice to the
City, the Franchisee will promptly notify the City that such a Transfer has occurred.
14.2.B Application for Approval. At least 120 calendar days prior to the
contemplated effective date of a Transfer, the Franchisee shall submit to the City an
Application for approval of the Transfer. Such an Application shall provide complete
information on the proposed transaction, including details on the legal, financial,
technical, and other qualifications of the transferee, and on the potential impact of the
Transfer on Subscriber rates and service. At a minimum, the following information must
be included in the Application; provided that, a Franchisee is not required to duplicate
information that it submits to the City to comply with its obligations under federal or
state law:
14.2.B(1) all information and forms required under federal law
or the equivalent of such forms if not longer required by federal law;
14.2.B(2) all information required in Sections 4.4. F, 4.4. K-
4.4.M., and (4.4.0) of this Ordinance;
14.2.B(3) a detailed statement of the corporate or other
business entity organization of the proposed transferee, together with an explanation of
how decisions regarding the Cable System will be made if the proposed transaction is
approved;
14.2.B(4) any contracts or other documents that relate to the
proposed transaction, and all documents, schedules, exhibits, or the like referred to
therein;
14.2.B(5) any shareholder reports or filings with the Securities
and Exchange Commission ("SEC") that discuss the transaction;
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14.2.B(6) any other information necessary to provide a
complete and accurate understanding of the financial position of the Cable System
before and after the proposed Transfer;
14.2.B(7) complete information regarding any potential impact
of the Transfer on Subscriber rates and service;
14.2.B(8) a brief summary of the proposed transferee's plans
for at least the next five years regarding line extension, plant and equipment upgrades,
channel capacity, expansion or elimination of services, and any other changes affecting
or enhancing the performance of the Cable System.
14.2.C City Inquiry. For the purposes of determining whether it shall
consent to a Transfer, the City or its agents may inquire into all qualifications of the
prospective transferee and such other matters as the City may deem necessary to
determine whether the Transfer is in the public interest and should be approved,
denied, or conditioned under Section 14.3. The Franchisee and any prospective
transferees shall assist the City in any such inquiry, and if they fail to do so, the request
for Transfer may be denied.
14.3 Determination by City.
14.3.A Evaluation. In making a determination as to whether to grant,
deny, or grant subject to conditions an Application for a Transfer of a Franchise, the
City shall consider the legal, financial, and technical qualifications of the transferee to
operate the Cable System; any potential impact of the Transfer on Subscriber rates or
services; whether the incumbent cable operator is in compliance with its Franchise
Agreement and this Ordinance and, if not, the proposed transferee's commitment to
cure such noncompliance; whether the transferee owns or controls any other Cable
System in the City, and whether operation by the transferee may eliminate or reduce
competition in the delivery of Cable Service in the City; and whether operation by the
transferee or approval of the Transfer would adversely affect Subscribers, the City's
interest under this Ordinance, the Franchise Agreement, other Applicable Law, or the
public interest, or make it less likely that the future cable-related needs and interests of
the community would be satisfied at a reasonable cost.
14.3. B Ineffective Transfer. Any Transfer without the City's prior written
approval shall be ineffective, and shall make this Franchise subject to revocation and to
any other remedies available under the Franchise or other Applicable Law.
14.4 Transferee's Agreement. No Application for a Transfer of a Franchise
shall be granted unless the transferee agrees in writing that it will abide by and accept
all terms of this Ordinance and the Franchise Agreement, and that it will assume the
obligations, liabilities, and responsibility for all acts and omissions, known and
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unknown, of the previous Franchisee under this Ordinance and the Franchise
Agreement for all purposes, including renewal, unless the City, in its sole discretion,
expressly waives this requirement in whole or in part.
14.5 Approval Does Not Constitute Waiver. Approval by the City of a Transfer
of a Franchise does not constitute a waiver or release of any of the rights of the City
under this Ordinance or a Franchise Agreement, whether arising before or after the
date of the Transfer.
14.6 Exceptions. Notwithstanding the foregoing, pledges in trust or mortgages
of the assets of the system to secure the Construction, operation or repair of the Cable
System may be made without the City's prior consent; except that no such arrangement
may be made which would in any respect under any condition prevent the Franchisee
or any successor from complying with the Franchise and Applicable Law, nor may any
such arrangement permit a third party to succeed to the interest of Franchisee, or to
own or control the Cable System, without the prior consent of the City. Any mortgage,
pledge or lease shall be subject and subordinate to the rights of the City under this
Ordinance or other Applicable Law.
Section 24.15
RIGHTS OF INDIVIDUALS PROTECTED
15.1 Discriminatory Practices Prohibited.
15.1.A No Discrimination. A Franchisee shall not deny service, deny
access, or otherwise discriminate against Subscribers, programmers, or residents of
the City on the basis of race, color, religion, national origin, sex, or age.
15.1.B Exercise of Riqhts. A Franchisee shall not discriminate among
Persons or take any retaliatory action against a Person because of that Person's
exercise of any right it may have under federal, state, or local law, nor may the
Franchisee require a Person to waive such rights as a condition of taking service.
15.1.C Uniform Access and Rates. A Franchisee shall not deny access or
levy different rates and charges on any group of potential residential cable Subscribers
because of the income of the residents of the local area in which such group resides.
15.1.D Permissible Discounts. Except to the extent the City may not
enforce such a requirement, a Franchisee is prohibited from discriminating in its rates
or charges or from granting undue preferences to any Subscriber, potential Subscriber,
or group of Subscribers or potential Subscribers; provided, however, that a Franchisee
may offer temporary, bona fide promotional discounts in order to attract or maintain
Subscribers, so long as such discounts are offered on a non-discriminatory basis to
similar classes of Subscribers throughout the City; and a Franchisee may offer
discounts for the elderly, the handicapped, or the economically disadvantaged, and
such other discounts as it is expressly entitled to provide under federal law, if such
\LAC~26402.03 -47-
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discounts are applied in a uniform and consistent manner. A Franchisee shall comply
at all times with all applicable federal, state, and City laws, and all executive and
administrative orders relating to non-discrimination.
15.1.E Review of Initial Rates. All materials pertaining to the review of
initial rates or any proposed rate increase, subject to the City's regulatory authority,
shall be submitted to the City for review and approval. Final determinations will be
made by the City Council and will take into consideration public comment as required
by the Cable Act.
15.2 Equal Employment Opportunity. A Franchisee shall not refuse to employ,
discharge from employment, or discriminate against any Person in compensation or in
terms, conditions, or privileges of employment because of race, color, religion, national
origin, sex, or age. A Franchisee shall comply with all federal, state, and local laws and
regulations governing equal employment opportunities, as the same may be from time
to time amended.
15.3 Non-Discrimination Requirements. A Franchisee shall not discriminate
against local businesses, including local minority-owned businesses, in contracting for
or otherwise procuring goods or services.
15.4 Subscriber Privacy. A Franchisee shall at all times protect the privacy of
all Subscribers pursuant to the provisions of Section 631 of the Cable Act, 47 U.S.C.
551. A Franchisee shall not condition Subscriber service on the Subscriber's grant of
permission to disclose information which, pursuant to federal or state law, cannot be
disclosed without the Subscriber's explicit consent. A Franchisee shall not place in the
building, structure, or any facility of any Subscriber any equipment capable of two-way
communications without the written consent of the Subscriber, revocable at the
discretion of the Subscriber, and shall not use the two-way communications capability
of the cable system for unauthorized or illegal Subscriber surveillance of any kind.
Section 24.16
SPECIAL RULES FOR OPEN VIDEO SYSTEMS
16.1 Application for a Franchise.
16.1.A Franchise Required. Before constructing or operating an open
video ("OVS") system, an OVS operator must obtain an OVS franchise from the City.
The grant of an OVS franchise does not obviate the obligation to obtain additional
franchises and authorizations, as the City may require from time to time should the
system provide other services; or obviate the obligation to pay such additional
compensation s the City may establish for use of the right of way to provide other
services.
16.1.B Contents of Application for Initial or Renewal Franchise. In order
to obtain an initial or renewal franchise, an operator of an OVS system must apply for a
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franchise. The application must contain the following information, and such information
as the City may from time to time require. The franchise may not be transferred without
the prior approval of the city.
16.1.B(1) Identity of the applicant; the persons who exercise
working control over the applicant; and the persons who control those persons, to the
ultimate parent.
16.1.B(2) A proposal for Construction of the OVS system that
sets forth at least the following:
be provided over the facility.
16.1.B(2)(a) A description of the services that are to
16.1.B(2)(b) The location of proposed facility and
facility design, including a description of the miles of plant to be installed, where it is to
be located, and the size of facilities and equipment that will be located in, on, over, or
above the rights-of-way.
16. B(2)(c)
be served by the proposed cable system,
franchise area's boundaries.
Identification of the area of the City to
including a description of the proposed
16.1.B(3) A description of the manner in which the system will
be installed, and the time required to construct the system, and the expected effect on
right-of-way usage, including information on the ability of the rights of way to
accommodate the proposed system, including, as appropriate given the system
proposed, an estimate of the availability of space in conduits and an estimate of the
cost of any necessary rearrangement of existing facilities.
16.1.B(4) A description, where appropriate, of how services will
be converted from existing facilities to new facilities, and what will be done with existing
facilities.
16.1.B(5) Proof, attested to by a certified public accountant,
that the applicant has the financial resources to complete the proposed project, and to
construct, operate and repair the proposed facility over the franchise term. It is not the
intent of the City to require an applicant to prove that the services it proposed to offer
will succeed in the marketplace.
16.1.B(6) Proof that applicant is technically qualified to
construct, operate and repair the proposed facility. At a minimum, the applicant must
show that it has experience or resources to ensure that work is to be performed
adequately, and can respond to emergencies during and after Construction is
complete.
\LAC\326402.03 -49-
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16.1.B(7) Proof that the applicant is legally qualified, which
proof must include a demonstration that the applicant:
16.1.B(7)(a) has received, or is in a position to
receive, necessary authorizations from state and federal authorities;
16.1.B(7)(b) has not engaged in conduct (fraud,
racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that
allows City to conclude the applicant cannot be relied upon to comply with
requirements of franchise, or provisions of this title;
16.1.B(7)(c) is willing to enter into a franchise, to pay
required compensation and to abide by the provisions of applicable law, including
those relating to the Construction, operation or maintenance of its facilities, and has not
entered into any agreement that would prevent it from doing so;
16.1.B(8) An affidavit or declaration of the applicant or
authorized officer thereof certifying the truth and accuracy of the information in the
application, and certifying that the application meets all requirements of applicable law.
16.1.C Additional Information Re,qardin,q Affiliates; Presumptions. To the
extent that the applicant is in any respect relying on the financial or technical resources
of another person, including another affiliate, the proofs required under Sections 16.1.B
(5)-(7) should be provided for that person. An applicant will be presumed to have the
requisite financial, or technical or legal qualifications to the extent such qualifications
have been reviewed and approved by a state agency of competent jurisdiction; or if
applicant is a holder of a franchise in the City for a cable system, and conduct under
other franchise provides no basis for additional investigation.
16.1.D Applications for Transfer. An application for a transfer of a
franchise must contain same information required by Section 16.1.B, except that, if the
transferor submitted an application under Section 16.1.B, to the extent information
provided by the transferor under that section remains accurate, the transferee may
simply cross-reference the earlier application.
16.1.E City Review. The City may request such additional information as
it finds necessary, and require such modifications to the application as may be
necessary in the exercise of the City's authority over OVS facilities. Once the
information required by the City has been provided, the application shall be promptly
reviewed and shall be granted if the City finds that:
16.1.E(1) The applicant has the qualifications to construct,
operate and maintain the system proposed in conformity with applicable law. The City
shall provide a reasonable opportunity to an applicant to show that it would be
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inappropriate to deny it a franchise under Section 16.1.B(7)(b), by virtue of the
particular circumstances surrounding the matter and the steps taken by the applicant to
cure all harms flowing therefrom and prevent their recurrence, the lack of involvement
of the applicant's principals, or the remoteness of the matter from the operation of
telecommunications facilities. An application for a franchise area shall not be granted if
the franchisee has no plans for constructing a system within the entire area for which
the franchise is sought.
16.1.E(2) The applicant accepts the modifications required by
the City to its proposed system. This section shall not be read to authorize the City to
exercise authority it does not otherwise have under applicable law.
16.1.E(3) The applicant enters into a franchise agreement and
complies with any conditions precedent to its effectiveness.
that:
16.1.E(4)
In the case of a transfer, the City must also determine
16.1.E(4)(a) there will be no adverse effect on the
public interest, or the City's interest in the franchise;
16.1.E.(4)(b) transferee agrees to be bound by all the
conditions of the franchise and to assume all the obligations of its predecessor; and
16.1.E(4)(c) any outstanding compliance
compensation issues are resolved or preserved to the satisfaction of the City
and
16.1.E(5) An applicant shall not be issued a franchise if it files
or in the previous three years: filed materially misleading information in a franchise
application; or intentionally withheld information that the applicant lawfully is required to
provide.
16.1.F Compensation. Every operator of an OVS system shall pay
compensation to the City as follows:
16.1.F(1) To the extent that the system is used to provide cable
services: a percentage of gross revenues each quarter equal to the gross revenue
percentage paid by any cable operator for the same quarter. In addition, unless a
franchise agreement provides otherwise, an OVS operator (1) shall pay to the City, at a
time directed by the City, an amount equal to the highest amount contributed by any
cable operator under its franchise for and in support of public, educational and
government use (including institutional network use) of its cable system; and (2) to the
extent that a cable operator is providing other support for public, educational or
governmental use, the operator must duplicate that support within a time and in a
manner directed by the City, or provide a cash equivalent acceptable to the City. In
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applying this section, the City shall ensure that the obligations borne by the OVS
operator are no greater or lesser than the obligation imposed upon the cable operator
providing the greatest benefits to the community. The compensation required under
this section or specified in a franchise shall increase as the compensation that a cable
operator is required to provide (in cash and in other forms) increases.
16.1.F(2) To the extent that the OVS system is used for the
provision of telecommunications services, the OVS operator shall pay such fee as may
be established from time to time by the City.
16.1.G Minimum Franchise Requirements. Every OVS franchise must
require the applicant to comply with all provisions of the cable ordinance, as if the OVS
system were a cable system, as may be permitted by Applicable Law; without limiting
the foregoing, the franchise must ensure that the OVS system operator is obligated to
comply with Sections 5, 10 (except as inconsistent with Section 16.1.E, compensation,
above); Section 11; Section 12; and Section 13 as if the OVS system were a cable
system; and must preserve the cities' rights to establish additional obligations from time
to time and to regulate the system to the maximum extent permitted by law. Further,
the franchise must ensure that the relevant books and records of the O¥S system, no
matter who may hold them, are available for inspection and copying; and that the OVS
operator will prepare and submit such relevant reports as may be required by the City.
16.1.H Customer Service Standard Certification. An OVS system that
enters into an agreement to comply with the customer service standards applicable to
cable systems may be certified by the City for so long as it complies with those
requirements and may advertise its compliance with those standards.
Section 24.17
MISCELLANEOUS PROVISIONS
17.1 Compliance With Laws. Each Franchisee shall comply with all Applicable
Laws heretofore and hereafter adopted or established during the entire term of its
Franchise.
17.2 Captions. The captions to sections throughout this Ordinance are
intended solely to facilitate reading and reference to the sections and provisions of this
Ordinance. Such captions shall not affect the meaning or interpretation of this
Ordinance.
17.3 No Recourse Against the City. Every Franchise Agreement shall provide
that, without limiting such immunities as the City or other Persons may have under
Applicable Law, a Franchisee shall have no recourse whatsoever against the City or its
officials, boards, commissions, agents or employees for any loss, costs, expense or
damage arising out of any provision or requirement of this Ordinance or because of the
enforcement of this Ordinance or the City's exercise of its authority pursuant to this
Ordinance, a Franchise Agreement, or other Applicable Law.
\LAC~326402.03 -52-
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17.4 Connections to System; Use of Antennae.
17.4.A Subscriber Rights. To the extent consistent with federal law,
Subscribers shall have the right to attach VCR's, receivers, and other terminal
equipment to a Franchisee's System. Subscribers also shall have the right to use their
own remote control devices and converters, and other similar equipment.
17.4. B Franchisee Actions. A Franchisee shall not, as a condition of
providing service, require a Subscriber or potential Subscriber to remove any existing
antenna, or disconnect an antenna except at the express direction of the Subscriber or
potential Subscriber, provided that such antenna is connected with an appropriate
device and complies with Applicable Law.
17.5 Customer Service Standards. The City is hereby authorized to adopt
customer service standards with which Franchisee must comply. In addition,
Franchisee shall at all times satisfy any additional or stricter requirements established
by Applicable Law including, without limitation, FCC customer service standards and
consumer protection laws.
17.6 Calculation of Time. Unless otherwise indicated, when the performance
or doing of any act, duty, matter, or payment is required under this Ordinance or any
Franchise Agreement, and a period of time or duration for the fulfillment of doing
thereof is prescribed and is fixed herein, the time shall be computed so as to exclude
the first and include the last day of the prescribed or fixed period of duration time.
17.7 Severability. If any term, condition, provision, section, subsection,
subdivision, sentence, clause, phrase or word of this Ordinance shall, to any extent, be
held to be invalid or unenforceable, the remainder hereof shall be valid in all other
respects and continue to be effective. The City Council hereby declares that it would
have adopted this Ordinance and each and every provision herein, irrespective of the
possibility that one or more provisions might be declared invalid. In the event of a
subsequent change in Applicable Law so that any provision which had been held
invalid is no longer invalid, said provision shall thereupon return to full force and effect
without further action by the City and shall thereafter be binding on the Franchisee and
the City.
17.8 Transitional Provisions.
17.8.A Persons Operatin,q Without a Franchise or License. The operator
of any cable system, the operation of which is required to be franchised under this
ordinance, shall have three months from the effective date of this ordinance to file one
or more applications for a franchise under this ordinance. Any operator filing such an
application shall not be subject to a penalty under applicable law for failure to have
such a franchise as long as said application remains pending.
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17.8. B Persons Holding Franchises. Any person holding an outstanding
cable franchise from the City may continue to operate under the existing franchise to
the conclusion of its present term (but not any renewal or extension thereof) with
respect to the services authorized by the franchise; provided, however, that such
franchisee may elect at any time to apply for a superseding franchise under this
ordinance, and must seek additional franchises to provide additional services; and
provided further that, such person shall be subject to the provisions of this ordinance to
the extent permitted by law.
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TABLE OF CONTENTS
Page
Section 24.1 GENERAL PROVISIONS ............................................................................ 1
1.1 Short Title ......................................................................................................... 1
1.2 Authorization ..................................................................................................... 1
1.3 General Findings .............................................................................................. 1
1.4 Purpose ............................................................................................................ 1
Section 24.2 DEFINITIONS AND WORD USAGE ............................................................ 2
2.1 General ............................................................................................................. 2
2.2 Access .............................................................................................................. 2
2.2.A Public Access ..................................................................................... 2
2.2.B Educational Access ............................................................................ 2
2.2.C Governmental Access ........................................................................ 2
2.2.D PG Access .......................................................................................... 2
2,3 Access Channel ................................................................................................ 2
2.4 Affiliate .............................................................................................................. 3
2.5 Applicant ........................................................................................................... 3
2.6 Application ........................................................................................................ 3
2.7 Applicable Law .................................................................................................. 3
2.8 Basic Cable Service or Basic Service ............................................................... 3
2.9 Cable Act .......................................................................................................... 3
2.10 Cable Ordinance ............................................................................................. 3
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
2.24
2.25
2.26
2.27
2.28
2.29
2.30
Cable Service ................................................................................................. 3
Cable System or System ................................................................................. 3
City .................................................................................................................. 4
City Council .................................................................................................... 4
City Administrator ........................................................................................... 4
Construction, Operation or Repair .................................................................. 4
Designated Access Provider ........................................................................... 4
Document or Record ....................................................................................... 4
Downstream Channel ..................................................................................... 4
Equitable Price ............................................................................................... 4
Fair Market Value ........................................................................................... 5
FCC ................................................................................................................ 5
Franchise ........................................................................................................ 5
Franchise Agreement ..................................................................................... 5
Franchise Area ..............................................................................................
Franchisee .....................................................................................................
Gross Revenues ............................................................................................
Headend ........................................................................................................
Interconnect or Interconnection .....................................................................
Open Video System .......................................................................................
5
5
5
6
6
6
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2.31
2.32
2.33
2.34
2.35
2.36
2.37
2.38
2.39
2.40
Overbuild ........................................................................................................ 6
Person ............................................................................................................ 7
Programming .................................................................................................. 7
Public Property ............................................................................................... 7
Public Rights ................................................................................................... 7
Rebuild ........................................................................................................... 7
Sale ................................................................................................................. 7
Service Tier .................................................................................................... 7
Subscriber ....................................................................................................... 7
Transfer .......................................................................................................... 8
2.40.A "Transfer". ......................................................................................... 8
2.40. B "Control of the Franchisee". .............................................................. 8
2.41 Upgrade .......................................................................................................... 8
2.42 Upstream Channel .......................................................................................... 8
2.43 User ................................................................................................................ 8
2.44 Other Terms .................................................................................................... 8
Section 24.3. THE FRANCHISE ....................................................................................... 8
3.1 Grant of Franchise ............................................................................................ 8
3.2 Scope of Franchise ........................................................................................... 8
3.3 Franchise Required .......................................................................................... 9
3.4 Length of Franchise .......................................................................................... 9
3.5 Non-Exclusive Franchises ................................................................................ 9
3.6 Franchise Agreement ....................................................................................... 9
3.7 Prior Lawful Occupancy Prevails ...................................................................... 9
3.8 Exclusive Contracts for Cable Service Prohibited ............................................ 9
3.9 Franchisee Subject to Other Laws, Police Power ............................................. 10
3.10 No Waiver, Express Waivers .......................................................................... 10
3.11 Reserved Rights ............................................................................................. 10
3.12 Interpretation of Franchise Terms, Applicable Law ........................................ 10
3.12.A Conflict .............................................................................................. 10
3.12.B Controlling Law ................................................................................. 10
3.13 Operation of a Cable System Without a Franchise ........................................ 10
3.14 Acts at Franchisee's Expense ......................................................................... 11
Section 24.4. APPLICATIONS FOR GRANT, RENEWAL OR
MODIFICATION OF FRANCHISES ........................................................................ 11
4.1 Written Application ........................................................................................... 11
4.2 Filing Requirements .......................................................................................... 11
4.3. Public Inspection ............................................................................................. 11
4.4 Contents of Applications ................................................................................... 12
4.4.A. Applicant Information ......................................................................... 12
4.4. B Interest in Applicant ............................................................................ 12
4.4.C Technical Ability ................................................................................. 12
4.4. D Legal Qualifications ............................................................................ 12
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4.4. E Other Circumstances .........................................................................
4.4. F Accountant Statement ........................................................................
4.4.G Prior Cable Experience .....................................................................
4.4. H Proposed Franchise Area ..................................................................
4.4.1 Facilities Description ...........................................................................
4.4.J Construction Description ....................................................................
4.4. K Rate Structure ....................................................................................
4.4. L Community Needs ..............................................................................
4.4.M Pro Formas .......................................................................................
4.4. N Existing Cable Franchise ...................................................................
4.4.0 Information Regarding Compliance ...................................................
4.4. P Additional Information ........................................................................
4.4.0 Affidavit .............................................................................................
4.5 Application for Grant of a Franchise, Other Than a Cable Act
13
13
13
14
14
14
14
14
14
14
14
14
15
Renewal Franchise ...................................................................................... 15
4.5.A RFP Request ...................................................................................... 15
4.5. B Unsolicited Applications ..................................................................... 15
4.5.C Evaluation ........................................................................................... 15
4.5. D Approval or Denial; No standing ........................................................ 16
4.6 Application for Grant of a Cable Act Renewal Franchise ................................. 16
4.6.A ............................................................................................................ 17
4.6. B Administrative Hearing ....................................................................... 17
4.6.C Informal Renewal Application ............................................................. 18
4.7 Application for Modification of a Franchise ....................................................... 19
4.8 Filing Fees ........................................................................................................ 19
4.9 Notice and Public Hearings .............................................................................. 19
4.10 Consistent with Cable Act ............................................................................... 19
Section 25.5 SYSTEM CAPABILITY AND CONSTRUCTION
PROVISIONS .......................................................................................................... 19
5.1 General ............................................................................................................. 19
5.2 Initial System Capacity ..................................................................................... 20
5.3 Subscriber Upstream Activation ....................................................................... 20
5.4 Headend C Access Center Link ........................................................................ 20
5.5. Public Agencies ............................................................................................... 20
5.6. Other ................................................................................................................ 20
5.7 System Construction Schedule ......................................................................... 20
5.7.A Construction Schedule and Plan ........................................................ 20
5.7.B Failure to Comply ............................................................................... 21
5.8 Construction Procedures .................................................................................. 21
5.8.A Compliance with Laws ........................................................................ 21
5.8. B Periodic Inspection ............................................................................. 21
5.8.C Permits ............................................................................................... 21
5.8. D Regulation .......................................................................................... 21
5.9 Construction Standards .................................................................................... 22
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5.9.A Compliance with Applicable Standards and Laws .............................
5.9. B Minimum Interference ........................................................................
5.9.C Electronic Equipment .........................................................................
5.9. D Antennae ...........................................................................................
5.9. E Placement of Facilities .......................................................................
5.9. F Safety .................................................................................................
5.9.G Prompt Repairs .................................................................................
5.9. H Tree Trimming ...................................................................................
5.9.1 Undergrounding ..................................................................................
5.9.J Contractors .........................................................................................
5.9. K Publicizing Proposed Construction Work ..........................................
5.9. L Location of Facilities ..........................................................................
22
22
22
22
22
23
23
23
23
24
24
24
5.10 Relocation Requirements ............................................................................... 25
5.10.A Relocation - Governmental Bodies ................................................... 25
5.10. B Relocation - Other Authorized Entities ................... : ......................... 25
5.10. C Relocation - Emergency ................................................................... 25
5.10. D Relocation - Third Persons ............................................................... 25
5.11 Provision of Service/Quality of Service ........................................................... 26
5.11 .A Provision of Service .......................................................................... 26
5.11. B Time for Extension of Service ........................................................... 26
5.11 .C Technical Standards ......................................................................... 26
5.11. D Tests ................................................................................................. 26
5.11. E Inspections ....................................................................................... 27
5.12 System Maintenance ...................................................................................... 27
5.12.A Interruptions to be Minimized ........................................................... 27
5.12. B Maintenance Practices ..................................................................... 27
5.13 Continuity of Service ....................................................................................... 27
Section 26.6 MINIMUM ACCESS REQUIREMENTS ....................................................... 27
6.1 Franchisee Compliance .................................................................................... 27
6.2 PEG Access ...................................................................................................... 27
6.3. Designated PEG Access Providers ................................................................. 28
6.4 PEG Channel Capacity ..................................................................................... 28
6.5 Access Interconnections ................................................................................... 28
6.6 Change in Technology ...................................................................................... 28
6.7 Technical Quality .............................................................................................. 29
Section 24.7 OPERATION AND REPORTING PROVISIONS .......................................... 29
7.1 Open Books and Records ................................................................................. 29
7.1 .A Inspection ........................................................................................... 29
7.1. B Proprietary Information ....................................................................... 29
7.1.C Public Inspection ................................................................................ 29
7.2 Production of Documents Upon Request .......................................................... 29
7.2.A Agency Reports .................................................................................. 29
7.2.B Automatic Delivery of Certain Documents .......................................... 30
7.3 Reports ............................................................................................................. 30
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7.3.A Quarterly Reports ..............................................................................
7.3. B Annual Reports ..................................................................................
7.3.C Presentation of Report ......................................................................
7.3. D Special Reports .................................................................................
7.3. E General Reports ................................................................................
7.4 Records Required ............................................................................................
7.4.A Complaints .........................................................................................
7.4. B Plans ..................................................................................................
7.4.C Outages .............................................................................................
7.4. D Service Calls .....................................................................................
7.4. E Installations ........................................................................................
7.4. F Public File ..........................................................................................
7.5 Voluminous Materials ......................................................................................
7.6 Retention of Records; Relation to Privacy Rights ............................................
30
31
32
32
32
32
32
32
32
32
33
33
33
33
Section 24.8 PERFORMANCE EVALUATION., ............................................................... 33
8.1 Performance Evaluation Sessions .................................................................... 33
8.1 .A Evaluation Topics ............................................................................... 33
8.1.B Full Cooperation ................................................................................. 33
Section 24.9 RATE REGULATION .................................................................................. 33
9.1 Scope and Applicability .................................................................................... 33
9.2 Changes of Rates and Charges by Franchisee ................................................ 34
9.3 Regulation of Rates For Basic Cable Service .................................................. 34
Section 24.10 FRANCHISE FEE ...................................................................................... 34
10.1 Amount of Franchise Fee ............................................................................... 34
10.2 Payment of Franchise Fee .............................................................................. 34
10.3 Quarterly Statement of Gross Revenues ........................................................ 34
10.4 Acceptance of Payment Not A Release .......................................................... 34
10.5 Franchise Fee Not in Lieu of Taxes ................................................................ 35
10.6 Annual Statement of Gross Revenue ............................................................. 35
10.7 City's Right to Audit Books and Records ........................................................ 35
10.8 Failure to Pay Franchise Fee ......................................................................... 36
10.9 Final Statement of Gross Revenues ............................................................... 36
Section 24.11 INSURANCE; INDEMNIFICATION ............................................................ 36
11.1. Insurance Required ....................................................................................... 36
11.2 Business Automobile Insurance ..................................................................... 36
11.3 Additional Insurance ....................................................................................... 37
11.4 Qualifications of Insurers ................................................................................ 37
11.5 Policies Available for Review .......................................................................... 37
11.6 Additional Insureds; Prior Notice of Policy Cancellation ................................. 37
11.7 Failure Constitutes Material Violation ............................................................. 37
11.8 Indemnification ................................................................................................ 37
11.9 No Limit of Liability ......................................................................................... 38
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Section 24.12 PERFORMANCE GUARANTEES ............................................................
12.1 Security Fund .................................................................................................
12.1 .A Security Fund Deposit .....................................................................
12.1.B Letter of Credit .................................................................................
12.1.C Reserved Rights ..............................................................................
12.1 .D Procedures ......................................................................................
12,2 Performance Bond .........................................................................................
12.2.A Performance Bond ...........................................................................
12.2. B Recovery ..........................................................................................
12.2.C Elimination of Bond .........................................................................
38
38
38
39
39
39
39
39
4O
4O
12.2. D Bond Rating ...................................................................................... 40
12.3 Failure Constitutes Material Violation ............................................................. 40
Section 24.13 REMEDIES AND PENALTIES ................................................................... 40
13.1 Remedies ........................................................................................................ 40
13.1 .A Revocation/Shortened Term ............................................................. 40
13.1.B Penalties ........................................................................................... 41
13.1.C Other Relief ...................................................................................... 41
13.1 .D Franchise Agreement Remedies ...................................................... 41
13.2 Revocation or Termination of Franchise ......................................................... 41
13.2.A Material Breach ................................................................................ 41
13.2. B Public Hearing .................................................................................. 41
13.3.C Bankruptcy, Receivership, etc .......................................................... 41
13.3 Foreclosure ..................................................................................................... 42
13.3.A Transfer Approval ............................................................................. 42
13.3, B Bidder Covenants ............................................................................. 42
13.4 Procedures Upon Revocation or Abandonment of a Franchise ...................... 42
13.4.A Equipment and Removal ................................................................... 42
13.4. B Acquisition or Transfer ...................................................................... 42
13.4.C Abandonment ................................................................................... 42
13.4. D Continuity of Service ........................................................................ 42
13.5 City's Acquisition of a Cable System .............................................................. 42
13.6 Forfeiture ........................................................................................................ 43
13.6.A Automatic Forfeiture ......................................................................... 43
13.6. B Public Hearing .................................................................................. 43
13.7 Remedies Cumulative ..................................................................................... 43
13.8 Relation to Insurance and Indemnity Requirements ....................................... 43
13.9 Penalties ......................................................................................................... 43
Section 24.14 TRANSFERS ............................................................................................. 45
14.1 City Approval Required ................................................................................... 45
14.2 Application ...................................................................................................... 45
14.2.A Prompt Notice ................................................................................... 45
14.2. B Application for Approval .................................................................... 45
14.2.C City Inquiry ....................................................................................... 46
\LAC~326402.03 -60-
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14.3 Determination by City ..................................................................................... 46
14.3.A Evaluation ......................................................................................... 46
14.3. B Ineffective Transfer ........................................................................... 46
14.4 Transferee's Agreement ................................................................................. 46
14.5 Approval Does Not Constitute Waiver ............................................................ 47
14.6 Exceptions ...................................................................................................... 47
Section 24.15 RIGHTS OF INDIVIDUALS PROTECTED ................................................ 47
15.1 Discriminatory Practices Prohibited ...............................................................
15.1 .A No Discrimination ............................................................................
15.1. B Exercise of Rights ............................................................................
15.1.C Uniform Access and Rates ..............................................................
15.1 .D Permissible Discounts .....................................................................
15.1.E Review of Initial Rates .....................................................................
15.2 Equal Employment Opportunity .....................................................................
15.3 Non-Discrimination Requirements .................................................................
15.4 Subscriber Privacy .........................................................................................
47
47
47
47
47
48
48
48
48
Section 24.16 SPECIAL RULES FOR OPEN VIDEO SYSTEMS ..................................... 48
16.1 Application for a Franchise ............................................................................. 48
16.1 .A Franchise Required .......................................................................... 48
16.1. B Contents of Application for Initial or Renewal
Franchise .......................................................................................... 48
16.1 .C Additional Information Regarding Affiliates;
Presumptions .................................................................................... 50
16.1 .D Applications for Transfer .................................................................. 50
16.1.E City Review ....................................................................................... 50
16.1.F Compensation ................................................................................... 51
16.1.G Minimum Franchise Requirements ................................................... 52
16.1. H Customer Service Standard Certification ......................................... 52
Section 24,17 MISCELLANEOUS PROVISIONS ............................................................. 52
17.1 Compliance With Laws ................................................................................... 52
17.2 Captions .......................................................................................................... 52
17.3 No Recourse Against the City ......................................................................... 52
17.4 Connections to System; Use of Antennae ...................................................... 53
17.4.A Subscriber Rights ............................................................................. 53
17.4. B Franchisee Actions ........................................................................... 53
17.5 Customer Service Standards .......................................................................... 53
17.6 Calculation of Time ......................................................................................... 53
17.7 Severability ..................................................................................................... 53
17.8 Transitional Provisions ................................................................................... 53
17.8.A Persons Operating Without a Franchise or License ......................... 53
17.8. B Persons Holding Franchises ............................................................. 54
\LACL326402.03 -6 ]-
76-010804706009
This Ordinance shall take effect and be in full force thirty days from and after its
adoption and approval.
PASSED AND ADOPTED this 6th day of January, 1997 by the following vote:
AYES: COUNClLMEMBERS:
GILROY, MORALES, ROGERS, ROWLISON,
SPRINGER, VALDEZ, GAGE
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNClLMEMBERS: NONE
ATTEST:
APPROVED:
Donald F. Gage, Mayor (.,/ ~'
\LACL326402.03 -62-
76-010804706009
I, SUS~NE E. STEIN~TZ, City Clerk of the City of Gilroy, do
hereby certify that the attached Ordinance No. 97-1 is an original
ordinance, duly adopted by the Council of the City of Gilroy at a regular
meeting of said Council held on the 6th day of January , 19 97 ,
at which meeting a ~orum was present.
IN WITNESS ~E~OF, I have hereunto set my hand and affixed the
Official Seal of the City of Gilroy this- 7th day of January
199~.
~ Clerk of the City of ~roy ~/
(Seal')