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UNCODIFIED
ORDINANCE NO. 2206
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ARCADIA, REGULATING CABLE, VIDEO,
AND TELECOMMUNICATIONS SERVICE
WHEREAS, the Communications Act of 1934 (48 Stat. 1064, 15 USC S 21;
47 USC SS 35, Section 621 [47 U.S.c. 541] (b)(I) states, except to the extent
provided in paragr,!-ph (2) and subsection (t), a cable operator may not provide
cable service without a franchise; and
WHEREAS, the Communications Act of 1934 (48 Stat. 1064, 15 USC S 21;
47 USC SS 35, Section 653. [47 U.S.C. 573] (a) (I) states a local exchange carrier
may provide cable service to its cable service subscribers in its telephone service
area through an open video system that complies with this section; and
WHEREAS, California Government Code Section 53066 (a) states that any
city or county or city and county in the State of California may, pursuant to such
provisions as may be prescribed by its governing body, authorize by franchise or
license the construction of a community antenna television system. In connection
therewith, the governing body may prescribe such rules and regulations as it deems
advisable to protect the individual subscribers to the services of such community
antenna television system; and
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WHEREAS, California Government Code Section 53066 (b) states the
award of the franchise or license may be made on the basis of quality of service,
rates to the subscriber, income to the city, county or city and county, experience
and financial responsibility of the applicant plus any other consideration that will
safeguard the local public interest, rather than a cash auction bid; and
WHEREAS, the federal Telecommunications Act of 1996 preempts and
declares invalid all state rules that restrict entry or limit competition in both local
and long-distance telephone service; and
WHEREAS, the California Public Utilities Commission ("CPUC") is
primarily responsible for the implementation oflocal telephone competition, and it
issues certificates of public convenience and necessity to new entrants that are
qualified to provide competitive local telephone exchange services and related
telecommunications service, whether using their own facilities or the facilities or
services provided by other authorized telephone corporations; and
WHEREAS, Section 234(a) of the California Public Utilities Code defines a
"telephone corporation" as "every corporation or person owning, controlling,
operating, or managing any telephone line for compensation within this state"; and
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WHEREAS, Section 616 of the California Public Utilities Code provides
that a telephone corporation "may condemn any property necessary for the
construction and maintenance of its telephone line"; and
WHEREAS, Section 2902 of the California Public Utilities Code authorizes
municipal corporations to retain their powers of control to supervise and regulate
the relationships between a public utility and the general public in matters affecting
the health, convenience, and safety of the general public, including matters such as
the use and repair of public streets by any public utility and the location of the
poles, wires, mains, or conduits of any public utility on, under, or above any public
streets; and
WHEREAS, Section 7901 of the California Public Utilities Code authorizes
telephone and telegraph corporations to construct telephone or telegraph lines
along and upon any public road or highway, along or across any of the waters or
lands within this state, and to erect poles, posts, piers, or abutments for supporting
the insulators, wires, and other necessary fixtures of their lines, in such manner and
at such points as not to inconnnode the public use of the road or highway or
interrupt the navigation of the waters; and
WHEREAS, Section 7901.1 of the California Public Utilities Code confirms
the right of municipalities to exercise reasonable control as to the time, place, and
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manner in which roads, highways, and waterways are accessed, which control must
be applied to all entities in an equivalent manner, and may involve the imposition
offees; and
WHEREAS, Section 50030 of the California Government Code provides that
any permit fee imposed by a city for the placement, installation, repair, or
upgrading of telecommunications facilities, such as lines, poles, or antennas, by a
telephone corporation that has obtained all required authorizations from the CPUC
and the FCC to provide telecommunications services, must not exceed the
reasonable costs of providing the service for which the fee is charged, and must not
be levied for general revenue purposes.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA
DOES ORDAIN AS FOLLOWS:
SECTION I
SECTION 2
SECTION 3
SECTION 4
SECTION 5
SECTION 6
Short Title and Authority
Definitions
A Franchise is required to operate a Cable System
The City may grant a Cable Franchise
Franchise duration and renewal
Limitations of Franchise
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SECTION 7
SECTION 8
SECTION 9
SECTION 10
SECTION II
SECTION 12
SECTION 13
SECTION 14
SECTION 15
SECTION 16
SECTION 17
SECTION 18
SECTION 19
SECTION 20
SECTION 21
SECTION 22
Rights reserved to the City
Transfers and assignments
Franchise Area; annexations
Application for Franchises; contents of application
Selection of Grantee
Franchise renewal
Multiple Franchises
Franchise application processing costs
Franchise fee for Cable Services
Contents of cable television Franchise
Breach of Franchise; grounds for assessment of penalties and
Franchise revocation
Procedure for adjudication of breaches of the Franchise
Hearing Officer hearing procedures
City Council hearing procedures
Penalties for breach of the Franchise
Alternative remedies
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SECTION 23
SECTION 24
SECTION 25
SECTION 26
SECTION 27
SECTION 28
SECTION 29
SECTION 30
SECTION 31
SECTION 32
SECTION 33
SECTION 34
SECTION 35
SECTION 36
S.E;CTION 37
SECTION 38
Removal and abandonment; purchase of system
Receivership and foreclosure
Undergrounding
Use of poles
Construction standards
Approvals
Submission of drawings
Relocation of facilities and equipment
Maintenance
Operational Standards
Service Standards
Billing and Infonnation Standards
Verification Compliance with Standards
Subscriber Complaints and Disputes
Disconnection/Downgrades
Negative Option Billing Prohibited
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SECTION 39
SECTION 40
SECTION 41
SECTION 42
SECTION 43
SECTION 44
SECTION 45
SECTION 46
SECTION 47
SECTION 48
SECTION 49
SECTION 50
SECTION 51
SECTION 52
SECTION 53
SECTION 54
Deposits
Parental Control Options
Additional Requirements
Penalties for Noncompliance
Additional Consumer Protection and Services Standards
Compatibility with consumer electronics equipment
Rate regulation
Billing procedures
Refunds
Notice of rate increases
Non-discrimination and customer privacy
Written or oral notice to enter property
Notice regarding channel scrambling
Tenant rights
Continuity of service mandatory
Applicability
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SECTION 55
SECTION 56
SECTION 57
SECTION 58
SECTION 59
SECTION 60
SECTION 1.
Application required
Review of application
Agreement required and Fees
Other multichannel video programming distributors
Video providers-registration; customer service standards
Telecommunications service provided by telephone
corporations
SHORT TITLE AUTHORITY.
This title is known and may be cited as the "Cable, Video, and
Telecommunications Service Providers Ordinance" of the City of Arcadia. This
chapter is enacted by the City of Arcadia pursuant to City's charter authority, the
Cable Act, the City's police powers, its powers and rights to control the use of the
Public Right-of-Way within the City, and all other applicable laws.
SECTION 2.
DEFINITIONS.
For the purposes of this chapter, the following terms, phrases, words, and
abbreviations shall have the meaning given herein. When not inconsistent with the
context, words used in the present tense include the future tense, and words in
singular number include the plural number. Words not defined by this section
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shall be given the meaning set forth in the Cable Act, and if not defined therein,
their common and ordinary meaning.
ACCESS, PEG ACCESS OR PEG USE. Refers to the availability or use of
a Cable System or Open Video System for public, educational or government use
(including Institutional Network use) by public or private agencies, institutions,
organizations, groups, and individuals, including, but not limited to Grantor, and
its designated Access providers, to acquire, create, and distribute programming not
under Grantee's editorial control, including, but limited to, the following:
(A) Public Access or Public Use where members of the general public are
the primary or designated programmers or users having editorial control over their
programmmg.
, (B) Educational Access or Educational Use where educational institutions
are the primary or designated programmers or users having editorial control over
their programming.
(C) Government Access or Government Use where Grantor or other
governmental institutions designated by Grantor are the primary or designated
programmers having editorial control over their programming.
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AFFILIATE. The term "affiliate" means a person that (directly or
indirectly) owns or controls, is owned or controlled by, or is under common
ownership or control with, another person. For purposes of this paragraph, the term
"own" means to own an equity interest (or the equivalent thereof) of more than 10
percent.
CABLE ACT. The Cable Communications Policy Act of 1984 (47 USC
521 et seq., as amended by the Cable Television Consumer Protection and
Competition Act of 1992 (Public Law No. 102-385) and the Telecommunications
Act of 1996 (Public Law No. 104-104), and as hereinafter may be amended.
CABLE SERVICE. Means the following: (A) the one-way transmission to
Subscribers of (i) Video Programming, or (ii) other programming service, (B)
Subscriber interaction, if any, that is required for the selection or use of such video
programming or other programming service, as hereinafter may be amended,
regardless of the content of such video programming or communications or the
technology or method used to deliver such programming.
CABLE SYSTEM OR SYSTEM. Grantee's facilities, consisting of a set of
closed transmission paths and associated signal generation, reception, and control
equipment that is designed to provide video programming and that is provided to
multiple Subscribers within the City. Such term does not include:
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(A) A facility that serves solely to retransmit the television signals of one
or more television broadcast stations; or
(B) A facility that serves Subscribers without using any Public Right-of-
Way; or
(C) A facility of a common carrier that is subject, in whole or in part, to
the provisions of Subchapter II of Chapter 5 of Title 47 of the United States Code,
except that such facility shall be considered a Cable System (other than for
purposes of 47 USC 541(c)) to the extent such facility is used in the transmission
of video programming directly to Subscribers, unless the extent of such use is
solely to provide interactive on-demand services; or if such facility is used to
provide Cable Service, whether on a common carrier or non-common carrier basis,
directly to customers; or
(D) An Open Video System, as defined below, that complies with 47
USC Section 573; or
(E) Any facilities of any electric utility used solely for operating its
electric utility systems.
CITY. The City of Arcadia, California.
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CITY MANAGER. The City Manager of the City of Arcadia, or his or her
designee.
COMMUNICATIONS ACT. The Communications Act of 1934 (48 Stat.
1064,15 USC S 21; 47 USC SS 35,151--155,201--221,301--329,401--416,501--
505,601--609 (as subsequently amended and as hereinafter may be amended).
COMPLETE SYSTEM CONSTRUCTION. The point in time when all
transmission equipment, facilities, and construction work is installed and
completed, and when all appropriate tests have been completed such that
applicable performance standards pertaining to or dependant upon such
construction is verified. The term Complete System Construction does not include
marketing and installation of Subscriber service.
CONTROL(INGfED). The possession, directly or indirectly, of the power
to direct, or to cause the direction of, the management and policies of a specified
Person, whether through the ownership of voting securities, by contract or
otherwise.
DISTRIBUTION FACILITY f(IES). Cable equipment that is not specific to a
Subscriber, including trunk and distribution lines, but excluding drop lines to
specific locations.
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DROP LINES. The cable and related equipment connecting the Cable
System's plant to equipment at the Subscriber's premises.
EDUCATIONAL ACCESS CHANNEL. A channel on the Cable System
that designates educational institutions as the primary providers of non-commercial
programrmng.
FCC. The Federal Communications Commission.
FRANCHISE. The right to construct, operate and maintain a Cable System
using the City's streets and rights-of-way pursuant to the terms and conditions of
this chapter and other relevant provisions of the Municipal Code, the Franchise
Agreement, and any Ordinance or Resolution approving the transfer of the
Franchise, and any agreement between the City and Grantee relating to the
operation of the Cable System.
FRANCHISE AGREEMENT. An agreement granting a Franchise pursuant
to the terms of the agreement and this chapter. Any conflict between the terms of
this chapter and the Franchise Agreement shall be resolved in favor of. the
Franchise Agreement. In the event a Franchise is in existence as of the effective
date of this ordinance, the terms of the Franchise shall govern; provided however,
that upon the renewal, extension, amendment or other modification of any such
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Franchise, the renewed, extended, amended or otherwise modified Franchise shall
comply with this ordinance.
FRANCHISE AREA. The geographic area within the City designated in a
franchise where Grantee may operate a Cable System, as defined in the Franchise
Agreement.
GOVERNMENT ACCESS CHANNEL. A channel on the Cable System
that is provided by Grantee to Grantor and other governmental institutions
designated by Grantor on which non-commercial informational programmmg
regarding government activities and programs may be presented.
GRANTEE. Any Person to whom a valid Franchise is granted by the City
under this chapter, and the lawful successor, transferee or assignee of such Person.
GROSS REVENUES. All revenue, cash, credits, property of any nature,
and other consideration derived directly or indirectly by Grantee, from or
attributable to the sale or exchange of any Cable Service by or through the Cable
System, or from or attributable to the sale or exchange of any Video Programming
over the respective Open Video Service System; or in any manner derived from the
operation of the Cable System or the respective Video Service System, unless
otherwise prohibited by federal or state law. Such revenue and other
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consideration, regardless of technological platform, includes, without limitation,
the following:
(A) Fees received from residential and commercial subscribers to any tier
of Cable Service and for all Video Programming services.
(B) 'Fees received for installation, reconnection, downgrade, upgrade, and
similar services.
(C) Late fees and interest collected on delinquent subscriber fees or
charges.
(D) Fees paid for channels that are designated for commercial use.
(E) Fees paid in connection with the rental, lease, or sale of converters,
remote controls, and other equipment.
(F) Leased or access channel revenues received in connection with the
distribution of any Cable Service.
(G). All bad debts that are recovered.
(H) All revenue that is received by Grantee, or its subsidiaries or affiliates,
from the conduct of any service-related activity directly involving the
video portion of the Cable System, including without limitation
revenues derived from advertising sales, the sale of products or
services on home shopping channels, and the sale of program guides.
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(I) The fair market value of any nonmonetary consideration received by
Grantee in any transaction with another person relating to the receipt
of Cable Service or the operation of the Cable System as it pertains to
the offering of Cable Service, such as a barter transaction, but not less
than the customary prices paid in connection with equivalent
transactions.
(1) All carriage revenues received from video programming providers,
including incentive fees for carriage, contra expense, barters, or other
transactions where generally accepted accounting principles would
require treatment as revenue.
(K) A franchise fee if itemized and added to the bill.
The term "Gross Revenues" does not include the following:
(A) Refundable deposits, rebates, or credits.
(B) Bad debt th~t is umecovered or umecoverable.
(C) Taxes imposed by law on subscribers that Grantee is obligated to
collect on behalf of any governmental agency.
(D) Revenues collected by unaffiliated video programming providers.
(E) PEG fees paid to the Grantor per subscriber as required by the
Franchise Agreement.
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(F) Advertising COmmISSIOnS paid to advertisers that are not wholly-
owned subsidiaries of Grantee.
(G) Programming launch fees and marketing support payments where
Grantee receives reimbursements for mandatory marketing costs
associated with the launch and promotion of services offered.
Gross Revenues shall include revenue received by any entity other than the
Grantee where necessary to prevent evasion or avoidance of the obligation under
this Agreement to pay the Franchise fees.
MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTOR A Person
such as, but not limited to, a Cable System operator, an Open Video System
Operator, as defined below, a Multichannel multipoint distribution service, a direct
broadcast satellite service, or a television receive-only satellite program distributor,
who makes available multiple channels of video programming for purchase by
Subscribers or customers.
OPEN VIDEO SYSTEM. A facility consisting ofa set of transmission paths
and associated signal generation, reception, and control equipment that is designed
to provide Cable Services, including video programming, and that is provided to
multiple Subscribers within the City, provided that the FCC has certified that such
system complies with 47 CFR ~~ 1500 et seq., entitled "Open Video Systems."
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OPEN VIDEO SYSTEM OPERA TOR. Any Person or group of Persons
who provides Cable Services over an Open Video System and directly or through
one or more Affiliates owns a significant interest in that Open Video System, or
otherwise controls or is responsible for the management and operation ofthat Open
Video System.
NORMAL OPERATING CONDITIONS. Service conditions that are within
the control of Grantee. Those conditions that are ordinarily within the control of
Grantee include, but are not limited to, special promotions, rate increases, regular
peak or seasonal demand periods, and scheduled maintenance or upgrade of the
Cable System. Those conditions that are not in control of Grantee include, but are
not limited to, natural disasters, civil disturbances, power outages, telephone
network outages, and severe or unusual weather conditions.
PERSON. Any individual, corporation, partnership, proprietorship, or other
,
organization authorized to do business in the State ofCalifomia.
PUBLIC ACCESS CHANNEL. A channel on the Cable System that is
provided by Grantee for non-commercial programming produced by members of
the public or a nonprofit corporation fonned by the City to operate and manage
such a channel.
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PUBLIC RlGHT(S)-OF-W A Y. Any of the following that are controlled,
used or dedicated for use by the public and located within the City's jurisdictional
limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, public utility
easements, rights of way and similar public property within which Grantee may
place its facilities for operating a Cable System.
SERVICE INTERRUPTION. The loss or impairment of the Cable Services
on one or more channels. or frequency bands of the Cable System used in
connection with the provision of Cable Services to any Subscriber.
SUBSCRlBER. Any Person who pays for Cable Services provided by
Grantee by means of the Cable System.
.
VIDEO PROGRAMMING PROVIDER AND VIDEO SERVICE
SUPPLIER. Any person, company, or service that provides one or more channels
of video programming including any communications that are ancillary, necessary
or common to the use and enjoyment of the Video Programming, to or from an
address in the City, including to or from a business, home, condominium, or
apartment, where some fee is paid, whether directly or included in dues or rental
charges for that service, when Public Rights-of-Way are utilized in the delivery of
the Video Programming or communications, regardless of the content of such
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Video Programming or communications or the technology or method used to
deliver such programming.
VIDEO PROGRAMMING. Any and all video programming (including, but
not limited to, origination programming) provided by the Grantee to Subscribers
and any communications that are ancillary, necessary or common to the use or
enjoyment of such video programming ."
SECTION 3. A FRANCHISE IS REQUIRED TO OPERATE CABLE
SYSTEM.
(A) It shall be unlawful for any Person to establish, operate or carry on the
business of distributing to any Persons in the City any Cable Service or Video
Programming, by means of a Cable System, unless a Franchise therefore is first
obtained pursuant to the provisions of this chapter, and unless such Franchise is in
full force and effect.
(B) It shall be unlawful for any Person to construct, install or maintain
within any Public Right-of-Way in the City, or within any other public property of
the City, or within any privately owned area within the City which has not yet
become a Public Right-of-Way but is designated or delineated as a proposed Public
Right-of-Way on any tentative subdivision map approved by the City, any
equipment or facilities for distributing any Cable Services or Video Programming,
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by means of a Cable System, unless a Franchise authorizing such use of such street
or property or area has first been obtained pursuant to the provisions of this
chapter, and unless such Franchise is in full force and effect.
(C) It shall be unlawful for any Person to make any unauthorized
connection, whether physically, electronically, acoustically, inductively or
otherwise, with any part of a Franchised Cable System within this City for the
purpose of enabling him or herself or others to receive any Cable Services carried
on a Cable System, without the permission of Grantee.
(D) It shall be unlawful for any Person, without the consent of Grantee, to
willfully tamper with, remove, or injure any cables, wires, or equipment used in
conjunction with a Cable System.
(E) This section shall be construed to reqUIre a Franchise in every
instance, except to the extent that such requirement is preempted by state or federal
law.
SECTION 4.
THE CITY MAY GRANT A CABLE FRANCHISE.
The City may by ordinance or resolution grant a Franchise to any Person,
whether operating pursuant to an existing Franchise or not, who offers to provide a
,
Cable Service pursuant to the terms and provisions of this chapter. The Franchise
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shall be subject to all ordinances and regulations of general application now in
effect or subsequently enacted, including, without limitation, those concerning
encroachment permits, business licenses, zoning, and building.
SECTION 5. FRANCHISE DURATION AND RENEWAL.
(A) The term of the Franchise or any Franchise renewal shall be
established in the Franchise Agreement.
(B) A Franchise may be renewed by the City upon application of Grantee
pursuant to procedures established by the City, subject to applicable federal and
state law. In the event the City does not establish such renewal procedures, the
Franchise renewal procedures set forth in the Cable Act shall apply.
SECTION 6. LIMITATIONS OF FRANCHISE.
(A) Any Franchise granted under this chapter shall be nonexclusive and
for the term specified by the Franchise Agreement.
(B) No privilege or exemption shall be granted or conferred by any
Franchise granted under this chapter except those specifically presented herein.
(C) The grant of a Franchise, right, or license to use Public Right-of-Way
for purposes of providing Cable Service shall not be construed as a right or license
to use such Public Right-of-Way for any other purpose.
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(D) Any privilege claimed by Grantee under a Franchise in a Public
Right-of-Way or any other public property shall be subordinate to any prior or
subsequent lawful occupancy or use thereof, or easement therein, by the City or
other government entity.
(E) A Franchise granted hereunder shall not relieve Grantee of any
obligation related to obtaining pole space from any department of the City, utility
company, or from others maintaining poles in the Public Right-of-Way.
(F) Any right or power in, or duty imposed upon any officer, employee,
department, or board of the City shall be subject to transfer by the City to any other
officer, employee, department, or board of the City.
SECTION 7.
RIGHTS RESERVED TO THE CITY.
(A) Subject to those restrictions, if any, that are mandated by state or
federal law, neither the granting of any Franchise nor any of the provisions of this
chapter shall be construed to prevent the City from granting additional Franchises.
(B) Grantee, by its acceptance of any Franchise, agrees to be bound by all
ordinances and regulations of general application now in effect or subsequently
enacted (including, without limitation, those that concern encroachment permits,
business licenses, zoning and building) and to comply with any action or
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requirements of the City in its exercise of such rights or power; provided, however,
that such ordinances and regulations shall not materially affect Grantee's rights or
obligations under the Franchise.
(C) Neither the granting of any Franchise, nor any of the provisions ofthis
chapter, shall constitute a waiver or bar to the exercise of any governmental right
or power of the City.
(D) This chapter shall not be construed to impair or affect, in any way, the
right of the City to acquire the property of Grantee through the exercise of the
power of eminent domain, in accordance with applicable law.
(E) The City CO)lncil may do all things that are necessary in the exercise
of its jurisdiction under this chapter and may determine any question of fact that
may arise during the existence of any Franchise granted under this chapter.
SECTION 8.
TRANSFERS AND ASSIGNMENTS.
(A) No Franchise shall be transferred, sold or assigned, nor shall any of
the rights, privileges, interests or property related to the Franchise be transferred,
sold, hypothecated or assigned, either in whole or in part, directly or indirectly,
voluntarily or involuntarily, to any Person without the prior consent of the City
granted by resolution of the City Council. The granting of a security interest in
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any assets of the Grantee, or any mortgage or other hypothecation, will not be
deemed a transfer for the purposes of this section.
(B) Transfer of a Franchise includes, but is not limited to, any transaction
in which control of the Franchise is transferred from one Person or group of
Persons to another Person or group of Persons, or ownership or other interest in
Grantee or its Cable System is transferred from one Person or group of Persons to
another Person or group of Persons, or the rights and obligations held by Grantee
under the Franchise Agreement are transferred or assigned to another Person or
group of Persons. In addition, a transfer of the Franchise shall be deemed to have
occurred upon the transfer on a cumulative basis of ownership or control of 20% of
(I) the voting interest of Grantee, or (2) the Person exercising management
authority over Grantee.
(C) Grantee shall promptly notifY the Gity in writing of a proposed
transfer and shall file with the City Manager an application requesting approval of
the proposed transfer ("Transfer Application"). The Transfer Application shall
meet the requirements of Section 10 (with the transferee being the applicant), and
shall provide complete information on the proposed transaction, including a copy
of the bona fide offer, and details on the legal, financial, technical and other
qualifications of the transferee.
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(D) In making a determination on whether to approve the Transfer
Application, the City Council shall consider the legal, financial, technical and other
qualifications of the transferee to operate the system, whether the incumbent Cable
System operator is in compliance with its Franchise Agreement and this chapter
and, if not, the candidate transferee's commitment and plan to cure such
noncompliance, whether operation by the transferee would adversely affect Cable
Services to Subscribers or otherwise be contrary to the public interest, and such
other criteria provided for by applicable state and federal law.
(E) A Transfer Application shall not be granted unless the proposed
transferee agrees in writing that it will abide by and accept all terms of this chapter,
the Franchise Agreement, and such other agreements, regulations or restrictions
that pertain to the Franchise, assume the obligations and liabilities of the previous
Grantee under the Franchise, and assume such other conditions as may be
prescribed by the City Council resolution approving the transfer.
(F) Approval by the City of a Transfer Application does not constitute a
waiver or release of any of the rights of the City under this chapter or a Franchise
Agreement, whether arising before or after the date of the transfer.
SECTION 9. FRANCHISE AREA; ANNEXATIONS.
(A) The Franchise Area shall be established by the Franchise Agreement.
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(B) Territory annexed to the City ("Annexed Territory") that is not within
the Franchise Area of an existing Franchise may be added to Grantee's Franchise
pursuant to City Council resolution.
(C) All rights acquired under a Franchise or license granted by a public
entity other than the City ("ForeignFranchise") shall terminate by operation oflaw
as to Annexed Territory where Grantee of such Franchise or license has not
commenced installation of a Cable System in the annexed territory before the date
such annexation becomes effective. Where feasible, City shall provide notice to
the holder of a Foreign Franchise of the City's intent to annex territory that may
result in a termination under this section. Failure to provide such notice shall not
affect the termination of the Foreign Franchise.
(D) Where Grantee of a Foreign Franchise has commenced installation of
a Cable System in annexed territory on or before the date such annexation becomes
effective, Grantee may continue to provide Cable Services to the annexed territory
for the balance of the initial term of said Franchise (exclusive of any renewal or
extension not granted by the City), subject to the terms and conditions then in
effect under such Franchise, and the timely payment to the City of all Franchise
fees paid in connection with such service (or such other fees imposed by the City
up to the maximum permitted by law).
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SECTION I O. APPLICATION FOR FRANCHISES; CONTENTS OF
APPLICATION.
(A) Applications for the grant of a new Franchise may be submitted by
any Person pursuant to the requirements of this chapter and subject to the terms of
Arcadia Resolution 5784, as such resolution may, from time to time, be amended.
The City may, by advertisement or any other means, solicit applications for a new
Franchise pursuant to a request for proposal ("RFP").
(B) An application for a new Franchise to construct, operate, or maintain
any Cable Sys~em in the City shall be filed with the office of the City Clerk and
shall be on forms prescribed by the City. The City reserves the right to waive all
application formalities where the City determines that the best interests of the City
would be served by such waiver. The City may, at its sole discretion, request new
or additional proposals.
(C) Unless waived in writing by the City, all applications for a Franchise
shall at the minimum contain the following:
(A) The name, address, and telephone number of the applicant;
(B) A detailed statement of the corporation or business entity organization
of the applicant, including, but not limited to, the following:
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(l) The names, residence and business addresses of all officers and
directors of the applicant;
(2) The names, residence and business address of all officers,
Persons and entities having an ownership interest of 5% or more in the applicant
and the respective ownership share of each such officer, Person or entity;
(3) The names and address of any parent or subsidiary of the
applicant, namely, any other business entity owning or controlling applicant in
whole or in part or owned or controlled in whole or in part by the applicant, and a
statement describing the nature of any such parent or subsidiary business entity,
including but not limited to Cable Systems owned or controlled by the applicant,
its parent and subsidiary and the areas served thereby;
(4) A detailed description of all prevIOus expenence of the
applicant in providing Cable Service or other similar or related communications
services;
(5) A detailed and complete financial statement of the applicant,
certified by an independent certified public accountant, for the fiscal year
preceding the date of the application. The City may require a statement from an
independent certified public accountant or a recognized lending institution,
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certifying that the applicant has available sufficient financial resources to construct
and operate the proposed Cable System in the City;
(6) A detailed financial plan (pro forma) for the operation of the
proposed Cable System, during the term of the proposed Franchise, in the format
required by the City; and
(7) A description of any other Cable System Franchise(s) awarded
to the applicant, its parent or subsidiary, including the place and term of these
Franchises; the status of their completion, the total cost of completion of each
Cable System; and the amount of applicant's and its parent's or subsidiary's
resources committed to the completion of these Cable Systems;
(C) A detailed description of the proposed plan of operation of the
applicant which shall include, but not be limited to, the following:
(1) A detailed map indicating all areas proposed to be served, and a
proposed time schedule for the construction of the Cable System and the
installation of all equipment necessary to become operational throughout the entire
area to be serviced;
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(2) A statement or schedule setting forth all proposed
classifications of rates and charges to be made against Subscribers, including
installation charges and other service charges;
(3) A detailed. statement describing the actual equipment and
operational standards proposed by the applicant;
(4) A copy of the form of any agreement, undertaking, or other
instrument proposed to be entered into between the applicant and any Subscriber;
and
(5) A detailed statement describing any existing or proposed
agreements and undertakings between the applicant and any Person, which
materially relates to the application and the granting of the Franchise;
(6) A detailed description of the applicant's plan to provide Public,
Educational and Government Access Channel capacity services, facilities and
equipment;
(7) A detailed description of the applicant's plans to address the
institutional network needs of the City
(8) A copy of any agreement covenng the Franchise area, if
existing between the applicant and the local telephone and/or electric utilities
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providing for the use of any facilities of the utility including but not limited to
poles, lines or conduits; and
(9) Any other details, statements, or information pertinent to the
subject matter of such application which shall be required or requested by the City.
SECTION II.
SELECTION OF GRANTEE.
(A) The City may make such investigations as it deems necessary to
determine the ability of an applicant to satisfactorily perform its obligations under
a Franchise. The applicant shall timely furnish to the City all such information and
data as the City may request. Failure to provide any such information shall
constitute sufficient grounds for rejection of any application.
(B) Upon receipt of a complete application, with all information required
by the City, and after the City staff completes its investigation and review of the
application, the City Manager shall prepare a report and make recommendations to
the City Council concerning the application.
(C) The City Council shall hold a noticed public hearing on the
application. Written notice shall be given at least ten (10) days prior to the hearing
on the application by U.S. mail, postage prepaid to the applicant and by publication
once in a newspaper of general circulation within the City. Within sixty (60) days
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after the close of the hearing, unless an extension of time is mutually agreed upon
by the City and the applicant, the Council shall make a written decision as to
whether the Franchise should be granted, and if granted, subject to what
conditions. The Council may grant one or more Franchises, or may decline to
grant any Franchise.
.
(D) In making its determination as to whether to grant an application for a
new Franchise, the City may consider any and all factors which affect the interests
of the community including, but not limited to, the quality of the Cable Service
proposed, the areas to be served, the rates to be charged, the amount of Franchise
fee to be generated, the experience, character, background, performance history
and financial responsibility of an applicant (and its management and owners), the
technical performance and quality of equipment, the applicant's willingness and
ability to meet construction requirements and all other limitations and requirements
pertaining to the Franchise, and all other matters deemed pertinent by the City for
protecting the interests of the City and the public.
(E) Any decision of the City Council concerning the granting or denial of
a Franchise pursuant to this chapter shall be final.
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SECTION 12.
FRANCHISE RENEWAL.
Franchise renewals shall be processed and reviewed in accordance with then
applicable law. The City and Grantee, by mutual consent, may enter into renewal
negotiations at any time during the term of the Franchise.
SECTION 13.
MULTIPLE FRANCHISES.
(A) The City may in its sole discretion limit the number of Franchises
granted at anyone. time based upon its consideration of all appropriate criteria
which shall include but not be limited to the following:
(1) The capability of the Public Rights-of-Way to accommodate the
facilities of any proposed additional Cable Systems.
(2) The advantages and disadvantages that may result from
additional Cable System competition.
(B) The City may require that any Grantee be responsible for its own
underground trenching and any associated costs if, in the City's opinion, the Public
Rights-of-Way in any area do not feasibly and reasonably acconlmodate the
additional cables, machinery, equipment, or other items contemplated in
connection with the construction, maintenance and operation of a proposed new
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Cable System. In addition, Grantee shall comply with applicable federal and state
laws regarding pole attachments.
SECTION 14.
FRANCHISE APPLICATION PROCESSING COSTS.
(A) All charges and fees incidental to awarding, renewing, extending
and/or enforcing any Franchise shall be paid by the Franchisee or applicant. No
application shall be considered without payment of a deposit with the City
covering such fee. If the City's actual costs in processing and reviewing the
application are less than the amount of the fee, any remaining funds from the fee
shall be refunded to the applicant within 60 days after final approval or denial of
their application. In the event that the deposit is less than the City's actual costs,
Grantee shall pay such additional costs to the City within 30 days after written
notice from the City that such additional payment is required. If payment of such
amount is not made within such time, the City shall cease all further proceedings
connected with the application.
(B) Any application fees are exclusive of Grantee's obligation to pay other
costs and fees required by this chapter, the Franchise Agreement or the Franchise,
including without limitation construction inspection fees, permit fees, and
Franchise fees.
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SECTION 15.
FRANCHISE FEE FOR CABLE SERVICES.
(A) As compensation for any Franchise granted, and in consideration of
permission to use the Public Right-of-Way in the operation of its Cable System,
and because the City will incur costs (other than application fees) in regulating and
administering the Franchise, Grantee shall pay to the City a Franchise fee in the
amount equal to five percent of Grantee's Gross Revenues, or such other amount as
the City Council may set by resolution or specify in the Franchise Agreement.
(B) The Franchise fee assessed shall be paid quarterly, to be received by
the City Treasurer not later than 45 days after the close of each quarter of Grantee's
fiscal year.
(C) On a quarterly basis, Grantee shall provide the City a complete and
accurate statement verified by a financial officer of Grantee indicating Gross
Revenues for the past quarter, listing every revenue source, and depicting gross
revenue computations.
(D) On an annual basis, Grantee shall file a complete and accurate
statement certified by Grantee's chief financial officer, indicating all Gross
Revenues for said year, listing every revenue source, and depicting gross revenue
computations. If the City has any concerns or objections relating to such report,
the City shall have 60 days to notify Grantee and request additional information.
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Grantee shall have 60 days to provide additional information to resolve any
concerns or objections to the City's satisfaction. Thereafter, the City may, at its
sole discretion, request that such statement be certified by an independent certified
public accountant, at Grantee's sole cost; provided, however, that any such request
shall be made within 60 days after Grantee's response is received.
(E) At any time during the term of a Franchise, the City shall have the
right to conduct, or require Grantee to obtain, an independent audit by certified
public accountants of any and all records of Grantee that are related to Gross
Revenue reports or computations. Grantee shall pay the costs of such audit not
more frequently than once every five years or upon a proposed transfer or change
of control of the Franchise. Grantee shall cooperate with any such audit making
readily available any and all information requested by the City. The certified
public accountants shall be required to certify in the audit that the Grantee is in
compliance with this chapter and the Franchise Agreement. Grantee shall maintain
in a readily accessible place all such records for a minimum of four years after any
payment period that such record pertains to. This right shall be in addition to
City's right to conduct any other audit.
(F) In the. event that any Franchise fee payment is not paid by the due
date, interest shall be charged monthly at a monthly. rate of one and one-half
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percent. In addition, if any Franchise fee is not paid in full within 15 days after
receipt of notice from the City as to the delinquency of such payment, a late fee in
amount of five percent of the delinquent amount shall be assessed.
(G) In the event Grantee claims to have overpaid by more than five
percent the amount of Franchise fee actually due during any given quarter, it shall
file an application with the City within one year after said payment was made. The
failure to timely and properly make such claim shall constitute a waiver by Grantee
of any right to such claimed overpayment, whether by refund, offset, credit or any
other accommodation. All such applications shall state the amount of claimed
overpayment, the reason for the claimed overpayment, and sufficient
documentation to allow the City to verify Grantee's claim. Upon request by the
City, Grantee shall provide any further information that is deemed relevant by the
City. All such applications shall be considered by the City Council, and the City
Council's decision with respect to such applications shall be final.
SECTION 16.
CONTENTS OF CABLE TELEVISION FRANCHISE
(A) The terms and provisions of a Franchise Agreement for the operation
of a Cable System may include, without limitation, the following subject matters:
(1) The nature, scope, geographical area, and duration of the
Franchise.
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(2) The applicable Franchise fee to be paid to the City, including
the percentage amount, the method of computation, and the time for payment.
(3) Requirements relating to compliance with and implementation
of state and federal laws and regulations pertaining to the operation of the Cable
System.
(4) Requirements relating to the construction, upgrade, or rebuild
of the Cable System, as well as the provision of special services, such as outlets for
public buildings, emergency alert capability, and parental control devices.
(5) Requirements relating to the maintenance of a performance
bond, a security fund, a letter of credit, or similar assurances to secure the
performance of the Grantee's obligations under the Franchise Agreement.
(6) Requirements relating to liability Insurance, workers'
compensation insurance, and indemnification.
(7) Additional requirements .relating to consumer protection and
customer service standards, including the resolution of Subscriber complaints and
disputes and the protection of Subscribers' privacy rights.
(8) , Requirements relating to the Grantee's support of local cable
usage, including the provision of Public, Educational, and Government Access
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Channels, the coverage of public meetings and special events, and financial or
technical support for Public, Education, and Governmental Access uses.
(9) Requirements relating to construction, operation, and
maintenance of the Cable System within the Public Rights-of-Way, including
compliance with all applicable building codes and permit requirements, the
abandonment, removal, or relocation of facilities, and compliance with FCC
technical standards.
(10) Requirements relating to recordkeeping, accounting procedures,
reporting, periodic audits, and performance reviews, and the inspection of
Grantee's books and records.
(II) Acts or omissions constituting material breaches of or defaults
under the Franchise Agreement, and the applicable penalties or remedies for those
breaches or defaults, including fines, penalties, liquidated damages, suspension,
revocation and termination.
(12) Requirements relating to the sale, assignment, or other transfer
or change in control of the Franchise.
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(13) The Grantee's obligation to maintain continuity of service and
to authorize, under certain specified circumstances, the City's operation and
management of the Cable System.
(14) 'Such additional requirements, conditions, policies, and
procedures as may be mutually agreed upon by the parties to the Franchise
Agreement and that will, in the judgment of the City, best serve the public interest
and protect the public health, welfare, and safety.
SECTION 17. BREACH OF FRANCHISE; GROUNDS FOR ASSESSMENT
OF PENALTIES AND FRANCHISE REVOCATION.
(A) In addition to all other rights and powers retained by the City under
this chapter or otherwise, the City reserves the right to terminate any Franchise and
all rights and privileges of Grantee, revoke any Franchise, or assess damages or
penalties against Grantee, in the event of any material breach of its terms and
conditions. A material breach by Grantee shall include, but not be limited to, the
following:
(1) Violation of any material prOVISIOn of this chapter, the
Franchise Agreement or any material rule, order, regulation or directive issued in
connection with the Franchise;
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(2) Evasion of any material provlslOn of this chapter or the
Franchise Agreement, or the practice of fraud or deceit upon the City or its
Subscribers and customers;
(3) Material misrepresentation of fact in an application for a new
Franchise, renewal or transfer of a Franchise, whether by act or omission;
(4) Failure to pay any Franchise fee when said payment is due;
(5) Failure to restore Cable Service after 72 consecutive hours of
interrupted Cable Service, except in the event that the City approves in writing a
longer period of interruption after making a determination that there exists just
cause for such longer period of interruption;
(6) Failure to provide at least 80% of subscribed Cable Services
over the Cable System for a period of five days, except in the event that the City
approves in writing a longer period of interruption after making a determination
that there exists just cause for such longer period of interruption;
(7) Failure to substantially meet customer servIce standards
established in the Franchise over any consecutive three-month period of time; per
Section 49
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(8) Failure to initiate or Complete System Construction, or
reconstruction within the time set forth in the Franchise, unless the City Council
expressly approves the delay by motion or resolution, due to the occurrence of
conditions beyond Grantee's control;
(9) Failure to provide or maintain in fuIl force and effect at all
times any insurance coverage, letter of credit or bonds required by the Franchise
Agreement;
(10) Violation of orders or rulings of any regulatory body having
jurisdiction over Grantee relating to the Franchise;
(11) Failure to provide, upon written request, data, documents,
reports or information; and
(12) Failure to pay debts and obligations as they mature in
accordance with normal business practices; assignment of Grantee or its assets for
the benefit of its creditors; dissolution, liquidation or ceasing to conduct business;
application by Grantee for (or consent by Grantee to) the appointment of a
receiver, trustee, liquidator; or the filing of a bankruptcy petition by Grantee to the
extent permitted by federal law or the sale of all or substantiaIly all of Grantee's
assets.
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SECTION 18. PROCEDURE FOR ADJUDICATION OF BREACHES OF
THE FRANCHISE.
(A) Prior to imposing any liquidated damages, sanction or penalty upon
Grantee, including termination or revocation of the Franchise, the City Manager,
shall demand in writing that Grantee cure such breach or diligently commence a
cure of such breach within a specified period, which period shall not be less than
30 days following notification. However, only 15 days notice shall be required in
the case of failure to pay monies due. In addition, the City may, in an emergency,
prescribe a notice less than 30 days consistent with the nature of the emergency.
An emergency under this subsection (A) means an occurrence or condition that
creates an actual or imminent danger to life or property.
(B) Should Grantee fail to provide sufficient written proof within the
specified cure period that corrective action has been taken, or that corrective action
is being actively and expeditiously pursued by Grantee, then the City Manager
may, in his or her sole discretion, elect to either place the issue of termination,
revocation or other penalty before an appropriate hearing officer for his or her
determination pursuant to section 19 or the City Council pursuant to section 20 of
this Ordinance.
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(C) The City Council, the City Manager, or any hearing officer
authorized to act pursuant to this ordinance shall have the power to issue
subpoenas in order to carry out the fact-finding activities authorized by this
Ordinance. The process for the issuance and enforcement of such subpoenas shall
be governed by the California Code of Civil Procedure:
SECTION 19.
HEARING OFFICER PROCEDURES.
(A) The City Manager may, at his or her sole discretion and in lieu of the
procedures set forth in Section 20, refer to a hearing officer any controversy or
claim arising out of or relating to the Franchise or its existence, construction,
interpretation, performance, enforcement, operation, breach, continuance or
termination. Such hearing proceedings shall be initiated by the City Manager by
written notice to Grantee.
(B) The procedures set forth in Section 49, subdivisions (B)(2)(a)-(l)
inclusive shall govern the conduct of such administrative hearing.
(C) The hearing officer shall be vested with quasi-judicial authority, and
shall be authorized to:
(1) order Grantee to undertake remedial action to cure any breach
of its obligations under its Franchise,
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(2) assess liquidated damages and/or levy a penalty upon Grantee
in accordance with the terms of this chapter and the Franchise Agreement,
(3) determine that Grantee has not violated any of its obligations
under its Franchise and/or
(4) recommend to the City Council grounds for the revocation of
the Franchise.
(D) Failure of Grantee to fully and promptly comply with an order of a
hearing officer shall be deemed a material breach of the Franchise.
SECTION 20.
CITY COUNCIL HEARING PROCEDURES.
(A) In the event the City Manager elects, in his sole and absolute
discretion to refer a matter to the City Council pursuant to Section 18, the City
Council shall hold a public hearing to determine whether Grantee materially
breached the Franchise and the appropriate penalty to be imposed, if any, as a
result of such breach. The City shall cause to be served upon Grantee, at least ten
days prior to the date of such hearing, written notice of any intent to terminate the
Franchise and the time and place of the hearing. Grantee may appear at such
hearing and present such evidence, orally or in writing that it deems relevant and
appropriate to the Council's deliberations. Based on the evidence presented at the
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hearing, the City Council shall determine, in writing, in its discretion whether or
not a material breach occurred and whether to terminate the Franchise or take other
appropriate action.
(B) Should the City Council find that there has been a material breach of
the Franchise, but that termination of the Franchise is inappropriate, then the
Council may assess and levy or impose such other relief as the Council deems
appropriate, including, but not limited to, any relief specified in Sections 19(C), 21
or any combination thereof.
(C) The City shall cause Grantee to be served with written notice of any
action taken by the City Council following such public hearing. The decision of
the City Council as to such matters shall be final, but may be challenged by
Grantee in a court of competent jurisdiction.
(D) Nothing herein is intended to limit the City Council's right to make
other determinations that are reasonably related to the Franchise, or to seek any
other appropriate relief to which the City may be entitled, at law or equity, as a
result of any breach by Grantee of its obligations under the Franchise.
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SECTION 21.
PENALTIES FOR BREACH OF THE FRANCHISE.
The hearing officer or City Council may impose the following penalties for
any breach of the Franchise, except any breach of Subscriber service standards,
which shall be governed by Section 49 of this Ordinance:
(A) Up to $500 for each day of each material breach, or such other amount
provided in the Franchise Agreement.
(B) For a second material breach of the same nature occurring within 12
months where a fine or penalty was previously assessed, $1,000 for each day of
each material breach.
(C) For a third or further material breach of the same nature occurring
within 12 months of the first such breach, where a fine or penalty was previously
assessed, up $2,000 for each day of each material breach.
SECTION 22.
AL TERNA TIVE REMEDIES.
The remedies provided in this chapter are cumulative and in addition to all
other rights the City may have at law or equity or under the Franchise Agreement,
including but not limited, to liquidated damages, which remedies may be exercised
at any time. In no event shall the amount of any insurance, bond, letter of credit or
any other security instrument be construed to limit Grantee's liability for damages.
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SECTION 23.
SYSTEM.
REMOVAL AND ABANDONMENT; PURCHASE OF
(A) Subject to applicable law, in the event that a Franchise is tenninated,
revoked, or is not renewed upon expiration, then Grantee shall, upon deman~ of
the City, and at its sole expense, promptly remove all or any portion of its Cable
System. In removing its Cable System, Grantee shall restore all streets to the
City's standard specifications and repair any damage to utilities or other
infrastructure caused by such removal. The liability, indemnity, insurance,
security fund and bonds required under the Franchise shall continue in full force
and effect until such removal is accepted as complete by the City.
(B) Subject to applicable law, in the event that a Franchise is not renewed
and the City acquires ownership of a Cable System or effects a transfer of
ownership of a Cable System to another Person, any such acquisition or transfer
shall be at fair market value, detennined on the basis of the Cable System valued
as a going concern, but with no value allocated to the Franchise itself. If a
Franchise is revoked for cause and the City acquires ownership of the Cable
System or effects a transfer of ownership of the Cable System to another Person,
any such acquisition or transfer shall be at an equitable price. The value of a Cable
System (fair market value or equitable price) shall be detennined by an appraisal
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committee consisting of three disinterested appraisers. The City and Grantee shall
each select one appraiser, and the two selected appraisers shall agree upon and
appoint a third appraiser.
(C) If a Grantee's plant, or a portion thereof, is deactivated for a
continuous period of 30 days, (except for reasons beyond the Grantee's control),
and without prior written notice to and approval by City, then the Grantee must, at
City's option and demand, and at the sole expense of the Grantee, promptly remove
all of the Grantee's property from any streets or other Public Rights-of-Way. The
Grantee must promptly restore the streets or other public areas from which its
property, including Distribution Facilities, has been removed to the condition
existing prior to the Grantee's use.
(D) City may, upon written application by a Grantee, approve the
abandonment in place by a Grantee of any property, under such terms and
conditions as City may approve. Upon City-approved abandonment in place of
any property, the Grantee must cause to be executed such instruments as the City
may prescribe in order to transfer and convey ownership of the abandoned property
to the City.
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SECTION 24.
RECEIVERSHIP AND FORECLOSURE.
(A) Subject to applicable provIsIons of the United States Bankruptcy
Code, any Franchise shall, at the option of the City, cease and terminate 120 days
after the appointment of a receiver or trustee to take over and conduct the business
of Grantee whether in a receivership, reorganization, bankruptcy or other action or
proceeding unless such receivership or trusteeship shall have been vacated prior to
the expiration of said 120 days, or unless:
(I) Such receiver or trustee shall have, within 120 days after his or
her election or appointment, fully complied with all terms of the Franchise and
remedied all breaches of the Franchise or provided a plan for the remedy of such
breaches which is approved in writing by the City; and,
(2) Such receiver or trustee shall, within said 120 days, execute an
agreement duly approved by the Court having jurisdiction, under which such
receiver or trustee agrees to be bound by each and every term, provision and
limitation of the Franchise.
(B) Upon the foreclosure or other judicial sale of all or a substantial part
of a Cable System, Grantee shall notify the City of such fact, and such notification
shall be treated as a notification that a change in ownership of Grantee has taken
place and the provisipns of this chapter governing such changes shall apply.
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SECTION 25.
UNDERGROUNDING.
(A) At no time shall Grantee place cable underground without appropriate
authorization from the City.
(B) The Cable System shall be placed underground in all portions of the
Franchise area where either telephone or electric lines are underground. Whenever
the poles on which the Cable System is constructed are eliminated, Grantee shall
concurrently replace its aerial facilities with underground facilities. At no time
shall the Cable System be the only aerial facility in any given area.
(C) Where the Cable System is installed underground, line extenders,
amplifiers, taps, power supplies, traps and related electronic equipment and
components may be placed in appropriate housings above the surface of the ground
to the extent that the method employed is compliant with any and all applicable
City, state, federal or other regulations, and consistent with any other generally
applicable guidelines, policies or procedures that may, from time to time, be
adopted by the City or other applicable government agency. Grantee shall provide
a procedure for undergrounding taps and pedestals, the cost of which the
Subscriber will bear, and relocating the taps and pedestals within the technical
constraints of the Cable System.
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SECTION 26.
USE OF POLES.
Grantee shall be authorized to utilize existing poles, conduit, and other
facilities of a public utility, but shall not be authorized to construct or install any
new, different, or additional poles in any City streets without prior written approval
by the City.
SECTION 27.
CONSTRUCTION STANDARDS.
Grantee shall install and maintain its WIres, cables, fixtures, and other
equipment in accordance with applicable California Public Utilities Commission
pole attachment standards, electrical codes and industry standards of the Cable
television industry generally applicable to the type of Cable System which Grantee
has constructed, owns or operates any applicable pole agreements, and all
Franchise Agreement requirements. Grantee shall adhere to all building and
zoning regulations currently in force or hereafter enacted. Grantee shall repair and
restore any cuts and/or trenching in the roadway or sidewalks to City standards.
Grantee shall locate and maintain its lines, cables, and other appurtenances, on
public property, in such a manner as to cause no umeasonable interference with the
use of such public property by any Person.
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J
SECTION 28.
APPROVALS.
The City Engineer shall approve the location and method of construction of
all underground facilities and equipment located on Public Right-of-Ways
(including any above-grade portion of such facilities and equipment). The City
Engineer also shall approve the location and installation of all new aerial facilities.
All construction shall be subject to City permit and inspection fees as may be
required by other applicable laws or regulations.
SECTION 29.
SUBMISSION OF DRAWINGS.
Grantee shall file with the City "as-built" drawings of the entire Cable
System, excluding technical specifications. Additionally, within 30 days after
completion of any material modification of the Cable System (e.g., a system
rebuild or Distribution Facility replacement), Grantee shall file with the City "as-
built" drawings, excluding technical specifications, of the modified Cable System.
The City may require that the "as-built" drawings be submitted in an electronic
format specified by the City.
SECTION 30.
RELOCATION OF FACILITIES AND EQUIPMENT.
(A) Grantee shall remove or relocate at its sole cost any facilities installed,
used or maintained in connection with the Franchise if and when such removal or
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relocation is made necessary by any project. For purposes of this section, the word
"project" means any change of grade, alignment or width of any public street, way,
alley or place, including but not limited to, the construction of any subway or
viaduct, that the City may initiate, either by or through itself or any redevelopment
agency, community facility district, assessment district, undergrounding district,
reimbursement agreement or generally applicable impact fee program.
(B) In the event that such removal or relocation is required, Grantee shall
commence physical fieldwork on the removal or relocation on or before 120 days
after written notice of such requirement is provided by the City Manager. If,
despite its reasonable efforts, Grantee is unable to commence removal or relocation
within such period, Grantee shall provide the City Manager with written notice
explaining in detail the reasons for the delay and a date certain upon which such
removal or relocation is expected to commence. Grantee shall diligently proceed
and promptly complete all such removal or relocation after it is commenced.
SECTION 31.
MAINTENANCE.
Should Grantee fail, refuse or neglect to properly perform any maintenance
or construction work required by the Franchise following due notice from the City
and a reasonable opportunity to cure as provided for under this chapter, or should
Grantee fail to commence performance of such work within the required period of
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time, or fail to diligently proceed and promptly complete such work thereafter, the
City Manager may, upon five days prior written notice to Grantee (except in cases
of emergency), cause such work or other act to be completed in whole or in part by
the City forces or others, and upon so doing shall submit to Grantee an itemized
statement of the costs thereof. Grantee shall pay to the City the entire amount due,
without offset or deduction, within thirty (30) days from the date of such statement.
SECTION 32.
OPERATIONAL STANDARDS
(A) Grantee must maintain the necessary facilities, equipment, and
personnel to comply with the following consumer protection and service standards
under "normal operating conditions" as that term is defined below in subsection
(D):
(1) Provide sufficient toll-free telephone line capacity during normal
business hours to ensure that telephone calls are answered promptly. Telephone
answer time by a customer service representative, including wait time, shall not
exceed 30 seconds when the connection is made. Callers who must be transferred
may not be required to wait more than 30 seconds before being connected to a
service representative.
(2) Under normal operating conditions, callers may not receive a busy
signal more than three percent of the time, measured on a quarterly basis.
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(3) Provide emergency toll-free telephone line capacity on a 24-hour
basis, including weekends and holidays. After normal business hours, the
telephone calls may be answered by a service or an automated response system,
including an answering machine. Calls received after normal business hours must
be responded to by a trained company representative on the next business day.
(4) Provide a conveniently-located local business and service or payment
office open during normal business hours at least eight hours daily on weekdays,
and at least four hours weekly on evenings or weekends, and adequately staffed
with trained customer service representatives to accept subscriber payments and to
respond to service requests, inquiries, and complaints.
(5) Provide an emergency system maintenance and repair staff, capable of
responding to and repairing major system malfunctions on a 24-hour per day basis.
(6) Maintain a trained installation staff to provide servIce to any
subscriber requiring a standard installation within seven days after receipt of a
request, or such longer time as may be requested by the subscriber, in all areas
where trunk and feeder cable have been activated. "Standard installations" are
those that are located up to 150 feet from the existing distribution system, unless
otherwise defined in the franchise agreement.
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(7) The Grantee must schedule, within a specified four-hour time period
Monday through Saturday (legal holidays excluded), all appointments with
subscribers for installation of service, service calls, and other activities at the
subscriber's location. The Grantee may schedule installation and service calls
outside of normal business hours for the convenience of the subscriber. The
Grantee may not cancel an appointment with a subscriber after the close of
business on the business day prior to the scheduled appointment. If a Grantee
representative is delayed in keeping an appointment with a subscriber and will not
be able to honor the scheduled appointment, the subscriber must be contacted prior
to the time of the scheduled appointment, and the appointment must be
.rescheduled, as necessary, at a time that is convenient for the subscriber. The
Grantee must undertake appropriate quality control measures to ensure that the
customer is satisfied with the work.
(8) Subscribers who have experienced a late or a missed appointment due
to the fault of the Grantee will either receive an installation free of charge or a $20
credi t.
(9) Upon a subscriber's request, the Grantee will arrange for pickup or
replacement of converters or other equipment provided by the Grantee at the
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subscriber's address within 14 days after the request is made if the subscriber is
mobility-limited.
(B) Under normal operating conditions, the standards of subparagraphs
(1), (2), (3), (4) and (7) above must be met notless than ninety percent of the time,
measured on a quarterly basis.
(C) As used in this paragraph (A), the term "normal business hours"
means those hours during which most similar businesses in the community are.
open to serve customers. In all cases, "normal business hours" must include some
evening hours at least one night per week and/or some weekend hours.
(D) As used in this paragraph (A), the term "normal operating conditions"
means those service conditions that are within the control of the cable operator.
Conditions that are not within the control of the cable operator include, but are not
limited to, natural disasters, civil disturbances, power outages, telephone network
outages, and severe or unusual weather conditions. Conditions that are ordinarily
within the control of the cable operator include, but are not limited to, special
promotions, pay-per-view events, rate increases, regular peak or seasonal demand
periods, and maintenance or upgrade of the cable system.
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SECTION 33.
SERVICE STANDARDS
(A) The Grantee will render efficient service, make repairs promptly, and
interrupt service only for good cause and for the shortest time possible. Except in
emergency situations, scheduled interruptions will occur during a period of
minimum use of the cable system, preferably between midnight and 6:00 a.m.
Unless the scheduled interruption lasts for no more than two hours and occurs
between midnight and 6:00 a.m. (in which event 24-hours prior notice must be
given to the City), 48-hours prior notice must be given to subscribers.
(B) The Grantee will maintain a repair force of technicians who will
respond to subscriber requests for service within the following time frames:
(1) For a system outage: Within two hours, including weekends, of
receiving subscriber calls or requests for service that by number identify a system
outage of sound or picture of one or more channels, affecting five or more
subscribers of the system.
(2) For an isolated outage: Within 24-hours, including weekends, of
receiving requests for service identifying an isolated outage of sound or picture for
one or more channels.
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(3) For inferior signal quality: No later than the following business day,
excluding Sundays and holidays, after a request for service identifying a problem
concerning picture or sound quality.
(C) The Grantee will be deemed to have responded to a request for service
under the provisions of this paragraph (B) when a technician arrives at the service
location and begins work on a problem that cannot be corrected from a remote
location. If a subscriber is not home when the technician arrives, the technician
must leave written notification of arrival.
(D) The Grantee may not charge for the repair or replacement of defective
or malfunctioning equipment provided by the Grantee to subscribers, unless the
defect or malfunction was caused by the subscriber.
(E) The Grantee must determine the nature of the problem within 24
hours after commencing work and resolve all cable system related problems within
three business days, ~nless technically infeasible.
SECTION 34.
BILLING AND INFORMATION STANDARDS
(A) Subscriber bills must be clear, concise, and understandable. Bills
must be fully itemized, with itemizations including, but not limited to, basic and
premium service charges and equipment charges. Bills also must clearly delineate
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all activity during the billing period, including optional charges, rebates, and
credi ts.
(B) The first billing to a subscriber after a new installation or service
change must be prorated based upon when the new or changed service
commenced. Subscribers must not be charged a late fee or otherwise penalized for
any failure attributable to the Grantee, including the failure to timely or correctly
bill the subscriber.
(C) In case of a billing dispute, the Grantee must respond in writing to a
written complaint from a subscriber within 10 days after receiving the complaint at
the office specified on the billing statement for receiving that complaint.
(D) Upon request by a subscriber, credits or refunds must be provided by
Grantee to subscribers who experience an outage, interruption, or disconnection of
service of four or more consecutive hours, provided that such loss of service is
neither caused by the subscriber nor attributable to scheduled repairs, maintenance,
or construction in circumstances where Grantee has provided advance written
notice to a subscriber, and the loss of service does not exceed the time period
specified by Grantee. For subscribers terminating service, credits or refunds must
be issued promptly, but no later than 30 days after the return of any Grantee-
supplied equipment.
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(E) The Grantee must provide written information on each of the
following matters at the time of the installation of service, at least annually to all
subscribers, and at any time upon request:
(1) Products and services offered.
(2) Prices and options for programmmg servIces and conditions of
subscription to programming and other services.
(3) Installation and service maintenance policies.
(4) Instructions on the use of the cable service.
(5) Channel positions of programming carried on the system.
(6) Billing and complaint procedures, including the address and telephone
number of the City's office designated for dealing with cable-related issues.
(7) Consumer protection and servIce standards and penalties for
noncompliance.
(F) Subscribers must be notified of any changes in rates, programming
services, or channel 'positions as soon as possible through announcements on the
cable system and in writing. Notice must be given to subscribers a minimum of30
days in advance of those changes if the change is within the control of the Grantee.
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In addition, Grantee will endeavor to notify the City of those changes at least five
working days before subscribers are notified.
(G) The Grantee must maintain a public file containing all notices
provided to subscribers under these consumer protection and service standards and
all published promotional offers made by Grantee to subscribers. These
documents must be maintained for a minimum period of two years.
SECTION 35. VERIFICATION COMPLIANCE WITH STANDARDS
(A) Upon 30 days prior written notice, the City may require the
Grantee to provide a written report demonstrating its compliance with any of the
consumer service standards specified in this section. The Grantee must provide
sufficient documentation to enable the Grantor to verify compliance.
. (B) A repeated and verifiable pattern of noncompliance with the
consumer protection and service standards of this section, after the Grantee's
receipt of written notice and an opportunity to cure, may be deemed a material
breach of the franchise agreement.
SECTION 36.
SUBSCRIBER COMPLAINTS AND DISPUTES
(A) The Grantee must establish written procedures for receiving, acting
upon, and resolving subscriber complaints without intervention by the City. The
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written procedures must prescribe the manner in which a subscriber may submit a
complaint, either oral1y or in writing, specifying the subscriber's grounds for
dissatisfaction. The Grantee must file a copy of these procedures with the City.
These procedures must include a requirement that the Grantee respond in writing
to any written complaint from a subscriber within 10 days after receiving the
complaint at the office specified on the bil1ing statement for receiving that
complaint, as provided for above in Section 32(A)(4).
. ,
(B) Upon request, and subject to applicable law protecting subscriber
privacy rights, the City has the right to review the Grantee's response to subscriber
complaints.
(C) Al1 subscribers have the right to continue receiving service so long as
their financial and other obligations to the Grantee are honored. If the Grantee
elects to rebuild, modify, or sel1 the system, or if the City gives notice of intent to
tenninate or not to renew the franchise, the Grantee must act so as to ensure that al1
subscribers receive service while the franchise remains in force.
(D) Upon a change of control of the Grantee, or if a new operator acquires
the cable system, the original Grantee must cooperate with the City, the new
Grantee, or the new operator in maintaining continuity of service to al1 subscribers.
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During that transition period, the Grantee is entitled to the revenues derived from
its operation of the cable system.
SECTION 37. DISCONNECTION/DOWNGRADES
(A) A subscriber may terminate or downgrade service at any time,
and the Grantee must promptly comply with the subscriber's request within seven
days or at any later time requested by the subscriber. No period of notice prior to
voluntary termination or downgrade of service may be required of subscribers.
Grantee will impose no charges for the voluntary termination or downgrade of
service unless a visit to the subscriber's premises is required to remove a converter
box or other equipment or property owned by Grantee. Grantee may, in
accordance with applicable law, charge a fee to downgrade service if a service call
is required.
(B) The Grantee may disconnect a subscriber's servIce In
compliance with paragraphs (i), (j), and (k) of Section 53088.2 of the California
Government Code. If service is disconnected for nonpayment of past due fees or
charges, the Grantee must promptly reinstate service upon payment in full by the
subscriber of all such fees and charges, including late charges.
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(C) Notwithstanding the requirements of subsection (B) above, the
Grantee may immediately disconnect service to a subscriber if the subscriber is
damaging or destroying the Grantee's cable system or equipment.
(D) The Grantee may also disconnect service to a subscriber when it
causes signal leakage exceeding federal limits. If service is disconnected, the
Grantee will immediately resume service without charge upon the satisfactory
correction of the signal leakage problem if the signal leakage problem is
attributable to the Grantee.
(E) The Grantee may also disconnect servIce III case where
customers are stealing servIce or have threatened Grantee's personnel with
physical violence.
(F) Upon termination of service to a subscriber, the Grantee will
remove its equipment from the subscriber's premises within 30 days. The
equipment will be deemed abandoned if it is not removed within such time period
unless the Grantee has been denied access to the subscriber's premises.
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SECTION 38.
NEGATIVE OPTION BILLING PROHIBITED
No charge may be imposed for any service or equipment that the subscriber
has not affirmatively selected. Payment of the regular monthly bill will not by
itself constitute an affirmative selection.
SECTION 39.
DEPOSITS
Grantee may require a reasonable, nondiscriminatory deposit on equipment
provided to subscribers. Such deposits must be placed in an interest-bearing
account. The deposit must be returned, with interest earned to the date of
repayment, within 30 days after the equipment is returned to the Grantee.
SECTION 40.
PARENTAL CONTROL OPTIONS
Grantee must provide parental control devices at no charge to all subscribers
who desire to block the video or audio portion of any pay channels providing adult
programming that the subscriber finds objectionable. For other programming, such
devices will be provided at a reasonable charge to the subscriber.
SECTION 41. ADDITIONAL REQUIREMENTS
(A) All officers, agents, and employees of the Grantee, or of its
contractors or subcontractors, who, in the normal course of work come into contact
with members of the public, or who require entry onto subscribers' premises, must
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display a photo- identification card. The Grantee must account for all
identification cards at all times. All vehicles of the Grantee or its subcontractors
must be clearly identified as vehicles engaged in providing services for the
Grantee.
(B) Additional standards relating to service, consumer protection,
and response by the Grantee to subscriber complaints not otherwise provided for in
this section may be adopted by ordinance, and the Grantee must comply with those
standards in the operation of the cable television system. A verified and
continuing pattern of noncompliance may be deemed a material breach of the
franchise agreement, provided that the Grantee receives written notice and an
opportunity to cure before any penalty or other remedy is imposed.
SECTION 42. PENALTIES FOR NONCOMPLIANCE
(A) Purpose
The purpose of this paragraph is to authorize the imposition of monetary
penalties for the violation of the customer service standards established by this
Ordinance. The imposition of penalties authorized by this section 42 will not
prevent the City or any other affected party from exercising any other remedy to
the extent permitted by law, including, but not limited to, any judicial remedy as
provided below in subsection (B)(4) or otherwise by this Ordinance.
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(B) Administration and Appeals.
(I) The City Manager or the City Manager's designee is authorized to
administer this section 42. Decisions by the City Manager to assess monetary
penalties against the Grantee must be in writing and must contain findings
supporting the decisions. The written decision shall be filed with the City Clerk
and a copy thereof shall be served on the Appellant in accordance with Section
1094.6 of the California Code of Civil Procedure.
(2) If the Grantee or any interested person ("Appellant") is aggrieved by a
decision of the City Manager made pursuant to this Section, the aggrieved party
may, within 10 days of the written decision, appeal that decision in writing to the
City Clerk. Such appeal shaH be in a form prescribed by the City Clerk. The
appeal letter must be accompanied by the fee established by the City Council for
processing the appeal. The City Clerk will refer the matter to the City Manager
who wiH initiate the administrative hearing process outlined below:
(a) The hearing officer shaH be selected by the City Manager and
compensated for the time expended in providing such service based upon a written
agreement for that purpose. The hearing officer's employment or compensation
shaH not be based on the outcome rendered by the hearing officer. If the appellant
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so elects in writing prior to the hearing, the appellant shall be entitled to pay for
one half (1/2) of the costs of the services of the hearing officer.
(b) The hearing shall be conducted by the hearing officer on the date,
time and place specified by the hearing officer. The hearing shall proceed solely on
the. issues or defenses raised in the request for a hearing filed by the Appellant; and
all matters not contested in said request shall be deemed admitted.
(c) The Appellant shall have the burden to establish, by a preponderance
of the evidence, that either: (I) the City Manager has proceeded without, or in
excess of jurisdiction; (2) there was not a fair trial; or (3) there was any prejudicial
abuse of discretion. Abuse of discretion is established if the City Manager has not
proceeded in the manner required by law, the decision is not supported by the
findings, or the findings are not supported by the evidence. The City Manager's
written decision and findings shall be admitted into evidence and shall constitute
prima facie evidence of all matters contained therein. The parties may present
such other evidence and reports as may be necessary or helpful to the hearing
officer to resolve the issues raised by the citee.
(d) The parties shall be given the opportunity to testify and to present
evidence relevant to the matters raised in the appeal.
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(e) The City Manager's written decision and findings, and other reports
prepared by the City Manager, or at his or her request, concerning the alleged
violation or violations or their attempted correction shall be accepted by the
hearing officer as prima facie evidence of the violation or violations.
(f) The hearing shall be conducted informally and the rules of evidence
need not be followed; provided however that the decision of the hearing officer on
any material issue may not be based upon hearsay evidence alone. The hearing
officer may adopt such supplementary rules. of procedure and evidence as may be
useful in a determination of the issues involved, to the extent such rules are not
otherwise provided for herein.
(g) The failure of the Appellant to appear at the hearing shall constitute a
waiver of his or her contest to the City Manager's decision and a failure to exhaust
administrative remedies concerning the City Manager's decision. Such failure to
appear shall constitute an admission of the truth of all matters contained in the City
Manager's decision, which shall be ordered in the decision of the hearing officer.
(h) The hearing officer may continue the hearing upon the request of the
Appellant, or the Appellant's representative, or the representative of the City, or on
the hearing officer's own motion, upon a showing of good cause. All continuance
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requests shall be made in writing. If the continuance is granted, a new hearing date
shall be set, which continued hearing date shall be within fifteen days.
(i) After considering all the evidence and testimony submitted at the
heating, the hearing officer shall issue his or her written decision within five
business days following the conclusion of the hearing. The decision of the hearing
officer shall, either uphold or deny the City Manager's decision or any portion
thereof and state the facts and reasons supporting the decision. The hearing officer
also shall order any remedy necessary to effectuate the hearing officer's decision,
including, but not limited to, a revision of the amount of money owed by the
Grantee after due consideration of the circumstances pursuant to subparagraph
(B)(6)(b), below. The written decision shall be filed with the City Clerk and a
copy thereof shall be served on the Appellant in accordance with Section 1094.6 of
the California Code of Civil Procedure.
(j) All decisions and orders of a hearing officer shall become final unless
appealed as provided herein.
(k) The Appellant or the City may seek judicial review of the decision of
the hearing officer by filing an appeal with the Superior Court within ninety (90) in
accordance with applicable law, including the provisions of California Code of
Civil Procedure Section 1094.6. No appeal shall be permitted from a decision
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based upon the failure of the Appellant to appear at the administrative hearing or
upon any other waiver of the administrative hearing by the Appellant.
(l) If an appeal of any decision or order of a hearing officer that ordered
the Appellant to pay any amount due is affirmed by the reviewing court, in whole
or part, the court shall enter an order requiring the Appellant to pay such amount
and said order shall constitute a money judgment.
(3) Schedule of Penalties. The following schedule of monetary
penalties may be assessed against the Grantee for the material violation of the
provisions of the customer service standards set forth in this section, provided that
the violation is within the reasonable control of the Grantee:
(a) The maximum penalty for a first material violation is two
hundred dollars ($200) for each day of the material violation.
(b) For a second material violation of the same nature within
a 12-month period for which the City has provided notice and a penalty has been
assessed, the maximum penalty is five hundred dollars ($500) for each day of the
material violation.
(c) For a third or further material violation of the same
nature within a 12-month period for which the City has provided notice and a
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penalty has been assessed, the maximum penalty is seven hundred fifty dollars
($750) for each day of the material violation.
(4) Judicial Remedy. This paragraph does not preclude any affected party
from pursuing any judicial remedy available to that party without regard to this
paragraph (k).
(5) Notice of Violation. The City must give the Grantee written notice of
any alleged violation of the consumer service standards and allow the Grantee at
least 30 days from receipt of the notice to remedy the specified violation.
(6) Assessment of Monetary Penalties.
(a) If a violation has not been corrected or cured by Grantee within the
time specified by the City, the monetary penalties specified above in subparagraph
(c) may be assessed from the date of delivery to Grantee of the City's written
notice of violation.
(b) In assessing monetary penalties under this paragraph (k), the City
Manager, Hearing Officer, or the City Council, as applicable, may take into
account the nature, circumstances, extent and gravity of the violation and, with
respect to the Grantee, the degree of culpability, any history of prior violations, and
such other matters as may be relevant. If warranted under the circumstances, the
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monetary penalty to be assessed may be less than the maximum penalty amount
specified above in subparagraph (c).
SECTION 43. ADDITIONAL
SERVICES STANDARDS
CONSUMER
PROTECTION
AND
(A) In addition to the consumer protection and service standards that are
specified above in section 32 -section 50, the franchise agreement with a Grantee
may require compliance with the following:
(I) Federal statutes, and the rules, regulations, and orders of the
Federal Communications Commission, including the following:
(a) The provisions of Section 76.309(c) of Title 47 of the
Code of Federal Regulations, as it now exists or may later be amended.
(b) The provisions of Section 76.630 of Title 47 of the Code
of Federal Regulations, as it now exists or may later be amended.
(c) The provisions of Section 551 of Title 47, United States
Code, as it now exists or may later be amended.
(d) The provisions of California Government Code Sections 53054,
et seq., entitled the "Cable Television and Video Provider Customer Service and
Information Act."
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(e) The provisions of California Government Code Section 53088,
et seq., entitled the "Video Customer Service Act."
(f) The provisions of California Civil Code Section l722(b)(1)-(6)
relating to service or repair transactions between cable television companies and
their subscribers.
(g) The provisions of California Penal Code Section 637.5 relating
to subscribers' rights to privacy protection.
(B) The City may, in its discretion, incorporate in a franchise agreement
those customer service and protection standards referenced above in this paragraph
(A) that are the most stringent, and that afford the greatest protection to consumers.
These standards will apply, to the extent authorized by law, to all video, voice, and
data services that are provided by the Grantee to its subscribers within the
franchise service area.
SECTION 44.
EQUIPMENT.
COMPATIBILITY WITH CONSUMER ELECTRONICS
(A) The Grantee shall not scramble or otherwise encrypt signals carried on
the basic service tier. Requests for waivers of this prohibition must demonstrate
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either a substantial problem with theft of basic tier service or a strong need to
scramble basic signals for other reasons.
(B) The Grantee shall comply with equipment compatibility rules and
commercial availability of navigation equipment rules of the FCC.
(C) The Grantee shall offer Subscribers the option to receive an A!B
switch at the time of initial Cable Service installation and shall provide Subscribers
with written information as to how to use such a switch. The Grantee may charge
a reasonable price for said switch. Upon Subscriber request, the Grantee shall
provide an NB switch after the initial installation of Cable Service. If the
Subscriber requests installation of such a switch (to receive broadcast television
without Cable hookup), the Grantee may charge reasonable fees for such
installation and equipment.
SECTION 45.
RATE REGULATION.
The City may regulate a Grantee's rates, charges, and prices to the maximum
extent permitted by law now or at a future time.
(A) Filing of Rates and Charges. Throughout the term of any Franchise
Agreement entered into pursuant to this chapter, Grantee shall maintain on file
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with the City a complete schedule of all rates and charges related to providing
Cable Services under the Franchise, in a fonn satisfactory to the City.
(B) Changes in Rates and Charges. Grantee shall provide written notice
to the City and Subscribers at least thirty (30) days in advance of any proposed
change in rates and charges within the control of Grantee. Such notice shall be
provided in the Subscriber's bill, or in a separate mailing..
(C) Regulation of Equipment for Hearing-Impaired. To the extent
authorized by law, the City reserves the right to require and regulate the
installation or rental of equipment that facilitates the reception of Cable Service by
hearing impaired individuals.
SECTION 46.
BILLING PROCEDURES.
Billing procedures shall be as follows:
(A) , Bills will be clear, concise, and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and premium service
charges and equipment charges. Bills will also clearly delineate all activity during
the billing period, including:
(I) A list of each service or package received for that billing period;
(2) The rate or charge for each service or package received;
,
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(3) The period of time over which said services are billed;
(4) The total charges due for the monthly period, separate from any
previous balance due;
(5) Credits posted during the month;
(i) Credits for service will be issued no later than the Subscriber's next
billing cycle following the determination that a credit is warranted.
(6) A specific date by which payment is required; and
(7) The customer service telephone number to which billing inquiries or
complaints can be directed.
(B) A Grantee's first billing statement after a new installation or service
change shall be prorated as appropriate and shall reflect any security deposit.
(C) A Grantee's billing statement must show a specific payment due date,
and no late payment fee may be imposed on a Subscriber earlier than thirty (30)
calendar days from the due date on the billing statement. Any balance not received
within thirty (30) calendar days of the due date may be assessed a late fee consistent
with this Chapter. Any late fee assessed must appear on the following month's
billing statement.
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(D) A Grantee must notify the Subscriber that he or she can remit payment
In Person at the Grantee's office located in or near the City and inform the
Subscriber of the address of that office.
(E) Every customer who pays his or her bill directly shall have at least
fifteen (15) days from the date of the bill for services is mailed to pay the listed
charges. Customer payments shall be posted promptly. The Grantee shall not
terminate any residential service for nonpayment of a delinquent account without
fifteen (15) days prior written notice. Such notice shall not be mailed until after the
sixteenth (16th) day from the time the bill for services was mailed to the customer.
The Grantee may not assess a late charge earlier than the twenty-second (22nd) day
from the time the bill for services has been mailed.
(F) In case of a billing dispute, the Grantee must respond to a written
complaint from a Subscriber within thirty (30) days.
(G) At the time of the initial complaint, Grantee shall provide written or
verbal notice to customers that in the event of a billing dispute, the Grantee, upon
resolution of the dispute when Grantee is at fault, shall waive a late fee.
(H) Subscribers shall not be charged a late fee or otherwise penalized for
any failure by the Grantee, its employees, or contractors, including failure to timely
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or correctly bill the Subscriber, or failure to properly credit the Subscribers for a
payment made in a timely manner.
(1) Every notice of termination of service shall include: name and address
of Subscriber whose account is delinquent; the amount of the delinquency; the date
by which payment is required in order to avoid termination of service; the telephone
number of the Grantee for additional information and/or to handle complaints or
initiate an investigation concerning service and charges in question.
(J) Service may only be terminated on days and at times in which the
Subscriber can reach a Customer Service Representative of the Grantee either in
Person or by telephone.
(K) The Grantee shall afford each Subscriber of the Cable System with a
right to rescind the Subscriber's ordering of service within three (3) days after
ordering, provided that such right of rescission shall end upon activation of the
service ordered.
(L) The Grantee shall assess any late fees in accordance with California
law. In no event shall a late fee exceed the maximum amount permissible under
California law.
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(M) Any Franchise Agreement entered into pursuant to this chapter may
contain provisions for a discount on basic and Cable programming tiers or any other
Cable Services for Persons with specific income and disability qualifications.
(N) Grantee will set rates for equipment deposits no higher than the actual
replacement value of the equipment for which the deposit is applied. Equipment
deposits shall be promptly returned to Subscribers upon the return in .good working
condition to the Grantee of the equipment for which said deposit was required.
SECTION 47.
REFUNDS.
(A) Refund checks will be issued promptly, but no later than either:
(I) the Subscriber's next billing cycle following resolution of the request
or thirty (30) days, whichever is earlier, or
(2) in cases involving the return of the equipment supplied by the Grantee
if service is terminated for any reason, by the Subscriber's next billing cycle
following resolution of the request or thirty (30) days, whichever is earlier.
(B) If the Grantee does not mail a check for a refund to any Subscriber
disconnecting service with an outstanding credit within the next billing cycle or
thirty days, whichever is earlier, the Subscriber may request and is entitled to
receive a ten dollar ($10.00) payment.
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SECTION 48.
NOTICE OF RATE INCREASES.
Grantee shall provide written notice to the City and Subscribers at least 30
days in advance of the implementation of changes in any of its rates and charges
which are not subject to regulation by the City.
SECTION 49.
NON-DISCRIMINATION AND CUSTOMER PRIVACY.
(A) Service Availability.
(I) No Person, firm or corporation III the existing servIce area of a
Grantee shall be arbitrarily refused service; provided, however, that the Grantee
shall not be required to provide service to any Subscriber who does not pay the
applicable connection fee or monthly service charge hereby authorized.
(2) A Grantee may not require the subscription to any tier other than the
basic service tier as a condition of access to video programming offered on a per
channel or per program basis. A Grantee may not discriminate between Subscribers
to the basic service tier and other Subscribers with regard to the rates charged for
video programming offered on a per channel or per program basis.
(3) A Grantee will abide by all customer privacy requirements of federal
and State law. At least annually, a Grantee shall provide notice in the form of a
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separate, written statement to each Subscriber, which clearly and conspicuously
informs the Subscriber of:
(a) the nature of personally identifiable information collected or to be
collected with respect to the Subscriber and the nature of the use of such
information;
(b) the nature, frequency and purpose of any disclosure, which may be
made of such information, including the identification of the types of Persons to
whom the disclosure may be made;
(c) the period during which such information will be maintained by the
Grantee;
(d) the times and place at which the Subscriber may have access to such
information in accordance with federal and State law; and
(e) the limitations provided in federal and State law with
respect to the collection and disclosure of information bya Grantee
and the right of the Subscriber under law.
(B) Data Collection.
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A Grantee's data collection and dissemination practices regarding
Subscribers shall be in compliance with the Cable Act (including Section 631) and
this Chapter.
(C) Revealing Subscriber Preferences.
(1) A Grantee shall not reveal individual Subscriber preferences, viewing
habits, beliefs, philosophy, creeds or religious beliefs to any third Person, finn,
agency, governmental unit or investigating agency without court authority or prior
written consent of the Subscriber.
(2) Such written consent, if given, shall be limited to a period oftime not
to exceed one (1) year or a tenn agreed upon by the Grantee and Subscriber.
(3) A Grantee shall not condition the delivery or receipt of Cable Services
to any Subscriber on any such consent.
(4) Such a Subscriber may revoke without penalty or cost any consent
previously made by delivering to the Grantee in writing a substantial indication of
his intent to so revoke.
(D) Revealing Subscriber Lists.
A Grantee shall not reveal, or sell, or pennit the release or sale of its
Subscriber list without the prior affinnative written consent of each Subscriber,
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provided that the Grantee may use its Subscriber list as necessary for the
construction, marketing, and maintenance of the Grantee's services and facilities
authorized by its Franchise, and the related billing of Subscribers for Cable
Services. Consistent with applicable law, City may use Grantee's Subscribers list
for the purpose of communication with Subscribers in connection with matters
relating to operation, management, and maintenance of the Cable System.
(E) Other Persons Affected.
This Section shall apply to all of the following as well as to any Grantee:
(1) Officers, directors, employees and agents of the Grantee;
(2) General and limited partners of the Grantee;
(3) Any Person or combination of Persons owning holding or Controlling
five percent (5%) or more of any corporate stock or other ownership interest of the
Grantee;
(4) Any affiliated or subsidiary entity owned or Controlled by the
Grantee, or in which any officer, director, stockholder, general or limited partner or
Person or group of Persons owning, holding or Controlling any ownership interest
in the Grantee, shall own, hold or Control five percent (5%) or more of any
corporate stock or other ownership interest;
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(5) Any Person, firm or corporation acting or serving in the capability of
holding or Controlling company of the Grantee.
SECTION 50.
WRITTEN OR ORAL NOTICE TO ENTER PROPERTY.
Under Normal Operating Conditions, Grantee shall provide written or oral
notice, in light of circumstances, prior to entering any private property.
SECTION 51.
NOTICE REGARDING CHANNEL SCRAMBLING.
Subscribers shall be given at least thirty (30) days written notice of any
scrambling of a channel, and any de-scrambling of a channel(s) containing R-rated
or stronger programming. Subscribers do not need to be notified of blackout
periods required of the Grantee by programmers.
SECTION 52.
TENANT RIGHTS.
It is the City's intent that tenants not be discriminated against in the ability to
subscribe to Cable Services. Grantee shall be required to provide service to tenants
in individual units of a multiple housing facility with all services offered to other
dwelling units within the Franchise Area, so long as the owner of the facility
consents in writing, if requested by Grantee, to the following:
(A) Grantee's providing the service to units of the facility on such terms
and conditions as are reasonable, provided that
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(1) the owner of the facility shall not seek to charge Grantee any fee or
consideration for access to the facility or for the right of providing Cable Service to
the dwelling units within the facility,
(2) Grantee shall not seek to charge the owner of the facility any fee or
consideration for installing such service other than its actual costs as provided for
herein, and
(3) such terms and conditions shall be in compliance with applicable law;
(B) Reasonable access to the prenuses by Grantee for installation,
maintenance, and inspection of the system on the premises;
(C) Reasonable conditions promulgated by Grantee to protect Grantee's
equipment and to encourage widespread use of the system;
(D) The owner shall not discriminate in rental charges, or otherwise,
between tenants who receive Cable Service and those who do not; and
(E) The owner shall provide all easements, rights-of-way, and other rights
of access deemed reasonably necessary or appropriate by Grantee for purposes of
providing Cable television service to the facility.
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SECTION 53.
CONTINUITY OF SERVICE MANDATORY.
(A) Subscribers shall have the right to continue to receive service so long
as their financial and other obligations to Grantee are honored. Grantee shall at all
times, and under all conditions, to the greatest extent economically and technically
possible, maintain continuity of service. In the event of an assignment of the Cable
System, the assignor shall cooperate with the City and the assignee in order to
maintain continuity 01 service to all Subscribers.
(B) In the event Grantee willfully fails to operate the Cable System for a
period of five consecutive days without prior approval of the City, the City may, in
its sole discretion, elect to operate the Cable System or designate an operator until
Grantee restores service under conditions acceptable to the City, or until the City
selects a permanent operator. During the entire period while the City operates the
Cable System on behalf of Grantee, or causes another party to do so, the City shall
be entitled to collect any and all revenues from the operation of the Cable System,
and Grantee shall reimburse the City for all reasonable costs or damages in excess
of the revenues collected by the City that are caused by Grantee's failure to perform.
SECTION 54.
APPLICABILITY.
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The provisions of this chapter apply to an Open Video System Operator that
intends to deliver video programming to consumers in the City over an Open Video
System.
Section 55. APPLICATION REQUIRED.
(A) Before commencing the delivery of Video Programming services to
consumers in the City over an Open Video System, the Open Video System
Operator must file an application with the City. That application must include or be
accompanied by the following, as applicable:
(1) The identity of the applicant, including all Affiliates of the Applicant.
(2) Copies of FCC Form 1275, all "Notices ofIntent" filed under 47 CFR
section 76.1503(b)(I), and the Order of the FCC, all of which relate to certification
of the applicant to operate an Open Video System in accordance with
Section 653(a)(1) of the Communications Act and the FCC's rules.
(3) The area or areas of the City that the applicant desires to serve.
(4) A description of the Open Video System services that will be offered
by the applicant over its existing or proposed facilities.
(5) A description of the transmission medium that will be used by the
applicant to deliver the Open Video System services.
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(6) Information in sufficient detail to establish the applicant's technical
qualifications, experience, and expertise regarding the ownership and operation of
the Open Video System described in the application.
(7) Financial statements prepared in accordance with generally accepted
accounting principles that demonstrate the applicant's financial ability to:
(a) Construct, operate, maintain and remove any new physical
plant that is proposed to be constructed in the City.
(b) Comply with the City's Public, Educational, and Government
Access Channel requirements as specified below in Section 57 B(4).
(c) Comply with the City's requirement that gross revenue fees be
paid in the sum of 5 percent (5%), as specified below in Section 57 (B)(2).
(8) An accurate map showing the location of any existing
telecommunications facilities in the City that the applicant intends to use, to
purchase, or to lease.
(9) If the applicant's operation of the Open Video System
will require the construction of new physical plant in the City, the following
additional information must be provided:
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(a) A preliminary construction schedule and
completion dates.
(b) Preliminary engineering plans, specifications, and
a network map of any new facilities to be constructed in the City, in sufficient
detail to identify:
(i) The location and route requested for the
applicant's proposed facilities.
(ii) The locations, if any, for interconnection
with the facilities of other telecommunications service providers.
(iii) The specific structures, improvements,
facilities, and obstructions, if any, that the applicant proposes to remove or relocate
on a temporary or permanent basis.
(c) The applicant's statement that, in constructing any
new physical plant, the applicant will comply with all applicable ordinances, rules,
and regulations of the City, including the payment of all required permit and
processing fees.
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(10) The information and documentation that is required to be
submitted to the City by a Video Provider, as specified below in paragraph (B) of
Section 59.
(11) Such additional information as may be requested by the
City Manager.
(12) A nomefundable filing fee in an amount established by
resolution of the City Council.
(B) If any item of information specified above in paragraph (A) is
determined under paramount federal or state law to be unlawful, the City Manager
is authorized to waive the requirement that such information be included in the
application.
SECTION 55.
REVIEW OF APPLICATION.
Within 30 days after receipt of an application filed under Section 55
that is deemed to be complete, the City Manager will give written notice to the
applicant of the City's intent to negotiate an agreement setting forth the terms and
conditions under which the operation of the proposed Open Video System will be
authorized by the City. The commencement of those negotiations will be on a date
that is mutually acceptable to the City and to the applicant.
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SECTION 56. AGREEMENT REQUIRED AND FEES.
(A) No Video Programming services may be provided in the City
by an Open Video System operator unless the operator and the City have executed
a written agreement, which may be designated as a Franchise, setting forth the
terms and conditions under which the operation of the proposed Open Video
System will be authorized by the City.
(B) The agreement between the City and the Open Video System
operator may contain terms and conditions that relate to the following subject
matters, to the extent that such terms, conditions, and subject matters are not
preempted by federal statute or regulations:
(1) The nature, scope, and duration of the agreement,
including provisions for its renewal or extension.
(2) The obligation of the Open Video System operator to pay
to the City, at specified times, fees on the gross revenue received by the operator,
as authorized by 47 CFR section 76.1511, in accordance with the following
standards and procedures:
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(a) The amount of the fees on the gross revenue will
be five percent (5%), and will be paid in lieu of the Franchise fees authorized
under Section 622 of the Communications Act.
(b) The term "OVS Gross Revenue" means all gross
revenue as defined in Section 02 and (i) all revenue all carriage revenue received
from unaffiliated video programming providers; and (ii) all other revenue derived
directly or indirectly from or attributable to the operation of Open Video system..
The term "OVS Gross Revenue" does not include revenue, such as Subscriber or
advertising revenue, collected by unaffiliated video programming providers and
other exclusions described in the definition of "Gross Revenues" defined within
Section 02 of this Ordinance
(3) The obligation of the Open Video System operator to
comply with requirements relating to information collection and recordkeeping,
accounting procedures, reporting, periodic audits, and inspection of records in
order to ensure the accuracy of the fees on the OVS Gross Revenue that are
required to be paid as specified above in paragraph (B)(2).
(4) The obligation of the Open Video System operator to
meet the City's requirements with respect to Public, Educational, and
Governmental Access Channel capacity, services, facilities, and equipment, as
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provided for in 47 CFR section 76.1505. In this regard, the following standards
and procedures are applicable:
(a) The Open Video System operator is subject to the
same Public, Educational, and Governmental Access Channel requirements that
apply within the cable television Franchise service area with which its system
overlaps.
(b) The Open Video System operator must ensure that
all Subscribers receive all Public, Educational, and Government Access Channels
within the Franchise service area in which the City's Subscribers are located.
(c) The Open Video System operator may negotiate
with the City to establish the operator's obligations with respect to Public,
Educational, and Government Access Channel capacity, services, facilities, and
equipment. These negotiations may include the City's Franchised cable operator if
the City, the Open Video System operator, and the Franchised cable operator so
desire.
(d) If the Open Video System operator and the City
are unable to reach an agreement regarding the operator's obligations with respect
to Public, Educational, and Government Access channel capacity, servIces,
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facilities, and equipment within the City's jurisdiction, then the following
obligations will be imposed:
(i) The Open Video System operator must
satisfy the same Public, Educational, and Government Access Channel obligations
as the City's Franchised cable operator by providing the same amount of channel
capacity for public, educational, and governmental access and by matching the
City's Franchised cable operator's annual financial contributions in support of
Public, Educational, and Government Access services, facilities, and equipment
that are actually used by the City. For in-kind contributions, such as cameras or
production studios, the Open Video System operator may satisfy its statutory
obligation by negotiating mutually agreeable terms with the City's Franchised
cable operator, so that public, educational, and governmental access services to the
City are improved or increased. If such terms cannot be agreed upon, the Open
Video System operator must pay to the City the monetary equivalent of the
Franchised cable operator's depreciated in-kind contribution, or, in the case of
facilities, the annual amortization value. Any matching contributions provided by
the Open Video System operator must be used to fund activities arising under
Section 611 of the Communications Act.
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(ii) The City will impose upon the Open Video
System operator the same rules and procedures that it imposes upon the Franchised
cable operator with regard to the Open Video System operator's use of channel
capacity designated for Public, Educational, and Government Access Channel use
when that capacity is not being used for such purposes.
(e) The City's Franchised cable operator is required
under federal law to permit the Open Video System operator to connect with its
Public, Educational, and Government Access Channel feeds. The Open Video
System operator and the Franchised cable operator may decide how to accomplish
this connection, taking into consideration the physical and technical characteristics
of the cable and the Open Video Systems involved. If the Franchised cable
operator and the Open Video System operator cannot agree on how to accomplish
the connection, the City has the right to decide. The City may require that the
connection occur on City-owned property or on Public Rights-of-Way.
(f) All costs of connection to the Franchised cable
operator's Public, Educational, and Government Access Channel feed must be
borne by the Open Video System operator. These costs will be counted towards
the Open Video System operator's matching financial contributions set forth above
in subparagraph (d)(i).
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(g) The City will not impose upon the Open Video
System operator any Public, Educational, or Government Access Channel
obligations that are more favorable or less burdensome than those imposed upon
the Franchised cable operator.
(h) If there is no existing Franchised cable operator,
the provisions of 47 CFR section 76.1505(d)(6) will be applicable in determining
the obligations of the Open Video System operator.
(i) The Open Video System operator must adjust its
system to comply with new Public, Education, and Access Channel obligations
imposed on the City's Franchised cable operator following a renewal of the cable
television Franchise; provided, however, that the Open Video System operator will
not be required to displace other programmers using its Open Video System to
accommodate Public, Educational, and Government Access Channels. The Open
Video System operator must comply with such new Public, Educational, and
Government Access Channel obligations whenever additional capacity is or
becomes available, whether it is due to increased channel capacity or to decreased
demand for channel capacity.
(5) If the City and the Open Video System operator cannot
agree on the application of the FCC's rules regarding the Open Video System
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operator's obligations to provide Public, Educational, and Government Access
Channel under the provisions of subsection (4) set forth above, then either party
may file a complaint with the FCC in accordance with the dispute resolution
procedures set forth in 47 CFR section 76.1514. No agreement will be executed by
the City until the dispute has been finally resolved.
(6) If the Open Video System operator intends to maintain an
institutional network, as defined in Section 611(f) of the Communications Act, the
City will require that Educational and Government Access Channels be designated
on that institutional network to the same extent that those channels are designated
on the institutional network of the City's Franchised cable operator. In addition, to
the extent authorized by federal law, the Open Video System operator may be
required by the City to satisfy the same financial obligations and other
requirements that are imposed upon the Franchised cable operator to support data-
transmission and related services that are provided by the institutional network.
(7) The authority of an Open Video System provider to
exercIse editorial control over any Public, Educational, or Government use of
channel capacity will be restricted in accordance with the provisions of 47 CFR
section 76.1505(f).
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(8) The obligation of the Open Video System operator to
comply with all applicable federal, state, and local statutes, ordinances, and
regulations relating to customer service standards, including the Cable Television
and Video Customer Service and Information Act (Government Code ~~ 53054, et
seq.), the Video Customer Service Act (Government Code ~~ 53088, et seq.), and
Section 18.04.050 of Chapter 18.04 of this title.
(9) If a new physical plant is proposed to be constructed
within the City, the obligation of the Open Video System operator to comply with
the following rights-of-way use and management responsibilities that are also
imposed by the City upon other telecommunications service providers in a
nondiscriminatory and competitively neutral manner:
(a) Compliance with all applicable City codes,
including applications for excavation, encroachment, and construction permits and
the payment of all required permit and inspection fees.
(b) The coordination of construction activities.
(c) Compliance with established standards and
procedures for constructing lines across private property.
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(d) Compliance with all applicable Insurance and
indeInnification requirements.
(e) The repaIr and resurfacing of construction-
damaged streets.
(f) Compliance with all public safety requirements
that are applicable to telecommunications service providers using public property
or Public Rights-of-Way.
(10) Acts or omissions constituting breaches or defaults of the
agreement, and the applicable penalties, liquidated damages, and other remedies,
including fines or the suspension, revocation, or termination of the agreement.
(11) Requirements relating to the sale, assignment, or transfer
of the Open Video System.
(12) Requirements relating to the Open Video System
operator's compliance with and implementation of state and federal laws, rules, and
regulations pertaining to the operation of the Open Video System.
(13) Such additional requirements, conditions, terms,
policies, and procedures as may be mutually agreed upon by the City and the Open
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Video System operator and that will, in the judgment of the City Council, best
serve the public interest and protect the public health, welfare, and safety.
SECTION 57. OTHER MULTICHANNEL VIDEO PROGRAMMING
DISTRIBUTORS.
(A) The term "Cable System" does not include a facility that
serves Subscribers without using any Public Rights-of-Way. Consequently, the
categories of Multichannel Video Programming Distributors identified below are
not deemed to be "Cable Systems" and are therefore exempt from the City's
Franchise requirements and from certain other local regulatory provisions
authorized by federal law, provided that their distribution or transmission facilities
do not involve the use of the City's Public Rights-of-Way.
(B) Multichannel multipoint distribution service ("MMDS"), also
known as "wireless cable", which typically involves the transmission by an FCC-
licensed operator of numerous broadcast stations from a central location using line-
of-sight technology.
(C) Local multipoint distribution service ("LMDS"), another form
of over-the-air, wireless video service for which licenses are auctioned by the FCC,
and that offers video programming, telephone, and data networking services.
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(D) Direct broadcast satellite ("DBS"), also referred to as "direct-to-
home satellite services", which involves the distribution or broadcasting of
programming or services by satellite directly to the Subscriber's premises without
the use of ground receiving or distribution equipment, except at the Subscriber's
premises or in the uplink process to the satellite. Local regulation of direct-to-
home satellite services is further proscribed by the following federal statutory
provIsIons:
(1) 47 U.S.C. section 303(v) confers upon the FCC exclusive
jurisdiction to regulate the provision of direct-to-home satellite services.
(2) Section 602 of the Communications Act states that a
provider of direct-to-home satellite service is exempt from the collection or
remittance, or both, of any tax or fee imposed by any local taxing jurisdiction on
direct-to-home satellite service. The terms "tax" and "fee" are defined by federal
statute to mean any local sales tax, local use tax, local intangible tax, local income
tax, business license tax, utility tax, privilege tax, gross receipts tax, excise tax,
franchise fees, local telecommunications tax, or any other tax, license, or fee that is
imposed for the privilege of doing business, regulating, or raising revenue for a
local taxing jurisdiction.
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SECTION 58. VIDEO PROVIDERS - REGISTRATION; CUSTOMER
SERVICE STANDARDS.
(A) Unless the- customer protection and customer servIce
obligations of a Video Provider are specified in a Franchise, with the City, a Video
Provider must comply with all applicable provisions of the following state statutes:
(1) The Cable Television and Video Customer Service and
Information Act (Government Code ~~ 53054, et seq.).
(2) The Video Customer Service Act (Government Code
~~ 53088, et gm.).
(B) All Video Providers that are operating In the City on the
effective date of this title, or that intend to operate in the City after the effective
date of this title, and are not required under applicable law to operate under a
Franchise, license, lease, or similar written agreement with the City, must register
with the City. The registration form must include or be accompanied by the
following:
(1) The Video Provider's name, address, and local telephone
numbers.
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(2) The names of the officers of the Video Provider.
(3) A copy of the Video Provider's written policies and
procedures relating to customer service standards and the handling of customer
complaints, as required by California Government Code ~~ 53054, et seq. These
customer service standards must include, without limitation, standards regarding
the following:
(a) Installation, disconnection, servIce and repaIr
obligations, employee identification, and servIce call response time and
scheduling.
(b) Customer telephone and office hours.
(c) Procedures for billing, charges, refunds, and
credits.
(d) Procedures for termination of service.
(e) Notice of the deletion of a programming service,
the changing of channel assignments, or an increase in rates.
(f) Complaint procedures and procedures for bill
dispute resolution.
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(g) The Video Provider's written acknowledgement of
its obligation under California Government Code section 53055.1 to provide to
new customers a notice describing the customer service standards specified above
I
in subparagraphs (a) through (t) at the time of installation or when service is
initiated. The notice must also include, in addition to all of the information
described above in subparagraphs (a) through (t), all of the following:
(i) A listing of the servIces offered by the
Video Provider that clearly describes all levels of service and the rates for each
level of service.
(ii) The telephone number or numbers through
which customers may subscribe to, change, or terminate service, request customer
service, or seek general or billing information.
(iii) A description of the rights and remedies that
the Video Provider may make available to its customers if the Video Provider does
not materially meet its customer service standards.
(h) The Video Provider's written commitment to
distribute annually to its employees and customers, and to the City, a notice
describing the customer service standards specified above in subparagraphs (a)
through (t). This annual notice must include the report of the Video Provider on its
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performance in meeting its customer service standards, as required by California
Government Code section 53055.2.
(4) Unless a Video Provider is exempt under federal law
from its payment, a registration fee in an amount established by resolution of the
City Council to cover the reasonable costs incurred by the City in reviewing and
. processing the registration form.
(5) In addition to the registration fee specified above in
subsection (4), the written commitment of the Video Provider to pay to the City,
when due, all costs and expenses reasonably incurred by the City in resolving any
disputes between the Video Provider and its Subscribers, which dispute resolution
is mandated by California Government Code section 53088.2(0).
(C) The customer servIce obligations imposed upon Video
Providers by the Video Customer Service Act California Government Code
~~53088 et seq.) consist of the following:
(1) Every Video Provider must render reasonably efficient
service, make repairs promptly, and interrupt service only as necessary.
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(2) All Video Provider personnel contacting Subscribers or
potential Subscribers outside the office of the provider must be clearly identified as
associated with the Video Provider.
(3) At the time of installation, and annually thereafter, all
Video Providers must provide to all customers a written notice of the programming
offered, the prices for that programming, the provider's installation and customer
service policies, and the name, address, and telephone number of the City's office
that is designated for receiving complaints.
(4) All Video Providers must have knowledgeable, qualified
company representatives available to respond to customer telephone inquiries
Monday through Friday, excluding holidays, during normal business hours.
(5) All Video Providers must provide to customers a toll-free
or local telephone number for installation, service, and complaint calls. These calls
must be answered promptly by the Video Providers.
(6) All Video Providers must render bills that are accurate
and understandable.
(7) All Video Providers must respond promptly to a
complete outage in a customer's service. The response must occur within 24 hours
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of the reporting of such outage to the provider, except in those situations beyond
the reasonable control of the Video Provider. A Video Provider will be deemed to
respond to a complete outage when a company representative arrives at the outage
location within 24 hours and begins to resolve the problem.
(8) All Video Providers must provide a minimum of 30 days'
written notice before increasing rates or deleting channels. All Video Providers
must make every reasonable effort to submit the notice to the City in advance of
the distribution to customers. The 30-day notice is waived if the increases in rates
or deletion of channels are outside the control of the Video Provider. In those
cases, the Video Provider must make reasonable efforts to provide customers with
as much notice as possible.
(9) Every Video Provider must allow every residential
customer who pays his or her bill directly to the Video Provider at least 15 days
from the date the bill for services is mailed to the customer, to pay the listed
charges unless otherwise agreed to pursuant to a residential rental agreement
establishing tenancy. Customer payments must be posted promptly. No Video
Provider may terminate residential service for nonpayment of a delinquent account
unless the Video Provider furnishes notice of the delinquency and impending
termination at least 15 days prior to the proposed termination. The notice must be
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mailed, postage prepaid, to the customer to whom the service is billed. Notice
must not be mailed until the 16th day after the date the bill for services was mailed
to the customer. The notice of delinquency and impending termination may be
part of a billing statement. No Video Provider may assess a late fee any earlier
than the 22nd day after the bill for service has been mailed.
(10) Every notice of termination of service pursuant to the
preceding subsection 9 must include all of the following information:
(a) The name and address of the customer whose
account is delinquent.
(b) The amount of the delinquency.
(c) The date by which payment is required in order to
avoid termination of service.
(d) The telephone number of a representative of the
Video Provider who can provide additional information and handle complaints or
initiate an investigation concerning the service and charges in question.
(11) Service may only be terminated on days in which the
customer can reach a representative of the Video Provider either in Person or by
telephone.
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(12) Any servIce terminated without good cause must be
restored without charge for the service restoration. Good cause includes, but is not
limited to, failure to pay, payment by check for which there are insufficient funds,
theft of service, abuse of equipment or system personnel, or other similar
Subscriber actions.
(13) All Video Providers must issue requested refund checks
promptly, but no later than 45 days following the resolution of any dispute, and
following the return of the equipment supplied by the Video Provider, if service is
terminated.
(14) All Video Providers must issue security or customer
deposit refund checks promptly, but no later than 45 days following the
termination of service, less any deductions permitted by law.
(15) Video providers must not disclose the name and address
of a Subscriber for commercial gain to be used in mailing lists or for other
commercial purposes not reasonably related to the conduct of the businesses of the
Video Providers or their Affiliates, unless the Video Providers have provided to the
Subscriber a notice, separate or included in any other customer notice, that clearly
and conspicuously describes the Subscriber's ability to prohibit the disclosure.
Video providers must provide an address and telephone number for a local
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Subscriber to use without toll charge to prevent disclosure of the Subscriber's name
and address.
(D) Penalties for Noncompliance
(1) Purpose
The purpose of this paragraph (D) is to authorize the imposition of
monetary penalties for the violation of the customer service standards established
by this Section 59. The imposition of penalties authorized by this paragraph (D)
will not prevent the City or any other affected party from exercising any other
remedy to the extent permitted by law, including but not limited to any judicial
remedy as provided below in subsection (2)(iv).
(2) Administration and Appeals.
(i) The City Manager or the City Manager's designee is authorized
to administer this paragraph (D). Decisions by the City Manager to assess
monetary penalties against the Grantee must be in writing and must contain
findings supporting the decisions. Decisions by the City Manager are final, unless
appealed by the Grantee or aggrieved party.
(ii) If the Grantee or any interested person is aggrieved by a
decision of the City Manager, the aggrieved party may, within 10 days of the
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written decision, appeal that decision in writing to the City Clerk. The appeal shall
be conducted in accordance with the provisions of Section 49(B)(2).
(iii) Schedule of Penalties. The following schedule of monetary
penalties may be assessed against the Grantee for the material violation of the
provisions of the customer service standards set forth in this section, provided that
the violation is within the reasonable control of the Grantee:
(a) The maximum penalty for a first material violation IS two
hundred dollars ($200) for each day of the material violation.
(b) For a second material violation of the same nature within a 12-
month period for which the City has provided notice and a penalty has been
assessed, the maximum penalty is five hundred fifty dollars ($500) for each day of
the material violation.
(c) Fora third or further material violation of the same nature
within a 12-month period for which the City has provided notice and a penalty has
been assessed, the maximum penalty is seven hundred fifty dollars ($750) for each
day of the material violation.
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(iv) Judicial Remedy. This paragraph does not preclude any
affected party from pursuing any judicial remedy available to that party without
regard to this paragraph (k).
(v) Notice of Violation. The City must give the Grantee written
notice of any alleged violation of the consumer service standards and allow the
Grantee at least 30 days from receipt of the notice to remedy the specified
violation.
(vi) Assessment of Monetary Penalties.
(a) If a violation has not been corrected or cured by Grantee within
the time specified. by the City, the monetary penalties specified above in
subparagraph (iii) may be assessed from the date of delivery to Grantee of the
City's written notice of violation.
(b) In assessing monetary penalties under this paragraph (k), the
City Manager or the City Council, as applicable, may take into account the nature,
circumstances, extent and gravity of the violation and, with respect to the Grantee,
the degree of culpability, any history of prior violations, and such other matters as
may be relevant. If warranted under the circumstances, the monetary penalty to be
assessed may be less than the maximum penalty amount specified above in
subparagraph (iii).
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(E) Additional Consumer Protection and Service Standards
(1) In addition to the consumer protection and service standards
that are specified above in paragraphs (a) through (h) of subparagraph (B)(3) of
this section, the franchise agreement with a Grantee may require compliance with
the following:
(a) Federal statutes, and the rules, regulations, and orders of the
Federal Communications Commission, including the following:
(i) The provisions of Section 76.309( c) of Title 47 of the Code of
Federal Regulations, as it now exists or may later be amended.
(ii) The provisions of Section 76.630 of Title 47 of the Code of
Federal Regulations, as it now exists or may later be amended.
(iii) The provisions of Section 551 of Title 47, United States Code,
as it now exists or may later be amended.
(iv) The provisions of California Government Code Sections 53054,
et seq., entitled the "Cable Television and Video Provider Customer Service and
Information Act."
(v) The provisions of California Government Code Section 53088,
et seq., entitled the "Video Customer Service Act."
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(vi) The provisions of California Civil Code Section 1722(b)(1 )-(6)
relating to service or repair transactions between cable television companies and
their subscribers.
(vii) The provisions of California Penal Code Section 637.5 relating
to subscribers' rights to privacy protection.
(2) The City may, in its discretion, incorporate In a franchise
agreement those customer service and protection standards referenced above in this
paragraph (I) that are the most stringent, and that afford the greatest protection to
consumers. These standards will apply, to the extent authorized by law, to all
video, voice, and data services that are provided by the Grantee to its subscribers
within the franchise service area.
SECTION 60. TELECOMMUNICATIONS SERVICE PROVIDED BY
TELEPHONE CORPORATIONS.
Any video programming that is provided by a Telephone Corporation
that uses public rights-of-way in the delivery of the Video. Programming,
regardless of the technology used, will be considered a Cable Service under this
Ordinance, unless such programming is otherwise preempted by state or federal
law.
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(A) In recognition of and In compliance with the statutory
authorizations and requirements set forth above in the Recitals of this
Ordinance, the following regulatory provisions are applicable to a telephone
corporation that desires to provide telecommunications service by means of
facilities that are proposed to be constructed within the City's Public Rights-
of-Way:
(I) The telephone corporation must apply for and obtain, as
may be applicable, an excavation permit, an encroachment permit, or a
building permit ("Ministerial Permit. ")
(2) In addition to the information required by this Code in
connection with an application for a Ministerial Permit, a telephone
corporation must submit to the City the following supplemental information:
(a) A copy of the certificate of public convenience and
necessity issued by the CPUC to the applicant, and a copy of the CPUC
decision that authorizes the applicant to provide the telecommunications
service for which the facilities are proposed to be constructed in the City's
Public Rights-of-Way.
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(b) If the applicant has obtained from the CPUC a
certificate of public convenience to operate as a "competitive local carrier,"
the following additional requirements are applicable:
(i) As required by Decision No. 95-12-057 of
the CPUC, the applicant must establish that it has filed with the City in a
timely manner a quarterly report that describes the type of construction and
the location of each construction project proposed to be undertaken in the
City during the calendar quarter in which the application is filed, which
information is sufficient to enable the City to coordinate multiple projects, as
may be necessary.
(ii) If the applicant's proposed construction
project will extend beyond the utility rights-of-way into undisturbed areas or
other rights-of-way, the applicant must establish that it has filed a petition
with the CPUC to amend its certificate of public convenience and necessity
and that the proposed construction project has been subjected to a full-scale
environmental analysis by the CPUC, as required by Decision No. 95-12-
057 of the CPUC.
(iii) The applicant must inform the City whether
its proposed construction project will be subject to any of the mitigation
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measures specified in the Negative Declaration ["Competitive Local Carriers
(CLCs) Projects for Local Exchange Communication Service throughout
California"] or to the Mitigation Monitoring Plan adopted in connection with
Decision No. 95-12-057 of the CPUC. The City's issuance of a Ministerial
Permit will be conditioned upon the applicant's compliance with all
applicable mitigation measures and monitoring requirements imposed by the
CPUC upon telephone corporations that are designated as "competitive local
carriers. "
(B) In recognition of the fact that numerous excavations in
the Public Rights-of-Way diminish the useful life of the surface pavement,
and for the purpose of mitigating the adverse impacts of numerous
excavations on the quality and longevity of public street maintenance within
the City, the following policies and procedures are adopted:
(1) The City Manager is directed to ensure that all public
utilities, including telephone corporations, comply with all local design,
construction, maintenance and safety standards that are contained within, or
are related to, a Ministerial Permit that authorizes the construction of
facilities within the Public Rights-of-Way.
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(2) The City Manager is directed to coordinate the
construction and installation of facilities by public utilities, including
telephone corporations, in order to minimize the number of excavations in
the Public Rights-of-Way. In this regard, based upon projected plans for
street construction or renovation projects, the City Manager is authorized to
establish on a quarterly basis one or more construction time periods or
"windows" fo~ the installation of facilities within the Public Rights-of-Way.
Telephone corporations and other public utilities that submit applications for
,
Ministerial Permits to construct facilities after a predetermined date may be
required to delay such construction until the next quarterly "window" that is
established by the City.
SECTION 61.
The City Council hereby declares that the provisions of this
Ordinance are severable and if for any reason a court of competent jurisdiction shall hold
any sentence, paragraph or section Of this Ordinance to be invalid, such decision shall not
affect the validity of the remaining parts of this Ordinance.
SECTION 62.
The City Clerk shall certify to the adoption of this Ordinance
and shall cause a copy of same to be published in the official newspaper of said City
within fifteen (15) days after its adoption. This Ordinance shall take effect on the thirty-
first (31 5t) day after its adoption.
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Passed, approved and adopted this 19th day of July
ATTEST:
~~, (-if<, -:>
C ty Clerk of the CitY of Arcadia
APPROVED AS TO FORM:
.
~P.~
City Attorney
May of the City of Arcadia
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,2005.
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF ARCADIA )
I, JAMES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies
that the foregoing Ordinance No. 2208 [uncodified] was passed and adopted by the
City Council of the City of Arcadia, signed by the Mayor and attested to by the City
Clerk at a regular meeting of said Council held on the 19th day of July, 2005 and that
said Ordinance was adopted by the following vote, to wit:
A YES: Councilmember Chandler, Kovacic, Marshall, Segal and Wuo
NOES: None
ABSENT: None
~. .
<' /./.--R
o ty Clerk o(the City of~
124